Friday, November 4, 2011

NC COA Opinions, 11/1/2011


State v. Barrow. Appeal of 2nd degree murder conviction.

Shaken baby case.

First 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.

Second, 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.

Third, 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. § 15A-1340.16(d)."

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.

Defendant, 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.

Insufficient 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.

2) 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.

3) 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 medical treatment.

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.

6) 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.

7) 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.

Defendant 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.

Other Cases.

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 weapon.

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 “force continuum.”

"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 of sex.

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).

Second, 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 absurd."

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.

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