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Tag Archives: Criminal Practice

Criminal Practice – Drug Possession – NarTest – Cocaine — Visual ID – Marijuana – Sentencing – Trial by Jury – Restitution – Private Lab (access required)

State v. Jones Law enforcement identified the substances seized from defendant using the NarTest NTX 2000, and the state presented that evidence at trial. Neither the officer who used the NarTest nor the NarTest chemist who explained the machine showed that the NarTest was sufficiently reliable as an area for expert testimony. However, the state may prove that a substance is marijuana based on visual inspection.

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Criminal Practice – Armed Robbery – Acting in Concert — Jury Instructions — Restitution (access required)

State v. Sullivan Even though, in its jury instructions, the trial court omitted the name of one of the three robbery participants in applying the concerted action theory to the armed robbery charge, reading the jury instructions as a whole, the trial court sufficiently instructed the jury on the theory of acting in concert. We find no error in defendant’s convictions of three counts of robbery with a dangerous weapon and one count of conspiracy to commit robbery with a dangerous weapon. The restitution order is vacated and remanded.

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Criminal Practice – Appeals – Certiorari – Guilty Plea – Benefit of Bargain (access required)

State v. Demaio Defendant’s challenge that his guilty plea was improperly accepted because it was not the product of informed choice and did not provide him the benefit of his bargain is a procedural challenge to the guilty plea for which he may petition this court for writ of certiorari under State v. Bolinger, 320 N.C. 596, 359 S.E.2d 459 (1987). Defendant properly petitioned this court for certiorari; therefore, we grant certiorari to review whether the trial court erred in accepting defendant’s guilty plea.

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Criminal Practice – Sexual Offense – Attempt – Evidence – Hearsay — Satellite-Based Monitoring (access required)

State v. Carter Where the complainant said on at least one occasion that defendant’s penis penetrated her anus, and where a sexual assault nurse examiner testified that the complainant’s anal fissure could have resulted from trauma to the anal area, there was sufficient evidence to support a finding of anal penetration. We find no error as to defendant’s conviction of first-degree sexual offense in file number 08 CrS 57285. However, the trial court’s order of lifetime satellite-based monitoring (SBM) in that case is vacated, and the case is remanded for further proceedings. Defendant is entitled to a new trial on the charge of first-degree sexual offense in file number 08CrS 57286.

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Criminal Practice – Possession of Stolen Goods – Defendant’s Knowledge – Sentencing – On Probation – Counsel’s Stipulation (access required)

State v. Cannon Where the state showed only that (1) the stolen four-wheeler had undergone cosmetic changes, its decals and stickers having been pulled off and a different decal having been affixed to it; (2) defendant twice drove to his cousin’s house on the four-wheeler, which a deputy had towed away after defendant’s arrest; and (3) the sheriff’s department later learned that the four-wheeler had been stolen from Halifax County, and where there is no evidence in the record as to how defendant gained possession of the four-wheeler, the state failed to prove that defendant knew or should reasonably have known that the four-wheeler was stolen. The trial court should have granted defendant’s motion to dismiss the charge of possession of stolen goods.

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Criminal Practice – Administrative — Sex Offender Registration – Initial County Registration – Kentucky Conviction (access required)

In re Borden Even though Kentucky no longer requires petitioner to register as a sex offender after his 1995 conviction of first-degree sexual abuse, since petitioner has not been registered with an N.C. county for at least 10 years, our statutes do not allow him to be relieved of his obligation to register as a sex offender. We reverse the trial court’s order terminating petitioner’s sex offender registration requirement.

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Criminal Practice – Second-Degree Murder – Jury Instructions – Felony Murder – Child Abuse – Sentencing – Aggravating Factor (access required)

State v. Barrow Since the state’s evidence would have permitted the jury to find that defendant did not use a deadly weapon but still killed the five-month-old victim with malice, the trial court properly instructed the jury on the offense of second-degree murder. We find no error in defendant’s conviction of second-degree murder, but we remand for re-sentencing.

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Criminal Practice – Going Armed to the Terror of the People – Shooting While Driving – Subject Matter Jurisdiction – Assault Acquittal (access required)

State v. Toler Even though defendant presented evidence that he was unarmed at the relevant time, the state presented evidence that defendant shot a gun at his neighbors as he and they drove on a public highway. Therefore, the trial court correctly denied defendant’s motion to dismiss the charge of going armed to the terror of the people. We find no error in defendant’s conviction of going armed to the terror of the people. We vacate defendant’s conviction of assault with a deadly weapon and the trial court’s order for destruction of defendant’s guns.

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Criminal Practice – Sentencing – ACCA – Plea Colloquy (access required)

U.S. v. Taylor Although a defendant says he did not personally affirm a prosecutor’s account of defendant’s encounter with police officers when he pleaded guilty to an earlier assault charge, the district court, in sentencing defendant on a later firearm charge, can find the assault was a “violent felony” and sentence defendant to a mandatory minimum 15-year sentence under the ACCA on the firearm offense, the 4th Circuit says; also, the 4th Circuit joins its sister circuits to hold a second defendant’s sentence can be enhanced for possession of a stolen gun, even though defendant claims he did not know the gun was stolen.

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Criminal Practice – Weapons Possession – Unpaid Bodyguards – Protecting Convicted Felon – ‘Employed’ (access required)

U.S. v. Weaver Defendant members of the Pagans Motorcycle Club who carried guns to protect their national vice president, a convicted felon, were in possession and “employed for” a convicted felon, even without tangible compensation, and the 4th Circuit says the district court erred in dismissing weapons charges under 18 U.S.C. § 922(h) on the ground that there had to be some form of payment to prove the offense. The gang’s vice president was able to issue orders to lower-ranking gang members, and he ordered subordinates to carry firearms in order to protect him. He allegedly told various PMC members he did not need to carry a gun because other members carried guns for him.

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