The Stepson, “True Threats” and Aggravated Harassment

This post examines a recent opinion issued by the Justice Court, Town of Webster, New York, Monroe County:  People v. Grammatico, 2017 WL 22441 (2017). The judge begins the opinion by explaining that

[t]he defendant was charged with aggravated harassment in the second degree in violation of Penal Law Section 240.30(1)(a) alleged to have occurred on August 29, 2016. An arrest warrant was then issued for the arrest of Nicolas A. Grammatico. The defendant was arraigned in an `off hours’ arraignment on September 13, 2016. At the time of his arraignment he was accompanied by his attorney. The defendant was released on his own recognizance at that time. Subsequently defense counsel filed a motion with the court requesting the dismissal of the information, alleging that same was defective and being insufficient on its face pursuant to [New York Criminal Procedure Law] §§ 100.15, 100.40, 170.30 and 170.35. The accusatory instruments consisted of a complaint prepared by Officer Alex Kirkpatrick and a two page supporting deposition sworn to by Robyn L. Grammatico, the alleged victim herein. 

People v. Grammatico, supra.

It was alleged in the complaint in pertinent part that

` . . . the defendant made an alarming phone call to the victim, Robyn L. Grammatico while she was at her home address of 612 Wild Mallard Trail located in the Town of Webster, County of Monroe, State of New York. While on the phone with the victim the defendant stated “I am going to hurt you and make you pay for what you did to me”’.

The supporting deposition of Robyn Grammatico alleged that the defendant is her step son. She further stated that the defendant called her disparaging names. She also stated that despite her requests not to do so, the defendant placed numerous phone calls to her which were harassing and threatening in nature. However, the main thrust of her supporting deposition is as follows: `Nicholas [sic] blamed me for the incident on 5/8/16 [his mental health arrest] and told me “I am going to hurt you and make you pay for what you did to me.”’ Ms. Grammatico went on to say that the defendant has `access to various types of weapons’. Finally, she stated that `I would like to mention that on 8/29/16 Nicholas [sic] also told me that he was going after my brother Ronald Butera’.

People v. Grammatico, supra.

The judge then identifies the “issue granted” in this case:

Do the words `I am going to hurt you and make you pay for what you did to me’ amount to `a threat to cause physical harm’?

People v. Grammatico, supra.

The judge then began his analysis of that issue, explaining that THE

current wording of Penal Law Section 240.30 relative to aggravated harassment in the second degree was put into affect on July 23, 2014. In particular subsection (1)(a) states as follows:

`A person is guilty of aggravated harassment in the second degree when:

1.     With intent to harass another person, the actor ...:

(a)  communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person's same family or household as defined in subdivision one of section 530.11 of the criminal procedure law, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of such person's same family or household.’

There is no doubt that the defendant's statement that `I am going to hurt you and make you pay for what you did to me’ is a threat. That term has been defined as `an expression to hurt, destroy, punish, etc.’ (Webster's New World Dictionary and Thesaurus, [2nd Edition 2002] ) However, not all threats can form the basis of a violation of Penal Law § 240.30(1)(a). In fact a distinction has been drawn between a threat that is unclear, ambiguous and non-immediate and a `true threat’. (See People v. Orr, 47 Misc.3d 1213[A], 2015 N.Y. Slip Op. 50568[U],*2 [2015] ). In other words there is a distinction between a generalized or vague threat and a true threat of physical harm. The court in Orr held that `Where the language at issue “is incapable of constituting a true threat, as a matter of law, the complaint should be dismissed’”.  

People v. Grammatico, supra.

The judge goes on the explain that,

[n]evertheless, in reviewing Informations for sufficiency the court must always weigh the language of the applicable sufficiency statutes, i.e. CPL §§ 100.15, 100.40, 170.30 and 170.35 against the case law that discourages the dismissal of informations on sufficiency grounds.

`The prime facie requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y .S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the Information need only contain allegations of fact that ‘give an accused sufficient notice to prepare a defense and that are adequately detailed to prevent a defendant from being tried twice for the same offense’ People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88,91, 740 N.E.2d 233 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a ‘fair and not overly restrictive or technical reading.’ id., assume that those allegations are true, and consider all reasonable inferences that maybe drawn from them. CPL §§ 100.40, 100.15; People v. Jackson, 18 NY3d 738, 747, 944 N.Y.2d 715, 721–722, 967 N.E.2d 1160, 1166–67 (2012. See also Casey, 95 N.Y.2d at 360, 717 N.Y .S.2d at 91, 740 N.E.2d at 236. (People v. Williams, 46 Misc.3d 1208[A] 2915 N.Y. Slip Op. 50017, *2 [U] [2015]).

People v. Grammatico, supra.

The judge continues his analysis, pointing out that

[t]he offense charged herein is not based on a specific physical action, such as an assault or a larceny. Instead, the offense is based on words allegedly used by the defendant that were directed to another person. Penal Law Section 100.40(1)(c) requires that `Non-hearsay allegations of the factual part of the information and/or any supporting deposition establish if true, every element of the offense charged and the defendant's commission thereof.’ The key element of subdivision (1)(a) of the aggravated harassment in the second degree statute is that of `a threat to cause physical harm’. Thus not all threats constitute an element of the charge. For example a threat to make use of the court system against another individual is not prohibited, i.e. threat to sue for custody of a child. In fact, `More generally, to constitute a ‘true threat’ a remark must ... contain a threat that is ‘clear, unambiguous, and immediate.’

Nevertheless, a court need not evaluate a particular statement completely disconnected from other alleged statements set out in the accusatory instruments. To do otherwise is to ignore how the totality of the statements in question would be interpreted by a reasonable person to whom the statements were directed. `The defendant must also “know[ ] or reasonably should know that such communication will cause [the other] person to reasonably fear harm.”’ The supporting deposition of Ms. Grammatico indicated that the defendant allegedly also called her a `bitch’ and `a gold digging bitch’.

However, those statements are not threats.  Even taken as a whole, one is still left to wonder what were the intentions of the defendant. The word hurt in the current context can have a number of meanings, other than an intent to injure to person or property. It can be that he intends to hurt the relationship between Ms. Grammatico and the defendant's father. It can be that the defendant intends to take legal action against her.

The same analysis must apply to the alleged statement that the defendant `was going after’ Ms. Grammatico's brother. The court's analysis of the defendant's statements cannot be reduced to guessing about the meaning of a defendant's words or the defendant's intentions. If either of those options become the case then the accusatory instruments lack the essential element of P.L. 240.30(1)(a), that is `of a threat to cause physical harm’.

People v. Grammatico, supra.

The Judge went on to point out that

[t]his by no means discounts the actions of the defendant, if true, as being alarming and/or annoying. Interestingly, in People v. Orr, Judge Statsinger having granted the defendant's motion to dismiss the charge of aggravated harassment in the second degree, Penal Law § 240.30(1)(a), denied the defendant's motion to dismiss the charge of harassment in the second degree, pursuant to PL § 240.26(3) involving the same alleged statements of that defendant. Therefore, even if statements do not amount to a threat they can constitute the violation of harassment in the second degree.

People v. Grammatico, supra.

He concludes the opinion with the following observations:

The statements alleged to have been made by the defendant as set out in the information herein do not constitute a true threat as that term has been interpreted by the courts of this state. In that regard the statements allegedly made by the defendant herein were unclear and ambiguous. Nor was there any immediacy suggested by the language of the defendant. Thus the motion of defense counsel requesting the dismissal of the information herein is hereby granted pursuant to [New York Criminal Procedure Law]  §§ 100.15(3), 100.40(1)(c), 170.30(1)(a) and 170.35(1)(a). This constitutes the decision and order of the court.

People v. Grammatico, supra.

The Apple iMac Computers, Receiving Stolen Property and Valuing Computers

This post examines an opinion from the Court of Appeals of Alaska, which may be the first post I have done on an opinion from this court.  Bell v. State, 2017 WL 127985 (2017).

The Court of Appeals begins the opinion by explaining that

[i]n May 2012, several Apple iMac computers were stolen from West Anchorage High School by persons unknown. Shortly after these computers were stolen, Robert Daniel Bell sold one of them to a used electronics dealer. The dealer paid Bell $140 for the computer.

The State subsequently charged Bell with second-degree theft (theft by receiving stolen property valued at $500 or more) and with third-degree theft (theft by deception for selling the iMac to the used electronics dealer for $140).  At Bell's trial, the main disputed issue was the value of the computer — if the value equaled or exceeded $500, the charge was a felony, if less, a misdemeanor.

Bell v. State, supra.

The second-degree theft charge was brought under Alaska Statutes § 11.46.190. Bell v. State, supra. The third-degree theft charge was brought under Alaska Statutes § 11.46.100(3). Bell v. State, supra. 

The opinion goes on to note that the

iMac computer at issue had been customized for educational use. The iMac was programmed to prevent software changes or updates unless it was connected to the Anchorage School District's server. In addition, a content filter prevented users from accessing websites deemed inappropriate for students. These limiting features potentially affected the market value of the stolen iMac.

After hearing all of the evidence, the jury convicted Bell as charged.

Bell v. State, supra.

The Court of Appeals then took up the arguments Bell made on appeal, starting with the valuation of the stolen iMacs:

Alaska Statute 11.46.980(a) sets forth the circumstance under which the normal method for valuation of property, fair market value, can be supplanted by an alternative method of valuation, replacement value:

`In this chapter [AS 11.46], whenever it is necessary to determine the value of property, that value is the market value of the property at the time and place of the crime unless otherwise specified or, if the market value cannot reasonably be ascertained, the cost of replacement of the property within a reasonable time after the crime.’

Bell's jury was instructed according to this statute. On appeal, Bell argues that the trial judge committed error by instructing the jury about the possibility of valuing the stolen iMac by its replacement value, contending that no reasonable juror could have resorted to replacement valuation. Secondly, Bell argues that because the school district computer was clearly worth less than $500, the judge should have entered a judgment of acquittal on the offense of felony theft by receiving stolen property.

Lastly, Bell argues that the trial judge should have granted him a judgment of acquittal on the offense of theft by deception because no reasonable juror could have believed that the used electronics dealer was deceived when Bell claimed that he was the legitimate owner of the iMac.

For the reasons that follow, we find Bell's arguments to be without merit and we affirm his convictions.

Bell v. State, supra.  I usually do not comment on arguments made in the cases I use as the basis of blog posts, but as far as I can tell,  Bell’s last argument about the “reasonable juror” is, at the least, unusual.

The court then went through his arguments, beginning with “the record pertaining to the value of the stolen computer”.  Bell v. State, supra.  It explained that

[d]uring Bell's trial, the comptroller for the Anchorage School District testified that the school district had purchased the iMac as part of a bulk purchase of almost 1500 Apple computers Apple computers in July 2010. The school district paid a discounted price of $889.24 for the computer. At the time it was stolen, the iMac had been used in the Anchorage schools for two academic years.

A network specialist with the school district's IT department testified that, if someone wanted to purchase an iMac similar to the one that was stolen, the retail value would be between $1300 and $1700. The network specialist also testified that Apple computers were `a higher-end brand’ and that they retained their value even after use.

Anchorage Police Detective Steven Oyler corroborated the network specialist's testimony. Oyler testified that, in his experience, Apple computers are `a higher-dollar brand’ and that new iMacs sell for about $1500.

During final argument, the prosecutor argued that the iMac had an ascertainable fair market value and that, based on the sale prices of like-model new iMacs, it was reasonable to infer that this market value equaled or exceeded $500. Bell's defense attorney agreed that the iMac had an ascertainable market value and he therefore urged the jurors to ignore the `replacement value’ method of valuing the computer. The defense attorney argued that there was at least a reasonable possibility that the iMac was worth something less than $500.

Bell v. State, supra. 

The Court of Appeals went on to articulate its analysis of, and ruling on, Bell’s first argument:

Bell argues that the trial judge should have granted him a judgment of acquittal on the second-degree theft offense because no reasonable juror could have concluded that the value of the iMac was $500 or more. When a defendant challenges the sufficiency of the evidence to support a criminal conviction, an appellate court must view the evidence, and all reasonable inferences to be drawn from the evidence, in the light most favorable to upholding the jury's verdict.  The question is whether, viewing the evidence in this light, a reasonable juror could have concluded that the State had proved its case beyond a reasonable doubt.      

We have already described the evidence presented at Bell's trial pertaining to the value of the iMac. Viewing that evidence in the light most favorable to the jury's verdict, we conclude that it was sufficient to convince fair-minded jurors that the iMac was worth at least $500.

Bell v. State, supra. 

The Court of Appeals went on to address Bell’s next argument, which was that

the trial judge should never have informed the jury that, under Alaska law, the value of property is its replacement value if it is not reasonably possible to ascertain a fair market value for the property.

More specifically, Bell argues that the iMac was self-evidently marketable because Bell indeed sold it to the used electronics dealer. Thus, Bell contends, no reasonable juror could have concluded that it was not reasonably possible to ascertain a fair market value for the computer. But the jury was not required to find that, simply because Bell was able to sell the iMac to the used electronics dealer, the computer had a fair market value.

`Fair market value’ is a term of art. As we explained in Morris v. State, the phrases `market value’ or `fair market value’ mean `the amount at which the property would change hands, between a willing buyer and a willing seller, neither being under compulsion to buy or sell and both having knowledge of the relevant facts.’

The sale between Bell and the used electronics dealer did not necessarily establish a fair market value under this definition. The used electronics dealer testified that he bought the iMac under the impression that it was an older but functional computer. It was not until later that he became aware of the significant limitations on its functionality. And even when the dealer thought that the iMac was functional, he was only willing to pay a very small price for it — $140.

When this issue was presented to the trial judge (as part of Bell's motion for judgment of acquittal following the State's case-in-chief), the judge himself declared that he thought it was `next to impossible’ to ascertain a fair market value for the computer — although he acknowledged that the jurors might see it differently, and so he allowed the attorneys to argue their respective positions regarding the market value of the computer.

We agree with the trial judge that reasonable people could conclude that it was not reasonably possible to ascertain a fair market value for the iMac, given the significant limitations on its functionality. It was therefore proper for the trial judge to instruct the jurors that, if the market value of the iMac could not reasonably be ascertained, the jurors should use replacement cost as the measure of the computer's value.

On a related issue, we reject Bell's argument that it is always a question of law — to be decided by the trial judge, not the jury — whether the fair market value of particular property is reasonably ascertainable. There may be cases where, based on the evidence, reasonable people would have to agree that the property at issue had a reasonably ascertainable fair market value. But in cases like Bell's, some reasonable jurors might conclude that it was not reasonably possible to ascertain a fair market value for the hobbled iMac. In such circumstances, a judge is not entitled to take this issue from the jury.

Bell v. State, supra.  The comments quoted in the excerpt above, with regard to the “relevant facts” are quoted from Johnson v. State, 188 P.3d 700, 702 (Alaska Court of Appeals 2008)).

The Court of Appeals went on to address Bell’s argument that the evidence presented at trial was not sufficient to prove beyond a reasonable doubt that he was guilty of theft by deception:

Bell claims the judge erred by denying Bell's request for a judgment of acquittal on the theft by deception charge. Bell argues the dealer must have known that the iMac was stolen and that Bell had no right to sell it. Consequently, Bell contends there was no reasonable possibility that the used electronics dealer was deceived. But Bell's argument rests on viewing the facts in the light most favorable to himself rather than in the light most favorable to upholding the jury's verdict.

Subsections (D) and (E) of [AlaskaStatutes] 11.81.900(b)(18), respectively, define `deception’ as the `fail[ure] to disclose a . . . legal impediment to the enjoyment of the property’ or the `promise [of] performance that the defendant does not intend to perform or knows will not be performed.’ Because reasonable jurors could conclude that Bell deceived the used electronics dealer under either of these definitions, the trial judge properly denied Bell's motion for acquittal.

The used electronics dealer testified that he required all customers to sign a document promising to indemnify the dealer for any latent defects discovered in the purchased item. Bell signed this indemnification contract using a false name. Based on this testimony, reasonable jurors could find that Bell's promise to indemnify the dealer for defects, made under a false name, constituted a promise of performance that Bell did not intend to perform — and that Bell thereby committed deception as defined in subsection (E) of the statute.

In addition, sufficient evidence was presented for the jury to find Bell guilty of deception under subsection (D) as well. The dealer testified that his business model was to purchase used electronics from people whose circumstances compelled them to sell at a deep discount. He admitted that he was aware of the risk that sometimes he would be purchasing stolen property. But he testified that he did not knowingly make purchases of stolen goods and that he specifically would not have purchased the iMac from Bell if Bell had revealed that it was stolen.

Bell v. State, supra. 

The Court of Appeals therefore held that

[b]ased on this testimony, a reasonable juror could conclude that Bell deceived the used electronics dealer by failing to disclose that the iMac was subject to a legal impediment, i.e., that it was stolen.

Accordingly, the trial judge properly denied Bell's motion for a judgment of acquittal on the theft by deception offense.

Bell v. State, supra.  

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The Lawyer, the Disciplinary Proceeding and the Hard Drive

This post examines an opinion from the Supreme Court of South Carolina: In the Matter of Timothy Eugene Moses, 785 S.E.2d 364 (Supreme Court of South Carolina 2016) (per curiam). The court begins by explaining that

[t]his attorney disciplinary matter stems from allegations that Respondent Timothy Eugene Moses stole thousands of dollars from his law firm (the Firm) by improperly billing clients. Respondent, who admitted to the misconduct after the Office of Disciplinary Counsel (ODC) filed formal charges, appeared before a panel of the Commission on Lawyer Conduct (the Panel). The Panel recommended Respondent be suspended from the practice of law for one year.

Both Respondent and ODC raise exceptions to the Panel's recommendation: Respondent argues his conduct justifies only a six-month suspension, while ODC argues Respondent should be disbarred. As discussed below, we agree with ODC that Respondent's conduct merits disbarment.

In the Matter of Timothy Eugene Moses, supra.

The court begins the opinion by explaining how, and why, the proceeding arose:

There is no dispute over the facts in this case.

Respondent worked for the Firm, both as a summer clerk while in law school and as an attorney following his graduation in 1994, until he abruptly resigned in September 2011. The Firm became suspicious of Respondent when a client contacted the Firm and claimed to have received a bill for $500 from Respondent asking the client to pay Respondent directly, which was in contravention of the Firm's policies. Typically, clients paid the Firm, and the Firm then paid its lawyers a fixed salary, a percentage of profits, or a combination of both.

When the chairman of the Firm's executive committee (the Chairman) confronted Respondent on October 5, 2011, about the billing abnormality, Respondent initially feigned ignorance. The next day, Respondent emailed the Chairman and admitted sending the bill, which he termed a `local’ statement, in response to the client's request. Respondent said the fact that he may have accidentally deposited the check into his personal account `embarrassed and horrified’ him, `caused [him] fits,’ and kept him up at night. After `discovering’ that he had in fact deposited the check, Respondent immediately agreed to repay the $500, plus interest. He reiterated that he was `extremely embarrassed and mortified’ and `[could not] believe [he] made such an egregious error and [he was] just sick about it.’

About a week later, Respondent met with the Firm's executive committee to discuss his actions. He claimed the two local statements he mentioned to the Chairman were the only times he had billed clients directly and was adamant that those two occurrences were isolated mistakes. The Firm's executive committee, however, remained suspicious and hired a computer forensics expert to examine Respondent's laptop to ascertain whether there were other instances of improper billing.

The forensic examination uncovered approximately $77,000 in improper invoices, dated from August 2009 through September 2011. The computer expert also testified there had been two attempts to `scrub,’ or completely erase, the computer's hard drive. The expert said those attempts were largely successful, as there was evidence of other invoices that could not be recovered.

In the Matter of Timothy Eugene Moses, supra.

The opinion goes on to explain that

[a]fter discovering the extent of Respondent's actions, the Chairman filed complaints against Respondent in Georgia and South Carolina. After Respondent became aware he was being investigated, in March 2012, he retained counsel, finally admitted to the theft, and offered to repay the money he stole from the Firm. ODC filed formal charges against Respondent on March 13, 2013, alleging violation of the following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.15 (safekeeping property); Rule 4.1 (truthfulness in statements to others); Rule 8.4(b) (criminal act that reflects adversely on lawyer's honesty); Rule 8.4(d) (conduct involving dishonesty); and Rule 8.4(e) (conduct prejudicial to the administration of justice). ODC sought sanctions against Respondent pursuant to the following Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1) (violation of the Rules of Professional Conduct); Rule 7(a)(5) (conduct tending to pollute the administration of justice, bring the legal profession into disrepute, or demonstrating an unfitness to practice law); and Rule 7(a) (6) (violation of the oath of office taken to practice law).

Respondent appeared before the Panel at a hearing held on October 24, 2013. The Panel issued its report (the Report) on June 9, 2015.

In the Matter of Timothy Eugene Moses, supra.

The Supreme Court then takes up the legal issues in the case, initially explaining that

[b]ecause Respondent admitted his misconduct, the hearing was mainly for the purpose of considering aggravating and mitigating factors and recommending a sanction.

As aggravating factors, the Panel considered (1) Respondent's dishonest and selfish motive and (2) the fact he committed multiple offenses and engaged in a pattern of misconduct over two years. As mitigating factors, the Panel considered (1) Respondent's lack of a prior disciplinary record; (2) Respondent's admission of guilt and cooperation; (3) Respondent's remorse for his conduct, which the Panel found to be genuine; and (4) Respondent's good character and reputation. The Panel considered Respondent's repayment of the stolen money as neither aggravating nor mitigating as it was not timely, being made only at the advice of counsel after disciplinary proceedings had begun.

The Panel appeared to give great weight to the testimony of Respondent's character witnesses: John Bell, an attorney licensed in Georgia and South Carolina; Bob Young, former mayor of Augusta and Assistant Deputy Secretary of the Department of Housing and Urban Development; and Dan Sisson, former chairman of Leadership Georgia and Leadership South Carolina. The witnesses testified to Respondent's competency as a lawyer, his participation in numerous civic and charitable organizations, and his outstanding reputation in the community, both personally and professionally. They testified Respondent's deceptive conduct was out of character and Respondent was extremely remorseful for engaging in it. The witnesses indicated they did not expect Respondent to engage in similar misconduct in the future and they still had the utmost trust in him.

The Panel concluded that the mitigating factors in this case were `significant' and therefore disbarment was inappropriate. The Panel recommended Respondent be suspended from the practice of law for one year, ordered to pay the costs of the disciplinary proceedings, and required to complete the Legal Ethics and Practice Program Ethics School and `a personal financial management program.'

Both Respondent and ODC raise exceptions to the Report and take issue with the Report's recommendation that Respondent be suspended from the practice of law for one year. Respondent argues a shorter suspension is appropriate, while ODC argues Respondent should be disbarred.

In the Matter of Timothy Eugene Moses, supra.

The Supreme Court then began its analysis of the issues, and the arguments, involved in the proceeding:

`”The authority to discipline attorneys and the manner in which the discipline is given rests entirely with this Court.”’ In re White, 391 S.C. 581, 587, 707 S.E.2d 411, 414 (2011) (quoting In re Tullis, 375 S.C. 190, 191, 652 S.E.2d 395, 395 (2007)). This Court `may accept, reject, or modify in whole or in part the findings, conclusions[,] and recommendations of the Commission [on Lawyer Conduct].’ Rule 27(e)(2), RLDE, Rule 413, SCACR. `The “central purpose of the disciplinary process is to protect the public from unscrupulous and indifferent lawyers.”’ In re Brown, 361 S.C. 347, 355, 605 S.E.2d 509, 513 (2004) (quoting In re Hall, 333 S.C. 247, 251, 509 S.E.2d 266, 268 (1998)). `The primary purpose of disbarment or suspension is the removal of an unfit person from the profession for the protection of the courts and the public, not punishment of the offending attorney.’ In re Brooks, 324 S.C. 105, 108, 477 S.E.2d 98, 99 (1996) (citing In re Fullwood, 322 S.C. 1, 6, 471 S.E.2d 151, 154 (1996); In re Kennedy, 254 S.C. 463, 465, 176 S.E.2d 125, 126 (1970)). In determining a sanction, this Court considers the punishments elicited by similar misconduct in the past. See, e.g., In re Jenkins, 346 S.C. 617, 620–21, 552 S.E.2d 734, 736–37 (2001) (citations omitted) (reviewing sanctions previously imposed by the Court `for somewhat similar misconduct’).

In the Matter of Timothy Eugene Moses, supra.

Having outlined the standards and principles it was required to apply to this case, the court began its analysis of the law and the facts in this case, explaining, initially, that

Respondent relies heavily on the absence of client harm from his misconduct in arguing for a shorter suspension, noting he stole money from the Firm, not clients. Citing In re Boyd, 388 S.C. 516, 697 S.E.2d 603 (2010), In re Sturkey, 376 S.C. 286, 657 S.E.2d 465 (2008), and In re McFarland, 360 S.C. 101, 600 S.E.2d 537 (2004), Respondent argues the Panel should have considered the lack of client harm in its analysis. See Boyd, 388 S.C. at 517–18, 697 S.E.2d at 604 (`While recognizing the seriousness of this misconduct, the Court is aware that respondent did not place any client funds at risk. . . .’); Sturkey, 376 S.C. at 293, 657 S.E.2d at 468 (`Lack of harm . . . may be considered as mitigating evidence in a disciplinary action’ (citation omitted); McFarland, 360 S.C. at 105, 600 S.E.2d at 539 (`We hold that the lack of prejudice to Client's case mitigates, but does not excuse, Respondent's misconduct’).

Respondent also relies heavily on the Panel's finding of significant mitigating factors.

Respondent argues that cases dealing with misconduct similar to his with far fewer mitigating factors resulted in suspensions of between six and nine months. Respondent cites Boyd, 388 S.C. 516, 697 S.E.2d 603 (suspending for six months a lawyer who collected $2,000 from clients he billed directly, instead of through his firm), In re Gray, 381 S.C. 406, 673 S.E.2d 442 (2009) (suspending for nine months a lawyer who, during a one-year period, overcharged clients more than $14,000 by submitting fraudulent time entries and travel reimbursement requests), and In re Lee, 370 S.C. 501, 636 S.E.2d 624 (2006) (suspending for 180 days a lawyer who overbilled a client approximately $10,000 over a nine-month period) for support. Respondent argues that, for the sake of consistency, he should receive a six-month suspension.

In the Matter of Timothy Eugene Moses, supra.

The Supreme Court then outlined the position of the ODC (Office of Disciplinary Counsel), explaining that the agency

argues that because Respondent engaged in a pattern of theft and deceptive conduct over an extended period of time, disbarment is appropriate. For support, ODC cites In re Baldwin, 411 S.C. 75, 767 S.E.2d 192 (2014) (disbarring a lawyer who, in addition to pleading guilty to breach of trust with fraudulent intent for failing to forward approximately $4,000 in client fee payments earned over a two-year period to his law firm, converted to his personal use approximately $670 in costs and fees owed to a client) and In re Curlin, 349 S.C. 287, 562 S.E.2d 652 (2002) (disbarring a lawyer who, in addition to stealing over $70,000 in law firm and client money from a real estate trust account over a three-year period, routinely forged signatures and prepared fraudulent documents, including a quitclaim deed).

ODC also argues the Panel gave too much weight to mitigating factors. ODC argues Respondent's remorse should be given little weight because he only expressed it after ODC initiated disciplinary proceedings against him, instead of when he was initially confronted by the Firm. In fact, referencing Respondent's initial responses to the Chairman in which Respondent claimed he was emotionally distressed by the mere thought of having wrongly deposited a $500 check, ODC argues Respondent's contrition at the hearing was disingenuous, which suggests the Panel should not have considered it at all. Finally, ODC argues that the testimony of Respondent's character witnesses does not mitigate Respondent's conduct because all the while Respondent was busy earning his sterling reputation, he was also busy stealing from the Firm.

In the Matter of Timothy Eugene Moses, supra.

The Supreme Court then began the process of articulating its analysis of the issues and the resolution it decided upon:

We agree with ODC that the Panel gave too much weight to Respondent's mitigating character evidence. We also find Respondent's situation to be distinguishable from the cases he cites for support.

In two of the cases Respondent cites, the attorney and ODC had entered into an agreement for discipline, and this Court merely imposed a sanction within the agreed-upon range. See Boyd, 388 S.C. at 516, 697 S.E.2d at 603 (imposing a six-month suspension when the parties agreed to `the imposition of an admonition, public reprimand, or a definite suspension not to exceed six [ ] months’); Lee, 370 S.C. at 502, 636 S.E.2d at 624 (imposing a 180–day suspension when the parties agreed to `a public reprimand or definite suspension not to exceed two [ ] years’). In another of the cases Respondent cites, we noted that `[n]either ODC nor [the attorney] complain[ed] about the recommended sanction.’ Sturkey, 376 S.C. at 291, 657 S.E.2d at 468.

In deciding a sanction in this case we find Baldwin most instructive. Between 2012 and 2013, Baldwin converted $4,000 in client fees to his personal use by (1) collecting fees from new clients of which his law firm was unaware because he did not create new case files and (2) forwarding to his law firm only a portion of the fees collected from existing clients and altering documents to make it appear as if the clients' fees were less than they actually were. Baldwin, 411 S.C. at 77, 767 S.E.2d at 193. We found Baldwin's conduct egregious enough to merit disbarment. Id. at 76, 767 S.E.2d at 193.

Like Baldwin, Respondent converted client fees that were owed to his law firm to his personal use and took great measures to conceal his theft. When confronted and given the opportunity to come clean, Respondent repeatedly and emphatically denied any wrongdoing. Respondent thereby engaged in a serious pattern of theft and dishonesty over an extended period of time. When compared to Baldwin's, Respondent's conduct is certainly egregious enough to merit disbarment. Indeed, Baldwin only stole $4,000 from his firm, while Respondent stole well over $70,000.

Given the severity of Respondent's misconduct, we conclude disbarment is the appropriate sanction. Respondent is hereby disbarred, effective retroactively to the date of filing of formal charges by ODC, March 13, 2013. Respondent is ordered to pay the costs of these proceedings within thirty (30) days of the date of this opinion. Within fifteen (15) days of the date of this opinion, Respondent shall file an affidavit with the Clerk of Court showing that he has complied with Rule 30, RLDE, Rule 413, SCACR, and shall also surrender his Certificate of Admission to the Practice of Law to the Clerk of Court.

In the Matter of Timothy Eugene Moses, supra.

If you would like to read more about how lawyer discipline proceedings, which are the responsibility of state supreme courts and other agencies. You can find a state by state list of the latter here.

Murder, Burglary and the “Extraneous Theft”

This post examines a recent opinion from the Court of Appeals of Texas - 14th District 2017: Kahlid Yusuf Worrell v. State, 2017 WL 124351 (2017). The opinion addresses what is, at least to me, a novel scenario.  As the court explains,

[t]his is an appeal from two separate judgments. The first is a judgment adjudicating guilt, which arises out of an offense committed in 2011. The second is a judgment of conviction by jury, which arises out of an offense committed in 2015, when appellant was on community supervision. Several issues are raised between the two cause numbers, but we only address the merits of one issue in which appellant challenges the admission of extraneous-offense evidence. 

Kahlid Yusuf Worrell v. State, supra. You can read about the prior judgments in the news stories you can find here, here, here and here. 

The opinion goes on to outline the charges in and the outcome of each of the prior prosecutions, beginning with the burglary case:

NO. 14-15-00966-CR

Appellant pleaded guilty in 2011 to a charge of burglary of a habitation. The trial court deferred an adjudication of guilt and placed appellant on community supervision for a period of six years. In 2015, the State moved to adjudicate guilt, alleging that appellant had violated the terms of his community supervision by committing the murder that is the subject of the other cause number in this appeal. The trial court carried the motion with the murder trial and ruled on it after the jury returned a verdict in that other case.

Appellant's trial counsel filed notices of appeal in both the burglary case and the murder case. Appellant was appointed different counsel on appeal, and counsel here has filed a single brief addressing both cases together. In the combined brief, counsel concludes that the appeal of the burglary case (and only that case) is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel's brief was delivered to appellant, and he was advised of the right to examine the appellate record and file a pro se response. Appellant requested and was provided a copy of the record. Appellant also filed a pro se response to counsel’s Anders brief.

We have carefully reviewed the record, counsel's brief, and appellant's pro se response and agree that the appeal in the burglary case is wholly frivolous and without merit. Further, we find no reversible error in the record. We need not address the merits of each claim raised in an Anders brief or a pro se response when we have determined that there are no arguable grounds for review. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).

Accordingly, we affirm the trial court's judgment in the burglary case.

Kahlid Yusuf Worrell v. State, supra. 

The court then outlines the facts and led to the charges in the appeal before it:

NO. 14-15-00967-CR

In the murder case, appellant's appointed counsel asserts three separate points of error, but they all complain of the same issue, which is the admission of extraneous-offense evidence. The State did not file a brief responding to the merits of this complaint.

Background. The complainant, a twelve-year-old boy, was fatally shot three times in his home. The exact reason for the shooting was never fully explained at trial. The evidence suggested that the complainant was merely in the wrong place, at the wrong time, caught in a terrible moment between his adult brother, Dashawn, and appellant, who was Dashawn's former friend.

Dashawn testified that he had known appellant for about a year. On the day of the shooting, Dashawn invited appellant over to his house to smoke marijuana. Dashawn also hoped that appellant would drive him to a barbershop to get his hair cut. Appellant arrived in the afternoon. He came into the living room and engaged in small talk with Dashawn. The complainant was also in the living room, watching cartoons. After a few minutes, Dashawn left for the bathroom to brush his teeth. He left the door to the bathroom open and carried on his conversation with appellant. Dashawn did not detect any sense of animosity or disagreement coming from appellant.

Without warning, appellant walked over to the area just outside the bathroom and shot Dashawn in the face. Dashawn managed to close and lock the bathroom door. Appellant then fired into the bathroom through the door. Dashawn was struck five more times. He escaped through the bathroom window and ran to a neighbor's house, where he sought help. Because he could not speak (a bullet had lodged in his throat), Dashawn used a neighbor's phone to write a message saying that he had just been shot by appellant. Dashawn also wrote that his siblings were still inside the home.

When the police arrived, appellant had already fled the scene. The complainant was pronounced dead on arrival. He had been shot in the head, in the living room where he had been watching television. Another sibling had been shot in the neck, but the bullet just grazed the skin.

The police quickly identified appellant as a likely suspect. Appellant had dialed Dashawn's house phone shortly before the shooting, and his number appeared on the caller ID. The complainant's twin had also identified appellant in a photo array. The twin was in another room when the shooting occurred, meaning that he did not witness the shooting, but the twin said that he had seen appellant in the home in the moments immediately preceding the shooting. The twin was also able to give a description of what appellant had been wearing.

Within a week of the shooting, the police found appellant driving around in the neighborhood. They initiated a traffic stop and searched his vehicle. In the trunk, they found the murder weapon, a box of ammunition, and a laptop. The laptop is the focus of appellant's extraneous-offense complaint.

Kahlid Yusuf Worrell v. State, supra.  If you are interested, you can read more about the facts in the second case in the news stories you can find here, here and here.

The opinion goes on to explain that,

In a hearing outside the presence of the jury, the State indicated that it was planning to introduce evidence that appellant had stolen the laptop. The State explained that this extraneous theft was relevant, in part, because the laptop led to the discovery of other important evidence. In its proffer, the State said that the laptop was registered to a Vietnamese man, who reported that the laptop was taken from the trunk of his car when he was shopping at Walmart. The theft occurred on the same day as the shooting, and the Walmart was less than two miles away from Dashawn's house. Based on that information, investigators sought the surveillance footage from inside the Walmart. From that footage and additional investigations, the State learned that appellant had paid cash for a box of ammunition, that the ammunition matched the kind that was both used in the shooting and found in appellant's car, and that the purchase occurred less than one hour before the shooting. The surveillance footage also corroborated the twin's description of appellant's clothing.

The State argued that the extraneous theft was admissible because of the role it played in the investigation. The State also argued that the extraneous theft was probative of appellant's motive and identity. Defense counsel objected. He argued that the evidence of appellant's purchase at Walmart could be introduced without mentioning the extraneous theft. The trial court overruled the objection.

Kahlid Yusuf Worrell v. State, supra. 

The Court of Appeals then explained that

[w]e need not determine whether the trial court abused its discretion by admitting the evidence of the extraneous offense because any error in the admission of that evidence would be subject to a harm analysis for nonconstitutional error, and under that standard, the error would be harmless.

Nonconstitutional error must be disregarded unless it affects a defendant's substantial rights. See Tex. R. App. P. 44.2(b). An error affects a defendant's substantial rights when the error has a substantial and injurious effect or influence on the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or only a slight influence on the verdict, the error is harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

When assessing harm, we consider `everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.’ See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We also consider the jury instructions given by the trial court, the State's theory and any defensive theories, closing arguments, and even voir dire, if material to the defendant's claim.

Kahlid Yusuf Worrell v. State, supra. 

The court goes on to point out that the

State produced overwhelming evidence of appellant's guilt. When the complainant was killed, the only other people in his home were his siblings and appellant. Dashawn testified that appellant was the only shooter, and the physical evidence supported that finding.

A total of eleven cartridge casings were recovered from the home. Ten of the casings were aluminum, and the eleventh was brass. A firearms expert testified that all eleven casings were fired from the same weapon—the gun found in appellant's vehicle. The aluminum casings matched the brand of ammunition that appellant purchased from Walmart. Moreover, the box of ammunition found in appellant's vehicle was missing exactly ten bullets. The State suggested that the bullet with the brass casing may have already been in the chamber when appellant loaded the magazine with the bullets with the aluminum casings.

The jury also heard testimony from one of appellant's coworkers that appellant had confessed to the murder. The coworker testified that appellant called him after the shooting, during a time when there was widespread media coverage of the killing. Appellant wanted the coworker to pick up appellant's paycheck, but the coworker declined. According to the coworker, appellant mentioned during their conversation that he was trying to hurt Dashawn and that the killing of the complainant was accidental.

The evidence of guilt in this case was strong and compelling. Appellant's role in an extraneous theft was not likely to move the jury from a state of non-persuasion to a state of persuasion.

Kahlid Yusuf Worrell v. State, supra. 

The Court of Appeals went on to explain that the

appellant was charged with murder, not theft, and because two offenses are dissimilar, there is a reduced chance that the jury would have convicted appellant based on a pattern of past conduct. We also note that the jury received a limiting instruction in the charge, which further reduced the chance that the conviction was based on an impermissible inference of character conformity. See Jones v. State, 944 S.W.2d 642, 654 (Tex. Crim. App. 1996).

Kahlid Yusuf Worrell v. State, supra. 

The court then took up the remaining issues in the case:

The State did not mention the extraneous theft during its closing argument. Neither did defense counsel, which means the jury probably gave little weight to it. See Lester v. State, 889 S.W.2d 592, 594 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd) (`Because the prosecutor did not mention the extraneous offense in her closing argument, the jurors probably gave little weight to it’).

However, defense counsel emphasized a different extraneous offense: the aggravated assault against Dashawn. Even though appellant did not testify, counsel accepted as true that appellant went to Walmart, that he purchased a box of ammunition, and that he then went into Dashawn's house with a loaded gun. Counsel said that all of those facts were `uncontroverted.’ What happened inside the house is where counsel's story differed from the State's. Counsel said that there was a two-person gunfight between Dashawn and appellant. Counsel's strongest piece of evidence in favor of this theory was the brass casing, which was found inside the bathroom. Counsel suggested that Dashawn must have fired the bullet from this casing (allocating all of the aluminum casings to appellant), meaning that Dashawn could have been responsible for the death of the complainant.

Counsel then argued that the State had overreached when it filed its criminal charges against appellant:

`Is he guilty of something? Damn straight. Yes, he is. Should he pay for what he did? Yes. But he should . . . pay for what he did, not for what the State has the power to charge him with. Because you know that there'[re] other offenses he can be charged with. Aggravated assault.

But appellant was not charged with the aggravated assault of Dashawn; he was charged instead with the murder of the complainant. By emphasizing this extraneous assault, counsel drew attention away from the extraneous theft and any unfair prejudice it might have created.

Based on the entire record, we cannot say that the evidence of the extraneous theft had a substantial and injurious effect on the jury's verdict. At most, the evidence only slightly influenced the jury. We conclude that any error in the admission of this evidence was harmless. See Johnson, 967 S.W.2d at 417.

Kahlid Yusuf Worrell v. State, supra. 

The Court of Appeals therefore held that the “trial court’s judgments are affirmed.” Kahlid Yusuf Worrell v. State, supra.