Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though Defendant aided or abetted another person’s wrongful drug use, this is legally insufficient to convict of involuntary manslaughter under military law.
U.S. v. Caldwell, 93 Crim. L. Rep. 214 (C.A.A.F. 4/29/13):

Holding: Marine-Defendant’s genuine suicide attempt did not satisfy elements of the military offense of wrongful self-injury without intent to avoid military service.
U.S. v. Spicer, 92 Crim. L. Rep. 577 (C.A.A.F. 2/6/13):

Holding: Military law criminalizing making “false official statements” applies only to statements affecting military functions; thus, Defendant’s false report that his child had been kidnapped did not fall within law.
U.S. v. Winckelmann, 70 M.J. 403 (C.A.A.F. 12/12/11):

Holding: Even though internet chat with alleged minor was briefly sexual, asking question “u free tonight” was not a substantial step toward enticement of a minor to support attempted enticement conviction.
Ruffin v. U.S., 2013 WL 4746792 (D.C. 2013):

Holding: The term “person” used in local statute setting out felony of threatening to kidnap or injure or damage his property, means an actual person; thus, Defendant could not be convicted under statute for threatening to damage a gov’t police car.
Tarpeh v. U.S., 2013 WL 1338950 (D.C. 2013):

Holding: Even though Defendant-caretaker pushed patient’s wheelchair across street to the nearest hospital while knowing that patient’s paralyzed foot was dragging on the ground, this did not show reckless indifference to the patient’s needs to prove criminal neglect of an adult where Defendant had just become aware of patient’s screams and she was struggling to keep patient in the wheelchair.
Harrison v. U.S., 2012 WL 6618197 (D.C. 2012):

Holding: Even though Defendant talked to his father on phone from jail and discussed possibility of Witness not returning to testify, evidence was insufficient to convict Defendant of obstruction of justice when father told Witness to stay away from trial.
U.S. v. Ali, 2012 WL 3024763 (D.D.C. 2012):

Holding: Even though Somali-Defendant hijacked a Bahamian-flagged ship near the coast of Somalia, where the Gov’t failed to show that there was any intended effect on the U.S., due process did not permit Defendant to be prosecuted in the U.S. for hijacking and hostage taking in the absence of proof that the offenses occurred while the ship was on the high seas.
U.S. v. Nitschke, 2011 WL 7272456 (D.D.C 2011):

Holding: Defendant could not be convicted of attempted coercion and enticement of a minor to engage in sexual activity because the defendant allegedly told another adult in an online chat that he would like to join him in sex that the adult claimed to have already prearranged with a minor.
U.S. v. Martinez-Baez, 2013 WL 842647 (D. Mass. 2013):

Holding: Defendant’s statement that he was born in Puerto Rico in response to police questioning was not, by itself, a violation of the statute which makes it a crime to make a false claim of U.S. citizenship.
U.S. v. Cassidy, 90 Crim. L. Rep. 388 (D. Md. 12/15/11):

Holding: 18 USC 2261A(2)(A) which criminalizes using a computer to harass or cause someone emotional distress violated First Amendment as applied to a Defendant who made blog posts which attacked a prominent religious leader who was a well-known public figure.
U.S. v. Binette, 2013 WL 2138908 (D. Mass. 2013):

Holding: In order to prove the offense of making a false statement to a gov’t agent, the Gov’t must prove that Defendant knew he was talking to a gov’t agent, and Defendant was entitled to a jury instruction on this; here, Defendant testified that even though callers to his office said they were from the SEC, Defendant was unsure whether they were from the SEC and so did not tell them truthful information.
U.S. v. Famolare, 2011 WL 5170427 (D. Mass. 2011):

Holding: Trial court granted motion for acquittal for insufficient evidence where defendant was charged with mail fraud by submitting a fraudulent application for disability benefits.
Sebrite Agency v. Platt, 2012 WL 3238281 (D. Minn. 2012):

Holding: Even though Defendant-employee accessed his employer’s computer as part of scheme to steal from employer, where employee had access to the computer and information therein as part of his job, this access was not “without authorization” or “in excess of authorization” under the Computer Fraud and Abuse Act.
U.S. v. Manzo, 2012 WL 529578 (D.N.J. 2012):

Holding: Even if the defendant’s alleged conduct of soliciting, accepting, or agreeing to accept bribes while he was an unsuccessful candidate for mayor came within the traditional definition of bribery, it was not prohibited under the New Jersey statute, so it was not “unlawful activity” under New Jersey law.
U.S. v. Bryant, 2012 WL 3286057 (D.N.J. 2012):

Holding: Even though Defendant-senator’s law firm entered into a retainer agreement but never performed any work, this was insufficient to prove that the retainer agreement was intended to be a sham bribe.
U.S. v. Hakimi, 2011 WL 6826390 (N.D. N.Y. 2011):

Holding: The evidence that the defendant knew of and knowingly participated in the conspiracy to smuggle persons into U.S. was not sufficient to support his conviction for conspiracy to possess with the intent to distribute a controlled substance even though others involved in the person-smuggling scheme also conspired to smuggle drugs.
U.S. v. Facen, 2013 WL 3421972 (W.D. N.Y. 2013):

Holding: Where Defendant was merely an impromptu overnight guest at a house, evidence was insufficient to convict of drug possession for drugs found in house where the drugs weren’t in plain view, and were found in cabinets or pants that didn’t belong to Defendant.
U.S. v. Cicalese, 2012 WL 1957360 (E.D. N.Y. 2012):

Holding: Defendant’s answer to ambiguous question cannot form basis for a perjury conviction.
U.S. v. Dimora, 2012 WL 29311331 (N.D. Ohio 2012):

Holding: Evidence was insufficient to convict of Hobbs Act conspiracy to extort where Gov’t failed to show that the targeted business was a separate entity from Defendant’s co-conspirator; since the co-conspirator testified that he was the sole owner of the business, there was nothing to show that the object of the conspiracy was to obtain anything from someone outside the conspiracy.
U.S. v. Jungers, 2011 WL 6046495 (D.S.D. 2011):

Holding: Attempting to purchase sex made available by traffickers did not constitute attempted commercial sex trafficking when he solicited a minor for sex, since Defendant did not attempt to engage in commercial sex trafficking but only attempted to purchase sex for himself from the traffickers.
U.S. v. Farah, 2013 WL 3010700 (M.D. Tenn. 2013):

Holding: Even though Defendant refused to answer questions at a court-ordered deposition, this did not support conviction for obstruction of justice, since there was no showing that the refusal delayed or harmed the prosecution or court.
U.S. v. Ecklin, 2011 WL 6749835 (E.D. Va. 2011):

Holding: The government was required to show that the defendant knew his codefendant was a convicted felon to support a conviction for aiding and abetting a felon possession of a firearm.
U.S. v. Wainright, 2011 WL 2276992 and 2517013 (E.D. Va. 2011):

Holding: Defendant’s conviction for killing witness to prevent them from reporting to law enforcement must be vacated in light of intervening law that witness’ proposed communication must be to federal law officials.
U.S. v. Lien, 2013 WL 5530537 (E.D. Wash. 2013):

Holding: Even though Defendant presented a check for $68,000 to a car dealership to buy a truck and Defendant knew he didn’t have enough money in his checking account to cover this, that did not sufficient allege bank fraud in the indictment since there was no allegation that the account was fraudulent or that the check was altered, forged or not genuine.
Carrell v. U.S., 94 Crim. L. Rep. 308, 2013 WL 6227738 (D.C. 11/21/13):

Holding: Threat statute requires State to prove that Defendant used words “of such a nature as to convey fear of serious bodily harm or injury to the ordinary hearer,” not merely that Defendant intended to utter the words as a threat.
Ex parte Pate, 2013 WL 3336985 (Ala. 2013):

Holding: Even though Defendant got a gun during an altercation with his tenant’s employees during an eviction, this was, without more, insufficient to establish the physical action element of menacing.
Paschal v. State, 91 Crim. L. Rep. 65 (Ark. 3/29/12):

Holding: Statute that makes it a crime for teachers to have sex with students under age 21 violates constitutional right to privacy as applied to teacher who has sex with 18 year old student.
Newman v. State, 2011 WL 913029 (Ark. 2011):

Holding: Even though Defendant-Sex-Offender had a job installing doors and baseboards at a child care facility, this did not violate law that prohibited sex offenders from working with children since this did not involve working directly with children.
People v. Williams, 93 Crim. L. Rep. 728, 305 P.3d 1241 (Cal. 8/26/13):

Holding: Evidence was insufficient to convict of robbery where Defendant used a fraudulent credit device to buy items at Wal-Mart and then tussled with a guard who tried to stop him from leaving store; any crime was complete before the confrontation with the security guard occurred; there was no physical taking of property by force required for robbery since the store voluntarily sold the items and the crime was complete by the time the store discovered the scam.
People v. Davis, 93 Crim. L. Rep. 619 (Cal. 7/25/13):

Holding: A jury cannot infer that MDMA a.k.a. “ecstacy” is a controlled substance based on the name alone; State must present evidence to prove this.
Magness v. Superior Court, 2012 WL 2138260 (Cal. 2012):

Holding: Defendant’s use of a stolen remote control to “open” a garage door is not an “entry” for purposes of burglary; for an “entry” to occur, something that is outside the building must go inside the building; however, this use of the remote can be attempted burglary.
People v. Bailey, 2012 WL 2849317 (Cal. 2012):

Holding: Where the evidence to support “escape” is insufficient, appellate court cannot convict of “attempted escape” because “attempted escape” requires a specific criminal intent to escape, but “escape” requires only general criminal intent; thus, “attempted escape” is not a lesser-included offense of “escape.”
People v. Rodriguez, 2012 WL 6699638 (Cal. 2012):

Holding: Where Defendant committed a robbery alone, this did not constitute active participation in a street gang.
Stark v. Superior Court, 2011 WL 3303462 (Cal. 2011):

Holding: Public embezzlement statute has mental element as to presence of legal obligation to do something.
Montez v. People, 2012 WL 439692 (Colo. 2012):

Holding: A firearm is not a deadly weapon per se because the term “intended to be used” refers to the defendant’s, not the manufacturer’s, intent.
State v. LaFleur, 2012 WL 4478423 (Conn. 2012):

Holding: Defendant’s fist was not a “dangerous instrument” under assault statute since Legislature intended a “dangerous instrument” to be a tool, implement or device separate from Defendant’s body.
Greenwade v. State, 94 Crim. L. Rep. 156, 2013 WL 5641794 (Fla. 10/17/13):

Holding: State didn’t meet its burden of proof in drug trafficking case where it failed to lab test each individual baggie of white powder before dumping all of them into one container for weighing and testing.
Levitan v. State, 2012 WL 5477105 (Fla. 2012):

Holding: Even though Defendant stopped payment on a check, this was insufficient to prove that he stole “property” from the firm to which the check was issued.

Delgado v. State, 2011 WL 2060061 (Fla. 2011):

Holding: Evidence was insufficient to demonstrate that defendant knew there was a child in the backseat of the vehicle defendant stole, requiring reversal of defendant’s kidnapping conviction.
Warren v. State, 2014 WL 696339 (Ga. 2014):
Holding: Even though Defendant sent nude photo of self to victim’s cell phone, this did not violate statute prohibiting unsolicited distribution of nude materials because the statute contemplated use of standard mail, involving tangible material in a tangible envelope or container.
State v. Woodhall, 93 Crim. L. Rep. 361, 2013 WL 2383586 (Haw. 5/31/13):

Holding: There was in irreconcilable conflict between one section of medical marijuana law that allowed person to transport marijuana and another section that prohibited transporting of marijuana in places open to the public, which must be resolved in favor of Defendant, who had small amount of marijuana at airport.
State v. Gonzalez, 2012 WL 5970946 (Haw. 2012):

Holding: Offense of driving at an excessive speed is not a strict liability offense; State must prove Defendant acted knowingly or recklessly.
People v. Brown, 2013 WL 6698313 (Ill. 2013):

Holding: Defendant’s endorsement of a counterfeit check did not constitute “making” the check for purposes of forgery by making; “forgery by making” was complete when the check was made.
People v. Lloyd, 2013 WL 168394 (Ill. 2013):

Holding: Even though Defendant knew victim was a minor, state sexual assault statute required that State prove that victim didn’t consent to the sex act.
People v. Baskerville, 2012 WL 525462 (Ill. 2012):

Holding: A false statement by the defendant to a deputy that the defendant’s wife was not home did not support a conviction for obstructing a police officer because the defendant invited the officer inside to look for her.
State v. Brubaker, 2011 WL 4407423 (Iowa 2011):

Holding: Testimony that pills were “consistent in appearance” with controlled substance was insufficient to identify pills.
State v. LeClair, 92 Crim. L. Rep. 185 (Kan. 10/26/12):

Holding: Where (1) sex offender Defendant properly informed authorities that he was moving from Kansas to Las Vegas, but (2) it took him three weeks of travel to get to Las Vegas via hitchhiking and finding a place to live there, and (3) he informed authorities once he found a residence, the evidence was not sufficient to convict for failing to register for his time spent traveling; “It is difficult to imagine how … an offender should inform law enforcement of his new residential address as a ‘park bench in Albuquerque.’ And it is equally difficult to imagine how that park bench for one night establishes a ‘change in the address of the person’s residence.’”
State v. O’Rear, 90 Crim. L. Rep. 721 (Kan. 2/17/12):

Holding: The defendant, a security guard at a bank who shot an innocent customer carrying a cane that the defendant thought was a gun, could not be convicted of “reckless aggravated battery” because the mental state of recklessness is incompatible with a mental state where a person acts with purposefulness.
State v. Brooks, 2011 WL 4634246 (Kan. 2011):

Holding: Compelling ex-wife to have sex through a threat of publicizing her affair with married coworker did not constitute rape.
Com. v. Hamilton, 2013 WL 5763180 (Ky. 2013):

Holding: Trial court had jurisdiction to hear Defendant’s claim the Health Department had violated laws of Kentucky in how it changed certain drug from Schedule V to Schedule III controlled substance.
Lewis v. Com., 2013 WL 1181950 (Ky. 2013):

Holding: Where (1) Defendant sought to obtain drugs for which he did not have a prescription and (2) pharmacy employees took steps to engage Defendant to try to keep him at the pharmacy until police arrived, Defendant was not unlawfully on the premises (since the employees were giving him license to stay) and, thus, could not be convicted of burglary.
State v. Sarrabea, 94 Crim. L. Rep. 117, 2013 WL 5788888 (La. 10/15/13):

Holding: La. law making it a felony for an alien to drive without documentation demonstrating lawful presence in the U.S. is preempted by federal law in the area of alien registration.
State v. Small, 2012 WL 4881413 (La. 2012):

Holding: Offense of cruelty to a juvenile based on neglect cannot form the underlying offense for felony-murder of a child who died in a house fire, because this would allow felony-murder any time a parent failed to supervise a child who died as a result of some intervening event, and be contrary to rule of lenity.
State v. Strong, 92 Crim. L. Rep. 625, 2013 WL 588230 (Me. 2/15/13):

Holding: Court dismisses charges against Defendant for invasion of privacy where he secretly videotaped customers having sex with prostitutes at place of prostitution; although state statute makes it illegal to secretly tape persons, this law did not apply to Defendant’s conduct because prostitution customers have no expectation of privacy that society would recognize as reasonable since prostitution is illegal.
State v. Weems, 2012 WL 5846408 (Md. 2012):

Holding: In order to convict for “obtaining control of property by mistake,” State had to show that Defendant knew that a check she cashed had been given to her by mistake.
Titus v. State, 2011 WL 5924292 (Md. 2011):

Holding: Evidence that defendant gave police officer a false name during a traffic stop was insufficient to show actual obstruction or hindrance of the officer’s investigation, as required for conviction for obstructing and hindering.
Spencer v. State, 90 Crim. L. Rep. 166 (Md. 10/25/11):

Holding: Where Defendant merely told a cashier to “don’t say nothing” and cashier handed him the cash drawer, evidence was insufficient to prove robbery because there was no threat of force; this was stealing but not theft due to lack of force.
Com. v. Robertson, 94 Crim. L. Rep. 711, 2014 WL 815332 (Mass. 3/5/14):

Holding: State law that prohibited secretly photographing someone who is “nude or partially nude” where they have an expectation of privacy did not prohibit taking “upskirt” photos of female passengers on a train, because women in skirts were not “nude or partially nude, no matter what is or is not underneath the skirt by way of underwear or other clothing.”
Com. v. Humberto H., 94 Crim. L. Rep. 338 (Mass. 11/26/13):

Holding: Even though Defendant had five baggies of marijuana, that did not establish probable cause to charge intent to distribute, because there was no information about the weight or value of the marijuana.
Com. v. Romero, 92 Crim. L. Rep. 790 (Mass. 3/15/13):

Holding: Driver did not constructively possess gun that he knew his passenger was carrying absent any evidence he tried to exercise control over the gun; ruling otherwise would impose a rule of strict liability on drivers who simply tolerate the presence of a weapons or contraband in a vehicle.
Com. v. Pugh, 2012 WL 2146788 (Mass. 2012):

Holding: Even though baby died in childbirth, Mother’s decision to proceed with unassisted home birth did not by itself permit a finding of reckless conduct necessary to establish involuntary manslaughter since pregnant women retain right to forgo medical treatment in life-threatening situations and requiring pregnant women to summon medical treatment during childbirth would effectively criminalize medically unassisted childbirth, such as use of a midwife.
People v. Smith-Anthony, 2013 WL 3924319 (Mich. 2013):

Holding: Even though Guard watched Defendant via camera steal an item from a store, this did not constitute “larceny from a person” because Guard was in another room watching; “larceny from a person” requires taking from the person or immediate, nearby presence of the victim to satisfy the from-the-person requirement.
People v. Janes, 2013 WL 3835839 (Mich. 2013):

Holding: Offense of owning a dangerous animal is not a strict liability offense; State must prove that owner knew animal was “dangerous” before the incident at issue.
People v. Koon, 93 Crim. L. Rep. 275, 2013 WL 2221602 (Mich. 5/21/13):

Holding: State statute that makes it a crime to drive with any amount of marijuana in bloodstream is superseded by the state’s “medical marijuana” law for persons who are legally prescribed marijuana; however, medical marijuana law does not protect such persons from operating a vehicle “under the influence” of marijuana.
People v. Minch, 2012 WL 6861599 (Mich. 2012):

Holding: Felon-in-possession statute did not prevent police from delivering Defendant’s lawfully seized gun to Defendant’s mother, who would hold it as a bailee and not as an agent; if mother acted as bailee, Defendant has no control over firearm, but if she is an agent, Defendant would be in constructive possession of firearm and in violation of statute.
State v. Nelson, 94 Crim. L. Rep. 615, 181 N.W.2d 433 (Minn. 2/12/14):

Holding: Nonsupport statute which criminalized failure to provide “care and support” for child required that Defendant fail to provide both (1) care and (2) financial support; here, evidence was insufficient to convict because although Defendant failed to provide monetary support, he had provided nonmonetary care to the children.
State v. Hayes, 2013 WL 692463 (Minn. 2013):

Holding: Even though drive-by shooting statute states that “anyone who violates this subdivision by….”, the statute does not create a new offense of drive-by shooting, but is only a sentence enhancement statute; thus, evidence was insufficient to support Defendants’ conviction for felony murder while committing a drive-by shooting.
Johnson v. State, 90 Crim. L. Rep. 300 (Miss. 11/17/11):

Holding: Where Officer testified that he thought Defendant’s mother might have owned car but he could be mistaken, the evidence was insufficient to convict Defendant for drugs found in car.
State v. Burrell, 2013 WL 5940647 (Mont. 2013):