Wednesday, April 4, 2012

NC Court of Appeals Criminal Decisions, April 3, 2012

All wins for the defense today.

State v. Harris. Mecklenburg County. Appeal of conviction for sex offender unlawfully on premise of "place intended primarily for the use, care or supervision of minors." Defendant was convicted and sentenced to 7+ years in prison.

Facts: Defendant found asleep in a vehicle parked in a school parking lot. The defendant's girlfriend worked at the school. Under the terms of his registration, he was required to have written permission from the principal before being on school grounds, which he did not have.

Defendant argues the court lacked subject matter jurisdiction due to a defective indictment. For an indictment to be effective, it must allege all the essential elements of the offense.

The indictment read: "THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 14th day of January, 2010, in Mecklenburg County, Charles Fitzgerald Harris did unlawfully, willfully and feloniously on the premises of Winget Park Elementary School, located at . . . Charlotte, North Carolina. A place intended primarily for the use, care, or supervision of minors and defendant is a registered sex offender."

First: That the indictment lacks a statement that defendant went onto the premises. This is not persuasive. The fact that the sentence is grammatically nonsensical does not mean it didn't provide adequate notice to the defendant. This is a clearly clerical error.

Second: That the indictment omits the term "knowingly." This is not problematic either.  The term willfully adequately indicated a mens rea requirement.

Third: That the indictment did not allege a prior sex offender conviction. This has merit and the lack of this made the indictment defective. This is a clear element of the charge and its omission deprived the court of jurisdiction.


State v. Justice.  Henderson County. Appeal of conviction for larceny from a merchant by removal of an anti-theft devise.

Defendant was caught shoplifting at a Belks, after removing the anti-theft tags off some clothing. She admitted to removing the sensors. She was stopped before she exited the store.

Defendant was charged with felony larceny from a merchant by removal of an anti-theft devise and habitual felony. She was sentenced to 15 years!!!

Defendant challenges the indictment as defective. N.C.G.S. 14-72.11 makes it a class H felony to commit larceny "By removing, destroying, or deactivating a component of an antishoplifting or inventory control device to prevent the activation of any antishoplifting or inventory control device." (Note: mere concealment is a class 3 misdemeanor and regular larceny a class 1 misdemeanor).

The essentially elements of larceny are the: (1) taking of a property of another; (2) carrying away; (3) without consent; (4) with the intent to permanently deprive. For this special kind of larceny, they must also allege (5) removal of an anti-shoplifting device. The property alleged to be stolen must be identified with sufficient certainty.

Here, the indictment states:

"The jurors for the State upon their oath present that on or about the date of offense shown and in Henderson County the defendant named above unlawfully, willfully and feloniously did remove a component of an anti-theft or inventory control device to prevent the activation of the anti-theft or inventory control device. This act was committed in an effort to steal merchandise from Belks [sic] of Hendersonville, NC."

This indictment only lists "merchandise." It does not identify the specific property stolen. Indictment defective, conviction vacated.

Further, the indictment only alleges that a larceny was only attempted, not completed ("This act was committed in an effort to steal merchandise"). 


State v. Rhodes. Rockingham County. State appeal of trial court award of new trial based on newly discovered evidence.

Defendant was convicted of  possession with intent to sell/deliver cocaine. He sought and was granted a new trial based on newly discovered evidence: his father confessed to a probation officer that the drugs were actually his, not his son.

No error in granting a new trial on this basis. To get a new trial based on new evidence must show that there is new evidence, that is probably true, that is material and competent, that due diligence did not discover the evidence at trial, that it is not merely cumulative and does not merely contradict a witnesses testimony, and, if admitted, a different result would have been likely.

No abuse of discretion in finding that this evidence meets this test.

1 comment:

Denise Leopard said...

Tonya Justice is my sister, they have re-indicted her and changed the wording, they have put items on the indictment that she is not aware of not even totaling $150.00. Belks got their merchandise back and sold it for regular retail, I am appealing to the public to help me keep her out of prison for 15 years, she dont even live in Hendersonville anymore she lives with me in SC and doing great managing a restaurant, I feel that this is just too much, The Da's office lets habitual drug dealers go with rehab and puts them back out to poison our children but wants my sister in jail the rest of her life for articles of clothing that was not even taken out of the store, I have prayed for years for my sister to get straightened out and now she has and the justice system wants to take her away.PLEASE WILL SOMEONE HELP ME AND HER.