Case Law Update: 2011-2014 Cumulative Edition

Holding: Ohio solicitation statute which prohibited any adult, without permission from a child’s parent, from soliciting, coaxing, enticing or luring a child to “accompany the person in any manner,” including entering a vehicle, was overly broad in that it prohibited many innocent scenarios.
State v. Jones, 90 Crim. L. Rep. 10 (S.D. 9/21/11):

Holding: Even though rape statute authorized conviction for someone who did not know victim was too intoxicated to consent, the State was required to prove Defendant knew this since strict liability crimes are not favored.
State v. Immelt, 2011 WL 5084574 (Wash. 2011):

Holding: County noise ordinance prohibiting honking of car horn for any reason other than safety purposes was overbroad in that it prohibited freedom of expression in some instances.
State v. Boehler, 2011 WL 4047350 (Ariz. Ct. App. 2011):

Holding: Ordinance banning panhandlers from asking for cash after dark violated free speech right.
People v. Nguyen, 2014 WL 10498 (Cal. App. 2014):

Holding: City Ordinance which prohibited sex offenders from entering parks and recreational facilities was preempted by State law regulating the daily life of sex offenders.
Weeks v. State, 2013 WL 6818369 (Fla. App. 2013):

Holding: Felon-in-possession statute was unconstitutionally vague where it allowed possession of “antiques” and “replicas,” but focused on the firing mechanism of both, such that a reasonable person would not know what constituted a “replica” or what alterations could be made until it was no longer a “replica.”
Neal v. State, 2013 WL 1316692 (Fla. App. 2013):

Holding: The Florida statute governing offense of fraudulent use of a credit device requires consolidation of all unauthorized uses of the same card within 6 months into a single offense; the Florida statute is based on a Model Act, which was designed to distinguish between petty and more major criminal acts.
Figueroa-Santiago v. State, 2013 WL 3198126 (Fla. App. 2013):

Holding: Statute that prohibited using electronic communication to benefit or promote a gang was overly broad under First Amendment because it also criminalized non-criminal speech.

Ramirez v. State, 2012 WL 1889282 (Fla. App. 2012):

Holding: Even though statute prohibiting a felon from working for a bondsman did not contain a mens rea requirement, such a requirement is logically required and courts must read a knowledge element into that portion of the statute.
Enoch v. State, 2012 WL 3047313 (Fla. App. 2012):

Holding: Law prohibiting electronic communication for purpose of benefiting or promoting a criminal gang was overbroad under First Amendment because it was not narrowly tailored to prohibit only illegal communication regarding the gang.
Harris v. State, 2013 WL 1223322 (Ind. App. 2013):

Holding: Offense of internet use (use of social networking site) by a sex offender violated the First Amendment as applied to Defendant who was accused of using the internet to engage in constitutionally protected speech; statue was not narrowly tailored in that it prohibited speech that did not involve harmful interaction with minors, and the state had already criminalized illicit communication for all sex offender registrants.
State v. Sarrabea, 2013 WL 1810228 & State v. Gomez, 2013 WL 2214552 (La. App. 2013):

Holding: Statute making it illegal for “aliens” to drive in the state without documentation demonstrating their lawful presence in U.S. was preempted by federal law regulating the field of alien registration.
People v. Jones, 2013 WL 4823162 (Mich. App. 2013):

Holding: Statute prohibiting trial courts in prosecution for “reckless driving causing a death” from instructing on lesser-included offense of “moving violation causing death” violated separation of powers and due process right to trial by jury; while the Legislature’s duty is to create the law, the court’s duty is to instruct on the law, including lesser-included offenses.
People v. Deroche, 829 N.W.2d 891 (Mich. App. 2013):

Holding: Statute prohibiting possession of firearms by intoxicated persons is unconstitutional as applied to constructive possession case; the gov’t’s legitimate concern was with actual physical possession of a firearm while intoxicated, not with a person who has consumed alcohol but is then merely in the vicinity of a firearm.
People v. Yanna, 2012 WL 2401400 (Mich. App. 2012):

Holding: Statute banning possession of stun guns violated Second Amendment and state constitutional right to keep and bear arms.
People v. Douglas, 2012 WL 6846218 (Mich. App. 2011):

Holding: The statute providing that a person shall not sell, rent, distribute, transport, or possess any audio or video recording, with knowledge that the recording did not provide the name and address of its manufacturer on the box, was facially overbroad in not limiting its application to commercial speech.
State v. Wenthe, 2012 WL 5896779 (Minn. App. 2012):

Holding: The “clergy sexual conduct law” violated Establishment Clause as applied to priest-Defendant because his trial caused excessive government entanglement with religion in that the court admitted extensive evidence regarding Catholic religious doctrine, policies and practices at trial.
State v. Packingham, 2013 WL 4441667 (N.C. App. 2013):

Holding: Statute prohibiting sex offenders from accessing social networking sites was not narrowly tailored to achieve a significant gov’t interest, and arbitrarily abridged 1st Amendment rights by prohibiting a wide range of communication unrelated to statute’s goal.
State v. Packingham, 93 Crim. L. Rep. 696 (N.C. App. 8/20/13):

Holding: Law prohibiting sex offenders from accessing social networking sites violated First Amendment because it prohibited activity that did not involve contact with children, and was overbroad in that it did not give fair notice to persons of what sites were actually prohibited; while a person of ordinary intelligence would interpret the statute to ban sites such as Facebook, the language was much more expansive and could ban sites such as Google and Amazon, which contain social networking and user-comment pages.
State v. Daniels, 2012 WL 6737523 (N.C. App. 2012):

Holding: Statute prohibiting sex offenders from being in any place where minors gather for scheduled educational, recreational or social programs was unconstitutionally vague where Defendant was indicted for being in a parking lot of an adult softball field that was adjacent to a children’s tee ball facility; the statute failed to give a person of ordinary intelligence reasonable notice of what conduct is prohibited.
People v. Gabriel, 2012 WL 3870024 (N.Y. County Ct. 2012):

Holding: Law criminalizing feeding wild deer was overbroad under First Amendment because it was not narrowly tailored to prevent disease and left no lawful way to feed deer.
State v. Goode, 2013 WL 620306 (Ohio App. 2013):

Holding: State child enticement statute that bans “solicit[ing]” minors is unconstitutionally overbroad because it would include within it, e.g., any adult who offers a child’s friend a ride home from school; because there was no requirement that a person have ill-intent when asking a child to accompany him, the statute prohibited a wide variety of speech and association.
Lima v. Stepleton, 2013 WL 6834959 (Ohio App. 2013):

Holding: City Ordinance regarding vicious dogs was invalid because conflicted with state statute.

Wolf v. State, 2012 WL 6062550 (Okla. Crim. App. 2012):

Holding: Where the Methamphetamine Offender Registry Act did not provide notice to persons of their placement on the registry or duty to register under the Act, due process prohibits convicting a person without notice for purchasing pseudoephedrine.
Crews v. City of Chester, 2011 WL 205928 (Pa. Comm. Ct. 2012):

Holding: Anti-loitering ordinance requiring police officer, on observing a person loitering in a high drug activity area, to request a “lawful and reasonable explanation” and disperse the person if the answer is unsatisfactory, was vague in that it did not define “lawful and reasonable explanation” or what a person was required to do to comply with the dispersal order.
Ex parte Lo, 94 Crim. L. Rep. 172 (Tex. App. 10/30/13):

Holding: Statute making it illegal for adults to engage minors in sexually explicit online communication for purpose of sexual gratification was overbroad under 1^st Amendment, because it could be used to prohibit discussion of such topics as “Lady Chatterly’s Lover” or Miley Cyrus “twerking.”
Price v. Price, 2013 WL 2211685 (Wash. App. 2013):

Holding: Court lacked authority under civil anti-harassment statute to prohibit a majority owner in a property from visiting the property, even though minority owners obtained a protection order against him.
State v. Stuckey, 2013 WL 3724768 (Wisc. App. 2013):

Holding: Statute which makes it illegal for a person to expose their genitals to a child violated 1^st Amendment where it did not require State to prove that Defendant knew that the person to whom he sent a photo of his penis via internet was under age.

Subpoenas
Davenport v. State, 2011 WL 2436668 (Ga. 2011):

Holding: Standard under Uniform Act to Secure Attendance of Witnesses for deciding whether Georgia court should summon an out-of-state witness is whether witness is “material” not “necessary”; the judge in the other State is to make the determination whether the witness is “necessary.
Yeary v. State, 2011 WL 2436664 (Ga. 2011):

Holding: Where Defendant sought to obtain the source code for a breath-test machine under the Uniform Act to Secure Attendance of Witnesses, Defendant was not required to identify a specific corporate agent of the out-of-state corporation, but was permitted to request that the corporation be designated a “material” witness and let the corporation designate the witness.


Sufficiency Of Evidence
State v. Hunt, 2014 WL 7335208 (Mo. banc Dec. 23, 2014):

(1) Even though Defendant-Officer broke in Suspect’s door and hit him while arresting him, evidence was insufficient to convict Defendant-Officer of first-degree burglary because Officer either had authority to enter the residence based on the arrest warrant for Suspect, or if Officer did not believe Suspect was inside residence, he could not have intended to assault him by breaking in (which was the alleged intended crime from the entry); (2) Even though Defendant-Officer broke in Suspect’s door, evidence was insufficient to convict of conviction for property damage because Sec. 544.200 give officers authority to break open doors to arrest someone if, after notice, the person refuses to answer the door; and (3) the jury instructions for assault were plainly erroneous because they misled jury into considering whether Defendant-Officer was a “law enforcement officer,” which was not a jury question but a matter of law under 195.505; the proper question was whether Defendant-Officer “exceeded” his authority, not whether he “had” authority.

Facts: Officers had an arrest warrant to arrest Suspect for two felonies. Officers banged on the door of Suspect’s trailer (where an informer said he was) and announced “sheriff’s department” but no one answered. Defendant-Officer looked in a window and saw drug-related items. Defendant-Officer then kicked in the door and went inside. Defendant-Officer employed “control tactics” by hitting Suspect and also cursed at him. Defendant-Officer apparently had had a different prior incident with Suspect where he also hit him. Defendant-Officer was charged and convicted of first degree burglary for unlawfully entering the trailer with the purpose of assaulting Suspect, second-degree property damage for breaking down the front door, and third degree assault for hitting Suspect.

Holding: (1) There is insufficient evidence to support the burglary conviction. Burglary requires proof of (a) unlawful entry and (b) an intent to commit a crime therein, i.e., the alleged assault. The lawfulness of the entry depends on whether Defendant-Officer had a reasonable belief that Suspect was inside the trailer at the time. If, as the State contends, he did not reasonably believe Suspect was inside the trailer, then he could not have formed the intent to assault the suspect (because he didn’t believe the suspect was there). But if he did have such a belief that Suspect was inside, he had authority to enter by virtue of the arrest warrant. Thus, both elements needed to prove burglary can’t be present here. (2) There is insufficient evidence to support the property damage conviction because Sec. 544.200 gives officers authority to break open a door if, after notice, the officer is refused admittance. Here, officers had knocked, announced their presence and demanded entry, but were refused. As a matter of law, Defendant-Officer’s action in breaking down the door was lawful under Sec. 544.200. (3) The jury instructions for the assault conviction were plainly erroneous because they required the jury to find Defendant-Officer was acting as a law enforcement officer, which was not an issue for the jury to decide because it was a legal question answered by statute, Sec. 195.505. The issue for the jury to decide was whether he used reasonable force. The proper question for the jury was not whether Defendant-Officer had authority, but whether he exceeded it. If the jury believed the State’s theory at trial that Defendant-Officer was acting outside his authority, then it would never have considered the question of reasonable force at all, so the instruction was misleading. Burglary and property damage convictions vacated. New trial on assault conviction ordered.
State v. Miller, No. SC91948 (Mo. banc 7/3/12):

(1) Where the information charged various sex acts between Dec. 3, 2004 and Dec. 5, 2005, and the verdict director tracked these dates, but the evidence was that the offense was committed in 1998 or 1999, the evidence is insufficient to convict because the time span of the charged offense was different than the evidence actually presented and the charged offense did not give adequate notice to the defense of the evidence the State intended to present; because the evidence is insufficient, Defendant cannot be retried on these counts; and (2) where Defendant was charged with another sex offense alleged to have occurred in 1997 or 1998, the trial court erred in giving a jury instruction regarding the definition of sexual contact that was not enacted until 2002; because this jury instruction constitutes only “trial error,” Defendant can be retried on this count.

Facts: Defendant was charged by information with child sex offenses alleged to have occurred between Dec. 3, 2004 and Dec. 3, 2005. The jury instruction tracked this time frame. However, the evidence presented at trial showed that these offenses occurred in 1998 or 1999. Regarding a separate charge of first degree child molestation, the verdict directed stated that Defendant touched the genitals of a child “through the clothing” in 1997 or 1998.

Holding: (1) There was no evidence that Defendant committed the first charged sex offenses in 2004 or 2005, as charged in the information and as instructed in the jury instruction. While the exact date of a sex offense is not an element of the crime, a time element cannot be so overbroad as to nullify an alibi defense or prevent application of double jeopardy principles. When the State chooses to file an information and submit a parallel jury instruction that charges a specific time frame, the evidence must conform to that time frame. Otherwise, the defense would not have adequate notice of the evidence the State intends to present. Here, there was no evidence Defendant committed the first sex acts during 2004 or 2005. Having not presented sufficient evidence to convict, the State cannot retry Defendant on these charges and he must be discharged. (2) Regarding a separate charge of first degree child molestation, at the time of this offense, Sec. 566.067 RSMo. 1994 applied and it did not define sexual contact as “touching through the clothing.” That language was not added until the statute was revised in 2002. Hence, the jury instruction using the 2002 language was error. However, this is “trial error,” so a new trial on this charge is permissible.
State v. Vaughn, No. SC91670 (Mo. banc 5/29/12):

(1) Sec. 565.090.1(5) which makes it harassment to “knowingly make[] repeated unwanted communication to another person” is unconstitutionally vague; however, (2) 565.090.1(6) which criminalizes a person who “without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress” is constitutional because it proscribes conduct, not merely speech.

Facts: Defendant was charged with two counts of “harassment” under Sec. 565.090.1. He was charged with violation of Sec. 565.090.1(5), which makes it a crime to knowingly make repeated unwanted communication to another person, because he had repeatedly telephoned his former wife after she had told him not to call again. He was also charged with violation of Sec. 565.090.1(6) for entering his former wife’s home when she was not there with the purpose of scaring her. The trial court dismissed the charges on grounds that 565.090.1(5) and (6) violated the First Amendment. The State appealed.

Holding: Regarding 565.090.1(5), “repeated,” “unwanted,” and “communicate” are simply words that can be applied too broadly. Although subdivision (5) purports to criminalize “harassment,” subdivision (5) does not require conduct to actually harass in any sense of the word. Rather, it criminalizes a person who “knowingly makes repeated unwanted communication to another person.” This would have a chilling effect on a broad range of everyday communication. For example, individuals picketing a private or public entity would have to cease once they were told that their protests were unwanted. Hence, subdivision (5) is unconstitutionally vague. Subdivision (6), however, is constitutional because it proscribes conduct, not merely speech.
State v. Chaney, 2014 WL 7345025 (Mo. App. E.D. Dec. 23, 2014):

Evidence was insufficient to convict of felony stealing over $500 where the only evidence of value presented by the State was the replacement cost of a fence; Sec. 570.020 requires that value be determined by the market value of the property at the time of the crime, and only if that is not ascertainable, is replacement cost considered.

Facts: Defendant was convicted of felony stealing over $500 for cutting and taking a portion of a fence, which he then sold for scrap. The State presented a witness who testified that the replacement cost of the fence was approximately $950. The witness testified he could not ascertain the value of the fence when it was damaged in the way it was.

Holding: Sec. 570.020 defines “value” as “the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.” Here, the State relied only on the replacement value of the fence. However, Sec. 570.020 directs that replacement cost may only be used if the market value of the property at the time and place of the crime cannot be satisfactorily determined. The State claims that its witness was not able to ascertain the value of the fence at the time of the crime because it was damaged. But on its face, the State’s witness’ testimony only supports a finding that the market value of the fence after the crime, when it had been damaged, was unascertainable. To meet its burden, the State should have inquired of the witness as to the value of the fence before it was stolen and damaged, or explained why such value was unascertainable, e.g., if there was no market value for the property. Valuing the property at the time of the crime ensures that it is not undervalued by replacement cost. Conviction for felony stealing reversed. Remanded for entry of misdemeanor stealing and re-sentencing.
State v. Brown, 2014 WL 6464568 (Mo. App. E.D. Nov. 18, 2014):

(1) Sec. 570.020(1) regarding value (for determining if stealing is a felony or misdemeanor) abrogates prior case law holding that where property is secondhand, proof as to its cost and its length of use may be used to show value; instead, Sec. 570.020(1) requires that “value” be the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime; even though stolen television cost $749 when new in 2008, where it was stolen in 2011 and pawned for $140, evidence was insufficient to prove value was over $500 to support felony stealing; (2) Even though church sacristy was generally not open to the public, evidence was insufficient to convict of burglary of sacristy where sacristy was open to persons who wanted to speak to a priest and did not have a sign that indicated it was private or that no admittance was allowed; and (3) where Defendant was on trial for burglary of a church on June 18, trial court erred in admitting evidence that Defendant was suspiciously at a second church on June 21 because this was improper propensity evidence.

Facts: On June 18, Defendant entered and stole various items from a church sacristy. He also stole a television from the church. The television was purchased for $749 in 2008; Defendant pawned it for $140 after he stole it in 2011. At trial, the State also presented evidence that Defendant was at a second church on June 21, acting suspiciously.

Holding: (1) Defendant argues the State failed to prove the value of the television was more than $500 to support felony stealing. Often-cited case law such as State v. Naper, 381 S.W.2d 789, 791 (Mo. banc 1964), holds that were property is secondhand, proof as to its cost and its length of use may prove value. But Sec. 570.020, which went into effect 15 years later in 1979, abrogates Naper. Sec. 570.020 states that “‘value’ means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.” Here, the State did not present evidence that the television’s value at the time of the crime was more than $500, did not assert that the value could not be ascertained, and did not present evidence as to replacement value. The evidence was insufficient to convict of felony stealing. Conviction entered for misdemeanor stealing. (2) Second degree burglary requires that a person enter a building unlawfully. Sec. 562.016.3 states that a person who, regardless of his purpose, enters premises which are open to the public does so with license unless he defies a lawful order to leave. While the sacristy was not generally open to the public, it was open to persons who wanted to speak to a priest. It may be disrespectful or sacrilegious to walk through an alter area to a sacristy, but that does not equate with unlawful entry into a private area. There was no evidence that the sacristy was marked “private,” “no admittance,” or “authorized personnel only.” The evidence was insufficient to prove unlawful entry of the sacristy. (3) Evidence that Defendant was at a second church, acting suspiciously, three days after the charged burglary was improper propensity evidence. The State argues the evidence was admissible to show intent, but appellate court finds it was adduced “purely as propensity evidence to assert that if [Defendant] was the person who went to the [second church], he likewise must have been the person who unlawfully entered and stole from [the first church].” Propensity evidence violates Defendant’s right to be tried for the charged crime. Eastern District admonished prosecutor Philip Groenweghe for use of this propensity evidence, because he previously improperly used propensity evidence in a prior case, too.
In the Interest of J.T., 2014 WL 5462402 (Mo. App. E.D. Oct. 28, 2014):