Wednesday, October 8, 2008

NC Court of Appeals Update (Oct. 7, 2008)

Court of Appeals Criminal Decisions from 10/07/2008

State v. Atkins, (07-1134). Background. Defendant charged with second degree rape by engaging in sexual intercourse with one who is "physically helpless." State alleges he climbed in window of 83-year-old neighbor (who knew him) and took her by force while she screamed for help. Holding. Affirmed because, given victim's physical infirmities (severe arthritis and use of walker to get around) and age, she was physically helpless.

"N.C. Gen. Stat. § 14-27.1(3) defines “physically helpless” as “(i) a victim who is unconscious; or (ii) a victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act.” N.C. Gen. Stat. § 14-27.1(3) (2007) (emphasis added). The American Heritage Dictionary (2d ed. 1982) defines the word “resist,” in part, as meaning, “[t]o strive or work against; oppose actively.” Thus, a “physically helpless” victim, as used within N.C. Gen. Stat. . 14-27.3(a)(2), is a victim who is “physically unable to [[t]o strive or work against; oppose actively] an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act[.]”

State v. Villatoro, (07-1458). Background. Defendant moved to withdraw his guilty plea, four months later, alleging ineffective assistance of counsel and that his counsel had coerced him into taking the plea. The Court denied his request. Holding. No error as Defendant failed to assert a reason allowing withdrawal. Pleas can be withdrawn for "any fair and just reason."Factors include "[1] whether the defendant has asserted legal innocence, [2] the strength of the State's proffer of evidence, [3] the length of time between entry of the guilty plea and the desire to change it, [4] and whether the accused has had competent counsel at all relevant times. [5] Misunderstanding of the consequences of a guilty plea, [6] hasty entry, [7] confusion, and [8] coercion are also factors for consideration." First, the Court determined he did not assert innocence, because Defendant only stated that he "did not feel he was guilty." Second, the State's proffer of evidence was strong and included a confession. Third, the four month delay here was too long, given the lack of evidence that Defendant was low-functioning or did not understand the plea process. Further, Defense counsel statements to Defendant about aiding and abetting were not incompetent. Finally, there was no evidence of hasty entry or that the Defendant did not understand the terms of the plea.

Additional Cases: Short Notes

State v. Cook, (06-1355-2). 1) Defendant's failure to lay proper foundation and, sui sponte, admonishment of court outside of jury without explanation to jury was not error. 2) Officer's statement that, in his opinion, Defendant was drunk at the time of an accident was inappropriate due to lack of personal knowledge/foundation. Such statement, however, was only harmless error.

State v. Lawrence, (08-320). Striking down sentencing where trial judge applied the wrong grid and misclassified two offenses.

State v. Lee, (08-122). The Court denied Defendant's challenge to prior conviction points for an out-of-state charge. "If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points." Here, Defendant's stipulation to both the "classification and points" included a stipulation that the out-of-state conviction was substantially similar to a NC Class 1 misdemeanor.

State v. Murphy, (08-382). Finding no error where a prosecutor charged Defendant as a habitual felon only related to a minor gun charge and also sought conviction of Defendant on robbery charges at a higher sentencing level (because the three prior felonies cannot be counted in determining sentence levels if charged as habitual felon), even though this resulted in a higher sentence than if he was charged as a habitual felon for all counts.

State v. Narron, (08-129). Upholding as constitutional the crime of driving while intoxicated, finding that the statutory language, "[t]he results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration" did not create a presumption that places an impermissible burden on the Defendant. The Court concluded that "the challenged provision does not create an evidentiary or factual presumption, but simply states the standard for prima facie evidence of a defendant's alcohol concentration."

State v. Shaffer, (08-214). Upholding conviction despite inconsistent jury verdicts because "In North Carolina, it is well-established that "'a jury is not required to be consistent and that incongruity alone will not invalidate a verdict.'"

State v. Tanner, (08-251). The Court reduced Defendant's felony possession of stolen goods conviction to a misdemeanor conviction, where the basis for felony possession was that the goods were stolen during a breaking and entering and the jury found the defendant not guilty on the underlying breaking and entering charge.

State v. Walston, (08-15). In a cocaine possession case (where cocaine was seized from the ground during a police chase) the Court found no material prejudice where the trial court denied a continuance for Defendant to obtain the presence of a police officer who conducted the canine search that uncovered the cocaine. The Defendant's proffered reasons, that the officer could explain the route taken to discover the evidence, did not clearly state that the officer's testimony could be used to challenged whether Defendant possessed the dropped drugs.

The Case was remanded for resentencing, however, because the trial court incorrectly believed that GS 90-95h(6), "[s]entences imposed pursuant to this subsection [including trafficking] shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder sentence is imposed pursuant to this subsection shall run consecutively" mandated the court to impose a consecutive sentence. Rather, prior cases establish that consecutive sentences are not mandatory for multiple drug trafficking offenses that are disposed of in a single proceeding.

State v. Welch, (07-1557). Relying on past precedents that eviscerate the meaning of Rule 404(b), the Court allowed in evidence of Defendant's past sales of drugs to show "identity" and "common scheme" in his current charge of selling drugs. This case fits in a long line of NC cases that eviscerate the rule against allowing litigants to admit evidence of prior bad acts to show action in conformity therewith. Originally (and in most jurisdictions) the identity and common scheme distinctions were allowed where, by some inference other than propensity, a prior bad act could show identity. For example, if a Defendant stole a gun and later someone was shot with it, you could show evidence of him stealing a gun because he makes it more likely that he was the shooter (or, if Defendant stole a car to use as a getaway car in a robbery, you could use the evidence of the car theft in the robbery). Here, the Court says that, because the Defendant sold drugs before, it makes it more likely that he is the identity of the drug seller in this case. That is pure propensity and exactly what Rule 404(b) intends to prevent. Nonetheless, NC Courts have opened the door through these gaping exceptions to allow nearly any prior bad act into the Court room. The danger, of course, is that a jury will convict because the Defendant is a criminal and bad actor, not because he committed the actual conduct charged.

State v. Bowman, (07-1518) . Upholding an automobile search, relying on the "collective knowledge" of the police that probable cause existed, even though no evidence was presented that the searching officer had no particularized basis for believing probable cause existed or had been directed by another officer whose possessed such knowledge to conduct the search.

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