Saturday, December 8, 2012

NC Court of Appeals Criminal Decisions, December 4, 2012

State v. Boyett. New Hanover County. Appeal of multiple counts of rape, sex offense, and incest.

Defendant, the victim's grandfather, had had sex with her many times since her 18th birthday. The victim was overheard discussing this on a call with defendant and told her parents her grandfather had forced her to engage in numerous sex acts.

First, the trial court erred in failing to instruct on attempted second degree rape and attempted incest (on some counts), because the victim said, "Defendant “tr[ied] to get his penis to go inside my vagina.” When asked how far Defendant was able to get his penis inside her vagina, the victim replied, “Not very far. If he could even get it in at all.” The state had the burden to prove penetration. Plain error not to instruct on this.

Second, no error in using the word "victim" in the jury instructions.

Third, trial court erred in determining that second-degree sex offense was an "aggravated offense" for lifetime satellite based monitoring purposes.

Remanded for retrial on rape and incest; upheld convictions on sex offense.

State v. Burton. Durham County. Appeal of arson conviction.

Defendant burned down his rental when threatened with eviction.

First, sufficient evidence of arson where the fire was started in his room when a roommate was in the shower, and he was seen in the area shortly afterwards.

Second, no error in court failing to grant a second continuance for defendant to locate his alibi witnesses. This was a reasonable time and opportunity to prepare his defense.

Third, counsel was not ineffective in not moving for a mistrial after sustained objections to evidence (that got before the jury) that defendant had threatened to burn the house down.

State v. Corkum. Guilford County. Appeal of order vacating a prior award of 8 days jail credit.

Defendant pleaded to second degree statutory rape and given supervised probation. He was later violated and revoked. He was awarded confinement credit for 208 days. Defendant was then released with 9 months remaining on his sentence, under 15A-1368.2 (the new post-release supervision statute).

He was then violated on post-release supervision and sent to serve the remainder of his sentence. The court denied to give him 8 days credit for the time he was in jail awaiting hearing on a prior violation (that resulted in a modification).

The law on calculating jail credit is 15-196.1: "The minimum and maximum term of a sentence shall be credited with and diminished by the total amount of time a defendant has spent, committed to or in
confinement in any State or local correctional, mental or other institution as a result of the charge that culminated in the sentence. The credit provided shall be calculated from the date custody under the charge commenced and shall include credit for all time spent in custody pending trial, trial de novo, appeal, retrial, or pending parole, probation, or post-release supervision revocation hearing: Provided,
however, the credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject."

The court was required by law to give him credit for the 8 days spent pending revocation of post-release supervision.

State v. Golden. Randolph County. Appeal of conviction for perpetrating a hoax on law enforcement by use of a false bomb.

Defendant arrested on a domestic and police find a cylindrical device they think might be a bomb.  Police questioned defendant about this and he told them it was a gag. Nonetheless, the bomb squad came out and eventually figured out it wasn't a bomb.

First, no error in allowing 404(b) evidence that defendant had been hostile/violent to the victim in the past. This was relevant to the common scheme the defendant had to intimidate the victim.

Second, there was sufficient evidence of "intent to perpetrate a hoax." Defendant had an ongoing objective scaring the victim and the jury could reasonable believe that's why he brought the gag bomb and didn't tell about it when the officers were searching his car.

Third, the trial court improperly instructed the jury on flight. Defendant made no attempt at flight after telling police there was nothing to be concerned about in the car, despite his knowledge of the fake bomb. However, such error was harmless.

State v. Grier.  Mecklenburg County. Appeal of larceny of chose in action, forgery, uttering case.

First, no error in the judge failing to instruct the jury that defendant couldn't be convicted of mutually exclusive crimes. Defendant contends that a single instrument cannot be both a forgery and a valid "chose in action."

Defendant argues that forgery requires proof of a counterfeit instrument, while larceny of a chose must show a valid instrument. However, court finds that a Larceny of chose in action only requires a check to be stolen, it does not have to be valid.

Second, there was insufficient evidence of larceny of a chose in action. Defendant was charged with stealing a blank check. This is not sufficient evidence. A blank check is not a chose in action.

State v. Hoff.  Person County. Appeal of first burglary.

Man heard someone breaking in and shot at him. Then he caught a man in his home, through a broken window. This man then fled the scene, saying the homeowner had shot his brother before he left.

First, sufficient evidence that defendant was the perpetrator where defendant's fingerprint was found inside the home and the victim identified the defendant in-court (albeit "uncertainly")

Second, counsel was not ineffective in failing to challenge the reliability of fingerprint evidence.

State v. James. Rowan County. Appeal of AWDW on a government official.

Defendant hit the deputy with a chair, during a drunk and disorderly call.

First, no  error in allowing the deputy to opine on the weight of the chair. He had a factual basis to make such statement.

Second, there was sufficient evidence, where the officer testified the defendant threw the 10 pound chair at him "like a baseball." This was a deadly weapon.

State v. Mitchell. Alamance County. Appeal of possession of marijuana, firearm by felon, and habitual felony.

Defendant was on 85 when he was stopped by a K-9 officer for speeding. During the stop, officer determined the defendant's license was revoked. The officer told them he intended to write a warning ticket, but wanted to walk his K-9 around the car first. Defendant then told his passenger to take the blunt out of her pants. The officer then searched the car and found the gun, a scale, and a couple of ounces of weed.

First,  the presence of the blunt, voluntarily acknowledged, gave probable cause to search the car.

Second, sufficient evidence of possession of firearm by felon. The gun was in the glove box of the car the defendant was driving and, when the officer was searching, the defendant told him there was a gun in the glove box.

State v. Reid.  Wake County. Appeal of trafficking conviction.

Police received multiple tips from confidential informants that the defendant had drugs. Police set up a sting on a deal, with one of the informants being involved. Police approached defendant when he arrived for the deal, smelled marijuana and frisked him and felt a "large bulge" that, according to training and experience was "packaged like narcotics." Eventually found vacuum sealed drugs.

1) Defendant complained about his appointed attorney and then decided to proceed pro se. Defendant now objects that the court did not tell him he could hire his own. Court followed 15A-1242-- advising of his right to an attorney and court appointed attorney and that he understood consequences of waiving. This was adequate, even without specific reference to right to hire an attorney.

2) No plain error in failing to instruct on entrapment. No credible evidence that defendant would not have committed the crime but for law enforcement involvement.

3) Failure to give up names of informants is an unpreserved issue.

4) No plain error in failing to suppress. The drugs here were covered by the Terry "plain feel" doctrine, as they were immediately apparent contraband upon plain touch during a lawful Terry frisk.

State v. Rollins.  Mecklenburg County. No error in failing to give defendant hearing on his MAR.

Defendant filed an MAR based on juror misconduct--watching publicity during the trial. The trial court denied a hearing, stating "[n]othing in the motion or affidavit indicates which news broadcast the juror supposedly viewed, the degree of attention the juror paid to the news story about the defendant’s case, or the extent of any information the juror actually received or remembered from the news broadcast. There is nothing in the motion or affidavit t indicate that the juror shared any of the contents of the news story with other jurors during the trial or the jury’s deliberations."

Defendant had argued that TV at that time included references to other crimes, excluded from the jury's consideration.

COA upheld, saying, "There is insufficient evidence to determine whether juror misconduct occurred as defendant’s motion and Bossard’s affidavit merely contained general allegations and speculation."

Judge Hunter dissents.

State v. Shaw. Durham County. Appeal of possession of stolen property, uttering, and habitual felony.

Defendant challenges conviction as habitual felon. One of the three strikes the state used was defendant's prior conviction for habitual misdemeanor assault. Defendant argues that the intent of the statute prevents it from being used for habitual felon.

The habitual assault statute, 14-33.2, says, "A person commits the offense of habitual misdemeanor assault if that person violates any of the provisions of 14-34, and has two or more prior convictions for either misdemeanor or felony assault, with the earlier of the two prior convictions occurring no more than 15 years prior to the date of the current violation. A conviction under this section shall not be used as a prior conviction for any other habitual offense statute. A person convicted of violating this section is guilty of a Class H felony."

The COA holds that the statute plainly forbids what the judge did in this case and remands for re-sentencing as a non-habitual offender. Further, the effective date of the statute applies to anyone being sentenced for offenses committed after that day, not to habitual misdemeanor assault convictions after that date.

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