The unanimous three-judge panel reversed a trial court's judgment that Travis Ray Creed committed a misdemeanor and violated his probation by making "credible threats." The evidence was not sufficient to establish that Creed's speech constituted a "true threat" under state law and outside the protection of the First Amendment, Judge Allegra Collins wrote for the panel in a published opinion. Judges Christopher Freeman and Toby Hampson concurred.
When Creed — who was serving a three-year probation term — spoke to his friend on the phone, Creed made general statements instead of threatening a specific person, according to Wednesday's opinion.
Though Creed's friend testified that Creed mentioned a Surry County Sheriffs Office detective and the state district court judge who had sentenced Creed, the friend also said Creed didn't say he was going to kill them, according to the case background in the opinion. The friend testified that Creed was "stressed and scared" about going to jail.
Even if the evidence permitted the inference that Creed's comments were directed at the detective, they weren't sufficient to be found as "serious expression[s]" conveying that he meant to 'commit an act of unlawful violence,' as opposed to mere hyperbole," Judge Collins wrote, quoting the U.S. Supreme Court's 2003 ruling in Virginia v. Black
.The evidence was similarly insufficient to show that Creed's friend understood Creed's statements, in the context of the conversation, as a serious expression to hurt or kill the detective. Instead, the evidence shows the friend interpreted that Creed was angry toward the detective and stressed out over his one- to two-year jail sentence.
The state argued, in a revocation hearing and in briefs, that Creed's friend later communicated this threat to the detective because it was credible, but that's an inaccurate characterization of the evidence, Judge Collins wrote. In light of Creed's behavior surrounding the event, including a hospitalization for trying to end his life, it was "certainly advisable" for the friend to alert the detective of Creed's frustration.
"But defendant's speech was not criminal," the opinion states.
Judge Collins said the trial court didn't find that Creed violated the state's threat law by communicating a "true threat," but rather that he made "credible threats" that were "substantiated by a credible witness." That standard doesn't satisfy the First Amendment, she wrote.
Creed had argued in his appeal that the trial court unfairly revoked his probation because under a law governing threats, North Carolina General Statute 14-277.1, the state didn't show he "communicated a threat," a bar that is reached in part by showing sufficient evidence of a "true threat."
Under the First Amendment, the state can't punish an individual for speaking based on the contents of the speech, Creed said in court filings. The U.S. Supreme Court clarified in 2023 in Counterman v. Colorado
that anti-threat laws require states to show a "true threat," he said.For this reason, baked into elements of the state's threat law is the subjective component that it be a "true threat," according to the opinion.
"Here, the evidence presented at the revocation hearing failed to adequately demonstrate the subjective and objective components of a true threat, and therefore was insufficient to support either the first or third elements of section 14-277.1(a)," Judge Collins said.
Creed pled guilty in early 2024 to possession of a firearm by a felon and misdemeanor possession of marijuana. He was sentenced to one to two years imprisonment, suspended for 3 years of supervised probation, according to the opinion.
Creed's probation officer filed violation reports in March and July of that year, alleging he committed a criminal offense by making credible threats concerning his sentencing judge and a county sheriff's detective.
After a revocation hearing, a trial court found that Creed violated his probation, including the condition that he "commit no criminal offense in any jurisdiction." His probation was revoked and his sentence activated. Creed then appealed.
Neither Counsel for the state nor for Creed immediately responded Wednesday to requests for comment.
The state is represented by Hillary F. Patterson of the North Carolina Department of Justice.
Creed is represented by Katy Dickinson-Schultz and Glenn Gerding of the Office of the Appellate Defender.
The case is State v. Creed, case number 25-184 in the North Carolina Court of Appeals.
--Editing by Amy French.