Monday, September 8, 2014

Heritage House: Broken Tailights

Remember the movie Walking Tall, the 1970s original based on the real life story of Buford Pusser who became the Sheriff and cleaned up the corrupt McNairy County, Tennessee and fought the Dixie Mafia? Ben Holder, who knows too much, but can't prove his claims would do well to watch it. Buford was a real bad ass not a wannabe like Ben. In that movie there's a scene where deputies break the taillights out of a car in order to give them an excuse to stop the car farther on down the road. This was once a very common practice here in the Southland.

Heritage House has also been a bit of the practice of broken taillights. As News & Record reporter Margaret Moffett points out in her article Heritage House owners already owe city more than $200,000  the City of Greensboro already had the right to take most of the properties but chose not to do so:

 "The News & Record looked at data from the Guilford County Tax Department on each of the 177 units. The information showed that 43 of 53 owners haven’t paid their taxes, some as far back as 2006 and 2007.

The other 10 owners owe nothing — and are current on their 2014 bills, which must be paid by Dec. 31."

But instead they broke out taillights (lies about water bills and inflated crime rates,  according to GPD the actual number was 780 in 4 years, not 2880 as reported.) in order to take it all. Why? Why wait years to foreclose on property taxes? The answer: someone wants the building. Someone wants the building cheap.

Think about it: By law the City can sell the building for no more than it costs the City but the City is allowed to take a loss. Meridian Convention Center paid $2.5 Million for the dilapidated half of the building they bought in 2008. For Meridian or someone else to buy the 177 units for $200,000 is a steal.

Which is exactly what the plan has been all along.

Otherwise the City and County would have foreclosed and resold the individually deeded units a long time ago. 
Madam Mayor and City Council: if you do not call for a complete investigation at this point you will be considered accessories, aiding and abetting along with Ben Holder and Skip Alston.
From  A Guidebook on the Elements of Crime, Seventh Edition, 2012, by Jessica Smith:
 "Aiding and Abetting

This is a common law concept. Some statutes include aiding and abetting as a form of the offense, see, e.g., G.S. 14-190.9(a) (aiding and abetting indecent exposure); G.S. 14-107(b) (aiding and abetting worthless check); G.S. 14-46 (aiding and abetting concealing birth of child), although that is not required to obtain a conviction on this theory.
A person is a principal to a crime based on this concept when(1) a crime is committed by another person, (2) he or she knowingly advises, instigates, encourages, procures, or helps the other person commit the crime, and(3) his or her actions or statements caused or contributed to the commission of the crime by the other person.
As a general rule, a person who aids or abets a crime is guilty of that crime and is punishable as provided for that crime. A few criminal statutes punish aiding and abetting the crime at a lower level, see, e.g., G.S. 14-46 (providing that the main crime (concealing birth of child) is punished as a Class I felony, while aiding and abetting the crime is a Class 1 misdemeanor), or at a specific level, see, e.g., G.S. 20-179(f1) (aiding and abetting impaired driving is subject to Level Five punishment).
Generally. Aiding and abetting is not a separate crime; it merely describes a person’s participation in a crime. See this note to “Principals—Committing the Entire Crime,” above. As a general rule, aiding and abetting arises in cases in which it is not clear whether the defendant personally committed any part of the crime.
For the elements of aiding and abetting, see State v. Goode, 350 N.C. 247 (1999), and N.C. Pattern Jury Instructions—Crim. 202.20.
Although older case law required actual or constructive presence in order to prove a crime under the theory of aiding and abetting, that is no longer required. State v. Bond, 345 N.C. 1 (1996). By enacting G.S. 14-5.2, the General Assembly abolished all distinctions between accessories before the fact and principals in the commission of felonies. Thus, accessories before the fact, who did not actually commit the crime and were not present when it was committed, now can be convicted as principals under an aiding and abetting theory. Id. However, because the concept of accessory before the fact remains relevant to capital cases, it is discussed below. See “Accessory before the Fact to a Felony,” below. The concept of aiding and abetting applies equally to felonies and misdemeanors.

Element (1). The principal in the first degree need not be convicted before a person can be found guilty of aiding and abetting that principal. State v. Beach, 283 N.C. 261, 269 (1973) (citing State v. Jarrell, 141 N.C. 722 (1906)); State v. Williams, 28 N.C. App. 320, 323 (1976). However, the State must establish that the crime in fact was committed. Beach, 283 N.C. at 269; State v. Cassell, 24 N.C. App. 717, 722 (1975).

Element (2). The defendant must know that the other person is committing a crime. State v. Bowman, 188 N.C. App. 635 (2008); see also State v. Estes, 186 N.C. App. 364, 370 (2007) (evidence that the defendant knowingly and willingly laundered nearly $500,000 through his personal and business banking accounts was sufficient to establish that he aided and abetted others in obtaining property by false pretenses). As discussed in more detail under “Strict Liability” in Chapter 1 (States of Mind), because aiding and abetting requires that the defendant act knowingly, when the defendant is prosecuted as an aider and abetter to a strict liability crime, a mental state is required. See, e.g., Bowman, 188 N.C. App. at 650 (“[a]lthough statutory rape is a strict liability crime, aiding and abetting statutory rape is not”; the trial court erred by denying the defendant’s request for an instruction that the defendant had to know the age of the victims in order to be convicted of aiding and abetting statutory rape).

Even if the defendant is not immediately present, he or she can satisfy this element by standing by in a position in which he or she can help and the principal in the first degree knows that. State v. McKinnon, 306 N.C. 288 (1982). However, mere presence does not make the defendant an aider or abettor, even if the defendant has an intent to assist; to be guilty, the defendant must aid or actively encourage the person committing the crime or communicate to that person in some way his or her intention to assist. State v. Lucas, 353 N.C. 568 (2001); State v. Goode, 350 N.C. 247 (1999). The communication or intent to aid does not have to be shown by express words and may be inferred from the defendant’s actions and from his or her relation to the perpetrator. Goode, 350 N.C. 247. One exception to the rule that mere presence does not make the defendant an aider and abettor is when the bystander is a friend of the perpetrator and knows that his or her presence will be regarded by the perpetrator as encouragement and protection. Lucas, 353 N.C. 568; Goode, 350 N.C. 247.
The failure of a parent who is present to take all steps reasonably possible to protect his or her child from attack or sexual assault by another person constitutes an act of omission by the parent showing the parent’s consent and contribution to the crime and thus is sufficient to support a conviction based on aiding and abetting. State v. Walden, 306 N.C. 466 (1982); State v. Ainsworth, 109 N.C. App. 136 (1993).

Effect of acquittal of the principal. North Carolina law is not entirely clear as to the effect of an acquittal of the principal on an aider and abettor’s conviction. Some case law suggests that if the principal and the aider and abettor are tried separately, the defendant may be convicted of aiding and abetting even if a principal in the first degree is acquitted. State v. Beach, 283 N.C. 261, 268–69 (1973) (the defendant’s conviction as an aider and abetter was valid when the indictment alleged that the defendant aided and abetted “an unknown party” and the principal was acquitted in a separate trial); State v. Witt, 113 N.C. 716 (1893) (in a murder case, rejecting the defendant’s argument that the trial judge improperly instructed the jury that the principal’s prior acquittal should not affect its determination as to the defendant’s guilt or innocence of aiding and abetting). Distinguishing this law, however, at least one case has held that if the indictment names a principal, the defendant may not be convicted of aiding and abetting if the named principal is acquitted in a separate trial. State v. Byrd, 122 N.C. App. 497, 498–99 (1996).

If the principal and the aider and abettor are tried jointly, at least one court of appeals case suggests that acquittal of the principal does not bar a conviction of the aider and abettor. Byrd, 122 N.C. App. at 498. Other decisions, however, including those of the North Carolina Supreme Court, hold that an aider and abettor’s conviction is improper in these circumstances. See State v. Spruill, 214 N.C. 123, 125 (1938) (a theory of aiding and abetting could not support the defendant’s manslaughter conviction arising out of a vehicle accident; the vehicle was owned by the defendant but driven by the principal, who was acquitted in a joint trial); State v. Gainey, 273 N.C. 620, 623 (1968) (citing Spruill and holding that because the evidence was insufficient to support the principal’s conviction for carrying a concealed weapon, the conviction of two others for aiding and abetting also must fail); State v. Austin, 31 N.C. App. 20, 24 (1976) (“Where there is insufficient evidence to convict a specifically named principal defendant of the crime charged, another person may not be convicted of aiding and abetting him.”); State v. Spencer, 18 N.C. App. 499, 499 (1973) (in a case in which the principal and the aider and abettor were tried jointly but appealed separately, the court noted that a new trial had been ordered on the principal’s conviction; citing Gainey, it went on to indicate that if the principal is not convicted in the new trial, the aider and abettor’s conviction cannot stand).
Effect of the principal’s plea to a lesser offense. In State v. Cassell, 24 N.C. App. 717 (1975), the court held that a principal’s guilty plea to voluntary manslaughter did not invalidate the defendant’s conviction in a separate trial as an aider and abettor to second-degree murder. The court reasoned that although the State allowed the principal to plead guilty to voluntary manslaughter before the defendant’s trial, the plea “did not . . . determine that the crime of second[-]degree murder had not been committed.” Id. at 722.

Withdrawal before completion of offense. If a person who would otherwise be guilty as an aider and abettor withdraws before the offense is completed, the person may avoid guilt as a principal, but only if the withdrawal is communicated to the other participant(s) at the time, so as to remove any encouragement. State v. Spears, 268 N.C. 303 (1966).

Charging issues. In charging a substantive offense, it is not necessary to allege the theory of aiding and abetting. State v. Lancaster, 37 N.C. App. 528 (1978); State v. Ainsworth, 109 N.C. App. 136 (1993); State v. Estes, 186 N.C. App. 364 (2007) (a trial judge can instruct the jury on aiding and abetting even though the indictment alleges acting in concert; both theories are surplusage). An aiding and abetting indictment is valid if it does not name the principal and alleges simply aiding and abetting an unknown party. State v. Beach, 283 N.C. 261, 69 (1973) (the indictment alleged that the defendant aided and abetted “an unknown party”); State v. Williams, 28 N.C. App. 320, 323 (1976) (“it is not necessary that the actual perpetrators of the crime be . . . named in the indictment”).
Jury instructions. The trial court did not err by instructing the jury that it could find the defendant guilty of second-degree burglary under a theory of accessory before the fact, aiding and abetting, or acting in concert; the separate theories were not separate offenses but, rather, merely different methods by which the jury could find the defendant guilty. State v. Surrett, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 15, 2011); see also State v. Pridgen, 313 N.C. 80, 95 (1985) (the judge properly instructed the jury on acting in concert and aiding and abetting when the facts support both theories).
Aiding and abetting voluntary manslaughter. Aiding and abetting voluntary manslaughter is a crime. State v. Shaw, 164 N.C. App. 723 (2004).

Related Offenses Not in This Chapter
“Accessory after the Fact to a Felony” (Chapter 5) “Conspiracy” (Chapter 5)“Solicitation” (Chapter 5)
‹ Principals—Acting in ConcertUp one level ⇧Accessory before the Fact to a Felony ›"

Methinks City Council would each do well to talk with independent legal council not including City staff, Mike Barber or Don Vaughan as your asses are about to be fried for the actions of others. Oh and make sure they know everything I've written and continue to write on these many pages as investigators and attorneys for the prosecution already do.