A few criminal law tidbits
by: Ryan • December 24, 2014 • no comments
Drawing from a batch of today's criminal law opinions, here are some things I think are worth keeping in the back of your brain for when they become necessary:
(1) If the state is asking for a special jury instruction, it's probably an unlawful comment on the evidence. Especially in Delivery cases. See State v. Blasingame, where the issue was not preserved (though not seriously in dispute).
(2) There is no such thing as constructive revocation of permission to enter, only express or implied revocation. In other words, if you have permission to enter a residence, there can be implied revocation if you start assaulting the homeowner. But if you steal something -- and the theft isn't caught until after you left -- it's not the case that the express permission was constructively withdrawn because it would have been had the homeowner been aware of the theft. In State v. Evans, the trial judge thought otherwise, saying "[W]hen you commit the crime in the house, you revoke any permission you were given to be there." But the AG didn't make that argument on appeal and the COA said, "We do not consider the trial court's rationale, because, as we will explain, the facts provide a different basis upon which to deny the motion for judgment of acquittal."
If the trial judge was correct, every single shoplift would be a burglary.
(3) The burden is on the judge to make findings in support of the defendant's ability to pay attorney's fees. If your client got a twenty year sentence, those findings probably aren't possible. State v. Mejia-Espinoza
