Mecklenburg County, NC Judge ‘Sets Aside’ Jury’s Conviction of Felon

From www.ten8.wordpress.com

Freed Man has more than a dozen convictions for other crimes, including breaking and entering, larceny, possession of stolen goods, possession of a firearm by a felon, carrying a concealed weapon, larceny of a motor vehicle and resisting an officer.

From The Charlotte Observer

Friday, October 8, 2010

 By Gary L. Wright
A 24-year-old Charlotte man with a long criminal record was found guilty by a jury last week of breaking and entering into a home, but he has been set free by a judge who decided the evidence was too weak to support the conviction.

In an unusual move, Superior Court Judge Eric Levinson set aside Kenny Bowden’s conviction on Monday, voicing concerns about a lack of evidence tying Bowden to the 2008 break-in at a home in northern Charlotte.

Mecklenburg Co. Superior Court Judge Eric Levinson

At trial, police officers told the jury that when they arrived at the house shortly after the break-in, they saw Bowden in the yard and that he ran from them. But no other physical evidence linked him to the crime.

In announcing his decision Monday, Levinson said the mere presence of Bowden at the scene of the crime is not sufficient for a conviction. Nor, he said, is the fact that Bowden ran from police.

On Thursday, Levinson said he couldn’t talk about the case because it’s being appealed. But in general, he said in an interview: “I don’t want to see criminals or dangerous people walking the streets. But in order for juries to convict and judges to send people to prison, there must be sufficient evidence.”

Bowden had been in jail awaiting trial for more than two years.

  •  Kenny Bowden
  • Last week, after a 11/2-day trial, he was convicted on felony charges of breaking and entering and larceny, and a misdemeanor charge of resisting an officer. A second suspect was never captured.

    After Levinson’s decision, Bowden was released from jail Wednesday.

    Prosecutors intend to appeal.

    “We don’t take cases to trial when we don’t think we have enough evidence to convict,” Mecklenburg Assistant District Attorney Robyn Withrow told the Observer Thursday.

    During a hearing following Bowden’s convictions, Withrow acknowledged the case wasn’t a slam-dunk. She told the judge the case may be “borderline,” but that the court of appeals has said borderline cases go to the jury.

    Bowden’s attorney, Christian Hoel, declined to comment Thursday, citing the pending appeal.

    Bowden has more than a dozen convictions for other crimes, including breaking and entering, larceny, possession of stolen goods, possession of a firearm by a felon, carrying a concealed weapon, larceny of a motor vehicle and resisting an officer.

    Judges cannot consider a defendant’s criminal history in deciding whether to set aside a verdict. Like jurors, they must only consider the evidence about the crime or crimes the defendant is on trial for.

    In a motion urging Levinson not to throw out Bowden’s recent convictions, prosecutor Withrow spelled out the evidence against Bowden in the break-in.

    Andrew Garvin testified he noticed a suspicious green SUV parked in front of his neighbor’s house on Sept. 17, 2008. He had never seen the SUV in the neighborhood. He noticed a man dressed in black near the neighbor’s front door and called 911. He testified that the man went into his neighbor’s home, according to the motion.

    The prosecutor then described what happened when police arrived on the scene five minutes after the 911 call.

    Garvin said he saw the man in black coming from the back of his neighbor’s property. He was carrying a silver case and another item. When police arrived, the prosecutor said in the motion, the man threw the silver case and other items on the ground and started running. That man was never captured, the prosecutor says.

    Garvin then said he saw the defendant (Bowden) walk into his neighbor’s front yard.

    “The defendant could not come from anywhere but the inside of the house due to the perimeter that had been set up by the officers,” the prosecutor argued in the motion.

    The defendant made eye contact with one of the officers and took off running, the prosecutor said in the motion. Another officer saw the defendant run into the woods.

    A police dog, Nero, was brought to the scene and immediately picked up a scent and began tracking.

    Nero located the defendant on the ground in the woods. Two officers testified that Bowden was the same man they caught after chasing him from the victim’s house.

    At trial, Garvin was not able to identify Bowden as one of the men he saw during the break-in. Those who’d had contact with Bowden testified that he had changed his appearance at the trial by cutting off his shoulder-length dreads.

    During the trial, Bowden’s attorney twice asked Judge Levinson to dismiss the charges for lack of evidence. Both times, the judge deferred his ruling.

    In a prepared statement Levinson issued after his ruling, he said: “In all cases, the Court has an obligation to ensure the evidence is sufficient to incarcerate an individual. While the Court has the discretion to dismiss charges during the course of all trials, it also has the authority – in rare and appropriate cases – to do so at other times.”

    Appointed to the bench in 2009, Levinson faces no opposition in his bid for election this fall.

    Staff Writer Cleve R. Wootson Jr. contributed.

    Published in: on October 8, 2010 at 10:04 am  Leave a Comment  

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