Wednesday, February 17, 2010

Court of Appeals Update (Feb. 16, 2010)

Reversals and other interesting cases.

State v. Battle. Female passenger, on drug tip, was stripped searched by officers on the side of the rode, finding a crack pipe in her underwear. Held: Probable cause alone is not enough to strip search someone on the side of the road. The state must also show exigent circumstances preventing moving to a more private location. Strip search here violated the 4th Amendment. There was not majority agreement on why this violated the 4th, as there were 2 concurring opinions.

State v. Richardson. Reversal.

Insufficient evidence of Resisting a Public Officer where defendant snuck out the back of the house after law enforcement knocked and announced because defendant was not the subject of the search warrant and officers had not asked him not to leave.

Insufficient evidence of constructive possession of cocaine/pdp where cocaine was found inside a house that defendant did not own or reside in. He was merely present at the time of search. In such situations, there must be other incriminating evidence, rather than mere presence to tie the item constructively to the person. The fact that he was "near a baggy," lived in the neighborhood, and had been there before were not enough to constitute "other incriminating circumstances" for purposes of constructive possession.

Other Cases.

State v. Brown. Defendant's conviction for AWDW (A1 Misdemeanor) was enhanced to Class H felony under Gen. Stat. 14-3(c) (hate crime). Defendant assaulted a white person for being in a relationship with a black person. This sentencing enhancement was ruled appropriate under the facts.

State v. Davis. Ruling possible Melendez-Diaz error in submitting drug lab report harmless in face of overwhelming evidence.

State v. Fraley. Sufficient evidence to support conviction for soliciting person believed to be a child for sex purposes by means of a computer (Gen. Stat. 14-202.3).

Elements:
  1. Defendant is 16 or older
  2. Knowingly, with the intent to commit an unlawful sex act
  3. Entices, advises, coerces, orders, or commands, by means of a computer
  4. A child less than 16 and at least 3 years younger than defendant, or believed to be that young
  5. To meet with Defendant for purposes of engaging in an unlawful sex act.
  6. Consent is not a defense.
Facts here, found sufficient, Defendant is 32, officer on-line pretended to be a 14 year old, defendant asked the "14-year-old" if she wanted to "hook up" and if she was "into anything sexual" and if she wanted to "have good sex." Then asked, "if we were to meet, how would we do it?"

Later, defendant stated some reluctance to meet up, given her age, and suggested they meet up and go see a movie or something and just see what happens. Later, defendant called the detective and asked to meet up.

Unsurprisingly, the court found this sufficient evidence.

Also, found that "Entices, advises, coerces, orders, or commands" should be given their dictionary definitions, are not unduly vague, and should be construed broadly.

State v. Jackson. No error in statutory rape case in (1) prosecutor's closing in referring to the victim as "victim" or (2) cross of defendant prosecutor making the point that defendant didn't cooperate and contact police early and provide information about his trial theory--that he was drugged and unconscious when the sex acts occurred (not improper comment on silence). Why not? Because “the State may use the defendant’s pre-arrest silence for impeachment purposes at trial.”

State v. Mauer. Sufficient evidence found for misdemeanor cruelty to animals conviction where defendant had 15+ cats in her home and no sanitation (i.e. urine and feces everywhere, flies in the food, general grossness abounding). Overruled $259 restitution order, due to lack of evidence presented.

State v. Sullivan. Defendant properly convicted of possessing a deadly weapon in a courthouse (N.C. Gen. Stat. 14-269.4). This is a strict liability crime--intent is not an element. No violation of right to bear arms.

State v. White. No error in allowing state to amend habitual impaired driving indictment to allege that prior convictions occurred within last 10 years (where originally it said 7 years, using language from an older statute).


State v. Paige. Defendant, for the first time at trial, made a motion to suppress evidence which was denied. A defendant may only object at trial if the state fails to provide 20 day written notice of its intent to use items seized. Here, state gave more than 20 days notice, and defendant failed to file motion. As such, motion at trial was untimely.

Rejected IAC claim on ground that defendant consented to the search.

State v. West. Defendant properly convicted of performing a notarial act without a commission where evidence showed a single notary act by defendant who had knowledge he was not a commissioned notary.

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