State v. Berry

To raise a timely double jeopardy claim, the defendant must raise the claim before the second trials starts if all of the facts that are required to prove double jeopardy are well-known.

Matthew Blake Berry (Berry) appealed a conviction on one count of rape in the second degree and two counts of sexual abuse in the first degree. Berry, 20, first met the victim online where she claimed that she was 15 years old. The two met and engaged in nonforcible sexual intercourse. Berry was arrested, and at trial the victim and her mother testified that she was 13 at the time they had intercourse. Berry made several assignments of error, but notably that the court incorrectly denied his motion for acquittal on grounds of double jeopardy. To raise double jeopardy, Berry had to timely raise the claim and prove the elements, otherwise it was a personal right that could be waived. To be timely, the Berry must have raised the claim before the second trials starts if all of the facts that are required to prove double jeopardy are well-known. The Court held that Berry had all the information he needed to raise a double jeopardy claim before the second trial, and because he did not raise the issue he waived the claim. The Court rejected several less noteworthy arguments by Berry regarding hearsay, lesser offense instruction, disproportionality of sentencing, and his nonunanimous jury verdict. Affirmed.