State v. Gray. Appeal of 1st degree sex offense and indecent liberties case. Defendant sentenced to 25 years.
Court erred under 404(b) in admitting evidence that, in 1990, defendant admitted to committing "lewd or sexual acts" with a 4 year old boy. Court said that, under 404(b), you use both remoteness in time and similarity as factors in making a determination of the admissibility of prior bad acts (if closer in time, they can be less similar, if older, the "commonalities become less striking").
Remoteness: Court found that, absent clear evidence of tolling due to defendant's incarceration, must count from date of offense (rather than date of release). As such, this prior crime is 20 years old.
Similarities: Prior was rape of a 4 year old boy when he was at a babysitter's house that the defendant knew. Current case was the inappropriate touching of a 5 year old girl while she was visiting the defendant's home. Both involved young children at a caretakers house, but were different sex of victims and involved different kinds of assaults.
Here, because of the remoteness of time and the dissimilarities, the court found that the evidence should have been excluded under 404(b). Such error was prejudicial.
State v. Neal. Appeal of trafficking conviction, on issue of denial of motion to suppress. Trial court failed to make appropriate findings on whether or not any promises were made to induce the defendant's consent to the search. Remanded for the limited purpose of making those necessary findings.
State v. Oliver. Appeal of conviction for sex offense, indecent liberties, and crimes against nature. Defendant sentenced to 19 years.
Admission of prior bad acts of child sex assaults was not plain error. The prior assaults were substantially similar, as he had a strong personal relationships with the victims parents, used threats of parental disbelief to coerce submission, and started with inappropriate touches during roughhousing and escalated to more serious assaults. Further, the prior assaults were not remote in time, being only 2 years before the charged conduct.
No error in the trial court failing to instruct that the 404(b) evidence could not be used to as character evidence/action in conformity therewith. Instruction (from the pattern) that the 404(b) evidence was only relevant to identity/common scheme was sufficient.
No error in failing to grant mistrial where, right before deliberations, someone approached one of the jurors and said, "Just quit and I'll let you go home." The court voir dired on this, and no evidence that it affected their verdict.
Finally, trial court erred in enrolling defendant in lifetime satellite based monitoring. Sex offense and indecent liberties are not aggravated offenses. Aggravated offenses are those that, from the elements of the crime, not the underlying facts, involve a sex act with a child under 12. Neither of these require that the child be under 12.
State v. Sneed. Appeal of conviction for robbery, possession of stolen handgun, and eluding arrest.
No plain error in admitting proof that gun was stolen:
- NCIC database info about a gun was reported stolen in Miami. NCIC database is a database of guns, by serial number, and their status. When a gun is stolen, the owner reports it to the police, who then enters the serial numbers into the database. This data is hearsay. However, it may be admitted to prove a gun is stolen under the 803(6) business records exception. The court found that the Detective was qualified as a custodian and could testify as such to prove the records authenticity.
- Hearsay of call from Detective to Detective in Florida-- not addressed, but found not prejudicial error if it was error at all.
- Florida police report-- not addressed, but found not prejudicial error if it was error at all.
First, defendant argues that his constitutional rights and section 15-176 was violated when he was forced to wear prison clothing during jury selection and the first day of trial. This issue was not properly preserved for appeal.
Second, defendant challenges 404(b) evidence. A witness testified that prior to the current pharmacy break-in (to steal opiates), defendant broke into another pharmacy, but failed to find any opiates. Court found the incidents sufficiently similar and close in time and relevant. Not plain error.
Third, sufficient evidence of possession of controlled substance "hydrocodone," even though state conducted know chemical analyses of the pills, since it was readily identifiable by other means.
State v. Wright. Conspiracy and accomplice conviction in home invasion robbery.
Defendant requested an instruction on withdrawal from the conspiracy. Generally, co-conspirators can be convicted for any crimes of the other if those crimes are committed in furtherance of the conspiracy. If a party withdraws from the conspiracy, however, they are not liable for future crimes committed by co-conspirators.
Defendant requested a withdrawal instruction to the jury. The trial court denied. The COA affirmed this, on the grounds that there was not evidence to support a theory of withdrawal. To withdraw from a conspiracy, one must announce it and make plain to the others that he is no longer participating. Here, defendant just snuck away after kicking open the door to the house. This is not enough to support an instruction on withdrawal.