Thursday, June 4, 2009

Court of Appeals Update, June 2, 2009

Reversals or Other Decisions of Note

State v. Black, (08-1009). Probation revocation vacated. Trial court lacked jurisdiction because hearing held after probation expired and State failed to follow the requirements of 15A-1334(f). Under 15A-1334(f), to revoke after expiration, the state must have filed a motion before expiration and make reasonable efforts to notify the Defendant of it's intent to revoke. Here, the State did not make reasonable efforts merely by issuing a warrant and transferring his case to a surveillance officer. This is enough if the Defendant is an absconder, but here the trial court made findings that he was not an absconder. Because the State didn't make reasonable efforts, there was no jurisdiction. Note. 15A-1344(g) was amended effective 12/1/08 doing away with the requirement of reasonable efforts, so this decision has little future value.

Other Cases

State v. Crocker, (08-1363). 1st, Evidence sufficient for sex offense, evidence of penetration was child's statement that she was touched "where she pees" and that she felt faint and Doctor's testimony that description of feeling faint and pain is more consistent with touching inner labia (i.e. penetration) than outer. 2nd, no reversible error where medical expert offered an opinion on truthfulness of the minor (generally forbidden) because it was offered in response to a defense question.

"Did you ever ask her _ I guess, did you ever ask her if she was telling you the truth?" Witness: "I did not specifically ask her. I felt like what she was telling me was the truth."

State v. Dalton, (08-873). No error where state failed to give 10 days notice of intent to submit grossly aggravating factors, in a DWI case, required under 20-179(a1)(1), because the provisions effective date is after the Defendant committed the DWI.

State v. McGee, (08-1285). The fact that the principle pleads guilty to a lesser offense, does not prevent another from being charged and convicted for accessory after the fact to the greater, originally charged offense.

State v. Via, (08-1147). Defendant appealed, interlocutory, a motion to suppress. Court granted writ, but affirmed denial. Part of Defendant's argument was that the state shouldn't have been allowed to appeal the District Court's grant of the motion to suppress to Superior Court (which reversed). The Court Appeals found no problem with that interlocutory appeal to Superior Court.

State v. Wallace, (08-1429). No error in instructing jury in disjunctive thories for AWDWISI, where substantial evidence was presented on both theories.

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