Tuesday, March 19, 2013

NC Court of Appeals Decisions, March 19, 2013

State v. Combs. Appeal of child rape and sex offense convictions.

First, sufficient evidence, where child testified he put his "manhood inside her middle hole." this is enough and not too vague.

Second, no error in providing written jury instructions, on request to the jury, despite a juror previously indicating he could not read. No error in simply providing them to the jury, rather than providing them in open court. 15A-1234(d) requires that all "additional jury instructions" be given in open court. This does not include written copies of oral instructions already given.

Third, not plain error to instruct on theory of sex offense that may not have been supported by the evidence. Here, court listed all sex acts forbidden for 1st degree sex offense, including cunnilingus. There was no evidence of cunnilingus. Nonetheless, due to overwhelming evidence, no probability a new trial would lead to a different verdict.

State v. Davis.Appeal of 2d murder conviction.

First, no error to instruct jury on flight where, the night of the shooting, defendant didn't return to his aunt's house, where he was visiting, and was located three months later in Florida, where his home was. This was sufficient for the instruction.

Second, held that, for sentencing, his Georgia conviction for "theft by taking" was not substantially similar to North Carolina


State v. Galloway. Appeal of firing into an occupied vehicle in operation (class D).

First, indictment was defective for class D, since it didn't include the words in operation. Was only effective for class E firing into an occupied vehicle.

Second, held there was sufficient evidence, even though no bullet struck the car and it was "virtually impossible" for a bullet to have passed through the cabin of the vehicle, based on where people were standing. Victim testified that, after he proceeded through the intersection, leaving the defendant behind him, he saw defendant pull out a gun and that his windows were down. Thus a jury could "reasonably infer" that the bullet passed through the car (from behind? really?)

Remanded for entry into the lesser offense.


State v. Hinton. Appeal of AWDWIKISI and AWDWIK.

State put up the victim of a shooting to say the defendant did it. He said the defendant did it because he, the victim, was in a relationship with the defendant's aunt. State also put up a bunch of gang evidence, because a red bandanna was found at the scene.

First, trial court erred in allowing the state to provide testimony about gang activity in Elizabeth City in this case, as nothing about the shooting showed it was gang related. Found that this was plain error, as there was only one witness suggesting defendant's guilt.

Second, trial court erred when jury requested to review testimony, indicating that it was not in a form they could review (rather than exercising discretion one way or the other on the issue).

New trial.

State v. James. Appeal of kidnapping and armed robbery conviction, based on acting in concert theory.

First, sufficient evidence where defendant was present at the scene (when his cousin put a gun on people and forced them into the car), got in the car, during a police chase yelled "keep driving" and pushed one of the victims to the floor of the backseat.

Second, no error in refusing to discharge juror who was heard saying, during a break, "Maybe I should bring my gun so that everyone feels what it would feel like, and I've got it in my car."  Defendant did not object and made no motion for a mistrial.

State v. Rollins. Appeal of 1d murder, attempted RWDW, and felony breaking and entering.

First, no error in admitting a witness's statements from defendant's Alford plea at trial (after events brought it back to court), based on prior testimony exception. Given that it was an alford plea, defendant had a substantial motive to cross the witness (as required for the prior testimony exception).

Second, no confrontation clause problem for prior testimony exception (for the same cross reasons).

Third, no confrontation problem where police officer said he found a knife in a field after talking to other inmates who said that's where defendant left it, as it was not offerred for truth, but to explain why he went to the field.

Fourth, admission of the knife was relevant, even though it was found in a field 4 years after the murder and had no physical evidence on it linking it to the case.

State v. Seelig. Appeal of convictions for obtaining property by false pretenses.

Defendant convicted for knowingly selling gluten filled bread as "gluten-free bread".

First, confrontation rights not violated when witnesses were allowed to testify from federal penitentiary by closed-circuit internet broadcast. No plain error.

Second, indictments were sufficient that read, "The defendant sold bread products to the victim that were advertised and represented as Gluten Free when in fact the defendant knew at the time that the products contained Gluten," even though they didn't specifically say defendant represented the breads as gluten free.

Third, sufficient evidence where people testified the defendant bought his bagels from costco, relabeled them, and sold them to people with gluten allergies.


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