Case Law Update: 2011-2014 Cumulative Edition

Holding: Evidence was insufficient to prove that substance Defendant gave witness was marijuana where only the lay witness testified it was marijuana, the witness was not an officer trained in identification of drugs, and there was no expert testimony what the substance was.
State v. Dugan, 92 Crim. L. Rep. 734, 2013 WL 607824 (Mont. 2013):

Holding: (1) Even though Defendant, in talking to Gov’t employee on phone, got angry and called her a “f***ing [obscene name]”, these were not fighting words that lacked First Amendment protection since there was little likelihood of an immediate breach of peace or imminent violence since the employee was on the phone; “words spoken over the telephone are not proscribable under the fighting words doctrine because the person listening on other end of the line is unable to react with imminent violence against the caller,” and (2) harassment law provision which made use of profane language “prima facie” evidence of intimidation was overbroad under First Amendment.
State v. Hernandez, 2012 WL 678212 (Neb. 2012):

Holding: Even though facts might have supported either conviction, the defendant was guilty of misdemeanor operating vehicle without ignition interlock device, rather than felony driving after revocation, because the former dealt specifically with ignition interlock permits and stated specifically that a person who operated a motor vehicle that was not equipped with an ignition interlock device in violation of a court order was guilty of a misdemeanor.
Clancy v. State, 313 P.3d 226 (Nev. 2013):

Holding: Offense of leaving scene of accident requires proof of knowledge on part of Driver that he was involved in an accident.
State v. Guay, 90 Crim. L. Rep. 19 (N.H. 9/20/11):

Holding: Where victim testified only that Defendant “touch[ed]” her vagina, this was insufficient to prove penetration.
State v. Rangel, 2013 WL 1788600 (N.J. 2013):

Holding: Even though statute stated that a person was guilty of aggravated sexual assault if they committed an act of sexual penetration with “another person” during the commission of crimes like robbery and kidnapping, the victim of the sexual assault is not the “another person” under the statute; rather, the statute is intended to punish violence against a third person as a means to exert control over the sexual assault victim.
State v. Cabezuela, 2011 WL 5966498 (N.M. 2011):

Holding: Intentional child abuse resulting in death could not be premised on defendant’s failure to act to prevent abuse.
People v. Ippolito, 93 Crim. L. Rep. 74 (N.Y. 4/2/13):

Holding: Even though accountant who had power of attorney for client did not sign client’s checks with a power of attorney notation, accountant could not be convicted of forgery because a signature is not forged unless unauthorized, and accountant had authority to sign for client.
People v. Morales, 92 Crim. L. Rep. 338, 2012 WL 6115622 (N.Y. 12/11/12):
Holding: Statute enacted after Sept. 11, 2001, terrorist attacks which criminalized acts intended to “coerce a civilian population” does not cover gang activities; “[t]he concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act.”
People v. Western Express International, 92 Crim. L. Rep. 107 (N.Y. 10/18/12):

Holding: Even though defendants used a common website to commit their financial crimes, this did not establish a “common purpose” or “ascertainable structure” required to prosecute under the state RICO statute.
People v. Plunkett, 2012 WL 2031113 (N.Y. 2012):

Holding: Saliva of HIV-positive Defendant is not a “dangerous instrument” necessary to support aggravated assault conviction upon Officer; the “dangerous instrument” cannot be a body part.
People v. Mack, 2012 WL 952111 (N.Y. 2012):

Holding: In prosecution for sexual contact, which allegedly occurred on a subway train, the fact that the victim could not move away due to the crowd of people on the train did not establish the element that the contact was compelled by use of physical force.
People v. Hightower, 2011 WL 6153097 (N.Y. 2011):

Holding: Defendant did not take property belonging to a transit authority, so as to support a petit larceny charge, when, in exchange for money, he swiped an unlimited ride fare card to allow another person to use the subway, as the authority never owned the funds defendant received for the transaction.
People v. Hall, 2011 WL 5827984 (N.Y. 2011):

Holding: Stun gun used during a robbery was not a “dangerous instrument” because the stun gun was not recovered, nor was a witness called to explain to the jury what a stun gun was capable of.
People v. Grant, 2011 WL 4973793 (N.Y. 2011):

Holding: Defendant’s handwritten note to bank teller claiming defendant was armed did not support charge of first degree robbery.
People v. Grant, 90 Crim. L. Rep. 141 (N.Y. 10/20/11):

Holding: Even though Defendant-bank robber gave teller a note threatening to shoot teller, this was insufficient to prove that Defendant actually possessed a dangerous weapon for purposes of first-degree robbery conviction.
People v. Lewie, 89 Crim. L. Rep. 627 (N.Y. 6/9/11):

Holding: Even though Defendant-mother left her child with an abusive boyfriend while she was at work, this did not show the “depraved indifference” necessary to prove reckless endangerment, which requires a showing that Defendant “did not care at all” for child’s life.
State v. Arot, 2013 WL 5718189 (N.D. 2013):

Holding: Even though immigrant-Defendant’s birthday was listed as “1/1/1993” on official documents, where various witnesses testified that it was common for immigrants from Sudan to have their birthdate be arbitrarily assigned by the U.S. Gov’t upon their entry to the U.S. as the first day of the year of their birth, and Defendant’s father testified Defendant was born in Summer of 1993, State failed to prove that Defendant was 18 years old at time of offense, and thus, court did not have jurisdiction over Defendant.


State v. Borner, 93 Crim. L. Rep. 728 (N.D. 8/29/13):

Holding: The crime of “conspiracy” to commit extreme indifference murder does not exist, since indifference murder is an unintentional killing; “charging a defendant with conspiracy to commit unintentional murder creates an inconsistency in the elements of conspiracy and extreme indifference murder that is logically and legally impossible to rectify. An individual cannot intend to achieve a particular offense that by its definition is unintended.”
State v. Stegall, 93 Crim. L. Rep. 75 (N.D. 4/4/13):

Holding: A pregnant woman who takes drugs that affect her child’s post-birth development is not guilty of child endangerment; appellate court had previously ruled that a viable fetus is not a child for purposes of criminal prosecution of mother who takes drugs, so it would be absurd result to allow prosecution of mother after child is born.
State v. McBride, 2012 WL 2454088 (Or. 2012):

Holding: Even though Defendant allowed children to remain in house where illegal drug activity occurred, such evidence is insufficient to convict of child endangerment because the word “permit” in the statute is intended to connote some affirmative act by a defendant, not a passive act, and Defendant took no affirmative act that “permitted” the children to enter or remain in the house.
In re D.S., 90 Crim. L. Rep. 760 (Pa. 2/21/12):

Holding: A person cannot be convicted of giving a bogus identification to law enforcement authorities unless there is proof that officers first identified themselves and advised the suspect he was the subject of an official investigation.
Com. v. Hart, 90 Crim. L. Rep. 72 (Pa. 9/28/11):

Holding: Merely offering a child a ride without additional inducement is not an illegal “luring” of a child into a vehicle.
Com. v. Clegg, 89 Crim. L. Rep. 779, 2011 WL 3570056 (Pa. 8/16/11):

Holding: Even though state law prohibited possession of firearm by someone convicted of a crime “relating to burglary,” this did not prohibit someone convicted of attempted burglary from having a gun.
State v. Hepburn, 94 Crim. L. Rep. 359 (S.C. 12/11/13):

Holding: Even though South Carolina follows the rule that a defendant waives her motion for directed verdict at close of the State’s evidence if the defendant presents evidence, where Defendant and co-defendant were tried jointly and co-defendant testified in the defense part of the case that Defendant did the crime, and subsequently Defendant testified to rebut co-Defendant, the Defendant did not waive for appeal her motion for directed verdict at close of State’s case; “where a defendant’s evidence does not serve to fill gaps in the state’s evidence, her testimony does not operate to waive consideration of the evidence as it stood at the close of the State’s case” on appeal; if Defendant were deemed to have waived the right to test the sufficiency of evidence of the State’s case by rebutting the testimony of co-defendant, the State will in effect have been able to use the coercive power of the codefendant’s testimony as part of its case-in-chief, even though the State was prohibited from calling the co-defendant to testify for the prosecution; under this test, the State’s evidence was insufficient to convict, and the motion for directed verdict at close of State’s evidence should have been granted.
State v. Jones, 2011 SD 60, 2011 WL 4395823 (S.D. 2011):

Holding: Rape by intoxication requires proof that defendant knew or should have known that victim’s intoxicated state made consent impossible.
State v. Robinson, 93 Crim. L. Rep. 190 (Tenn. 4/19/13):

Holding: Even though Defendant was arrested in co-defendant’s truck during an undercover drug buy, evidence was insufficient to prove that Defendant constructively possessed drugs that were in co-defendant’s house that was several miles away.
State v. Watkins, 93 Crim. L. Rep. 281, 2013 WL 1960623 (Utah 5/10/13):

Holding: Crime of “aggravated” sexual abuse of child requires both that the defendant have occupied a “position of authority” and that he have been “able to exercise undue influence” over victim; here, Defendant moved in with his niece’s family but had no formal role of authority in the family.
Allen v. Com., 752 S.E.2d 856 (Va. 2014):

Holding: Testimony by Defendant’s daughter that he slept with and wrestled with alleged child victim provided only the opportunity to commit the corpus delicti of sexual battery, and was insufficient to provide slight corroboration of Defendant’s confession of that crime to police.
Rushing v. Com., 2012 WL 2038204 (Va. 2012):

Holding: Even though Officer testified that in his opinion Defendant’s wearing of black and blue beads in school showed he was in a gang, such testimony was not related in time to Defendant’s convictions and therefore was irrelevant in prosecution for gang participation.
State v. Vaquez, 2013 WL 3864265 (Wash. 2013):

Holding: Even though a store security guard, who was investigating Defendant in connection with a shoplifting, found a fake Social Security and permanent resident card on Defendant, the evidence was insufficient to show that Defendant intended to defraud the security guard with these items, precluding a conviction for forgery based on that evidence.
State v. Veliz, 2013 WL 865413 (Wash. 2013):

Holding: Violation of a domestic protection order is not violation of a “court-ordered parenting plan,” which is a necessary element of offense of custodial interference.
State v. Budik, 90 Crim. L. Rep. 721 (Wash. 2/16/12):

Holding: Merely refusing to divulge the identity of a criminal to police does not violate a state law outlawing the rendering of criminal assistance.
Davis v. Fox, 92 Crim. L. Rep. 192, 735 S.E.2d 259 (W.Va. 11/8/12):

Holding: Adopting the “majority rule,” West Virgina holds that the felony-murder rule does not apply where the intended victim of the crime kills one of the co-perpetrators; the common law of felony murder always involved the death of an innocent person, not a co-felon.
State v. Dinkins, 2012 WL 798790 (Wis. 2012):

Holding: A sex offender who had no address at which to reside after his release from prison, despite his attempts to secure an address, could not be convicted of knowingly failing to comply with the sex offender registration statute.
Rodgers v. State, 90 Crim. L. Rep. 302 (Wyo. 11/18/11):

Holding: Even though Defendant used another person’s I.D. to cash a check, this was not identity theft because it wasn’t used to acquire financial advantage.
Ford v. State, 89 Crim. L. Rep. 809 (Wyo. 8/25/11):

Holding: Even though Defendant was not authorized to use business’ letterhead, where Defendant signed her own name to the letter, this did not constitute forgery.
State v. Hankins, 2013 WL 5966894 (Ala. App. 2013):

Holding: The terms “sells, furnishes, gives away, delivers or distributes” in state drug law were not applicable to a licensed doctor writing a prescription.
Beecham v. State, 2013 WL 3716859 (Ala. App. 2013):

Holding: Even though Defendant failed to appear in court for a docket call, the evidence was insufficient to convict of bail jumping where the date and time of Defendant’s appearance in court was not set in the bail documents.
State v. Gray, 2011 WL 2623677 and 2623832 (Ariz. Ct. App. 2011):
Holding: Offense of “tampering with a witness” requires that the witness actually alter his conduct or testimony; otherwise the offense is “attempted tampering.”
People v. Boatman, 165 Cal. Rptr.3d 521 (Cal. App. 2013):

Holding: There was insufficient evidence to prove premeditation necessary for first degree murder, where victim sent a text message saying she was “fighting” with Defendant “right now,” a witness heard a loud argument going on, Defendant shot victim in face from a distance of one foot, and Defendant was distraught afterwards; the evidence supported reduction to second degree murder.

People v. Burkett, 163 Cal. Rptr. 3d 259 (Cal. App. 2013):

Holding: House was not an “inhabited” structure to qualify for first degree burglary where house was vacant of tenants and empty of possessions, and Owner/Landlord had not yet moved back into house or moved any possessions there.

People v. Williams, 160 Cal. Rptr.3d 779 (Cal. App. 2013):

Holding: Offense of “construction or maintenance of fire protection system in an unsafe manner” requires specific intent to install a system which is known to be inoperable or a specific intent to impair operation of a system.
People v. Mason, 160 Cal. Rptr.3d 516 (Cal. App. 2013):

Holding: (1) Trial court erred in omitting a jury instruction for offense of failure to register as sex offender that the State prove that the prior spousal rape conviction involved force or violence, since this was an element of the crime here; (2) Because the evidence was insufficient to prove that the prior conviction involved force or violence, Defendant could not be retried for failure to register on the basis of the conduct at issue in the present case.
People v. Pellecer, 2013 WL 1638175 (Cal. App. 2013):

Holding: Even though statute prohibits carrying a concealed weapon “upon his or her person,” this does not prohibit carrying the weapon (knife) in a backpack or adjacent container; hence, Defendant could not be convicted for having a knife in a backpack he was leaning on when police searched him.
In re Caberera, 2013 WL 3328774 (Cal. App. 2013):

Holding: Even though Defendant-prisoner had two drawings from gang members, where he was enrolled in an art course and had large quantities of drawings by many artists, the evidence was insufficient to prove association with gang members.
People v. Diaz, 2012 WL 2447060 (Cal. App. 2012):

Holding: Latex gloves and a large bag were not “burglary tools” because such “tools” are limited to instruments and tools used to break into or gain access to property in a manner similar to items listed in the “burglary tool” statute; that the gloves or bag may be used in a burglary is not enough.
In re Villa, 2012 WL 4457772 (Cal. App. 2012):

Holding: Where prisoners were allowed to possess other prisoners’ legal work to allow them to assist as pro se law clerks, such possession could not be used to establish that prisoner was member of a gang.
People v. Anguiano, 2012 WL 434661 (Cal. App. 2012):

Holding: Even though gang-member Defendant was sitting on a porch with a “personal use” amount of drugs, this did not support a finding that Defendant was promoting or furthering conduct of the gang.
People v. McCloud, 2012 WL 6057904 (Cal. App. 2012):

Holding: Even though Defendant fired 10 shots into a crowded building, this did not support liability under the “kill-zone” theory, which applies if a defendant tried to kill everyone in an area in order to kill a particular person.

People v. Johnson, 2012 WL 1435289 (Cal. App. 2012):

Holding: A charge of conspiracy to commit the crime of active participation in a criminal street gang was found to be invalid because a criminal street gang is inherently a form of conspiracy.
People v. Cardwell, 2012 WL 556222 (Cal. App. 2012):

Holding: Because the statutory phrase “vault, safe, or other secure place,” in statute proscribing burglary by use of acetylene torch, is expressly conditioned on the fact that a defendant has already entered a building, defendant could not be convicted under the statute for using torch to break into the building.
Magness v. Superior Court, 2011 WL 2295135 (Cal. App. 2011):

Holding: A defendant who uses a garage remote control to open a garage door from a distance away does not “enter” the house for purposes of burglary; this is only attempted burglary.
People v. Gerber, 2011 WL 2206896 (Cal. App. 2011):

Holding: Defendant did not violate child pornography possession statute by placing a child’s head on body of nude adult women because statute required that child be “personally engaging” in the sexual conduct depicted, which requires that a real child actually engage in the sex.
People v. Roldan, 2011 WL 2905598 (Cal. App. 2011):

Holding: Where Defendant was unconscious at a hospital, Defendant did not fail to provide proof of financial responsibility (insurance) after police searched through his vehicle but could find none; there was no evidence that police ever asked Defendant for proof of this and their failure to find this in the vehicle didn’t prove that Defendant lacked insurance coverage.
In re Cabrera, 2011 WL 3930310 (Cal. App. 2011):

Holding: Even though Defendant possessed two Xerox copies of drawings signed by gang members, this was insufficient to prove gang affiliation.
People v. Reed, 2013 WL 3943246 (Colo. App. 2013):

Holding: Evidence insufficient to convict of possession of a financial device where Defendant possessed a victim’s “gift card” which had no available funds; thus, the card was not a “financial device.”
People v. Childress, 2012 WL 2926636 (Colo. App. 2012):

Holding: A person cannot be held criminally liable as a complicitor for vehicular assault (DUI) which is a strict liability crime and doesn’t require a culpable mental state.
People v. Carbajal, 2012 WL 663165 (Colo. App. 2012):

Holding: In prosecution for possession of a weapon by a previous offender, the defendant was not required to show, as an element of the affirmative defense of a constitutionally protected purpose for his possession, that he sought protection from what he reasonably believed to be a threat of imminent harm.
People v. Douglas, 2012 WL 1231807 (Colo. App. 2012):

Holding: Complicitor liability for internet luring or sexual exploitation requires commission of the underlying offenses.
Carrosa v. State, 2013 WL 5224914 (Fla. App. 2013):

Holding: “Monetary value” as an element of workers compensation fraud cannot be measured by the administrative fine against Defendant, but instead is measured by the monetary loss sustained by the employer or insurance carrier.
Dorsett v. State, 2013 WL 331602 (Fla. App. 2013):

Holding: Conviction for leaving scene of injury accident requires proof of actual knowledge of the accident, not merely that Defendant “should have known” of it.
Stanley v. State, 2013 WL 1891325 (Fla. App. 2013):

Holding: Even though Defendant tied up sexual assault victim, this confinement did not constitute kidnapping because it was inherent in his sexual assault offense, but it could constitute lesser offense of false imprisonment.
State v. Little, 2013 WL 85436 (Fla. App. 2013):

Holding: Where concealed weapons statute allowed persons to carry concealed weapons at their “place of business,” it was not unlawful for an elected union secretary to carry such a weapon at the union hall and in the union hall parking lot.
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.
Pennington v. State, 2012 WL 5272927 (Fla. App. 2012):

Holding: Where the evidence indicated that victim-motorcyclist was doing a “wheelie” at 80-90 mph when collision occurred and motorcycle tire tracks were on top of Defendant’s SUV, the evidence was insufficient to support a conviction for DWI-manslaughter since there was insufficient evidence that Defendant’s intoxicated condition caused or contributed to victim-motorcyclist’s death.
Sanchez v. State, 2012 WL 385475 (Fla. Dist. Ct. App. 2012):