Case Law Update: 2011-2014 Cumulative Edition

Holding: Evidence was not sufficient to support the defendant’s conviction for racketeering because two predicate offenses were necessary to support the conviction, and the State proved only one predicate offense.

Willoughby v. State, 91 Crim. L. Rep. 100 (Fla. Ct. App. 4/11/12):

Holding: Where employee-defendant was authorized to use her laptop at work, she did not “unlawfully access” her employer’s computer database when she emailed confidential files to the laptop.
Balzourt v. State, 2011 WL 6117113 (Fla. Dist. Ct. App. 2011):

Holding: Where evidence in first-degree murder trial showed that victim suffered injuries indicative of more than just manual strangulation, but where the State did not show that those injuries were inflicted in a manner that resulted in a prolonged strangulation or cause of death that would have allowed the killer sufficient time to reflect on his actions, the evidence was insufficient to establish premeditation.
State v. Hammonds, 2014 WL 685558 (Ga. App. 2014):
Holding: Even though Defendant was a school secretary and assistant coach of school team, she did not have supervisory or disciplinary authority over students, so statute prohibiting sex with students did not apply; this was true even though Defendant had authority to write up disciplinary referrals; also, the alleged victims were not on the team she coached.
Newton v. State, 2012 WL 6634068 (Ga. App. 2012):

Holding: Even though Defendant stole jewelry while touring a home for sale with a Realtor and used a fictitious name, the evidence was insufficient to support burglary because Defendant did not enter the home without authority to do so.
State v. Dowling, 2011 WL 3808076 (Haw. Ct. App. 2011):

Holding: Merely hitting child was not sufficient to negate parental discipline defense in abuse of family member prosecution; Defendant had to intend to cause “extreme mental distress” not merely “mental distress.”
People v. Boykin, 2013 WL 5981390 (Ill. App. 2013):

Holding: Evidence was insufficient to establish sale of drugs within a prohibited school zone where there was no testimony whether the school in question was an “active” school and where the evidence didn’t show that the building’s name included any signage that would identify it as a school.
People v. McDaniel, 2012 WL 4862334 (Ill. App. 2012):

Holding: Even though Defendant stole items from a store, where he lawfully entered the store, this was not burglary but was shoplifting; to hold otherwise would convert every retail theft into burglary.
People v. Carreon, 2011 WL 5301636 (Ill. App. Ct. 2011):

Holding: Cigar did not constitute drug paraphernalia under the Drug Paraphernalia Control Act.


People v. McCarter, 2011 WL 2556916 (Ill. App. 2011):

Holding: Defendant did not “take” victim’s car under carjacking statute where Defendant merely forced driver to drive to different location; Defendant had to dispossess driver of car to “take” it.
Holbert v. State, 2013 WL 5530681 (Ind. App. 2013):

Holding: Even though intoxicated Defendant’s behavior alarmed a resident when he walked across her yard, when he then continued walking along a public sidewalk, the evidence was insufficient to convict of public intoxication because the statute requires intoxicated behavior in a “public place,” the private yard did not qualify, and there was no such behavior on the sidewalk.
Gaddie v. State, 2013 WL 3366749 (Ind. App. 2013):

Holding: Defendant cannot be convicted of resisting law enforcement for fleeing during a consensual encounter with police; so long as a seizure has not taken place within the meaning of the 4^th Amendment, a person is free to disregard Officer’s order to stop.
Smith v. State, 2013 WL 342678 (Ind. App. 2013):

Holding: Even though school-principal-Defendant did not contact authorities until 4 hours after learning of suspected child abuse, evidence was insufficient to convict of violating “immediate” mandatory reporting law where Defendant notified child’s guardian within 20 minutes of suspected child abuse, and had to attend to other duties before calling authorities.
Villagrana v. State, 2011 WL 3715572 (Ind. Ct. App. 2011):

Holding: Defendant’s negligence in watching his child did not make him subjectively aware of a high probability that the child had been placed in a dangerous situation, as the child neglect statute requires intentional or knowing conduct.
State v. Sarrabea, 2013 WL 1810228 (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.
Moulden v. State, 2013 WL 3213310 (Md. App. 2013):

Holding: Defendant’s act of pointing a fake or inoperable firearm at a person could not create a “substantial risk of death or serious physical injury” necessary to support a conviction for reckless endangerment.
Rich v. State, 2012 WL 1959308 (Md. Ct. Spec. App. 2012):

Holding: Under Maryland law, mere fleeing from Officer is not sufficient to establish resistance by force or threat of force, which is a necessary element of offense of resisting arrest.


Williams v. State, 2011 WL 2684885 (Md. Ct. Spec. App. 2011):

Holding: An unmarked police car equipped with lights and sirens did not constitute a sufficiently marked patrol car within the meaning of the feeling and eluding statute.
Com. v. Hall, 2011 WL 3835049 (Mass. Ct. App. 2011):

Holding: The child enticement statute, which prohibits enticing a child to “enter” certain places or vehicles, requires that a child be enticed to a location chosen by the defendant; hence, getting a child to take nude photos of herself in a place of her choosing and give them to Defendant did not violate the enticement statute.
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.
State v. Pegelow, 2012 WL 34030 (Minn. Ct. App. 2012):

Holding: Evidence that defendant posted nude and partially nude photographs of his ex-girlfriend in the men’s bathroom at her place of employment met the statutory definition of harass, but was insufficient to support his conviction for gross misdemeanor harassment in that the jury was required to determine that the defendant committed an act that was unlawful independent from the definition of harass.
State v. Harper, 2011 WL 2684887 (Neb. App. 2011):

Holding: Where a witness told Defendant that they were the owner of a damaged vehicle and took down license information from Defendant, the vehicle Defendant hit was not an “unattended vehicle” under statute regarding hit and run of unattended vehicles.
State v. Alverson, 2013 WL 4499460 (N.M. App. 2013):

Holding: A dry ice bomb is not an “explosive” device or “bomb” within the meaning of the New Mexico Explosives Act, because it was not similar to an explosive bomb, grenade or missile within the meaning of the Act; a dry ice bomb does not use or cause fire; there was no indication the Legislature intended “explosive” to cover the reaction of dry ice and water in a jug or bottle.
State v. Webb, 2012 WL 7656636 (N.M. App. 2012):

Holding: Allowing a child to get a body piercing is not “child endangerment.”
State v. Parvilus, 2012 WL 7656635 (N.M. App. 2012):

Holding: Under state burglary statute where neither husband nor wife can exclude the other from their residence, husband could not be convicted of burglary for entering wife’s residence, even though he had felonious intent.
State v. Gonzalez, 2011 WL 3687729 (N.M. Ct. App. 2011):

Holding: Where Defendant-drunk driver struck another car and killed a child in that car, this was not sufficient to convict of “negligent child abuse by endangerment” because Defendant’s drunk driving was directed toward the public generally, not a specific child.
People v. Lafont, 978 N.Y.S.2d 832 (N.Y. City Crim. Ct. 2014):

Holding: Where (1) Defendant-Wife had called 911 because she thought her husband was having post-surgical complications from open heart surgery only days before, (2) when Officer arrived, Defendant-Wife believed Officer was using unnecessary force to subdue husband, (3) Defendant-Wife sought to restrain Officer by putting her hands on him but did not injure Officer, and (4) Defendant-Wife had no prior criminal history, Information charging obstruction of government administration and harassment should be dismissed in the interest of justice.
People v. Delee, 969 N.Y.S.2d 350 (N.Y. App. 2013):

Holding: Jury verdict finding Defendant guilty of manslaughter as a hate crime, but not guilty of manslaughter in the first degree, was inconsistent as legally impossible, so as to require reversal of conviction.
People v. Sidarah, 2013 WL 3942915 (N.Y. App. 2013):

Holding: Even though Officer’s allegations were that Defendant was “inside” a building and said that he found “her” on the Internet and agreed to pay “her” for sex, the evidence was insufficient to charge crime of patronizing a prostitute where there were no allegations of the preceding events, the type of sexual conduct agreed to, the time frame of this, or a description of the unnamed “her.”
People v. Karlsen, 2013 WL 3923445 (N.Y. County Ct. 2013):

Holding: The offense of “concealment of a will” requires that the will be at least facially valid; thus, evidence was insufficient to convict Defendant where the “will” he concealed lacked the necessary formalities to be considered a legally valid will.
People v. Gaugh, 2012 WL 2332026 (N.Y. App. 2012):

Holding: Hazardous Transportation Law did not require truck driver-Defendant to unload contents at a certain place, or store hazardous materials at rear of truck for inspection.
Wilson v. N.Y.C. Police Dept. License Div., 2012 WL 6861589 (N.Y. Sup. 2012):

Holding: Even though Applicant answered “no” on a gun license application which asked which asked if she had ever been arrested and instructed applicants that they had to answer “yes” even if the charge was later dismissed, Applicant’s “no” answer was correct as a matter of law since her prior arrest was a nullity since the charge against her was dismissed; thus, it was as if the prior arrest had never occurred.
People v. Shieh, 2012 WL 3892838 (N.Y. App. 2012):

Holding: Conviction for violation of building code was not supported by sufficient evidence where Officer “guesstimated” that the number of people in bar was “well over” the legal limit without doing an actual head count.
Haughey v. Lavalley, 2011 WL 5865004 (N.Y. App. 2011):

Holding: Substantial evidence did not support charge that prisoner was smuggling a brown shirt, where prisoner denied that he was smuggling, the shirt was clearly visible to corrections officers, and there was an area before the building exit for prisoners to hang their clothes.
People v. Hakim-Peters, 937 N.Y.S.2d 759 (App. Div. 2012):

Holding: Evidence was legally insufficient to support finding that assault defendant acted with depraved indifference to human life because after he realized that he had knocked his son unconscious, he attempted to provide first aid.
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.
State v. Anderson, 2012 WL 3517322 (Ohio App. 2012):

Holding: A condemned house was not an occupied structure as required to support a conviction for burglary.
State v. Arega, 2012 WL 6062030 (Ohio App. 2012):

Holding: Evidence was insufficient to support strict liability for a nursing assistant at a nursing home for a sexual battery to a nursing home patient; the nursing assistant did not have supervisory authority at the nursing home.
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.
State v. Olive, 2013 WL 5743818 (Or. App. 2013):

Holding: To convict of resisting arrest, State must prove that Defendant knew at the time of his resistance that a peace officer was making an arrest.
State v. Kinslow, 2013 WL 3215685 (Or. App. 2013):

Holding: Even though Defendant had restrained victim and made him move to different rooms in the same house, this did not prove taking victim “from one place to another” necessary to sustain conviction for kidnapping.
Johnson v. Dept. of Public Safety Standards and Training, 2012 WL 5429461 (Or. App. 2012):

Holding: Oregon victim’s rights law which provided that a victim must be informed “by defendant’s attorney” that they are being contacted in a defense capacity did not require a private investigator hired by a defense attorney to disclose anything; the only obligation imposed by the law was on the attorney, not the investigator.
State v. Tilden, 2012 WL 5285134 (Or. App. 2012):
Holding: Evidence was insufficient to convict of possession of child pornography where child pornography was only in Defendant’s computer’s cache as a consequence of the web browser’s automatic “caching” function; this was insufficient to prove that Defendant “possessed” or “controlled” the images, though he viewed them.
State v. Martin, 2011 WL 2342628 (Or. App. 2011):

Holding: Even though Defendant possessed another person’s personal identification, this was not by itself sufficient to convict of identity theft without proof of intent to deceive or defraud.
Com. v. Lynn, 2013 WL 6834765 (Pa. Super 2013):

Holding: (1) Evidence was insufficient to prove that Defendant-Priest “supervised” a child who was sexually abused by another priest, and thus did not support conviction for endangering welfare of child, even though Defendant-Priest knew the other priest had a history of abusing minors yet placed child with the priest; (2) there was no evidence that Defendant-Priest knew of other priest’s plan to abuse children in this case, so Defendant could not be an accomplice of other priest in offense either.
Com. v. Foster, 2011 WL 3850026 (Pa. Super. 2011):

Holding: A vehicle’s grill is similar to a fixture of real property, as opposed to moveable.
Stobaugh v. State, 2014 WL 260576 (Tex. App. 2014):

Holding: Even though Wife was missing and Defendant-Husband lied about certain matters regarding her disappearance, where there was no body, murder weapon, witnesses to murder, no blood or other evidence showing Wife was actually dead or murdered, the evidence was insufficient to prove Defendant had mens rea for murder.
Crabtree v. State, 2012 WL 5348220 (Tex. Crim. App. 2012):

Holding: Where state sex offender registration statute required Department of Public Safety (DPS) to make a determination that other states’ sex offenses were similar to Texas offenses but there was no evidence that DPS had done this in Defendant’s case, the evidence was legally insufficient to convict of failure to register.
Mahaffey v. State, 2012 WL 1414108 (Tex. Crim. App. 2012):

Holding: A defendant was not required by the Texas signal statute to signal when two lanes merged to become one.
State v. Rincon, 2012 WL 6720469 (Utah App. 2012):

Holding: Defendant did not “obtain” another person’s social security number in violation of identity theft statute where Defendant just made up a number that coincidentally matched a person; to “obtain” requires some planned action or method.
Doulgerakis v. Com., 2013 WL 424466 (Va. App. 2013):

Holding: Gun stored in a latched, but unlocked, glove compartment was “secured in a container or compartment,” and thus, fell within this exception to prohibited concealed weapon statute.
State v. Lau, 2013 WL 2157686 (Wash. App. 2013):

Holding: Even though Defendant understated his business’ revenues to avoid paying taxes, the underpayment of taxes did not constitute “theft” because his business’ revenues were not “property of another” under the theft statute.
State v. Morales, 2013 WL 1456939 (Wash. App. 2013):

Holding: Even though Defendant made two different communications on two days that he was going to kill the mother of his children, this was a single unit of prosecution for felony harassment, because the harassment statute focused on the threat to a victim, not the number of persons who might learn of the threat or communicate it to the victim.
State v. Bauer, 2013 WL 864843 (Wash. App. 2013):

Holding: Where Defendant was charged with assault for having left a gun on a dresser where a child got it and shot someone, the question of whether leaving the gun in the open was the proximate cause of the victim’s injury was a jury question.
State v. Stribling, 2011 WL 5420809 (Wash. Ct. App. 2011):

Holding: In order for a defendant to be convicted of sexual exploitation of a minor, there must have been an actual photograph taken or a live occurrence, and that the minor’s consistent refusal to send nude photographs to defendant demonstrated that defendant did not know that a minor would engage in sexually explicit conduct that would be photographed or part of a live performance, as required by the statute.
State v. Kirwin, 2012 WL 593208 (Wash. Ct. App. 2012):

Holding: Defendant was entitled to dismissal for insufficient evidence of charges against her for first-degree custodial interference by being a relative of the child and keeping the child from a person who has a lawful right to physical custody, though state presented sufficient evidence of a different, uncharged offense that was mistakenly described in to-convict instruction, which was custodial interference by being a parent and keeping child from other parent who has a right to time with the child; conviction of defendant for uncharged crime was violation of due process.
State v. A.M., 2011 WL 3890747 (Wash. Ct. App. 2011):

Holding: For purposes of child rape statute, “sexual intercourse” means penetration of the anus, not merely penetration of the buttocks.
Transcript – Right To
A.L.C. v. D.A.L., 2014 WL 707163 (Mo. App. E.D. Feb. 25, 2014):

Holding: Where Associate Circuit Court failed to make a recording of the order of protection hearing so that no transcript was available for appeal, judgment is reversed and remanded for new trial since Sec. 512.180.1 requires a record be kept in all contested civil matters before an Associate Circuit Judge.
State v. Barber, No. WD742879 (Mo. App. E.D. 11/13/12):

Where (1) a recording machine malfunction caused most of Defendant’s testimony at trial to not have been recorded; (2) the State refused to stipulate to Defendant’s testimony on appeal; and (3) the testimony was crucial to Defendant’s points raised on appeal, Defendant was prejudiced by the lack of a transcript and entitled to a new trial.

Discussion: Rule 30.04(h) allows parties to correct an omission from a transcript by stipulation. Although Defendant submitted an affidavit as to what his testimony was, the State refused to stipulate to its accuracy. The State argues that Defendant was not prejudiced by the missing testimony since the jury found him guilty and, thus, the missing evidence must not have been helpful to his defense. “Were we to accept this argument, however, it would render transcripts of trials meaningless.” The missing portion of the transcript is necessary for meaningful appellate reviews of Defendant’s points on appeal, including sufficiency of evidence. Even though the prosecutor did not cause the recording machine to malfunction, it is the State that seeks to take Defendant’s liberty from him. Due process requires that the State ensure that Defendant has access to a transcript of his testimony or at least a stipulation as to the specific contents of his testimony. Here, Defendant has neither, through no fault of his own.
State v. Scott, 94 Crim. L. Rep. 113, 2013 WL 5637692 (Haw. 10/16/13):

Holding: Indigent defendant was entitled to state-paid transcript of co-defendant’s trial for effective preparation and impeachment.
Blackshear v. State, 2011 WL 1991424 (Tex. App. 2011):

Holding: Trial court erred in second trial in not granting a continuance to allow Defendant to obtain a transcript from the first trial; defense should have been able to use the transcript to cross-examine witnesses from first trial, even though second trial was for punishment only.

Trial Procedure
State v. Pierce, 2014 WL 2866292 (Mo. banc June 24, 2014):

(1) Even though the uncontradicted evidence showed that Defendant had more than two grams of cocaine base, the trial court erred in second degree trafficking case in failing to give “nested” lesser-included offense instruction on possession of cocaine because a jury may always believe or disbelieve the State’s evidence, and the only thing a defendant must do to put the elements of a crime “in dispute” is plead not guilty; and (2) Even though Court’s term had ended before Defendant was retried, Defendant waived his claim that this violated Article I, Sec. 19 of the Missouri Constitution because he failed to object to the “untimely” trial before the Court’s term ended at a time when the Court still had power to correct it.