Ct. App. Oct. 14, 2010
October 14, 2010
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No. 07CA1782. People v. Loyas. Unlawful Sexual Contact—Burglary—Crim.P. 7(e)—Sexual Assault—Lesser-Included Offense—Sexually Violent Predator—Habitual Criminal—Sentence—Constitutionally Disproportionate.
Defendant appealed his judgment of conviction for second-degree burglary of a dwelling, unlawful sexual contact, first-degree trespass of a dwelling, and two counts of third-degree assault. He also appealed his conviction and sentence as a habitual criminal. The judgment and sentence were affirmed.
Defendant contended that the trial court’s change to the burglary charge constituted a constructive amendment that violated Crim.P. 7(e). The Court of Appeals disagreed. The trial court instructed the jury that the offense underlying the burglary charge was unlawful sexual contact, not sexual assault as originally alleged in the information. Under the circumstances here, where the greater offense is predicated on sexual intrusion, unlawful sexual contact is a lesser-included offense of sexual assault. An information charging sexual assault therefore is sufficient to advise an accused that he or she could be required to defend against the lesser-included offense of unlawful sexual contact.
Defendant argued that the trial court made inadequate findings to support its conclusion that he is a sexually violent predator (SVP). The Court disagreed. Defendant was older than 18 when he committed the current offense of unlawful sexual contact, and the victim was a stranger to him. Further, the trial court properly considered the risk assessment completed by the probation department, defendant’s documented history of violent behavior and substance abuse, and the fact that he had committed more than one sexual offense before finding that defendant was at high risk to reoffend based on his prior felony convictions.
Defendant argued there was insufficient evidence to support the trial court’s findings that he had been previously convicted of several felonies for the purposes of sentencing him as a habitual criminal. The Court disagreed, holding that the fingerprint records and photographs proved that defendant was the same person who was convicted of the previous felonies.
The Court also rejected defendant’s contention that his sentences were constitutionally disproportionate. Based on the underlying facts of the current conviction and defendant’s previous felony convictions, which included violent crimes that present an extraordinary risk of harm to society, defendant’s sentence of forty-eight years with the possibility of parole on the burglary charge and twenty-four years to life on the sexual contact charge were not excessively harsh.
No. 08CA0217. People v. Herron. Stalking—Double Jeopardy—Prior Acts Evidence—Right to Counsel—Waiver.
Defendant appealed from the judgment entered on a jury verdict finding him guilty of two counts of stalking and two counts of misdemeanor harassment. He also appealed his sentence as a habitual criminal. The judgment was affirmed in part and vacated in part.
Defendant contended that his two stalking convictions constituted multiple punishments for the same offense. The Court of Appeals agreed. The legislatively defined unit of prosecution for the crime of stalking is a continuous course of conduct by which one repeatedly follows, approaches, contacts, or places another under surveillance. Here, defendant observed the victim, Ms. R, leaving for church, approached her in the fitness room, and confronted her in the stairway. Defendant’s course of conduct directed at Ms. R amounted to a single crime for which the General Assembly has not authorized multiple punishments. Accordingly, one of the stalking convictions was vacated.
Defendant also contended that the trial court reversibly erred by allowing the admission of evidence of prior acts. The Court disagreed. The evidence that defendant confronted Ms. Z with unwanted advances, exposed himself to Ms. J, and followed B.S., a middle school student, was presented to show defendant’s mental state, intent, knowledge, and motive, which were relevant in this case. Additionally, defendant’s advances toward Ms. C and Ms. Z, his indecent exposure before Ms. J, and his remarks to the investigating officers support the inference that defendant (1) monitored women; (2) behaved in an invasive and inappropriate manner toward them; and (3) became angry when they expressed lack of interest. Further, the evidence’s probative value as it related to the mens rea elements was considerable, and thus not substantially outweighed by its prejudicial effect. Although the testimonies of Ms. H and B.S. do not support the relevant inferences, it was harmless error to admit such evidence.
Defendant also contended that his right to counsel was violated because the trial court did not give him a pro se advisement after he informed the court that he wished to represent himself. The Court disagreed, holding that defendant’s waiver of his right to counsel when he fired his public defender, prior to the habitual phase, remained voluntary, knowing, and intelligent.