Some offenses can be proved by alternative theories. For example, impaired driving occurs when a person drives while (1) while under the influence of an impairing substance, (2) after consuming a sufficient quantity of alcohol that the person has an alcohol concentration of 0.08 or more at any relevant time after the driving, or (3) with any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime (7th ed. 2012). The three options noted above constitute three separate theories upon which an impaired driving conviction can rest. Similarly, kidnapping occurs when a person (1) confines, (2) restrains, or (3) removes a person and other elements are satisfied. Id. The three options—confines, restrains, or removes—constitute three separate theories upon which a kidnapping conviction can rest. Sometimes alternative theories are bound up in the definition of an element of an offense. For example, first-degree sexual assault with a child requires, among other things, that the defendant engage in a “sexual act” with the victim. Id. The term sexual act is defined to include, in part, (1) cunnilingus, (2) analingus, (3) fellatio, and (4) anal intercourse. Id. These acts constitute separate theories that can support a sex offense conviction.
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News Roundup
The News & Observer reports that Governor Roy Cooper filed a lawsuit against legislative leaders last Friday that, among other things, contends that the new law that reduces the number of judges on the Court of Appeals impermissibly changes the length of a judge’s term without a supporting amendment to the state constitution. The Observer report says the lawsuit is “one of a series that Cooper . . . has filed since taking office in January” and is part of an ongoing power struggle between Cooper and legislative leaders. Keep reading for more news.
Lifetime SBM without Lifetime Registration
The trial court’s order regarding sex offender registration and satellite-based monitoring (SBM) in State v. Johnson was wrong in part. But also right in part. But ultimately wrong.
News Roundup
A suspected suicide bombing that killed twenty-two people at a concert in Manchester, England, is the major news story of the week. BBC News has an overview of the situation here. A 22-year-old Manchester man, Salman Abedi, has been named as the suspected bomber, and seven other men, some of whom are related to Abedi, had been arrested in connection with the attack at the time of writing. The Islamic State has claimed responsibility for the bombing, and the U.K. has raised its terror threat level from “severe” to “critical,” meaning that another attack may be imminent. Keep reading for more news.
Not All Warrantless Searches of Probationers Are “Directly Related” to Probation Supervision
Since 2009, all North Carolina probationers are subject to a regular condition of probation allowing warrantless searches of their person, vehicle, and premises by a probation officer. Under legislation passed that year, those searches must be for purposes “directly related to the probation supervision.” G.S. 15A-1343(b)(13). How related to probation must a search be to be “directly related”? A recent case sheds some light.
Marsy’s Law for North Carolina?
Earlier this month, the North Carolina House overwhelmingly passed House Bill 551, An Act to Amend the Law and Constitution of North Carolina to Provide Better Protections and Safeguards to Victims. The bill now awaits consideration by the Senate, where it has been referred to the Committee on Rules and Operations. The legislation is championed by the advocacy group, Marsy’s Law for All, which is seeking to amend state constitutions and, ultimately, the U.S. Constitution to enshrine victims’ rights. What is the impetus for Marsy’s Law and how would enactment of the constitutional amendment proposed in House Bill 551 change North Carolina’s existing constitutional and statutory protections for victims?
The Independent Source Exception to the Exclusionary Rule under the United States Constitution
I discussed the inevitable discovery exception in my last post. This post will discuss the independent source exception, particularly the United States Supreme Court cases of Segura v. United States, 468 U.S. 796 (1984), and Murray v. United States, 487 U.S. 533 (1988), and related North Carolina cases. It should be noted that the independent source exception was initially adopted in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), and can apply to investigations involving Fourth, Fifth, or Sixth Amendment violations.
Can the Fact that Daryl Had a Glock Yesterday Be Used to Prove that He Had an AK-47 Today?
When a defendant is charged with possession of a firearm by a felon, may the prosecution introduce, under Rule 404(b), evidence that the defendant previously possessed a different firearm? Courts nationally are divided. The Court of Appeals of North Carolina just ruled in State v. Williams that the answer is no.
News Roundup
The investigation into Russian involvement in the presidential election continues to dominate the news this week. On Wednesday, the Justice Department appointed Robert S. Mueller as special counsel responsible for leading the investigation. The appointment comes after it was reported that former FBI director James Comey kept memos contemporaneously documenting his conversations about the investigation with President Donald Trump. Mueller previously served as FBI director under George W. Bush and Barack Obama. Keep reading for more news.
How to Measure 1,000 Feet for the Sex Offender Residential Restriction
Under G.S. 14-208.16, a registered sex offender may not reside “within 1,000 feet of the property on which any public or nonpublic school or child care center is located.” What’s the right way to measure those 1,000 feet? As the crow flies? Property line to property line? Building to building?