Wednesday, April 21, 2010

Court of Appeals Update (Apr. 20, 2010)


State v. Holcombe. Reversal of malicious secret assault (Gen. Stat. 14-31) as there was insufficient evidence of secret manner.

To show secret assault (Class E felony), must prove defendant:
  1. Committed an assault or battery
  2. With a deadly weapon
  3. In a secret manner (i.e. lying in wait): where a victim does not know of the defendant's presence or, knowing his presence, doesn't know an attack is coming (and thus has no opportunity to defend themselves)
  4. with intent to kill or malice
Here, the defendant's "surprised" the victims by surrounding their car in a parking lot. However, this is not a secret assault, as there was time from the surrounding and the assault where the victims were made aware that an attack was coming. No evidence that the victims had no opportunity to defend themselves.


State v. Wilson. Insufficient evidence, in possession of stolen goods case, to establish that the defendant knew or had reasonable grounds to believe that gun was stolen (but upholding robbery conviction).

No evidence that defendant knew the gun he possessed was stolen. Evidence of incriminating behavior (i.e. hiding the stolen object) can be evidence in support of conviction, but here the defendant's hiding of the gun after a robbery is explained as hiding it because it was used in a robbery, rather than hiding it because it was stolen. No other evidence than the "hiding" was presented, as such, insufficient evidence to establish that defendant knew the gun was stolen.

Other cases.

State v. Armstrong. In DWI-creash related killing defendant was convicted of 2nd degree murder and DWI. Held: 1) No double jeopardy problems, even though violation of the DWI law was an element in the 2nd degree murder because "double jeopardy does not prohibit multiple punishment for two offenses – even if one is included within the other under . . . – if both are tried at the same time and the legislature intended for both offenses to be separately punished," 2) trial court erroneously instructed on DWLR by stating that the state had proved knowledge, but such error was harmless because the trial court immediately corrected this error; and 3) trial court properly used DUI's from Alabama in sentencing as they were substantially similar to NC DWI, which is a class 1 misdemeanor.

State v. Curry. Indictment for firing into occupied property (Gen. Stat. 14-34.1(b)) said the defendant fired into a "residence" and said it was a class E felony. The statute uses the term "dwelling" and it is a Class E felony. The error as to felony class was harmless and residence and dwelling are synonyms.

State v. Espinoza-Valenzuela.
No error in child sex case of admitting evidence that:

1) defendant struck victim's mother in presence of victim, because it was relevant to explain why victim was afraid to report abuse (non-404(b) purpose) and explained delay in reporting. Further, because no objection at trial, doesn't rise to plain given the overwhelming evidence of guilt.

2) in allowing CPS worker to testify that victim's mother was sexually abused as a child, as it was relevant to explain why the mother was hesistant to contact authorities (non-404(b) purpose).

3) Cannot challenge expert testimony on claim that it improperly bolstered victim credibility, as no objection at trial.

4) sufficient evidence presented at trial to survive motion to dismiss where victim testified that defendant committed the charged acts, despite defendant's claim that the evidence "was simply unbelieveable."

5) defendant's two consecutive sentences within the presumptive range for a total of 240-297 months did not violate the 8th Amendment for multiple counts of child rape.

State v. Hagin. Defendant gave written consent to search his property, including a mobile home. Police informed the defendant he could withdraw his consent any time. While on site, in presence of the defendant, the police searched an outbuilding and found evidence of methamphetamine manufacture. Search legal as the outbuilding was within the scope of consent and defendant did not withdraw his consent when police approached, even though he was present and could have.

State v. Taylor.
No error in conviction of possession of firearm by felon and habitual felon. Indictments were not invalid based on wrong offense date of 12/8/1992 instead of 12/18/1992.

The state had sufficient evidence to show constructive possession of firearm. "The defendant has constructive possession of the firearm when the weapon is not in the defendant's physical custody, but the defendant is aware of its presence and has both the power and intent to control its disposition or use. exclusive possession of the location where the firearm is found, the State is required to show other incriminating circumstances in order to establish constructive possession." Here, defendant had spent rounds in his pocket, told an officer he had been outside shooting, but got rid of the weapon, there was ammunition in his house, and, then, on search of the area the officer found a firearm. This was sufficient evidence to show constructive possession.

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