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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 27199
Experience:  Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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There was a fight in a bar parking lot. The defendant was found guilty of 1st and 2nd degr

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There was a fight in a bar parking lot. The defendant was found guilty of 1st and 2nd degree assault. A police officer testified the defendant and 2 other people were kicking the victim on the ground. Witness 2 testified the defendant was kicking the victim and his head was bouncing on the ground. Witness 2 testimony was quite different than several other witnesses. The Victim and his friend that was in the fight could not identify the defendant. Several other witnesses could not identify the defendant. The Victim was treated at the scene and said he went to the hospital for treatment. No medical evidence presented. The defendant could not testify because of prior record. His girl friend was at the scene and testified the defendant was not in involved in the fight. The defense motioned to throw out the 1st degree for lack of evidence. The judge said to let the jury decide. What are the chances of winning an appeal on the lack of evidence to send the 1st degree to the jury and under what grounds?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Lucy, Esq. replied 4 years ago.

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that this happened.

The problem here is, the jury is free to decide which witnesses to believe and which witnesses not to believe. Thus, on appeal, the court looks not at whether any particular piece of evidence was accurate, but simply whether there was sufficient evidence which, if believed, could support the conviction. They cannot weigh the evidence, because they weren't there.

What does that mean? Say I'm in a car accident, and I bring in a convicted child molester to testify that the light was green and I had the right of way. The other side brings in 100 nuns to testify that HIS light was green and HE actually had the right of way. The jury could choose to believe the child molester and disbelieve all 100 nuns. On appeal, I would win, because there is evidence to support the jury's finding.

In your case, if there was a witness to the fight that identified the assailant, and a police officer testified to the same thing, that is enough to support the conviction. The fact that other witnesses couldn't identify the defendant doesn't necessarily mean that it wasn't him, and a jury can choose to believe a police officer over the defendant's girlfriend, because she'll be considered to be biased.

Unfortunately, that means that an appeal on the grounds of lack of evidence would likely not be successful. That doesn't mean that he shouldn't pursue it - a criminal defendant has a right to follow all avenues of appeal, and is allowed at least one appeal as a matter of right. Just don't get your hopes up too much.

I apologize that this was probably not the Answer you were hoping to receive. However, it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.

Good luck.
Customer: replied 4 years ago.
With no medical evidence produced. How can the defendant be found guilty of 1st degree that requires serious injury. Also, How can they find him guilty of 1st and 2nd degree. Shouldn't he be found guilty of one or the other.
Expert:  Lucy, Esq. replied 4 years ago.
If the victim testified to his injuries, that should be enough. But, I wasn't there, and I don't know what the victim or police officer said.

Initially, you were asking about first degree only. If he was found guilty on both first degree and second degree, on the same facts and the same evidence, that may provide a basis for an appeal. Read the indictment carefully to see what conduct they are alleging. However, second degree assault should be a lesser-included offense in the first degree assault, so if you're talking about the same victim and same circumstances, he shouldn't be found guilty of both. That may provide a basis for appeal.
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