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

The Court of Appeals released three new published opinions today. Three seemed to be the appellate number of the day, as the Supreme Court announced three more granted writs, bring to eight the number of cases granted from the writ panel at the end of the month.

Amazon Logistics, Inc. v. Virginia Employment Commission, et al. involves an inemployment claim by a "flex driver" for Amazon. The VEC "found that Amazon (i) misclassified Diggs as an independent contractor rather than an employee and (ii) owed unemployment insurance taxes for Diggs and all similarly misclassified Flex delivery drivers. Amazon appealed the Commission’s decision to the Circuit Court of the City of Richmond, which affirmed the Commission. If you weren't aware, most administrative agency appeals go through the Richmond Circuit.

Flex drivers are a sort of "ride share for deliveries" and the Flex App is a product of AMZN Mobile LLC. While, in theory, the app allows drivers to set their own hours and accept only jobs they wish to, there are very specific parameters about when, where, and how packages are to be picked-up and delivered. The first criteria for finding that a "contractor" is really an employee for VEC purposes is "A worker who is required to comply with other persons’ instructions about when, where, and how he or she is to work is ordinarily an employee." Thus, while someone who signs up to be a Flex delivery driver does get to choose whether to accept work on any given day, once they accept a delivery (or many), they are primarily under the control of Amazon.

The Court of Appeals, Judge Callins joined by Chief Judge Decker and Judge Huff, likewise affirms. As this is an administrative law case and I loathe administrative law with a passion normally reserved for things like Lego pieces left out on a floor in the dark, I will not attempt to summarize the in-depth analysis of the 32-page opinion. Suffice to say that it is very hard for an employer to prove that an employee is an independent contractor when, as here, the employer gives specific directions to the employee on when and how to do the job.

Ronald Dean Northcraft v. Commonwealth of Virginia involves the use of the Virginia Abandoned Vehicle Process which allows property owners to gain title to a vehicle that has been abandoned on their property. It is mostly used by mechanic and garages for unclaimed vehicles, but can also be used by the local government for junkers left on the side of the road -- but that was not always clear in the law, and created a loophole for private citizens to get title to cars that were "abandoned" on public property.

In 2018 Northcraft applied for abandoned vehicle titles for a 2006 Kia Optima, a 2016 Mini Cooper, a 2014 Chevrolet Camaro, a 2009 Mini Cooper, and a 2012 Toyota Camry. Several of the vehicles had expired registrations and had not been moved for some while, but their owners were known and knew where the cars were. When questioned about the applications, Northcraft falsely told a DMV employees that the vehicles were on his property.

You can probably see where this is going. Northcraft sold three of the "abandoned" vehicles for a tidy sum before the owners even knew they were gone. Northcraft was charged with three counts of grand larceny, five counts of unlawfully obtaining documents from the DMV, five counts of making a false statement on an application for a certificate of title, one count of money laundering, and one count of attempted money laundering. He elected for a jury trial and was found guilty of all counts.

On appeal he challenges the failure to strike a juror for cause and the court's refusal of a jury instruction, as well as the sufficiency of the evidence. During voir dire, one potential juror stated that when she heard the number of charges, it occurred to her that Northcraft "must have done something wrong," she had "set that thought aside" after being questioned about the presumption of innocence. She assured the trial court that she could act fairly in judging the evidence. The Court of Appeals, Judge Malveaux joined by Chief Judge Decker and Judge Causey, has no problem finding that the circuit court did not abuse its discretion in retained the juror after Northcraft sought to strike her for cause.

The jury instruction issue and the sufficiency are both based on Northcraft's argument that he had a "claim of right" to the vehicles because the law (at the time) allowed anyone to obtain an abandoned vehicle title for any vehicle left on a public road for more than 48-hours. He argued that even if he obtained the titles under suspicious circumstances, the fact that he had the title nonetheless allowed him to take possession of and dispose of the vehicles. Such a claim, however, must be based on a good faith claim, and the Court of Appeals finds that there was no "good faith" in Northcraft's actions.

This case reminds me of an argument once made to a jury regarding a vehicle that was driven away from a cemetery by someone not its owner. The defense attorney explained to the jury that his client "came upon the vehicle parked in the cemetery with the keys in the ignition. Making the reasonable assumption that the owner of the vehicle had died, my client took the vehicle in to his custody for safekeeping."

Pamela Larsen Stack, et al. v. Sandra F. Larsen may sound familiar, and that's because this case was previously appealed to the Supreme Court back when civil cases went directly to that Court. The issue involves a will that gave a residential home on several hundred acres to the testator's second wife, but did so without actually giving her any kind of fee. Rather, she was give the "right" to reside in home "for so long as she is physically and mentally able to do so." The Supreme Court determined that this was not a life estate, nor did it give the wife any right to any of the property beyond the home.

The present appeal arises from efforts of the testators children from his first marriage, who hold the fee to the property on which the home is located, to determine and enforce their rights which, among other things, they argued included the right of co-occupancy of the home. There were many other issues including the use of outbuilding and the lease payments from a cell-tower on the property, but the Court of Appeals, Judge Raphael, joined by Judges Lorish and Callens, find that the first issue is more or less disposative because the Supreme Court held that the widow's right was to leave on the property by herself without interference. The Court recognized that the children have a concurrent right to the property, but it is limited by this superior right of the widow.

The Supreme Court of Virginia announced that it has granted five new appeals today. That may not seem like "big news," but its actually one more appeal than the court has granted in the last five months and the most appeals announced on a single day since July 14, 2020 when eight grants were announced. I don't keep quite as close an eye on the Supreme Court Docket as does the Sage of Virginia Beach, but I reckon there are 7 cases that have been argued and are awaiting decision and 12 cases (not counting any OJ or appeals of right, which do not show up on the "appeals granted" webpage) in the bullpen for argument in October or January.

I missed reporting on the new published opinions from the Court of Appeals last week due to commitments elsewhere, so let's start with those, starting with the 54 page (yes, you read that right) en banc decision in Dilliraj Bista v. Commonwealth of Virginia. That length is not surprising given that the original panel decision was 49 pages. At the time I summarized that opinion, I predicted that it would go en banc given that it was an issue of first impression analyzing an new statute. I know predict that it is likewise destined for a review by the Supreme Court of Virginia and may be even the US Supreme Court.

Why make such a bold prediction? Well first, this is a Confrontation Clause cases, and confrontation is always a hot button issue for the Justices of both Supreme Courts with jurisdiction over Virginia. Second, here is how the 17 judges of the Court of Appeals broke on the decision: Judge O'Brien authors a plurality in which Chief Judge Decker and Judges Beales, Huff, Malveaux, Athey, Fulton, and White join; Judge Humphreys, joined by Judge AtLee, concurs separately; and, Judge Lorish, joined by Judges Ortiz, Causey, Friedman, Chaney, Raphael, and Callins, dissent. That's an 8-2-7 decision -- technically its a 10-7 as the concurrence gave the plurality the votes need to affirm on the first part of the decision construing Code § 19.2 268.3, the concurring judges would not have reached the Confrontation issue.

Code § 19.2 268.3, which makes admissible at trial certain hearsay statements of child victims of specified crimes, was first enacted in 2016 and modified by the first Special Session in 2021. It appears that Bista was tried before the effective date of the 2021 amendments, but the Court does not make it clear whether this was so or whether the amendments have any impact on its decision.

As I recounted in the original summary, this case involves allegations of sexual abuse of an 11 year old special needs child with an approximately age/intelligence level of a 4 year old, through actively verbal. The circuit court determined that the child was not competent to testify, but nonetheless admitted the out-of-court statements made to a forensic examiner. As did the majority in the panel decision, a majority of the judges en banc find that Code § 19.2 268.3 does not require a finding that the out-of-court declarant is competent to testify. The plurality goes on to address whether the admission of hearsay under Code § 19.2 268.3 violates the defendant's right to confront a "witness" against him and concludes it does not, in part because Bista was allowed to cross-examine the victim when she testified at the preliminary hearing and the hearing on her competency as a witness, the latter of which was introduced at trial.

The concurrence wouldn't reach the confrontation issue, in effect finding that because the evidence is admissible hearsay does not fall within the realm of evidence subject to confrontation when the "witness" is a child. Relying on Ohio v. Clark, 576 U.S. 237

(2015), the concurrence would hold that hearsay of a per se incompetent child witness is admissible as hearsay and confrontation is not at issue.

The dissent takes the view that this case is about confrontation, which in the dissent's view was not adequately afforded in the preliminary and competency hearing. The dissent concludes that in the absence of confrontation of the victim's statements, the other evidence supporting her claims was not sufficient to over come the standard for harmless error where there is a violation of due process.

James Wenzel Forbes, et al. v. Jason W. Cantwell, the other decision published last week, is of a far less monumental nature as it involves an express easement. Thus, the only ones directly impacted by the case are the owners of the dominant estate (they one who can use the easement) and the owner of the servient estate (the one who has to allow it). Naturally, after a trial to determine just what the easement allowed the dominant holders to do, neither side was satisfied. The Forbeses, the dominant estate owners, appealed and Cantwell, the servient estate owner assigned cross-error.

The "estates" in question are two lots on Stoneview Circle in Lexington. The two lots were originally one, but subdivided in 2005 by the Forbeses a predecessor-in-interest, who happened to be Cantwell's parents, who sold one lot to Cantwell's predecessor-in-interest. In doing so, the deed included the following express easement:

The Grantors do hereby RESERVE unto themselves, their heirs and successors in title, a 40[-]foot easement along the westerly boundary of Lot 7, for the purpose or [sic] providing ingress and egress over existing driveway, fencing and landscape buffer for the benefit of Lot 6; said easement being shown on the aforesaid plat.

Now, I would like you to look at two illustrations (not provided by the Court, but nonetheless presented for your edification since the Court's verbal description of the properties does not, in my humble opinion, do them justice). The first is the GIS tax map for Rockbridge County showing the two lots:

The loopy dark line on the map would appear to be the driveway in question. But now have a look at the Google Maps view of the same area.

First, I don't see the loopy driveway . . . or for that matter any driveway to Cantwell's house. More to the point, The Forbeses wanted an injunction barring Cantwell from installing "gates, fences, landscaping or plantings" in the easement or removing the same installed by the Forbeses.

In any case, Cantwell's parents subsequently sold their lot to the Huntsmans, who made expanded the driveway and in so doing removed some of the landscaping. Cantwell, meanwhile, had acquired the other property in a foreclosure. He filed an action against the Huntsmans, who were apparently in the process of selling their lot to the Forbeses, who were then drawn into the suit.

The circuit court ruled that the easement was ambiguous and permitted the introduction of parol evidence. Now I find that peculiar, as I see nothing particularly ambiguous in the language. Next, the court did something even more peculiar: it determined that "ingress-egress" element of the easement was was less than the 40' of the total easement and that improvements made by the Forbeses immediate predecessor-in-interest, the Huntsmans, violated the easement, awarding $5,000 in damages to Cantwell. The court also ruled that while Cantwell could not make any changes to the existing landscaping, the Forbeses were likewise barred from maintaining or altering it. In effect, the court declared the easement to be a "neutral zone" which neither side could encroach upon, except to the extent that the Forbeses could use the original portion of the driveway.

The Court of Appeals, Judge Causey joined by Judge Ortiz and by Judge Malveaux in part, first holds that the circuit court did err not in admitting parol evidence as to the limitations on landscaping. The majority disagrees, however, that both parties were barred from altering the landscaping, and remands the case back for a determination of the extent of the rights of the dominant estate to maintain or alter the landscaping. The majority also finds that the court erred in taking parol evidence regarding the driveway, holding that the entire easement is allowed for ingress and egress provided that this is consistent with the other purpose of maintaining a buffer.

The dissent argues first that the circuit court did not err in taking evidence as to the width of the ingress/egress portion of the easement and limiting it to the original driveway. The dissent also argues that the remand is beyond the scope of the Court's jurisdiction because neither party asked for such relief.

When I said that I saw nothing ambiguous about the language, I meant it. I think with out parol evidence the Court could have found that 1) the driveway was the limit of the vehicular ingress/egress easement and 2) the dominant estate could alter, but not completely remove, the landscape buffer. But, as the General Assembly hasn't given me a robe, I don't get a vote.

Today, the Court released two more opinions, both in criminal matters. Jeffrey Douglas Cheripka v. Commonwealth of Virginia is as unpleasant factually as Bista in that it also involves the sexual assault of a child, his step-daughter. Cheripka raised numerous issues on appeal related to admission of evidence and a jury instructions. These issues fall on the Court of Appeals, Sr. Judge Petty joined by Judges Raphael and White, on the usual standards applicable in such cases.

An issue which I have not seen before is whether the circuit court erred in refusing a request to give Cheripka access to the internet while he was incarcerated and awaiting trial. He alleged that he need this access to obtain evidence from "cloud storage" and prepare his defense. As you can probably guess from the nature of the request, Cheripka was, at least at the time he made the motion, representing himself -- always a bad sign. In this case, the problem is that Cheripka made no proffer of the evidence that he had "in the cloud" or how using the internet would have otherwise aided his case. The Court therefore finds that the record does not allow it to "competently determine error." So learning whether a pro se defendant is entitled to internet access will have to wait for another day.

Cheripka also argued that the circuit court erred in not ordering a pre-sentence psycho-sexual evaluation under Code § 19.2-299. While the court undoubtedly erred in failing to follow the dictate of the statute, the Court rules the error was harmless because the purpose of the evaluation is to assist the trial court in determining the appropriate sentence. Here, however, the only sentence was mandatory life imprisonment.

Finally, Cheripka challenged the mandatory life sentence as unconstitutional because his attorney "could do nothing to change the mandatory sentences," thus he was denied his right to counsel. The Court responds that the attorney (whom Cheripka had belatedly allowed to do his job), did argue against the imposition of a life sentence on numerous grounds and, despite not convincing the trial court to find such a sentence violative a due process, did a credible job. Assistance of counsel is not lacking merely because the law is not availing.

John Randolph Hooper v. Commonwealth of Virginia was convicted of involuntary

manslaughter and also of felony hit and run. What makes this case notable is that the vehicle Hooper was operating was while under the influence of intoxicating substances was not an automobile, but a "twenty-one-foot Boston Whaler"

The accident and death occurred when Hooper and a friend took the boat out late at night. At some point the boat struck a dock with sufficient force to split a timber piling in two. Hooper's friend was thrown from the boat. Hooper, stating that his friend was a good swimmer, left the scene of the accident. The body of the friend was subsequently found not far from the dock. The cause of death was determined to be drowning.

Hooper initially denied having taken the boat out that night and also lied to police about which boat had been used earlier in the day. Presumably, this was to keep the police from examining the Boston Whaler for damage. As evidence mounted that contradicted Hooper's statements. he eventually admitted to having been in the boat at the time of the accident, but maintained that he was very intoxicated and could not remember who was operating the boat.

Hooper was charged with felony murder, aggravated involuntary manslaughter, and

felony hit and run. The jury convicted him of involuntary manslaughter and hit and run. On Appeal, he challenged the sufficiency of the evidence on the ground that there was not proof beyond a reasonable doubt that he was the operator of the boat at the time of the accident.

The Court of Appeals, Judge Beales joined by Judges Huff and Chaney, affirm the jury's verdict. The principal evidence which allowed the jury to find that Hooper was the operator of the boat was from the negative inference to be drawn from Hooper's initial failure to admit his involvement. Additionally, there was evidence that Hooper was the only one who operated the boat at other times and the fact that he could clearly remember details of the accident and his actions immediately after, such as navigating back to his dock and putting the boat into a lift, to render his statement that he could not remember who was operating the boat to be not credible.

This tragedy was obviously preventable. Alcohol and the operation of any vehicle -- on land, in the water or in the air -- is a deadly combination. While this is a close case on the evidence, the substantial justice of the case is not close at all.

Hooper's parents reached a settlement with the family of the victim. The settlement was for $4,000,000 and came without any admission of liability.

Hooper was sentenced to 15 years in total with six years to serve. Hooper was 34 when the death occurred and spent most of the time awaiting trial on bond. Hooper was actually very close to getting a sweetheart deal. He was originally scheduled to enter a plea to with a guaranteed maximum sentence on one-year. That deal fell apart when the judge was alleged to have had improper ex parte communications with the prosecutor. The judge denied the accusation, but recused himself and the case was transferred to a new venue. Later, the prosecutor was found to have made material misstatements to the victim's family about the judge and the likelihood of a conviction. The prosecutor, who lost his re-election bid, agreed to a year's suspension of his license rather than face a full disciplinary hearing.

It's not officially fall until September 22, 2023 -- and with post-Labor Day temperatures in the upper 90s in the Star City, I can't argue with that.

The wheels of justice continue to grind, however, and give us two new published opinions from the Court of Appeals. Bryan Temple Smith v. Commonwealth of Virginia is a "kitchen sink" appeal from a DUI 3rd offense within 10 years, which is a felony. Ten days before a 2020 amendment took effect that barred police from stopping vehicles for a missing tag light (the tiny bulb that illuminates your license plate and is habitually burned out on most cares more than a few years old), Mr. Smith had the misfortune of being pulled over for that very offense. Generally, when officers pulled you over for this trivial offense it was for one of two reasons -- either they were having a slow day and wanted to stretch their legs a bit a give you a friendly-ish warning to get it fixed or, and this is far more likely -- they had a hunch that there was something going on with you, but that hunch wasn't enough of a reason to stop you.

Smith's case falls into the latter category (they had received a tip) and the police quickly learned, because Smith volunteered the information, that he "wasn't supposed to be driving" because “he was in rehab due to a previous” DUI. He added that he had consumed "a couple of beers." For those not familiar with "Southern English," a "couple" of anything other than human beings is an indeterminate number that is almost certainly more than 2 but likely not reaching into double digits (which in SE is generally referred to as "more than a few"). In this case, "a couple" turned out to be six "since lunchtime."

After performing poorly on field sobriety tests, police arrested Smith. After eading him the implied consent law, Smith responded, “how do you expect a drunk person to understand all that?” As you can probably guess, Smith was charged with both driving on a revoked license and DUI 3rd, but the Commonwealth let the busted tag light slide.

Despite having furnished police with more than adequate evidence to convict him, Smith gamely tried to avoid the consequence of his folly by claiming that the new law should be treated as retroactive and, thus, all that lovely evidence should be suppressed. The trial court disagreed and the case went to trial.

At trial things started going Smith's way when the Commonwealth was unable to prove the bone fides of the BAL certificate. This is good news in that it meant that the court would not here evidence of the specific concentration of alcohol in Smith's blood and deprived the Commonwealth of an easy "presumptive" proof of intoxication.

We pause not to express sympathy for the many, many new (and not so new) attorneys who, having just succeeded in keeping the BAL certificate out in a DUI case, are in the midst of packing up their papers and receiving the congratulations from their client for a well fought case when the they here the judge say, "Just where do you think you're going?"

You see, the lack of a BAL certificate is not fatal to the Commonwealth's case in a DUI. The certificate only permits to court to make an "inference" that the defendant was blotto. The Commonwealth can still prove the defendant's intoxication by other means, like, for example, his statements against interest that he had consumed six beers "since lunchtime" and was a "drunk person."

The Commonwealth did just that. For some reason, the Commonwealth also called an expert, over Smith's objection, to testify on the effect of alcohol on a person's ability to drive. While this might seem a good idea, I hardly think it was necessary. The Commonwealth also a DMV transcript to show that Smith had been first convicted of DUI in May 2016 and the order of conviction for DUI 2nd in June 2020. In lieu of an order of conviction for the first offense, the Commonwealth submitted a letter from the Henrico County General District Court saying that the order could not be found "at this time."

I mentioned that this was a kitchen sink appeal -- meaning that Smith's counsel tried everything that had failed in the circuit court again on appeal. Starting with the "retroactive" application of the "pretextual stop" amendment, the Court of Appeals, Judge Raphael joined by Judge White and Sr. Judge Petty, agreed with the trial court that the legislation evinced no intent for retroactive application (which is disfavored and therefore must be express in the enactment).

Smith next argues that the Commonwealth should not have been allowed to use the DMV transcript and that its evidence as a whole failed to prove that he had two prior DUI convictions. With respect to the former, Smith argued that the inability to produce the order for that first conviction "rebutted" the DMV transcript. The Court, however, found that the transcript was competent evidence of the conviction and the fact that the clerk could not locate the original order was not proof that no order existed (plus, Smith had told one of the officers that he had two prior convictions).

I am going to say here that while I agree with the Court that there was sufficient evidence to prove the two prior DUIs, had I been the prosecutor, I would not have presented the Clerk's Letter. In fact, had I been the prosecutor I would have moved to amend the charge to DUI 2nd when I learned that the court could not find the conviction order for first DUI. In my view, the Commonwealth doesn't need to play hardball in these cases and I don't like sloppy procedures, even if they are sufficient to pass muster on appeal. Plus, in the digital age, I am shocked that one of the wealthiest counties in Virginia does not easily accessible records from just (at the time) 5 years before.

Smith also challenged the admission of the testimony about his prior convictions and the expert testimony. The Court finds that the former point is moot as the prior convictions were proved by other evidence, where as the latter was a decision committed to the discretion of the trial judge.

Silfredo Castillo Canales v. Commonwealth of Virginia involves two revocation proceedings. Canales had comeback time from a 2017 grand larceny and burglary case when he ran afoul of several conditions of his probation. Now probation violation law has undergone some significant revision in the last few years, and one of those changes requires a court to treat all violations ordinally (sic) as the same level of offense if arsing from the same conduct or if tried in one proceeding under a single violation report. The "sic" is used to indicate that I did mean "ordinally" not "ordinarily." That is, violations are treated as being either a "first," "second," or "third or subsequent."

Canales pointed this aspect of the new law out the trial judge, but he was having none of it, saying that the violation report as “chockablock full of discrete incidents” that should not be treated as one. The court therefore decided that it would hold separate proceedings for each incident by the date identified in the report. When the first of the hearings was held that Commonwealth said something along the lines of "Ummm, Judge, not that I don't want to see Canales get what's coming to him, I do think that maybe he has apoint about the new law." That's my kind of Commonwealth's Attorney! I bet he would have reduced Smith's charge to DUI 2nd.

The judge, however, insisted that each of the incidents reported could be treated as a separate violation of each of the suspended sentences. Thus, in quick succession on two separate days, the court entered an total of six orders in which it, somewhat surprisingly, required Canales to serve only 14 days on each violation -- I say surprisingly because under the method used by the court, Canales could have been given all the comeback time. My guess is that he had already served most of the 84 days at the time the sentences were imposed -- maybe all of it.

As you have probably already guesses, the Court of Appeals, Sr. Judge Clements joined by Judges Athey and Otriz, has to do some mental gymnastics to sort out whether the court could decide to try the violations separately (Yes, it could) and if it could, did that allow it treat each violation as being part of a separate course of conduct (No, it couldn't). Judge Clements does an admirable job of explaining this result, but the short version is that while the court cannot be barred from holding separate hearings for each alleged violation, it cannot use that process to do an end run around the requirement that violations that are part of the same course of conduct are to be treated as all one and the same. here there were two "courses of conduct" (failure to follow a probation officer's instructions and using illegal drugs) with three violations each. No matter how many hearings the court held, it had to treat the two "courses" as one "violation" each. This meant that the court should have imposed no more than 14 days of the suspended sentence.

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