State v. Barrow. Appeal of 2nd degree murder conviction.
Shaken baby case.
issue is whether judge appropriately submitted 2nd degree murder to
jury, as defendant argues no malice presented in the case. Here, judge
instructed on 1st degree felony murder (child abuse) and 2nd degree
murder. Defendant argues that a finding of no 1st degree would mean no
2nd degree, thus inappropriate to submit. However, to provide 1st degree
felony murder by child abuse, state has to show use of a deadly weapon.
Thus, jury could reasonably convict on 2nd and not 1st. Thus, no error.
court did not err in allowing a doctor to testify that the fatal
injuries occurred between 8:00am and 1:00p. Defendant challenges this as
unreliable under Howerton and Rule 702. Court did not rule on that issue, but simply found the error, if any, harmless.
state's argument of proof of malice was that, given the child's young
age, shaking him showed malice -- reckless disregard for human life.
Defendant argues that, for this reason, the state couldn't then use the
same evidence to prove the murder was aggravated by the aggravating
factor of a young victim. Court held: Thus, the State's theory regarding
malice is virtually identical to the rationale underlying submission
oft he aggravating factor that the victim was "very young and physically
infirm." There is, as a result, a reasonable possibility that the
jury relied on Jace's age both in finding malice and in finding the
aggravating factor, which would violate N.C. Gen. Stat. §
Judge Elmore Dissents, on the 1st degree / 2nd degree issue, and would remand for retrial only on 2nd degree murder.
State v. Cannon. Appeal of felony possession stolen goods and firearm by felon.
drunk, threatened some family members. They took his gun from him, held
him down, and police came. Turns out, the 4 wheeler he had come to the
get together in was stolen. Charged and convicted for this,
communicating threats, and possession of a firearm by convicted felon.
evidence of mens rea for the stolen goods. To prove possession of
stolen goods, the defendant has to know or have reasonable grounds to
believe the item is stolen and the state must prove it is worth more
than $1,000. State's evidence showed that a Honda sticker was put on the
Suzuki 4-wheeler, which shows intent to conceal it's identity. This
was insufficient to show knowledge, as the cosmetic changes were
minimal, defendant did not hide his ownership, and no reason to believe
the defendant was the one who made the changes. Trial court erred in
denying motion to dismiss. Vacated.
State v. Carter. Appeal of sex offense case.
1) Held adequate evidence of anal penetration.
No error in court refusing to allow social worker to testify that
victim was "that, during therapy sessions, victim was “overly dramatic,”
“manipulative,” and exhibited “attention seeking behavior.” Held that
she was not qualified to render such medical opinions.
Court's refusal to admit statement of victim to therapist that "“I know
[Defendant] wouldn’t do it. I know he’s coming home” as substantitve
evidence (under hearsay exception of statement for medical diagnosis)
was not error. No clear evidence that the child knew, when the
statements were made, that the play therapist was working as part of
4) No error in trial court, in instructions, referring to child as "victim."
5) No error in trial court refusal to order psychological evaluation of the victim.
Error by trial court in failing to instruct on lesser included of
attempted sex offense (in one of the counts). There was varying evidence
on whether or not penetration occurred, and was thus entitled to
instruction on attempt. New trial on that count.
Court erred by forcing defendant to enroll in lifetime SBM as 1st degree
sex offense is not an "aggravated offense" as defined by the statute.
State v. Demaio. Appeal of trafficking in opium and obtaining controlled substance by fraud.
pleaded guilty, then appealed, challenging the underlying basis in fact
and the voluntariness of the plea. A condition of the plea was that he
be allowed to appeal a prior motion. Unfortunately, that motion could
not be appealed. As such, defendant may take back his plea, as he didn't
get the benefit of his bargain.
State v. Jones. Appeal of drug case, finding NarTest (test to ID drugs) does not meet Howerton standard--at least in this case. Nice post on it from another blog here.
State v. Rivera. Appeal of RWDW. People were robbed with a stun gun (one lady was stunned).
At trial, an officer testifed that the "potential for serious
physical injury or death [from a stun gun] is minimal,” and the overall
potential for serious physical injury or death [from a stun gun] would
be consistent with being struck with a hand or foot.” Defendant moved to
dismiss, arguing they had not proved that a stun gun was a dangerous
A dangerous weapon is one that "could
have threatened or endangered the life of the victim ." If it is not a
firearm, this is a question of fact for a jury (as long as a jury could
reasonably so find).
"Corporal Takano’s testimony tended to establish that a stun gun
is not a dangerous weapon in and of itself when properly used under
controlled conditions. Corporal Takano did not testify that stun guns
can never be considered dangerous weapons. In fact, Corporal Takano
stated that stun guns are considered “less than lethal” weapons simply
because they fall somewhere between hands and feet and firearms on the
"Defendant also points to the fact that the Raleigh Police
Department tested Taser-brand X26 stun guns on many of its officers.
However, Raleigh police officers were tased by experienced professionals
in an environment designed to minimize the risk of injury.... Moreover,
our courts have consistently held that an object can be considered a
dangerous or deadly weapon based on the manner in which it was used even
if the instrument is not considered dangerous per se."
State v. Stokes.
Appeal of aiding and abetting 1st degree sex offense, felony child
abuse by sexual act, and first degree sex offense. Evidence included
child testimony and physician testimony confirming the physical evidence
First, sufficient evidence of felony child abuse
by sex act when one child (victim) only mentioned vaginal intercourse,
but other child said he saw the defendant use other objects. This
discrepancy was for the jury (to prove child abuse by sexual act, state
must prove a sex act other than vaginal intercourse).
defendant forced another child to commit sex acts against the victim.
He was charged with aiding and abetting such crime. Defendant argues
that, since he forced the other child, that child's defense of duress
protects him. "We find defendant’s argument to be both offensive and
Third, any error from victim's stepfather testifying about things
she told him wasn't prejudicial, given the overwhelming proof of guilt.
Last, court erred in sentencing defendant to lifetime
satelite-based monitoring, because he has not been classified as a
sexually violent predator, is not a recidivist, and the court found that
he did not require "the highest possible level of supervision."
Remanded for new sentencing on that issue.
State v. Sullivan. Appeal of three counts of robbery with a firearm and conspiracy.
Sufficient evidence of conspiracy, where co-defendant testified
that the group decided to commit a robbery and went out and committed
one. Sufficient instruction as the jury was instructed on acting in
concert and at least 2 co-defendant's names were included.
No error in refusing to submit lesser offense of common law
robbery. While no evidence was presented that defendant personally used a
gun, there was unequivocal evidence that the robbery involved a gun.
After sentencing, defendant filed an MAR for a new
sentencing hearing, based on new evidence that could have been presented
at sentencing--namely defendant's PTSD. Court held no error in court
summarily denying the MAR. The court sentenced the defendant in the
presumptive range. The court need not depart from the presumptive range,
even if mitigating factors are proven. No error.
Finally, court erred in ordering $640 in restitution, as that amount was not supported by evidence at trial.