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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Facing multiple deadlines in three different appellate courts, your humble correspondent is running a bit behind on the posting analysis of the Court of Appeals’ decisions this week. There are three criminal appeals and one grant of an en banc petition in a civil case. The latter is for Telegraph Square II, A Condominium Unit Owners v. 7205 Telegraph Square, LLC, and once again I shall take undeserved credit for predicting that the panel’s decisions would raise sufficient eyebrows to warrant an en banc.

Mamodoh Abouemara v. Commonwealth of Virginia involves the offense of bribery of a public official. Abouemara owns a convenience store in the Town of La Crosse and desired to have “skill machines” therein. Now some of you who follow the world of “gaming” in Virginia know that as of July 1, 2020 these ersatz slot-machines are no longer permitted in retail establishments unless they are grandfathered by having been in place before July 7, 2020. We therefore know that Abouemara must have committed the alleged act of bribery before that date.

In fact, Abouemara had a number of such machines in his store sometime on 2019, which the La Crosse Police Chief discovered after noticing an unusual pattern of activity at the store in the wee hours of the night. As you can ascertain from the interest this aroused with the po-po, the machines were not properly licensed.

You might assume that the bribery was an attempt to get the chief to look the other way, but no, in fact the police seemed to be fairly reasonable about the issue because Abouemara was able to get the advice of a lawyer on how to go about getting approval for the machines. What got Abouemara into trouble was his offer to make “donations” to the town in exchange for a letter supporting his application for a skill games license.

The town manager advised Abouemara that the Town could not take such donations, but that Abouemara could make donations to a non-profit organization that supported public works in the town. There was no direct implication that this would result in the town supporting the application, however, the manager agreed to take the offer to the Town Council.

At its next meeting, the manager duly reported that Abouemara would make payments of $500 to the town each month in exchange for the letter of support. The Town Council did not take up the offer. Abouemara nonetheless delivered a check for $200 payable to the Town to the manager shortly thereafter. On the advice of the Police Chief, the check was marked “Void” and not deposited.

Abouemara was charged with two counts of bribery; one for the $500 offer and the other for the $200 check. The circuit court struck the latter count, finding that there was no evidence that Abouemara expected any quid-pro-quo. However, Abouemara was convicted of bribery for the original offer and sentenced to five years imprisonment with all time suspended and one year of probation.

On appeal, Abouemara maintains that the Commonwealth failed to prove that he acted with a corrupt intent or with an intent to undermine the administration of justice. The Court of Appeals, Judge Raphael joined by Judge Callins, gives a nice essay on the history of bribery, which the Court says has “a long pedigree.” The majority then finds that Abouemara plainly sought to corruptly influence the Town Council to provide him with a letter of support for obtaining the skill machines license.

Judge Chaney dissents. In her view, Abouemara’s request for the letter of support in exchange for the monthly donation to the town did not constitute an attempt to corrupt the Town Council to perform an official act. In her view, the letter of support was a discretionary act that required no official decision or exercise of authority. She contends that under the application of the law adopted by the circuit court and approved by the majority, it would be bribery to offer a donation to the town in exchange for a promise from the mayor to send “a birthday greeting to the community’s oldest citizen.”

While I appreciate Judge Chaney’s view, I don’t agree with her conclusion that asking the town for a letter of support for a gaming license (or an ABC license, or to support an application for clemency, etc.) does not involve an official act. Such a letter would be on Town stationery and be signed by the Mayor or City Manager in an official capacity. Arguably the birthday greeting example would also be “official,” but the difference in my view is that the latter involves no tangible benefit for the person requesting the act of courtesy, whereas Abouemara was hoping for support that would result in a very tangible benefit – one sufficient to justify his cutting the town in for $500 of the take each month.

Colton Allen King v. Commonwealth of Virginia involves the application of a “Miller defense” to the possession of a firearm by a person adjudicated delinquent as a minor for an offense that would have been a felony if applied to an adult. A Miller defense bars the Commonwealth from prosecuting a person who made a good faith effort “to learn what conduct the government has proscribed, but is misadvised by the government itself.”

A minor at least 14 years of age who is adjudged delinquent of a crime that would be a felony if applied to an adult is thereafter barred from possessing a firearm until they reach 30 years of age (and have no felony convictions in the meantime). King was convicted of just such an offense in Pennsylvania, but was correctly advised that his right to possess a weapon would be restored in Pennsylvania upon his release from juvenile probation. The circuit court disallowed the Miller defense and King was convicted. The Court of Appeals, Judge Friedman joined by Judges AtLee and Causey, affirm. The Court noted that Miller expressly limits its application to advice received about Virginia law by a Virginia official. It declines King’s request to expand that holding, reasoning that it does not have the authority to do so because it is bound by the decision in Miller.

I disagree with the panel’s assertion that it could not expand the holding in Miller to a broader range of circumstances. I do not see that this would violate the binding decision principle. Expanding Miller would not overturn the decision or render its application non-binding. However, I also do not think that the Court should expand Miller on these facts. Whether Pennsylvania chooses to restore certain civil liberties to a person whose rights have been impaired by judicial process is a matter for Pennsylvania and Virginia owes that decision full faith and credit. But Virginia was not impairing King’s right to possess a firearm in Pennsylvania. He was in Virginia and subject to its law.

One additional issue probably means that this case is not likely to have any real impact in the future – and maybe will give King hope for a successful habeas action for ineffective assistance of counsel. I quote footnote 3, “King also notes on appeal that the General Assembly amended Code § 18.2-308.2 in 2015 to provide a procedure for recognition in Virginia of another jurisdiction’s restoration of a defendant’s right to possess a firearm, and he argues that this amendment should apply here. King did not raise this argument in the trial court, so it is procedurally barred. See Rule 5A:18.” The Court suggests that King’s right to possess a firearm was never taken away in Pennsylvania, so it could not have been “restored,” but I am not sure that is a correct reading of the facts. It would depend, at least in part, one the age at which it is lawful to possess a firearm in Pennsylvania and when King completed his probation.

Finally, we have Katie Orndoff v. Commonwealth of Virginia. Orndorff was the victim and principal witness in a criminal trial in Loudoun County. During her testimony she repeatedly strayed into matters that the circuit court had ruled were not relevant or admissible. Eventually, defense counsel suggested to the court that perhaps Orndoff had fortified herself for trial with some “liquid or pharmaceutical courage.” Orndoff admitted to having smoked marijuana before coming to court. The court held her in summary contempt and sentenced her to ten days in jail.

The Commonwealth, no doubt concerned that its principal witness was now in the custody of the sheriff, asked the court to reconsider its finding and to appoint counsel for Orndoff. The court demurred, asserting that her admission to having smoked the evil weed and then daring to appear before the court was summary contempt for which Orndoff was neither required notice nor an opportunity to defend.

A majority of the panel, Judge Chaney joined by Judge Raphael, reverses the summary contempt finding (technically, summary contempt does not result in a “conviction”). The majority first finds that while the court was entitled to question Orndoff about her intoxication, her responses “cannot serve as the trial court’s factual basis for finding any essential element of the alleged contemptible conduct.” However, the majority then approves of some slight-of-hand by the circuit court, which initially said it relied on her admissions, but then said that no, after reflecting, it had not done so. Instead, the majority reasons that because the circuit court did not rely on those statements, it necessarily lacked evidence that Orndoff had voluntarily become intoxicated.

Judge Athey dissents. In his view, and frankly the view I think most judges would take, it was sufficient for the circuit court to observe that Orndoff was behaving in a manner consistent with her being impaired to the point that she could not follow the court’s instructions to limit her testimony in accord with its rulings and was otherwise incoherent. While I agree with Judge Athey on the law, I am less sanguine on the circuit court’s decision to punish Orndoff – however, that is something that has already been addressed in the Court of Public Opinion.

On November 22, 2022, your humble and obedient reported on the unpublished decision in Maust v. Commonwealth, 2-1 reversal of a criminal conviction. Today, the Court publishes the en banc decision affirming the judgment, with only the two judges who reversed in the panel dissenting. Judge Malveaux, the original dissenter, is joined by Chief Judge Decker, and Judges Humphreys, Beales, Huff, O’Brien, AtLee, Athey, Fulton, Ortiz, Friedman, Raphael, Lorish, Callins and White, while Judge Chaney joined by Judge Causey dissents. The issue that separates that two sides is sufficiency of the evidence to prove guilt beyond a reasonable doubt. What makes this result interesting is that in an unpublished panel decision Judge Causey is joined by Judges O'Brien and Friedman in overturning another conviction finding the evidence was insufficient.

In Maust, the issue was whether the defendant could be found guilty of distribution of a controlled substance in violation of Code § 18.2-248 where the evidence was provided by an informant conducting a controlled buy. The problem was that while the officer seeting up the buy "did not recall" the informant's girlfriend accompanying him to the buy -- she was clearly with him in his car when he arrived. The officer also "lost sight" of the informant for a time. Although the audio has innocuous conversation between Maust, another woman, and the informant, but no express mention of purchasing drugs. A subsequent search discovered numerous pills in prescription bottles and cash including most of the case supplied to the informant.

In the original summary, I expressed surprise that there was apparently no motion to suppress the evidence from the controlled buy. Neither the original opinion and dissent nor today's en banc opinion and dissent say expressly that there was not, but had there been, Maust would almost have certainly challenged the failure to supress -- and I think might have prevailed. I am particular disturbed by the lack of evidence that the informant's girlfriend was search by police and allowed to accompany him to the controlled buy.

What happened instead was that Maust challenged the sufficiency of the evidence to prove her guilt beyond a reasonable doubt against her alternative theory that the informant obtained the drugs from his girlfriend and that any of the marked bills could in Maust's possession were in payment of a debt. In the panel, and again today en banc, the question becomes whether Maust's theory of innocence was enough to move the needle below the reasonable doubt standard. The majority concludes that the standard of review gives "the highest degree of appellate deference" to the trial court's fact-finding. The dissent agrees that deference is owed, but not to the point of ignoring the absence of evidence and strained inferences.

The unpublished opinion is Stephen Lamar Garrick v. Commonwealth of Virginia and involves the question of constructive possession. The facts are consistent with the typical constructive possession case involving an automobile. Garrick was "operating" the vehcile by sleeping in it with the engine running. The police searched the vehicle (the opinion gives no details of why they did this or even whether they woke Garrick before doing so) and found a gun and a baggie of white powder that turned out to be heroin also with two receipts for maintenance of the gar made out in Garrick's name in the glove compartment. Garrick said that his mother owned the car and that he drove it about three days a week.

Garrick's motion to suppress the evidence was denied and at trial his argument that there was insufficient evidence that he was aware of the character and presence of the contraband found not joy from the trial court. He appealed both decisions, but the Court decides that it need not consider the suppression issue because in its view the trial court was just plain wrong to think that Garrick could be charged with knowledge of the drugs in the glove box. The Court finds that no action Garrick took when the police conducted the search gave any indication that he was concerned about what they might find. In other words, Garrick kept his cool -- no furtive movements or jitters -- so the judge could not infer that Garrick was harboring a guilty conscience.

I have a filling that even without a dissent, the Commonwealth is going to challenge this decision -- and I am going to go one step further and say that the Court of Appeals en banc or Supreme Court will give it another look. I am having a hard time reconciling Garrick and Maust. Had Garrick been reversed on the suppression -- which granted we don't know what the basis would have been -- I would not have been surprised unless Garrick consented. But with two of the panel members in Garrick having just said en banc that the trial court is due "the highest degree of appellate deference" in its fact-finding, I am absolutely gobsmacked that they are letting Garrick off.

With the Court of Appeals sitting as a court of general appellate jurisdiction for almost 18 months, would think that there would not be many more “firsts” for the Court to get to, but today we get one of those remaining firsts taken care of – the Court decides its first tax law case. Commonwealth of Virginia, Department of Taxation v. 1887 Holdings, Inc. etc sees the taxman appealing from a grant of summary judgment allowing a multi-state taxpayer to file an amended tax return that alters the method of income apportionment from that used in the original return. Tax Law is akin to Administrative Law in one very important way – it is arcane and best left to the specialists. That having been said, your humble correspondent does not have quite the level of loathing for tax law that he reserves for Administrative Law. However, even without such disdain, this case is really nothing to write home about as it turns on that most common of statutory construction tools the “plain meaning of the statute.” The Court of Appeals, Chief Judge Graff joined by Judges Huff and Callins, affirms the judgment in favor of the taxpayer by observing that nothing in the relevant statute requires the taxpayer to stick to its original method of income apportionment when amending a return. In fact, if you think about it, one particular good reason for amending a return is because you realize that you overpaid when filing your return – and the law of taxation has one maxim that everyone should no – the law requires you to pay your taxes, but you are required to pay only the least amount which the government can require you to pay.

Marquay Christopher Alston, s/k/a Marquay Christopher Lee Alston v. Commonwealth of Virginia is an appeal from convictions for aggravated malicious wounding in violation of Code § 18.2-51.2 and discharging a firearm from a vehicle in violation of Code § 18.2-286. Although both incidents occurred on the same night, they happened at different locations and were tried separately, but were combined for briefing and argument on appeal.

Alston and his girlfriend attended a party in Radford. The opinion does not provide Alston’s age, but both the victim and his girlfriend are identified only by their initials to protect their identity as they were minors at the time. A.S., the girlfriend, became engaged is particularly aggressive cat fight with several women and, J.C. attempted to intervene, taking A.S. in a “half bear hug.” Alston took umbrage at the manhandling (boyhandling?) of his girlfriend, who was several months pregnant, and began punching J.C., who attempted to retreat, with Alston pursuing him and administering a pretty through beatdown which left J.C.’s teeth “mangled” and sending him to the hospital. J.C. lost six teeth.

Alston left the party and shortly afterwards gunfire was heard outside. Joshua Turman and a friend decided it was also time to leave. When Turman and the friend reached friend’s vehicle, Alston and two others “jumped in the backseat.” Turman drove to a convenience store to buy alcoholic beverages and “Alston pressured Turman to buy cigarettes.” As the group drove around, Alston, without warning, fired two shots out a car window, “terrifying” Turman.

Now I think it is fairly plain from this evidence that Alston was guilty of both offenses, so why is this a published opinion? Well, it’s because Alston has a pretty creative lawyer who reads statutes carefully (as we all should) and made some interesting arguments about sufficiency. My guess is that the Court wanted something in writing to help the next trial judge who is faced with similar creativity.

The attorney based his sufficiency challenges to both convictions based on arguments that the Commonwealth didn’t prove malice for the malicious wounding charge because Alston was acting in defense of his (pregnant) girlfriend and that even if he was acting with malice, the loss of six teeth wasn’t a “significant and permanent injury” because implants can make your choppers better than new (albeit J.C. had not yet been able to afford implant surgery).

As the firing from a vehicle offense, Alston fired out of the vehicle in an unpopulated area, so there was no evidence that he “create[d] the risk of injury or death to another person or thereby cause another person to have reasonable apprehension of injury or death.” Turman was frightened, certainly, but never in any real danger.

The Court of Appeals, Judge Callins joined by Judges Friedman and White, are having none of it – and good on them. While these arguments are creative, they just don’t fit the facts of this case. First, Alston’s defense of girlfriend, pregnant or otherwise, was wildly out of proportion to J.C.’s “half bear hug” restraint, and Alson’s pursuit and escalation of his own assault on the retreating J.C. went far beyond a defense of another claim. Second, merely because an injury can be cosmetically repaired does not mean that the injury is not both serious and permanent.

As to Turman was a scaredy cat, but not really in danger, the Court notes that the statute does not require anyone to be in actual danger, merely to be but in apprehension of injury or death. Given that Turman had witness the attack on J.C., I think, especially in the light most favorable to the Commonwealth, the evidence showed that he was “apprehensive” about Turman’s intent at recklessly firing a weapon inside the close quarters of car, regardless of where it was aimed.

Dale A. Happe v. Kathryn Zimmerman involves the standard to be applied when a court extends a protective order under Code § 19.2-152.10. Now as with many, protective orders, this one involved a romantic attachment, though in this case is was decidedly one-sided. Happe was an employee of Zimmerman’s who became obsessed with her and wouldn’t take a polite “no” and a slightly less polite “go away.” Hence, Zimmerman obtained a restraining order.

Zimmerman changed her phone number and email address, but over the course of the next two years would encounter Happe. Although he would not approach or try to communicate with her, he would stare very noticeably at her. As the protective order was due to expire, Zimmerman sought an extension, which Happe opposed.

Let us pause here to consider why someone would oppose a protective order being extended if they no longer had an interest in the person who obtained the order. Well, there are good reasons to do so. Protective orders are matters of public record and can cause embarrassment and worse for the individual subject to the order. Likewise, some protective orders ban the person from possessing a firearm. But, having said that, one gets the feeling from the facts as recited in this case that Happe was not really concerned with such collateral issues. In any case, whatever you may call his behavior, I think we can all agree it’s creepy.

Anyway, Happe argued that merely showing up unexpectedly where Zimmerman happened to be and staring at her was not sufficient to show that he posed a threat to her. The circuit court disagreed and Happe appealed.

The Court of Appeals, Judge Humphreys joined by Judges O’Brien and Chaney, affirm the extension of the protective order. The Court rejected Happe’s argument that an extension of a protective order required what would amount to a new evidentiary hearing under the same standard required to obtain the protective order in the first place. The correct standard, the Court holds, is whether the extension is needed to protect the health and safety of the protectee. If Happe’s interpretation were to be applied, it would naturally necessitate that the person subject to the protective order commit some act in violation of the order, or close to it.

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