Thursday, April 21, 2011

NC Court of Appeals Criminal Decision, 4/20/2011

Reversals.
State v. Beckelheimer. Appeal of sex offense case.

Court erred in allowing 404(b) testimony in sex offense case of prior sexual conduct between defendant (at age 15) and another boy (age 11). "Sexual exploration with a
child in the same general age range is quite a different thing than a sexual act perpetrated by force by a 27 year old man upon an 11 year old child."

New Trial.

Other Cases.

State v. Clark. Appeal of statutory rape conviction.

First, defendant's confession was not taken in violation of the constitution, as he was not in custody when interviewed. He approached police, indicated a desire to talk, and road to the police station in an unmarked car-after being given the option to drive separate, and then confessed.

Second, no error in ordering satellite based monitoring because 1st degree statutory rape, by definition is an aggravated offense. SBM can only be ordered for aggravated offense--those involving children under 12 or force in the definition of the elements. Although 1st degree statutory rape involves children under 13 (thus doesn't meet the minor portion of the aggravated offense), the court found that, by definition, intercourse necessary for rape requires force (even though the count specifically prevents consent/lack of force from being a defense).

State v. McLean. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), one count of just AWDW, and one count discharging firearm into an occupied motor vehicle.

1) Sufficient evidence of AWDWIKISI. Defendant challenges that there was no serious injury. Factors in determining ISI are: "(1) pain and suffering; (2) loss of blood; (3) hospitalization; and (4) time lost from work." Competent evidence of any one of these factors are sufficient for jury determination. Here, the victim was shot. Even though there was no significant loss of blood (there was bleeding), no hospitalization, and the witness testified adamantly that there was no pain caused, this is still sufficient evidence for a jury to determine ISI.

2) Trial court did not err in its instructions on discharging a firearm into a motor vehicle. The judge strayed from the pattern in the intent section and said, "willfully and wantonly" rather than "intentionally." Under case law, "wanton" means "intentional." Not error.

State v. Nolan. Appeal of possession of marijuana with intent to sale, possession of drug paraphernalia, carrying a concealed weapon, and maintaining a dwelling.

Defendant appeals a suppression issue. He was stopped during a checkpoint. Checkpoint was valid, as it had a tailored purpose (DWI). Defendant's claims that his search (not his stop) are not perfected, as they were subject to a second suppression motion that was never ruled on by the trial court.

State v. Pell. Appeal of 16 counts of "felony secret peeping." Defendant challenges the order requiring him to register as a sex offender.

Secret peeping is peeping into a room occupied by another person. 14-202(a). This is a felony if you take photos, while secret peeping, for purposes of gratifying sexual desire. 14-202(d). Under 14-202(L), a felony violator can be required to register as a sex offender if "the sentencing court rules that the person is a danger to the community."

1. N.C.G.S. 14-202(L) is not unconstitutionally vague. "a statute is unconstitutionally vague if it either: (a) fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited; or (b) fails to provide explicit standards for those who apply [the law]."

The term "danger to the community" is undefined in the statute. Must define with the purposes of the sex offender program-- to protect communities from persons convicted of sex offenses against minors. This is not unduly vague.

2. Here, it was error to order the defendant to register. At sentencing, the state's expert stated there was a "low to moderate risk of re-offending" and other testimony showing the defendant's alcohol abuse, mental problems and "paraphilia" were in remission. As such, there was inadequate basis to order the registration.

State v. Womack. Appeal of possession of MDMA case and habitual felon sentencing (107 months).

Defendant challenges on ground that his counsel was ineffective. While counsel was ineffective by conceding guilt to three prior felonies (for habitual felon)), this was not a Harbison violation. Admission to "status offense" does not require a Harbison inquiry. Further, Harbison inquiries don't apply to sentencing proceedings. Finally, the state evidence of habitual felon status was overwhelming, and counsels errors were unlikely to have affected the result.

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