Category Archives: Misdemeanor

Can Social Media Posts Be Used As Evidence In Raleigh, NC Court Cases?

Many users post to social media without considering that their words, pictures, or other content could have adverse consequences. Most people like to post pictures of food, their pets, children, or discuss other everyday things. But sometimes what you post can have serious repercussions.

If you are involved in a court case—whether criminal, family law (including divorce and child custody cases), worker’s compensation, or personal injury, for instance—anything posted on social media is available to anyone who finds it. Many people have lost their cases because of something found on their social media.

Divorce lawyers are particularly devious when it comes to finding evidence on social media that can win the case for their clients. In any court case, content posted on social media can and likely will be used as evidence by opposing counsel. Technology means that unless you can prove that your account was hacked, everything can be authenticated before the trial.

Criminal Postings

It seems ridiculous, but many people have been caught and arrested after posting pictures of themselves on social media and even confessing to a crime.

Can Social Media Posts Be Used As Evidence In Raleigh, NC Court Cases?

  • Mooresville NC— Jade Tyson Brannon, 44, was arrested in June of 2020 for posting threats of violence against law enforcement on social media.
  • Fayetteville, NC— Lacy Kornegay, 21, made social media posts with threats against an ethnic group and listed someone else’s address to lead a reader to someone else’s home.
  • San Diego, CA—bank employee Arlando Henderson, 29, is arrested by the FBI in December of 2019 after stealing over $88,000 from the bank’s vault. He posted multiple pictures of himself with stacks of cash on both Facebook and Instagram. He used some of the money to put a down payment on a new luxury vehicle, and committed loan fraud to pay the balance.

Last year, the FBI admitted that it searched through social media to try and identify “potential flashpoints for violence.”

Even if your settings are “private,” it’s not uncommon for law enforcement to connect with someone on your friend’s list to obtain evidence. Witnesses can also provide evidence from a social media page.

But doesn’t this come under free speech? Yes, it does—and it’s placed online for the world to see. Therefore, law enforcement may not need a warrant to get it, since discussing anything on social media is no different than discussing it in any public place.

A Real-Life Case

On 9/10/2012, a grand jury indicted Antonio Delontay Ford of involuntary manslaughter and obstruction of justice in the death of Eugene Cameron. The matter went to trial on 7/23/2014, and he was convicted of involuntary manslaughter.

In State Of NC vs. Ford (No. COA15-75, filed in the appellate court, 2/16/2016), the defendant appealed a decision based on the unlawful introduction of some of his social media postings from his MySpace page. The page included pictures of his dog, a pit bull named “DMX,” which attacked and killed Cameron unprovoked.

Neighbors reported previous encounters with this dog, including three incidents of bites. The dog was known to be vicious, and it had been allowed to run through the neighborhood unsecured and unsupervised. The owner of the home where Cameron was found suggested to detectives that they speak with next-door neighbor Ford, a dog owner.

Detectives questioned Ford, he admitted that DMX was his. DNA analysis of both the victim and DMX showed that the dog was responsible for Cameron’s injuries that led to his death.

The night before the trial, a detective discovered Ford’s MySpace page. In addition to pictures and videos of the dog, the page contained a video captioned, “DMX tha Killer Pit.” A second video contained the caption, “After a Short Fight, he killed that mut.”  One picture bore the description, “undefeated.” Screenshots of several videos were submitted into evidence, and a rap song sung by the defendant was played for the jury. The song was posted on his Myspace page, and the lyrics denied that the dog was the cause of death.

In his appeal, Ford stated that the court erred in submitting his rap song about the dog, evidence from his online presence, and committed an error in admitting opinion testimony. He attempted to stop the admission of his rap song as evidence but was denied. The jury heard the rap song in its entirety, including racial epithets and other profanities. Ford contended that the content offended the jury, which caused them to overlook the “holes in the State’s case.” Conversely, the prosecution showed that not only did Ford know that DMX was a dangerous and vicious animal, but he was also proud of it. Ford’s social media supported this assertion.

The court disagreed with Ford’s appeal:

“Pursuant to North Carolina General Statutes, section 8C-1, Rule 402, “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly or by these rules. Evidence which is not relevant is not admissible.” N.C. Gen. Stat. § 8C-1, Rule 402 (2013)

Your Criminal Defense Counsel In Raleigh

If you’ve been charged with a crime—any crime—the first thing to do is stay off social media, and avoid posting anything until you speak with a criminal defense attorney.

Even as a misdemeanor, any type of conviction can have long-ranging consequences that impact your life, including a permanent criminal record.

If you’ve been arrested and are facing any kind of criminal charges, call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

How Are Crimes Categorized In North Carolina?

Crimes in North Carolina have two general categories: felonies and misdemeanors. They are divided further into sub-categories based on the seriousness of the crime.

Each division has its own sentencing guidelines, which are ordered at the judge’s discretion. Some crimes may be given the state’s minimum sentencing, while others may be given at the maximum sentencing. The judge can add to or subtract from the specified sentence as well as specify what type of sentence the defendant will serve.

Misdemeanors

From simple affray to possession of very small amounts of marijuana, a misdemeanor is a “minor” crime that frequently requires a court appearance in front of a jury. It may or may not include jail time. Punishments are either active, intermediate, or community, and are up to the judge to decide.

How Are Crimes Categorized In North Carolina?These misdemeanor categories are:

  • Class 3, the least serious of offenses, such as shoplifting. This can include a sentence of 1 to 20 days of active, intermediate, or community punishment
  • Class 2, the next serious offense, such as carrying a firearm without a permit. This can include a sentence of 1 to 60 days of active, intermediate, or community punishment
  • Class 1, such as prostitution. This can include a sentence of 1 to 120 days of active, intermediate, or community punishment
  • Class A1, the highest level of misdemeanor, such as assault that inflicts serious injury. This can include a sentence of 1 to 150 days of active, intermediate, or community punishment

It’s important to note that although a misdemeanor is a “minor crime,” a conviction, even without jail time, can leave you with a criminal record and all that goes with it.

Prior Misdemeanor Convictions

These groupings are only for first offenses. The state also classifies conviction levels as follows:

  • Level I: no prior convictions
  • Level II: one to four prior convictions
  • Level III: five or more prior convictions

The court takes these levels into consideration when determining the sentence.

Felonies

These are more serious crimes and are given much harsher penalties and sentences. From the highest to lowest, these are North Carolina’s classifications for felonies:

  • Class A—death penalty or life with or without parole (for the most serious, such as murder)
  • Class B1—144 months to life without parole
  • Class B2—94 to 393 months
  • Class C—44 to 182 months
  • Class D—38 to 160 months
  • Class E—15 to 63 months
  • Class F—10 to 41 months
  • Class G—8 to 31 months
  • Class H—4 to 25 months
  • Class I—3 to 12 months

These classifications are only for an individual’s first offense.

Prior Felony Convictions

Similar to prior misdemeanor convictions, North Carolina takes prior convictions into consideration.

North Carolina’s state statute assigns points to each prior conviction:

  • Class A felony conviction: 10 points per conviction
  • Class BI felony conviction: 9 points per conviction
  • Class B2, C, or D felony conviction: 6 points per conviction
  • Class E, F, or G felony conviction: 4 points per conviction
  • Class H or I felony conviction: 2 points per conviction
  • Previous misdemeanor conviction: 1 point per conviction

Points are added and a level is assigned based on the total number of points:

  • Level I—0 to 1 point
  • Level II—2 to 5 points
  • Level III—6 to 9 points
  • Level IV—10 to 13 points
  • Level V—14 to 17 points
  • Level VI—18 or more points

The court then uses this number to determine the dispositional range for sentencing, as well as any aggravating or mitigating factors.

Fines

In addition to prison time, a judge can impose a fine, depending on the crime and the severity. For instance, someone who is sentenced only to community service can be also subject to paying a fine (N.C. Gen. Stat. § 15A-1340.23 (2019))

Your Criminal Defense Counsel In Raleigh

Even as a misdemeanor, any type of conviction can have long-ranging consequences that impact your life, including a criminal record. Don’t ignore any criminal charges, no matter how minor. They can cost you considerably later on, and impact your life for years to come.

If you’ve been arrested and are facing any kind of criminal charges, call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

Criminal Defense For Rioting Charges During Protests

The freedom of expression is a uniquely American civil right, one which has become a hallmark of the US. Since the spring, demonstrations have become commonplace in many major US cities to protest a number of wrongs committed against citizens.

In recent months, many protests intended to be peaceful have not stayed that way, with many turning into violent riots. As a result, residents, cities, and police departments are on edge during upcoming public events.

You may be considering whether you should join a protest, or stay far from it. That’s your choice, since you may not know what you’ll be walking into when you get there. Understand that if you decide to join a protest, you could face the possibility of being arrested.

Why Are Protestors Arrested?

Criminal Defense For Rioting Charges During ProtestsMost protestors are arrested for minor infractions such as failure to disperse or resisting a public officer. That was the case in Charlotte when over 100 people were arrested after protests. Disorderly conduct, a catch-all term for various types of behavior, is another frequent charge used for groups of people who become agitated.

Protests are frequently attracted individuals who have every intention of turning the event into a violent melee. Overwhelmed police may decide to arrest everyone they can and let the courts sort everything out. Innocent marchers who were not even involved with rioters are arrested as a matter of course and must fight for themselves in the court system.

Trespassing And Looting

Entering someone’s property without their consent or permission at any time is considered trespassing. You are not an invitee and have no reason to be on the property, you’re considered a trespasser. North Carolina General Statutes § 14 288.6 directly addresses both of these charges and includes:

“Entering without legal justification when the usual security of property is not effective due to the occurrence or aftermath of riot, insurrection, invasion, storm, fire, explosion, flood, collapse, or other disaster or calamity is guilty of a Class 1 misdemeanor of trespass during an emergency.”

Property owners generally have a duty of care to keep their premises safe for all who enter. But if you are injured on someone else’s property while trespassing, you may not be able to collect damages under premises liability law. The property owner’s responsibility is only to avoid willfully harming someone who is trespassing. Injuries you sustain while trespassing means you are on your own for medical bills and other expenses.

As we’ve seen in many cities, looting and other physical damage have destroyed businesses around the country. The same statute addresses looting:

“Any person who commits the crime of trespass during an emergency and, without legal justification, obtains or exerts control over, damages, ransacks, or destroys the property of another is guilty of the felony of looting and shall be punished as a Class H felon.”

Defense for Rioting Charges

Even if you are innocent of the charges made against you, or your arrest is unlawful, you can still be charged separately with resisting arrest.

There are circumstances where you may need to trespass during a riot or other emergency, including protecting the life of another individual or property. (Having the owner’s consent means you are not trespassing.) Recovering personal property on someone’s premises is not considered trespassing, either, such as property moved elsewhere by a hurricane. But you will be required to prove that your trespass was not intended to be criminal and that there was an imminent emergency.

Looting, on the other hand, will require a stronger burden of proof by the prosecutor. Defenses include lack of intent to commit looting, or if you were the subject of mistaken identity. You may also be able to use the defenses that the police failed to follow proper due process, or that they committed an unlawful search and seizure. Your criminal defense attorney will conduct a thorough investigation of your arrest and the circumstances surrounding it before your court date to determine exactly what occurred to assemble your defense.

Arrested After A Protest And Need Help? Call Dewey P. Brinkley

Exercising your right to free speech shouldn’t come with an arrest. If you are arrested for rioting, disorderly conduct, or other criminal charges during a demonstration, get legal counsel immediately and defend yourself against the charges.

Dewey P. Brinkley is a former Wake County prosecutor who will prepare a strong defense and make sure you receive a fair trial under the law. He has considerable experience defending those arrested for disorderly conduct and other charges and works for the best possible outcome. Contact our Raleigh law office today at (919) 832-0307 for a free consultation.

Can You Be Sued For Breaking And Entering A Home Or Business In North Carolina?

Breaking and entering are generally considered to be a criminal act, for which you can be arrested. But if you do damage to someone’s property in the process of breaking and entering, can you can also be sued?

Civil Vs. Criminal

Can You Be Sued For Breaking And Entering A Home Or Business In North Carolina?Criminal charges are either a misdemeanor or a felony, depending on the intent. If someone just breaks into a home, it’s usually a misdemeanor.

Add larceny (theft) or another crime, such as the intent to terrorize someone, breaking into a house of worship, or breaking into a motor vehicle, and the charges become a felony. In either case, these criminal charges can trigger an arrest.

If an arrested individual causes a significant amount of damages, an affected person can choose to file a civil lawsuit to recover money for damages committed during the criminal activity.

Civil Damages

An individual who is the recipient of a breaking and entering attempt will frequently suffer damages as a result of the crime, such as:

  • Damage to a home, apartment or other dwellings
  • Damage to a vehicle, such as broken glass, broken doors, etc.
  • Property damage inside of the home or business, such as furniture, fixtures, plumbing, structural fixtures (such as damage to walls) or other private property

Much like a personal injury case, the plaintiff can also sue for compensatory damages for the costs of repair and/or replacement, as well as legal costs, medical costs, loss of wages, and other associated expenses. Punitive damages are also a possibility, as well as things like pain and suffering.

Statute Of Limitations

Someone who has suffered damages from an individual breaking and entering has three years from the date of the break-in to file a lawsuit for monetary compensation. North Carolina General Statutes section 1-52 details the conditions, including 5: For criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated.

A civil suit for these damages is separate from a criminal case, tried in a different court. Even if an individual is incarcerated for breaking and entering, he or she can still be sued in civil court and served with a summons. The rules are the same for timeliness and jurisdiction whether or not the person is in prison, and it does not stop the civil process.

However, a person who intends to sue someone who committed breaking and entering should consult with an attorney before proceeding, especially if the damages are significant.

Defend Yourself Against Breaking & Entering

Being charged with breaking and entering doesn’t always follow with a conviction. With the right criminal defense, you could see your charges reduced, or even dropped.

Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh, NC. Before working as a defense attorney, he was a Wake County Assistant District Attorney. He understands the criminal justice system and can represent you for a wide range of criminal charges.

Call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your criminal defense case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

 

 

Charged With Resisting Arrest During Protests In Raleigh?

Free speech is still an American right. Expressions of free speech are protected by the First Amendment, and gatherings of these types have increased in numbers since the death of George Floyd in May. While many demonstrators were peacefully protesting, others were not, leading to violence and destruction in Raleigh, Durham, Greensboro, Charlotte, and other cities around the Tar Heel State.

Police nationwide have arrested both peaceful protesters right alongside looters and violent mobs to prevent more vandalism and harm to residents. What do you do if you were in one of these protests and found yourself arrested?

The Right To Protest

Help When Charged With Resisting Arrest During Protests In RaleighProtesting comes under the First Amendment and “free speech.” This means that you have the right to express an opinion in public, anytime, anywhere, with some limitations. (Not all speech is “protected” by the First Amendment, such as inciting riots or “fighting words.”) Protests and demonstrations on private property, such as a place of business or employment, are not as protected.

However, protests that evolve into more than civil disobedience and involve illegal activity such as rioting, burning, looting, and other conduct that can cause injury or property damage can lead to arrest and other police intervention.

Large-scale demonstrations generally require permits to accommodate the additional police presence for the protection of attendees.

Resisting Arrest

North Carolina General Statutes, Article 30, Section § 14-223 states that:

“If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.”

In addition to resisting arrest when you’re told, it also means interfering with any police officer who is doing his or her job. This includes the act of interfering when an officer is arresting someone else. Additional causes include using abusive language towards law enforcement, giving false information such as name and address, refusing to accept a citation, and preventing an officer from doing his or her job, such as interfering with another arrest.

Not complying with a police request can also be considered “resisting arrest,” based on the officer’s judgment. Therefore, it’s important at such a public event to allow the police to do their job, and comply with their requests.

If you’re charged with a different offense, such as disorderly conduct, actively resisting arrest can bring a second charge, even if the first one for disorderly conduct is eventually dropped. If you’re innocent of the original charge, resisting arrest is a separate charge for which you will be tried.

Should you be part of an arrest during a protest that turns dangerous or violent, you have the right to the criminal defense attorney of your choice. A defense attorney can help you through the court process and work to have the charges reduced or even dropped.

Need Help With Resisting Arrest Charges? Contact Raleigh’s Criminal Defense Attorney

Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh, NC. Before working as a defense attorney, he was a Wake County Assistant District Attorney. He understands the criminal justice system and has experience with resisting arrest as both misdemeanor and felony charges.

Call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your criminal defense case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

Technology-Facilitated Cyberstalking Charges In Raleigh, NC

Our increasingly technical society has changed the way we do nearly everything. From banking to grocery shopping and even working, technology is a big part of everyday life—especially now, with Zoom conferences and online collaboration platforms like Slack and Asana. As we learn how to use each new app and tool and find ways to live and work better, others have discovered ways to misuse technology to their ill intent.

Cyberstalking Defined

Technology-facilitated stalking, commonly known as “cyberstalking,” is the act of stalking another individual with the addition of technology, including:

  • Smartphones and other mobile devices
  • GPS devices (for following individuals while driving)
  • Phone calls
  • Social media messages
  • Emails
  • Hacking into a victim’s online account, whether email, financial, or other accounts

Technology-Facilitated Stalking Defense Attorney In Raleigh, NCCyberstalking can also be from different individuals known to the victim, such as neighbors, friends of friends, relatives, or coworkers, or may even be strangers. Whatever the case, an individual who is a target of cyberstalking finds themselves experiencing a persisting and strategic campaign of different types of online abuse intended to harass, threaten, and humiliate an individual to control and intimidate a victim. Other forms of abuse include financial abuse and an attempt to isolate the victim from supportive family and friends.

A cyberstalker can be anyone from a casual acquaintance to someone well known, or someone you’ve never met. Many cases of stalking and cyberstalking are from former spouses, domestic partners, or significant others, like the recent case of Dr. Aime Hardwick in California. While Dr. Hardwick had previously obtained a restraining order against ex-boyfriend Gareth Pursehouse, it had expired just two weeks before her death. Pursehouse had repeatedly stalked Dr. Hardwick for over ten years, followed her around in public as well as online. Repeated attempts to stop his endless stalking and harassment failed.

North Carolina Laws On Cyberstalking

North Carolina considers stalking to be when an individual willfully harasses another on more than two occasions without any legal reason, and:

  • Causes the individual to fear for themselves, a family member, or another person they are close to (such as a spouse or partner)
  • Or causes extreme fear in a person for bodily injury, death, or persistent and recurrent harassment

North Carolina General Statute 14-196.3 states:

  • The use of email or other electronic communications (including social media) is deployed to threaten a person, a relative (spouse, children, etc.) to extort property and/or money
  • Using email or other electronic media to threaten, abuse, or otherwise harass an individual, even when there is no conversation
  • Emailing an individual or a family member with false statements regarding criminal or indecent conduct, injury, illness, disfigurement, or death with the intent to terrify, threaten, or otherwise abuse.
  • Knowingly placing an electronic tracking device under a victim’s control (such as on a car or in a woman’s purse) to monitor their locations (exceptions for law enforcement, fleet vehicles, and other legitimate purposes.) This can include an individual who intentionally allows a cyberstalker to use his or her device to harass another person, such as a smartphone or tablet.

Social media can include Facebook, Twitter, Instagram, and other platforms. North Carolina law does not require that the victim believe the threatening statements, or that the “reasonable person” would believe them.

Technology-related stalking, or cyberstalking, is a Class 2 misdemeanor. A conviction can bring 60 days in jail and a fine of up to $1,000.

If You Are Charged With Cyberstalking

Much will depend on the circumstances and facts surrounding the arrest. Should you find yourself charged with cyberstalking, there may be defenses available, even if you are technically “guilty.” The charges may be reduced to something less serious. A conviction will leave you with a criminal record and the consequences that come with it.

For a free consultation regarding your stalking or cyberstalking charges with the lawyers at the Law Office of Dewey P. Brinkley, call our Raleigh law office immediately at 919-832-0307 to make an appointment. We offer a free consultation to discuss your case and will begin building a strong and effective defense for you.

How Misdemeanor Charges Can Have A Major Impact On Your Life

Many people don’t think much of it if they find themselves charged with a misdemeanor crime. You may believe that a misdemeanor is on the same level as a parking ticket, but it isn’t. If you’ve been arrested for a misdemeanor, your life can still be severely impacted. Although it isn’t as serious as a felony, a misdemeanor is still a crime, and you should take it seriously.

Defining The Misdemeanor

How Misdemeanor Charges Can Have A Major Impact On Your LifeNorth Carolina divides misdemeanors into four categories: A1, 1, 2, and 3. These will depend on the seriousness of the offense you’re charged with, and can rage from simple marijuana possession to things like larceny (theft) and property damage.

  • Category 3 incurs a maximum fine of $200 and up to 20 days jail time
  • Category 2 incurs a maximum fine of $1,000 and up to 60 days jail time
  • Category 1 incurs a “discretionary” fine and up to 120 days jail time
  • Category A1 incurs a “discretionary” fine and up to 150 days jail time

Can you afford to go to jail for 1 to 20 days? Chances are your employer will terminate you, and you’ll have a much more difficult time finding another job after a conviction.

Of course, the outcome of your case will depend on a number of different factors, including your criminal record or lack thereof, the facts of the case, and any agreements you and your defense attorney reach with the district attorney’s office. Some charges, such as minor traffic infractions, will incur no jail time.

How A Misdemeanor Can Cause Problems Later

Conviction of a misdemeanor still means that you have a criminal conviction, and you when asked, you will have to disclose your criminal record, whether it’s a single conviction or more than one.

Misdemeanor charges stay on your record, and nearly always show up on a background check. No matter how old they are, an employer will eventually find out about it once they request it. This means that a criminal conviction will show up on background checks related to:

  • Job applications
  • License applications
  • Housing applications (such as apartment complexes and other rental properties)
  • Mortgage loan applications
  • Student financial aid applications

A misdemeanor may prevent you from applying for and being hired for certain types of jobs, and restrict where you can live.

There may be occasions where an old county-level conviction may not show up in another county, or on a state level. But you should never assume that it won’t show up on a background check, especially for an employer.

Even for the most minor infractions such as simple affray, you should retain defense counsel against a misdemeanor charge. If you are convicted of a misdemeanor, you will have a criminal record, no different than if you’d committed a more serious or violent felony. Like a felony, the misdemeanor will follow you around for the rest of your life.

Expungement

Criminal convictions in North Carolina of any kind do not automatically disappear from your record, no matter how old they are.

Texas, California and several other states have a “seven-year rule,” meaning that any records that are more than 7 years old will not show up in a background check. However, North Carolina has no such rule, but you can request to have an old record cleared with an expungement.

If you were arrested and/or convicted of a misdemeanor many years ago and have not had any other charges since then, it is possible to have your case expunged, or removed, from your record. Even if you were arrested and charged but found not guilty, a record still exists of this action.

Once you apply for an expungement and the court grants it, you will no longer have a criminal record, and you can legally answer the question about your criminal record with a confident “no.”

The rules surrounding expungement are complex. That’s important to discuss a possible expungement of your misdemeanor case with a criminal defense attorney so you can start the process and get on with your life.

Let Dewey P. Brinkley Defend You Against A Misdemeanor

Dewey P. Brinkley is a former Wake County Assistant District Attorney who understands the law and the Raleigh court system. If you’re charged with a misdemeanor like simple assault or disorderly conduct, no matter how minor, he can defend you in criminal court and work for the best possible outcome. Call Mr. Brinkley today at 919-832-0307 or use our contact page to schedule your free consultation.

 

Exoneration Statistics To Consider

Being accused of a crime is difficult, but being convicted and jailed is an entirely different scenario. A false conviction can see an innocent person spend much of their life behind bars for a crime they did not commit.

Improvements in investigative tools such as forensic science and DNA testing have helped wrongly convicted people defend themselves in court and seek exoneration. For those wrongly jailed, many have been able to clear their names after a prison sentence. Many go so far as to plead guilty to a lesser sentence, knowing they were totally innocent.

Some of these individuals have been in jail for many years, without the means to prove that they were tried and convicted improperly. With the help of these improved tools and techniques, and nonprofit organizations like The Innocence Project, people wrongly convicted are now able to seek exoneration.

What Is Exoneration?

To be exonerated is to be cleared of an accusation, either through the presentation of evidence of innocence, a defect in a conviction, or other actions that completely clear an individual of the charges that have been levied.

For instance, if someone is charged in a robbery because of a garment they were wearing, submitting evidence of the person’s whereabouts without the incriminating garment shows that another individual wearing it committed the crime. The evidence of the accuse whereabouts will exonerate him or her of the charges, and will be dismissed.

How Does This Happen?

There are a number of reasons why someone could be wrongfully charged and convicted. The most common are:Exoneration Statistics To Consider

  • Witness identification of perpetrator
  • Zealous police and prosecutors
  • Police misconduct
  • False confessions
  • Perjury
  • Faulty forensic evidence and inadequate testing
  • Racial bias

These cases are being reviewed and reworked by some prosecutor’s offices with Conviction Integrity Units (CIUs), and others are assisted by nonprofit innocence organizations like The Innocence Project and the National Registry of Exonerations, whose work is to free wrongly convicted individuals.

Statistics on DNA Exoneration

Since the introduction of DNA testing for criminal cases in 1989, The National Registry of Exoneration estimates that more than 2,500 individuals have been freed, and more than 22,000 years of life were lost behind bars due to wrongful convictions.

The registry’s report on 2018 reveals the following:

  • CIUs were responsible for 58 exoneration
  • “Professional exonerator,” nongovernmental organizations such as the Innocence Project, were responsible for 86 exoneration
  • CIUs and organizations working together were able to exonerate 45 people in 2018
  • A total of 31 individuals were exonerated in Chicago on drug and weapons charges as a result of an investigation into corrupt police officers led by Sergeant Watts.
  • Illinois had the highest number of exoneration, at 46, due to the Sgt. Watts affair. Texas and New York are tied in second place at 16, Michigan in third place with 9 and California with 6.
  • The DNA exoneration in 2018 totaled 23, about 15% of the overall total, with 60% for murder cases, 7% for sex crimes, one case for attempted robbery, and one case for kidnapping and sexual assault
  • Seventy cases in 2018 were individuals who were wrongly incarcerated and no crime actually occurred. This included one murder case for which the defendant spent 25 years on death row for the murder and assault of a 21-month old girl. The injuries that indicated his guilt were actually unsuccessful medical procedures by emergency room physicians.
  • Texas had 363 exoneration in 2018, the highest rate in the US
  • The bulk of US exoneration in 2018 came from just four counties: Harris County (Texas), Cook County (Illinois) Kings (Brooklyn) and Dallas counties.
  • Nationwide, the city with the second most exoneration per capita from wrongful convictions is New Orleans, Louisiana.The state incarcerates at nearly twice the national average, with many incarcerated who haven’t even been convicted of a crime.

The Most Popular: Drug Charges

Exonerated prisoners are frequently the target of drug charges, particularly for African-American defendants, who are five times as likely to be imprisoned for drug possession as white defendants. Innocent African-Americans are 12 times as likely to be convicted of drug crimes as innocent whites, even though the rate of illegal drug use is about the same for both groups.

In Harris County, Texas, which includes the City of Houston, the crime labs take an extra step of testing drugs that are seized during arrest, even if the accused pleads guilty. In many cases, the substances are found not to be illegal drugs. As a result, 48 of Texas’ 58 exoneration in 2016 were in Harris County.

The CU for the DA’s office began calling for the backlog of drug cases to be cleared in 2014, which prompted crime lab testing of substances taken during the arrests. As a result of the testing, the first 48 defendants were exonerated, and 10 were exonerated in 2017.

Harris County’s African-American community makes up 20% of the population and account for 62% of the exoneration.

Defense or Exoneration? Contact Attorney Dewey P. Brinkley

Dewey P. Brinkley is a former Wake County Assistant District Attorney who can defend you or your loved one against wrongful criminal charges and work for exoneration. Call Mr. Brinkley today at 919-832-0307 or use our contact page to schedule your free consultation.

Is Entering An Unlocked Door Considered Breaking And Entering?

Most people think of “breaking and entering” as a broken window, a pried-open door, or the kicked-in door characteristic in home invasions. It’s literally using force to break into a home or place of business and called “breaking and entering” for a reason. Generally, you don’t have permission to be on the premises, and you’re there for the sole purpose of committing a crime. Since most people and businesses lock their doors, getting in takes some type of criminal action to overcome the locks.

But what if the door was unlocked?

The Definition Of Breaking & Entering

At one time, the term simply meant that—physically breaking into a home or business using force, even if no crime was committed.Is Entering An Unlocked Door Considered Breaking And Entering?

Today’s charges apply to any unlawful entry into a dwelling anytime, day or night, without permission, and with the intent to commit a crime. Like most states, North Carolina has expanded the definition of “breaking and entering” to include walking into a dwelling with the intent to commit a crime.

This means that even entering through an unlocked door or opening and crawling through a window that’s partially opened is a crime if the individual didn’t have permission to be there and was trespassing. Breaking and entering is also a separate charge from burglary, and you can be charged for it even if you committed no other crime.

North Carolina law includes “felonious breaking and entering,” in which an individual not only enters a building without permission, but has the intent to steal, or injure and/or intimidate an individual inside the dwelling.

  • Penalties are harsher for individuals who break and enter into a house of worship, i.e., a church, synagogue, mosque, or other worship center.

Charges Associated With Breaking & Entering

Different charges are applied depending on the intent.

For an individual who breaks into a building for shelter, but has no intent to commit theft, they will likely be charged with second-degree trespassing. If the individual has been warned to stay off the property, or enters a building that’s fenced in or otherwise closed, they will likely be charged with first-degree trespass, a more serious offense.

  • Trespassing on property belonging to a utility company if the trespass placed anyone at risk of being injured, or if they intended to disrupt operations (such as a power or water company)
  • Trespassing at the home of a former or estranged spouse or domestic partner is also punished more severely if the other party asked them to leave, especially if they are in a shelter for domestic violence

If the intent for theft can be proven, the individual can be charged with burglary even if he or she didn’t actually commit the crime.

If the dwelling is occupied at the time of the break and enter, the individual is charged with first-degree burglary. If the dwelling isn’t occupied at the time of the break and enter, the charge is second-degree burglary. (N.C. Gen. Stat. Ann. § 14-51.)

North Carolina also considers it a crime to break into a building, and open a safe, vault or “other secure place” using explosives, or break into a vehicle, including a car, boat, trailer, etc.

Defend Yourself Against Breaking & Entering

Being charged with breaking and entering doesn’t always follow with a conviction.

Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh, NC. Before working as a defense attorney, he was a Wake County Assistant District Attorney. He understands the criminal justice system, and can represent you for a wide range of criminal charges.

Call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your criminal defense case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

 

What Does The Term “Simple Affray” Mean In Raleigh, NC Court Cases?

It was supposed to be a fun night out, but it ended badly.

Maybe you went to a concert, a bar, or somewhere else with a gathering of other people. Somehow, you found yourself in a fight situation. You may have been in the wrong place at the wrong time, or you ran into someone you knew. Maybe you or someone else had a little too much to drink and it went wrong while waiting for the Uber.

All you know is that at the end of the night, you were charged with something called “simple affray.”

What It Means

Simple affray is a term used to describe a fight situation—whether threatening to fight someone, or actually instigating violence and throwing punches, and creating a situation that can escalate into something bigger.

one man holding another back from in a bar during an example of a simple affray in Raleigh, NCIn North Carolina, simple affray means that you have committed three things:

  1. You’ve engaged in a fight with another person (this includes self-defense)
  2. This fight took place publicly, in a public place
  3. By engaging in this fight, you’ve caused terror to the public

You can also be charged with simple affray even if you didn’t throw a punch, and weren’t responsible for starting the fight. Inciting a fight (“egging them on”) can also lead to this charge, as well as leading members of the public to believe that they are in danger as a result.

Additionally, if you do throw a punch, even in self-defense, you can also be charged with simple assault.

The Charge

Simple affray in Raleigh, NC is considered a Class 2 Misdemeanor. It is, however, a criminal charge, not a civil one. Victims may have suffered minor injuries that don’t require medical attention.

This charge is designed to punish individuals for not only engaging in violence but also provoking others to do so. Police use this charge to keep the peace when there is the potential for a more dangerous situation, including rioting.

Defense Against Simple Affray

Locating witnesses who can corroborate your side of events as well as offer additional information on what led to the affray, is a good start to building your defense.

Because many venues and public areas now have video surveillance, sending a subpoena for that information is essential to supporting your defense and testimony. Other witnesses can also be identified from video, as well as other aspects of the incident that witnesses and participants may not be aware of already.

Finding strong defense counsel right away can help build your defense and uncover what really happened.

Consequences

For a first offense Class 2 misdemeanor conviction, you can expect to spend from one to 30 days in jail. For subsequent convictions, the jail time can be as high as 60 days, along with fines of up to $1,000.

More severe assaults that lead to injuries are punished more harshly, including ones that involve weapons, domestic violence, serious injury or sexual battery. The state imposes harsher penalties when the assault involves:

  • Females, when the assailant is a male over 18
  • Sports officials—empires, coaches and referees at any organized sports event
  • State employees and officers, public transit operators, campus and/or private security officers, if the assault occurs while they are acting in their official capacity
  • School employees and volunteers (public, private or charter) who are on school property, in the middle of a school event, or are transporting students to or from school

Let Dewey P. Brinkley Defend You For Simple Affray

Dewey P. Brinkley is a former Wake County Assistant District Attorney. If you’re charged with simple affray, he can defend you in criminal court and work for the best possible outcome. Call Mr. Brinkley today at 919-832-0307 or use our contact page to schedule your free consultation.