Tuesday, August 9, 2011

Court of Appeals Criminal Decisions, August 2nd


State v. Boyd. Orange County. Appeal of conviction for burglary, kidnapping, sexual battery, and habitual felony.

Victim called police and said the defendant broke in to her house and sexually assaulted her and made her write her phone number on a scrap of paper before leaving. The victim knew the defendant from around the neighborhood. Police went to his house and saw clothes in a pile matching his clothes description. The officer mentioned that a woman had been sexually assaulted and the defendant said, "Yeah, I know." The officers told everyone to exit the apartment and cordoned it off while getting a search warrant. The Defendant said he wanted to pull a lighter out of his jacket pocket. Instead of a lighter, he pulled out the victim's phone number. Defendant then told police the encounter was consensual.

First, court erred in instructing jury on a theory of 2nd degree kidnapping not supported by evidence at trial and not charged in the indictment.

The court instructed on 2nd degree kidnapping by "confining or restraining or removing a person from one place to another." Court cannot submit alternative theories if one is not supported by the evidence. No evidence was presented of moving the victim to another place. As such, it was error to so instruct. While one can be removed by being taken from one part of the house to another, this victim was not "removed" by being made to move from standing in the room to sitting on the defendant's lap. This violates the right to a unanimous verdict (as there was evidence of restraint). New trial on the kidnapping charge.

Second, no error in instructing, on sexual battery, that defendant is guilty if he "touched “the sexual organ, breasts, groin [or] buttock[s], of any person” or if he touched another person with his own “sexual organ, breasts, groin, or buttocks.” This was supported by evidence, as the victim testified that the defendant attempted to touch her "everywhere."

Third, no error in the variance on the charge on burglary from the pattern, where the court gave the beginnings of the lesser included charge.

Fourth, no error in the court's failure to intervene, ex moro motu, to the following in the state's closing"

So let's go back to first degree burglary. The first element was breaking and an entry by the defendant. We know he was there because he was in the apartment. Was there a break-in? Yes, he got into that front door. She left it open. She made a mistake that night.
. . . .
She said on her——in her testimony——maybe I forgot to leave the front door open [sic].

Arguing that these were not supported by evidence. This error was not of such a magnitude as to have deprived him of a fair trial.

State v. Mann. Onslow County. Appeal of order requiring defendant to enroll in satellite-based monitoring (SBM).

Defendant pleaded guilty to indecent liberties and child abuse by a sexual act. Overview of SBM rules here.

For "aggravated" SBM cases--cases that, under the elements of the offense, involve forced penetration of a victim or a victim under 12--enrollment is mandatory (such as aggravated offenses). The Court found that this was an aggravated offense.

Because neither indecent liberties, nor child abuse by a sexual act is an aggravated offense, this was error.

Also noted that court used wrong procedure by viewing the DOC risk assessment before ruling on the aggravated offense issue.

Other Cases.

State v. Best. New Hanover County. Appeal of firearm by a felon and habitual felon conviction and sentence of 107 to 138M.

Defendant stopped when the light about his license plate was not working. In the vehicle, the officers saw (through the window) 3-5 open cans of beer and a plastic bag with white powder in it. Everyone was put in handcuffs. As the officer was picking up the cans, he saw the butt of a gun between the driver's seat and the passenger's seat. Defendant admitted the gun was his.

First, sufficient evidence was presented to maintain conviction. Constructive possession allowed if can prove "access" and "other incriminating circumstances." Here, the gun was in close proximity to the defendant and he told the officer it was his.

Second, no IAC for lawyer first raising his motion to suppress at the close of the state's case. The motion was denied on grounds that it wasn't properly raised pre-trial. Held: No prejudice by his attorney's actions, as there was reasonable suspicion for the stop.

Third, no error in using a prior conviction for both an element (conviction of firearm by felon) and the habitual felon (3 prior felonies). This is not the kind of "double counting" condemned in other Gentry (which held that the DWI conviction used to establish habitual DWI cannot be used in the prior record level).

State v. Davis. Iredell County. Appeal of 24 counts of indecent liberties, 6 counts of statutory sex offense, and six counts of 2d degree sex offense.

Victims described a serious of sex assaults, occuring over the course of years, describing them as occurring every Friday. Defendant challenges the sufficiency of evidence for multiple conviction, arguing that each incident was not separately proven by detailed testimony. To prove sex assault, the victim does not have to give specific days/description for each charged incident. "In his testimony, Marvin clearly described discrete instances of different types of sexual acts perpetrated upon him by defendant over a long period of time. Taking this evidence, in the light most favorable to the State, it was sufficient to withstand defendant’s motion to dismiss the charges against him."

State v. Jarvis. Appeal of order to enroll in satellite-based monitoring (SBM) for 10 years.

Defendant pleaded guilty to four counts of indecent liberties with a minor. The trial court determined that this was a reportable conviction ("a sexually violent offense") and an "aggravated offense," and that the DOC had found that he required the highest level of supervision and placed him on 10 years of SBM.

1st) As the court has held over and over again, indecent liberties is not an "aggravated offense" for SBM purposes. This is a clerical error and is remanded for correction.

2nd) No jurisdictional error or due process error for the court entering an SBM order without first providing notice of the grounds by which he might be subjected to SBM. Notice required in the statute only applies to persons not incarcerated, 14-208.40A. Incarcerated persons are not entitled to that type of notice.

3rd) Indecent liberties is a "reportable offense" as it inherently involves the physical, mental or sexual abuse of a minor.

4th) Court erred in holding that the defendant required the highest possible level of supervision. The DOC risk assessment classified him as a low risk and he had no prior record. Some of the findings were without factual basis. Remanded for determination on this, only to consider competent evidence of whether the defendant lacked remorse and it this provides a basis for the conclusion that he requires the highest possible level of supervision.

5th) SBM is not a double jeopardy violation or 8th amendment violation.

State v. King. Moore County. Appeal by state of trial court grant of defendant's "motion to suppress evidence of repressed memory, recovered memory, traumatic amnesia, dissociative amnesia, psychogenic amnesia, and other synonymous terminology."

In a child sex case, the state sought to enter evidence by an expert that the reason the victim failed to report the alleged crime for 9 years was due to dissociative amnesia/memory repression. Trial court found that (1) expert testimony was questionable, but might be sufficiently reliable under Rule 702 (and Howerton) (for more on this, see my recent post on amendments to rule 702), but (2) under Rule 403, the prejudicial value substantially outweighed the probative value.

Held that, under Rule 403, it was not an abuse of discretion. Did not take up the 702 issues.

Judge Hunter dissented.

State v. Lupek. Chatham County. Appeal of conviction for manufacturing marijuana and maintaining a dwelling. Challenge to the search.

An officer, on defendant's front porch, saw a bong through the window. He subsequently entered and seized this and other plain view evidence that became the basis of the charge.

Defendant argues that the officer had no legal right to be on the front porch and in position to see the plain-view contraband. The officer was called to the scene after learning that some dogs were loose and a neighbor shot one. While investigating, he met a neighbor, Sweatt, who smelled like marijuana and was nervous. He asked her for ID, she went in to retrieve it, he followed behind and this was when he saw the bong (and "the odor of fresh marijuana.") At that point, Ms. Sweatt consented to a search.

Defendant argues that the porch is within the curtilage of the home and the deputy could not be there without a warrant.

"The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself...Because an individual ordinarily possesses the highest expectation of privacy within the curtilage of his home, that area typically is afforded the most stringent Fourth Amendment protection."

However, entrance by the police onto private property for the purpose of inquiry/interview is proper. They are entitled to go to the front door and knock. This was what was happening here. No invasion upon the right of privacy occurred.

State v. Mack. Caswell County. Appeal of PWISD Cocaine.

Appeal of refusal to disclose confidential informant. The state must disclose the identity of confidential informants where (1) the informant actually takes part in the drug transaction for which the defendant is charged and is not a mere tipster or (2) there is a conflict of material facts that the informant could clarify.

Here, the CI introduced the defendant to the undercover officer and vouched for him. Then the officer made a purchase. Defendant argues that his identity is relevant because: (1) he could testify that it was not defendant but someone else who actually made the deal and (2) he was involved in the transaction.

(1) The officer identified the defendant in a picture after the sale and in person at trial. No evidence was presented that the defendant was not the seller, thus no conflict.

(2) Where, as here, the CI introduces the two, is present at the actual sale, but does not provide money or accept drugs, he is not involved in the transaction. "Simply being present for the transaction, even after introducing the parties, did not make the CI a participant."

State v. McMillan. Cumberland County. Appeal of 1st degree felony murder conviction of Rosario, 2nd degree murder of Robinson, and robbery with a dangerous weapon (RWDW) of Rosario (but not Robinson).

Defendant charged with shooting and killing two people, Robinson and Rosario. Basically, what happened was that, during a "drug deal" defendant stole a gun out of the one of the victims safe and shot and killed the two victims. He told a friend after that he "had some words" with the people, was high, and made a mistake.

(1) Negating Malice with "Has Some Words": held that the evidence from a friend that he "had some words" with the victim did not make a finding of malice for second degree murder insufficient. Further, no error on judge's failure to instruct on heat of passion voluntary manslaughter on this statement.

(2) Sufficient evidence of RWDW. Defendant argues that he cannot be convicted with RWDW, since the "deadly weapon" is the same thing as the object he stole (i.e. obviously he couldn't have stolen the gun by robbing with a dangerous weapon, as he didn't have a dangerous weapon until he stole the gun). HELD: "There is “no reason why the use of a weapon stolen from the victim cannot also be a part of the continuing transaction of the armed robbery... Under applicable North Carolina cases, the temporal sequence of events is not significant."

(3) Defendant argues error in allowing forensic pathologist to testify about an autopsy performed by another pathologist. Constutional error cannot be raised for the first time on appeal. Waived. But, arguendo, no error as the 2nd pathologist made his own independent opinion and was present during the autopsy.

(4) No error in admitting evidence from swabbings of the defendant, photographs of injuries, and his belt and shoes, as all were freely given to the police. Defendant voluntarily went to the sheriff's office, was told he was not under arrest. Defendant said he didn't want to talk without a lawyer, but gave consent for the swabs, photos, and evidence. His consent was not invalidated, even though officers told him if he didn't consent, they would detain him until they could prepare and execute a search warrant.

State v. Parker. Forsyth County. Appeal of RWDW.

Appeal dismissed due to no jurisdiction. To give proper notice of appeal, you must either file written notice of appeal within 14 days or give notice orally at the close of trial. No evidence or oral or written appeal being properly given.

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