1 count Felony DV Assault, 250 counts Witness Tampering

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by: Ryan • January 22, 2016 • no comments

There's no question that a man arrested for a DV crime shouldn't start calling the complainant from jail. It only adds to one's troubles. But if a defendant is in that situation, the lawyer might be able to minimize the damage by arguing -- either in negotiations or if there is a conviction -- that all the counts of Witness Tampering arise from one criminal episode, and therefore -- assuming they don't merge -- the 200% rule and the shift-to-I rule kick in.

Why are they from one criminal episode episode, if we're talking about separate phone calls made hours or even days apart? One word: Shazbat. No, wait, that's not the word. The word is "Nesbit."

In State v. Nesbit, the Court held multiple thefts from different days constituted one criminal episode based on the facts of that particular case. The reasoning was as follows:

If that were the theory of theft, then a complete account of why defendant committed theft each time he deposited one of the insurance checks issued to him would necessarily include the detail that 21st Century issued the check pursuant to defendant’s initial false claim for benefits. Thus, although additional details about the state’s theory of theft or acts of the crimes might convince us to reach a different conclusion, on the record before us, we cannot determine affirmatively that three counts of aggravated theft in the first degree could have been tried separately without violating double jeopardy principles. [Emphasis in original.]

In other words, no theft could be understood without evidence of the original fraudulent claim. Similarly, no witness tampering could be understood without evidence of the original offense.