Another Week Without a Reversal!?!?

23 09 2011

The Court of Appeals has another week consisting of zero criminal reversals.  There were 8 criminal cases with 1 being rejected for failure to include the jury verdict form or order for extension of time to file the record (Goldsberry), 3 based on revocation appeals (Grissom, Jones, Miller), 1 for failing to properly appeal within the time limitations from District to Circuit Court (Risner), 1 involving an unpreserved ineffectiveness claim (Stevenson), and 2 others with some merit.

In Halliday, the Court of Appeals dealt with 2 sufficiency challenges and a Wicks challenge for an incorrect jury instruction on a lesser included offense.  The appellant was convicted of Sexual Assault in the First Degree.  The State used the theory that the appellant was in a position of trust or authority over the victim.  In affirming, the Court noted that the victim stated that she trusted the appellant and her father also said he trusted the appellant.  The problem with the opinion is that the Court has once again punted at defining “position of trust and authority.”  The statute does not say that someone trusted the appellant, but rather, that he must be in a position of trust or authority.  I think this is a very important difference the Court fails to account for; nevertheless, the evidence may be sufficient regardless of the interpretation used.  Additionally, the appellant was convicted of sexual indecency with a minor based upon a different timeframe of alleged sexual assault.  There were two problems with this conviction.  First, sexual indecency requires solicitation.  The victim and appellant testified that except for their first sexual encounter (well prior to the timeframe alleged), the victim had initiated each sexual encounter afterwards.  Therefore, there was no evidence the appellant solicited any sexual encounter during the timeframe alleged.  Second, the next challenge was under a Wicks exception based on instructing the jury of sexual indecency of a minor when it is not a lesser-included offense to sexual assault in the first degree.  Obviously, this was not worthy of a Wicks exception but it makes for good grounds for a Rule 37 Petition.  Although, the Court of Appeals would not even admit that sexual indecency isn’t a lesser-included even though it requires multiple elements that sexual assault in the first degree does not.

The next case of some import was Porter.  Appellant was convicted of delivery of constrolled substances on two separate occasions.  Testimony for the State included the CI and officers involved in the buys.  Appellant took the stand in his own defense and stated that he only sold drugs once.  The State impeached him with his prior convictions for delivery of a controlled substanced.  Appellant objected when the State asked if the two prior offenses and current offenses were “for the same thing.”  The Court of Appeals declined to say whether this was improper questioning (although it is) and instead rested its decision on the failure to show prejudice, overwhelming evidence, and curative instruction given.




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