Tuesday, July 2, 2013

NC Court of Appeals Decisions, July 2, 2013

State v. Hanif. Appeal of sell/deliver counterfeit controlled substance. Forsyth County. -- Kingg Hanif

 Defendant sold a detective fake vicodin for $4. At arrest, defendant had baggies of Epsom salt. Defendant moved to suppress as irrelevant and allowing statements defendant made to the magistrate and arresting officer that were threatening and made him look bad.

First, held trial court committed plain error allowing officer to testify that the fake vicodin was "tramadol hydrochloride" based solely on visual inspection. Without this, state could not meet it's burden to show that the substance was counterfeit.

Second, no error in admitting the Epsom salt on retrial, as goes to intent and is another fake drug in his possession (fake crack).

Third, no error in admitting the threatening/angry statements, as they are part of the story of the arrest.

State v. Horskins. First degree murder, Pasquotank County -- Shawn Horskins.

Shooting in the street during an argument. Defendant testified that he only shot when the other guy grabbed his gun. Jury convicted.

First, sufficient evidence of first degree murder where some evidence showed defendant kept firing after victim hit the ground and defendant took affirmative acts to hide evidence afterwards.

Second, no prejudicial error in not allowing defendant to testify that he had been told that Mr. Williams (the victim) was in a gang and carried a gun. While this may be relevant to the reasonableness of the defendant's apprehension and use of force, there was no evidence that the defendant knew the victim was Mr. Williams, as he had never met him.


State v. Lowery. Appeal of assault by strangulation. Forsyth County -- William Lowery.

Sufficient evidence.  Assault by strangulation with injury is a class H felony and to prove it the state must show:

  • Strangulation: pressure to the throat sufficient to create difficulty breathing
  • Physical Injury: cuts and bruised on the neck are sufficient
  • Causation: that the injury was caused by strangulation.
Testimony of the victim and the pictures sufficient to prove this, even though defendant also committed other acts of assault that arguably could have caused the injuries.

No proof required that greater injury occurred than would normally accompany strangulation or that the victim was strangled to the point that there was a risk of death.

State v. Nolen. Appeal of revocation of probation, Gaston County -- Corey Nolen.

Defendant violated and revoked for "making her whereabouts unknown to probation, therefore absconding" and failure to pay money.

First, under the Justice Reinvestment Act (JRA) of 2011, probation can only be revoked upon new convictions, absconding, or a 3rd violation of other conditions that were previously punished with brief confinement. The act also added a condition to all probation that absconding including "willfully making whereabouts unknown to the probation officer."

Defendant argues that, while JRA revocation requirements apply to her (they clearly do), the new provision of probation does not as it was never ordered by a court and would be ex post facto to just be added to her sentence (her sentence was from 2010, before the JRA).

Court agrees and remands. Only violated monetary conditions, not the absconding condition.

State v. Pemberton. Appeal of first degree murder conviction, Wake County -- Devonte Pemberton.

First, defendant's IAC claims that counsel admitted all the elements of felony murder under a misapprehension of law are dismissed without prejudice to be filed in an MAR (counsel admitted that defendant was a present participant in a robbery, just denied he was the shooter).

Second, because Pemberton was under 18 and was convicted solely on felony murder grounds, he should be resentenced to life with parole under NC Gen Stat. 15A-1340.19B(a).

State v. Poole. State appeal of dismissal violation of Domestic Violence Protective Order (DVPO), Buncombe County -- Tracy Poole.

Defendant served with DVPO, requiring him to get rid of all firearms. The next day, Sheriff went to his house and found a shotgun. Trial court dismissed, ruling the DVPO was not valid for criminal purposes, as it was entered ex parte.

HELD: Ex parte order entered under 50B is a valid protective order for DVPO purposes. The Supreme Court ruled ex parte orders weren't valid protective orders, and then, in 2009, the legislature amended the statute. Rules that ex parte are valid under the new statute.

State v. Sheppard. Appeal of larceny from a person, felony larceny, and habitual felony, Forsyth County -- Alonzo Sheppard, Jr.

Defendant stole victim's purse out of her shopping cart while she was at the store, while she was grabbing groceries.

First, sufficient evidence of larceny from the person. The purse was under the victim's control, even though she was arms length away getting pickles when he grabbed the purse. Distinguishes from a case where the victim was 4-5 steps away from a grocery cart when the purse was grabbed.

Second, error to sentence for both larceny from a person and felony larceny for the same theft. Further, vacates the felony larceny as the indictment said it was a felony because $1,000 in currency was taken, which it was not.

State v. Storm. Appeal of murder conviction, Buncombe County -- Tyler Storm.

Defendant, 18, called police and told them, after drinking two 4-Loko Beers (12% alcohol), he chopped his sleeping brother up with a sword.

No plain error include the submitted submit diminished capacity and voluntary intoxication instruction in the final mandate (they were given earlier).

No error in allow lay witness to testify that the defendant was "noticeably depressed with flat affect" when he was 12 years old. This lay opinion was rationally based on the witnesses observations and helpful to the trier of fact, as mental capacity was in issue. Further, any error would be harmless.

No error in failing to intervene ex mero motu to prosecutor's closing argument: "Depression might make you suicidal. Depression doesn't make you homicidal."

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