Tuesday, May 7, 2013

NC Court of Appeals Criminal Decisions, May 7, 2013

State v. Caudill. Joseph Caudill appeals first degree murder case.

First, defendant challenges admission of his confession under 15A-501(2) which requires a person to be taken before a judicial official "without unreasonable delay" after arrest. Defendant was arrested at 9:00am, transported, then sat in a holding cell for a few hours. He was interviewed at 1:59pm. He was taken before a magistrate at 2:53pm. This delay between his arrival at the jail and being taken before a magistrate was not an "unreasonable delay."

State v. Gerald. Johnny Gerald appeals his conviction for kidnapping.

The defendant received ineffective assistance (IAC) when his counsel failed to timely move to suppress evidence seized during a warrantless search. The search and seizure was patently unconstitutional--a deputy entered, without a warrant, the defendant's home and collected evidence along with the victim.

State v. Greenlee. Brad Greenlee appeals convictions of obtaining property by false pretense and habitual felon.

Defendant pawned numerous items matching descriptions (and some matching serial numbers) of items reports stolen from cars.  Defendant told police, on arrest, that he was a crack dealer and traded crack for the items. Defendant further said that "he didn’t care whether [the items people would bring to him] were stolen or not, but he would take it if he thought he could make a profit off of it."

First, sufficient evidence of OPFP.  Defendant challenges that two of the items were not proven to be stolen. 1)a TomTom, had a a different model type on the sales inventory (from the pawn shop), but the same serial number. This was sufficient as to that item. 2) a Tascam 8-track had a different serial number as reported and on the pawn receipt. This was a rare item, however, and was thus sufficient evidence on that item.

Second, insufficient evidence of conspiracy on items sold by another person.  There was no evidence presented that defendant was present or near enough to render assistance when his friend pawned those two items. Reverses on those 2 convictions.


State v. Heavner. Brent Heavner appeals convictions for assault on a government official and malicious conduct by a prisoner (spitting at cops) (he got sentenced to 6 years).

Defendant, drunk, during arrest for threatening his grandmother, was assaultive with the deputies, spit at them, and was generally uncooperative.

After conviction, it was learned that the mother of the Defendant spoke extensively with a juror, during the trial, about defendant's mental health and substance abuse problems. The juror stated that he didn't take any of this into account in rendering the verdict, so the Judge didn't set it aside.

First, no error in multiple counts of "malicious conduct," finding the legislature did intend each act of spitting to be a count (rather than just one for the whole transaction." (defendant argued, analogous to assault cases of multiple gunshots being a single, rather than multiple assaults)

Malicious conduct by a prisoner, N.C. Gen. Stat. 14-258.4, reads: "Any person in the custody of . . . any law enforcement officer, . . . who knowingly and willfully throws, emits, or causes to be used as a projectile, bodily fluids or excrement at a person who is an employee of the State or a local government while the employee is in the performance of the employee’s duties is guilty of a Class F
felony. . . ." [Yes, as of 2011, spitting at guards is a class F felony, the same class as Assault Inflicting Serious Boidly Injury, Assault with a Deadly Weapon on a LEO, Involuntary Manslaughter...]

Second, no error in failing to set aside verdict after learning of the juror misconduct.  Court held that the fact the juror said it didn't affect his verdict could not be considered (and shouldn't even have been elicited) in determining the issue. Nonetheless, found that any of this information was harmless to be heard by the juror, as nothing clearly indicated the juror knew the woman was the mother of the defendant, as she didn't use his name or give details of the case.

State v. Macon. Madisa Macon appeals DWI.

At retrial, after a hung jury, judge instructed that the jury could consider defendant's refusal to take a breathylzer as evidence of guilt, even though a different judge ruled differently at the first trial.

Held: Didn't violate collateral estoppel or the rule that one Superior Court Judge cannot overrule another in this circumstance.

First, upon ruling of a mistrial, all the findings/orders in the first trial are legally non-existent. Thus, the rule against overruling other judges does not apply.

Second, collateral estoppel only applies to the issues of ultimate fact determined by a final judgment. Here, there was no final judgment and collateral estoppel does not apply.

Finally, court found there was sufficient evidence of refusal to give the instruction.

State v. Norman. Kenneth Norman appeals 2d rape and sex offense convictions.

Held: sufficient evidence of rape where victim, drunk, testified that she told defendant no, had avoided his sexual advances all night, and she was raped. Victim's mother arrived to find the victim hysterical and her clothes in disarray.

No error in failing to submit attempted rape where clear and positive evidence of intercourse.

State v. Thomas. Jeffry Thomas appeals trafficking conviction.

Held: No plain error not to instruct on defense of entrapment. To prove entrapment, must show that police acts of persuasion, trickery, or fraud induced the defendant to commit a crime that he was not predisposed to commit. Defendant, who was addicted to pain pills and had bought them from this same friend before, got a call from a friend offering him 14 pills for $80, which he bought. He then tried to get his money back, as the pills were different than the usual pain pills he bought. His friend wouldn't take the money back. This was not sufficient evidence to warrant an entrapment instruction.

This is sadly "trafficking" in North Carolina--14 pills for personal use. Defendant sentenced to 6 years.


State v. Threadgill. Michael Threadgill appeals sentencing record level.

First, no error in designating South Carolina conviction for "Financial Transaction Card Theft" as a felony. State has the burden, by the preponderance of evidence, to show the out-of-state crime is a felony. Here, the DCI printout listed it as a Class I Felony. That was sufficient evidence.

Second, 15A-1340.11(7) is constitutional. This statute defines a prior conviction as: "A person has a prior  conviction when,  on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime[.]"

Here, defendant was sentenced for another crime, after the date of offense of this crime, creating a situation where the "Defendant [was] facing a greater sentence at the time of sentencing than he faced on the date of the offense." Defendant challenges this as an ex post facto violation. Held that this was not an ex post facto problem.

State v. Tindall. Holly Tindall appeals probation revocation.

Held: Trial court lacked jurisdiction for the probation violation because the violation found was not alleged in the violation report. She was revoked for having new charges, the violation only mentioned drug use. Oops.

State v. Torres-Gonzalez. Jose Torres-Gonzalez appeals conspiracy trafficking cocaine charges.

First, search warrant for defendant's home was valid. It did not simply have conclusory statements, but laid out facts that would support a belief that contraband was in the residence.

Second, sufficient evidence of conspiracy to traffic in a controlled by where Defendant road with the guy who set up the deal with the cops, made calls to the cops to tell them where to come, and picked up the drugs for the sale.

Third, not improperly inconsistent jury verdicts where jury acquitted of trafficking cocaine, but convicted of conspiracy to traffic cocaine. "A verdict is legally inconsistent or mutually exclusive “when [it] purports to establish that the defendant is guilty of two separate and distinct criminal offenses, the nature of which is such that guilt of one necessarily excludes guilt of the other." A mere flaw in the jury's logic is not enough. While the verdict is inconsistent, it is not legally contradictory.

No error.

State v. Vaughn. Keisha Vaughn appeals AWDWIKISI case.

Fight after club between guy and girl over girl leaving with another guy. Victim and defendant had a fight. She got a knife out of her car and went back to defendant. Defendant "charged her like a bull" and she stabbed him.

The judge instructed the jury that Defendant was not entitled to the benefit of self-defense if she was the aggressor in her altercation.

Held: Plain error where judge instructed on first aggressor, where all the evidence showed the victim "lunged at the defendant" before she was able to initiate any action.

State v. Webb. Ledonta Webb appeals probation revocation.

Defendant challenges revocation, as the lawyer that represented him was not officially appointed and the court failed to follow the IDS rules on appointment. Defendant failed to raise constitutional objections in his initial brief, as such, he must show prejudice (because this is just a statutory claim). Any error, if there was any, was not prejudicial.

State v. Williams. State appeals finding of extraordinary mitigating in case of Eric Williams.

Defendant pleaded guilty to sex offense. The Court, on its own motion the day after sentencing, filed and granted it's own MAR, and found extraordinary mitigation and entered a  suspended sentence (vacating the active sentence imposed the day before). The State appeals. Defendant (20) charged with statutory sex offense after trading cigars to a 14 year old for oral sex, not knowing her age.

First,  trial court gave sufficient notice of it's sua sponte MAR by stating the grounds in open court within 10 days of the sentence.

Second, court's findings of extraordinary mitigation were improper. Two of the findings, the defendant's mental state and passive role, are regular mitigating factors. Two of the findings were not appropriate: (1) the vicitm's consent is not approoriate given the nature of the offense; and (2) the defendant's involvement being limited to the "physical reaction to her ministrations" is not accurate, as the defendant also (in addition to receiving oral sex) asked the victim to lift up her shirt and show her breasts.

Remanded for resentencing.

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