New cases out of the lesser two divisions today (what can I say, I have a home-town bias towards Div. I).

Division II

In Proctor v. Huntington, your typical First Year Property class defendants started building willy-nilly. Once the plaintiff discovered that he was wrong in what they all thought the boundaries were, he sued in ejectment. Go figure, the court wasn’t about to force someone to tear down structures over a case of mutual stupidity, and instead affirmed the trial court in forcing sale of the acre of land.

For those curious about the standard, it falls under an exception to the usual rule that the encroacher must get out:

To trigger the exception, the encroacher must prove by clear and convincing evidence that (1) he did not simply take a calculated risk or act in bad faith, or act negligently, willfully, or indifferently in locating the encroaching structure; (2) the damage to the landowner is slight and the benefit of removal equally small; (3) there is ample remaining room for a structure suitable for the area and there is no real limitation on the property’s future use; (4) it is impractical to move the encroaching structure as built; and (5) there is an enormous disparity in the resulting hardships.

The second case out of Div. II takes a more somber tone. In State v. Reyes, the court was tasked with examining possible error in this homicide by abuse/second degree murder case. Essentially, it was a baby-shaking case that resulted in a subdural hematoma the likes of which he had never seen in practice, welts consistent with electrical cord beatings, broken ribs and hemmorhaging in the eyes, and signs of recovery from significant previous internal injuries. In other words, this poor child hadn’t had the best life, and the excuse of falling from the bunk bed just wasn’t going to fly. The court provides more detail of course, but, trust me, it is not something you would like to read.

The court easily affirmed the trial court on the issue of whether substantial evidence supported the homicide by abus. The court first turned to the statute:

A person is guilty of homicide by abuse if, under circumstances manifesting an extreme indifference to human life, the person causes the death of a child or person under sixteen years of age, . . . and the person has previously engaged in a pattern or practice of assault or torture of said child, [or] person under sixteen years of age. . . .

The court had zero trouble finding causation, the only contention of Reyes’ being that the doctor only said that the brain injury was very recent, but could not place it on Reyes. The court then turned to extreme indifference. In looking to an analogous case, it stated:

[T]he State does not have to show that the defendant knew or understood the physiological results of a particular form of assault. Rather, to have acted with extreme indifference to the victim’s life, the defendant “simply had to not care whether [the victim] lived or died.”

(Internal Citations Omitted). Again, based on the lengthy history, the court had little trouble with sufficiency. They then look to whether there was a pattern of assault or torture. Surprise, surprise! No problem at all finding that either.

The question then turned to whether the Second Degree Murder conviction was required to be overturned on double jeopardy grounds. Seeing as it was the same offense, the state conceded it was the same offense, and the trial court had entered in its judgment and sentence that a sentence was not to be imposed on the second degree murder charge because of double jeopardy, the conviction was tossed on double jeopardy grounds:

Reyes’s judgment and sentence provides: “The court does not impose [a] sentence for COUNT II (Murder in the Second Degree) for double jeopardy reasons. COUNT II is a valid conviction but the court finds that imposing a separate punishment would violate constitutional double jeopardy [provisions].  The appendix states that the second degree murder conviction “is a valid conviction.” The State agrees that under Womac, this was an error. We remand for the trial court to vacate the second degree murder conviction.

(Internal Citations Omitted).

So as to make this clear, the trial court was in fact trying to say that double jeopardy would apply to the sentence, but not the conviction. Interesting theory, non? I’m sure many a defendant would beg to differ during sentencing that the superfluous conviction should stand. Easy mistake to make though, double jeopardy is not an easy concept to wrap the brain around.

Division III

State v. Garcia, a 2-1 split, involved the question of when a person can make an arrest as to a shoplifter. The standard is easy. If you’re a store owner or employee, you need reasonable grounds to believe the person is committing or attempting to commit theft or shoplifting. If you’re just an average Joe, then it has to be a misdemeanor breach of the peace committed in your presence. If you’re the employee of a neighboring store who saw nothing, you cannot make an arrest because you don’t fit either mold.

And if the employee of another store couldn’t lawfully detain you, you could not resist lawful detention as to that person.

Speaking as a former Loss Prevention Specialist, I can attest to the fact that most people who actually work in Loss Prevention know this pretty well. Many a time I would end up following a suspected shoplifter into a neighboring store because I either 1) was in the process of arresting them for something they did in my store; or 2) notifying the other store that they had a highly suspicious person in the store that they may wish to observe. Never did I we ask the other store to catch our bad guys for us for this reason. Unfortunately, general employees sometimes get a little overzealous.

On a side note: If Loss Prevention paid anything like Law, I might still be doing it. It was a fun job and, like law, you only had to wear a tie to court.

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