It's unusual for an unpublished decision to get a review by the full Court of Appeals even where there is a dissent. It's even more unusual for the original dissenter to pick up just one more vote -- meaning that the en banc was granted by some judges who agreed with the result (or changed their minds to that view after some thought), but that's what happened in Dana Mark Camann, Jr. v. Commonwealth of Virginia. The result is that an unpublished opinion that would have been little more than a blip on defense attorneys' radar is now a 15-2 published decision that will give the Commonwealth trouble in its efforts to ladder up charges for drug possession.
The issue is pretty straight forward -- if a defendant is found in possession of a white powder that tests positive for two different controlled substances, does the Commonwealth have to prove that the defendant was aware that both substances were present in order to convict him of possession of both?
Before revealing the result of the appeal and the reasons given by the 15 member majority and the 2 member dissent, I will state for the record I am troubled by the way defense counsel chose to argue the case. From my perspective, the issue is not whether the Commonwealth needs to prove that the defendant knew the character of both substances, but whether the possession of a compound or adulterated substance can be charged as as if the defendant possession of two pure or unadulterated substances separately. I believe the correct answer is where a substance is shown to be a mixture (whether deliberately compounded or accidentally adulterated), this constitutes a single instance of possession of a controlled substance. There was no way to separate the two substances in the powder. That, to my mind in ONE substance being possessed, not two. But that was not the argument made, so let's turn to the argument that was.
Camann contended that while was guilty of possessing fentanyl, he had no idea that the fentanyl was mixed with etizolam. Indeed, he said he had no idea what etizolem was. In case you are interested, it's chemically related to benzodiazepines and is commonly used to treat insomnia and anxiety -- but not in the US where it has not been approved for clinical use. Its illicit use is sufficiently of concern that the NIH has published a study, Fentanyl, etizolam, and beyond: A feasibility study of a community partnership using handheld Raman spectrometry to identify substances in the local illicit drug supply. The Commonwealth contended that because Camann knew that he possess fentanyl, the mens rea for that crime transferred to his possession of eitzolam.
In the circuit court, the judge sided with the Commonwealth. In the original panel decision, Judge Raphael, joined by Judge Chaney, found that the Commonwealth failed to prove that Camann knowingly possessed the eitzolam, while judge Athey dissented. In the en banc, Judges Raphael and Chaney pick up 13 additional votes from Chief Judge Decker, and Judges Humphreys, Huff, O’Brien, AtLee, Malveaux, Fulton, Ortiz, Causey, Friedman, Lorish, Callins and White. Judge Athey is joined by Judge Beales.
The majority reasons that the statute in question, Code § 18.2-250, requires proof that the defendant knowingly or intentionally possesses a controlled substance. Thus, the be guilty of that offense, the Commonwealth must show that the defendant had the requisite mens rea to posses "a substance," meaning that he was aware of the particular character and nature of the substance. Here, the evidence proved that Camann was aware of the character and nature of the fentanyl, but had no awareness that etizolam was also present. Mere possession of a substance is not sufficient to prove that awareness.
The problem with the majority's opinion, which Judge Raphael anticipates and addresses, is that there is a line of cases that says its sufficient that the defendant know the illicit character of the substance even if he does not know its specific nature. For example, let's say I agree to deliver a packet containing a white powder which I believe to be fentanyl, but its actually heroin. I am clearly not guilty of possessing fentanyl, but the majority would say that I was guilty of possessing a controlled substance, which happened to be heroin. However, for Judge Raphael, it would stretch this principle too far to allow my accurate belief that I possessed fentanyl to serve as a basis for saying I intentionally possessed cocaine as well. The dissent obviously does not have a problem with stretching the principle.
This brings me back to my original problem with how this case was argued. To demonstrate my concern, let me propose four scenarios:
Defendant possess white power he believes to be cocaine, but it is in fact heroin. The majority and dissent agree that the defendant is guilty of possessing a controlled substance.
Defendant possesses white powder which he believes to be cocaine, but is in fact a mixture of cocaine and heroin. The majority says he is guilty of possession of one controlled substance, cocaine, but not guilty of possessing heroin; the dissent says he is guilty of both.
Defendant possesses white powder which he knows to be a mixture of cocaine and heroin. The majority and dissent agree he is guilty of possession of TWO controlled substances.
Defendant possesses two identical packages of white powder which he believes to be cocaine, but one of which is in fact heroin. The dissent would say he was guilt of possessing two controlled substances, while the majority would say he is . . . what?
Clearly, there is a problem with the majority's logic if the defendant in 4 is guilty of possessing only one controlled substance, because that runs counter to its agreement in scenario 1 that there can be transferred mens rea when the defendant is mistaken about the exact character of the substance while still believing it to be a different illicit substance. But the same problem arises if the majority says that the defendant in 4 is guilt two possession offenses, because that doesn't gibe with the majority's outcome in 2, which is this case.
The problem here is that word "substance" means two different things. It can mean "a particular kind of matter with uniform properties," or it can mean "the real physical matter of which a thing consists and which has a tangible, solid presence." The former meaning clearly defines a "pure" substance, while the latter defines an object which has constituent parts, but which we recognize as a single "thing."
Instead of talking about drugs, let's talk about cars. If I steal the catalytic converter from a car to sell for its platinum, I am guilty of larceny and selling stolen property. If I steal the car itself, and sell it, again, I am guilty of larceny and selling stolen property. But suppose I steal the car, and then remove the radio, the catalytic convertor, the water pump, the seats, and the spare tire and sell them all to different people. How many larcenies have I committed? One, right? I might be guilty of multiple acts of trafficking in stolen goods, but I stole the car, not the radio, the catalytic convertor, etc. And I am quite certain that if I steal the car and then sell the car, I am NOT guilty of stealing and selling the radio, the catalytic convertor, etc.
Now go back to drugs. I have a compounded drug and I know it contain five different chemicals that individually are controlled substances. I have no problem with saying that every individual transactions in which I sell that compounded drug is a separate distribution offense. I have a big problem with the Commonwealth saying I am possessing five different drugs, and I would have a HUGE problem with the Commonwealth saying I was distributing five different drugs.
I believe the real issue here is that the United States has become addicted to the idea that the War on Drugs is winnable if we just find more ways to charge people with possessing and selling illegal drugs. Statistics and Sociology have long shown that treating drug abuse as criminal problem does not stop drug abuse, and therefore does not stop drug crime. What does work is addressing the sociological issues that drive people to use drugs and treating those who are addicted. Eliminate the demand and you eliminate the need for suppliers.
By comparison to the en banc, there is very little to get agitated about in the other two published decisions this week. Sh'Kise Fazion Cappe v. Commonwealth of Virginia gets published, I think, because it was a high profile crime and a current "hot topic" in criminal cases -- "non-identification testimony". Cappe was accused of participating in the murder of Stephen White in the City of Newport News in 2022. In a region of the state where such killings are distressingly common, this case caught the public's interest because the incident was captured on three video surveillance cameras, and images from these videos were broadcast by the news media. Shortly after the first images were released, Cappe texted with an accomplice telling him to "get low" and assuring him that he had gotten "rid of everything ASAP."
The images lead to tips that resulted in the police finding Cappe's car, which was identified as that being driven by the suspects and cartridge cases, but not the gun. Apparently, Cappe had not considered the cartridge casings to be part of "everything" he was supposed to get rid of.
Cellphone data also placed Cappe at the scene of the crime at the time of the murder. (Note to self: When planning to commit a major felony, ditch the cellphone or better yet, put it in a bus head away from the crime scene).
As you can guess, Cappe was arrested and charged with the murder and several other crimes along with the accomplice. Cappe successfully argued pre-trial to exclude testimony of a police officer who said that he recognized Cappe as one of the perpetrators in the videos. Not satisfied with this, Cappe then sought to present lay witness testimony that Cappe was not the person in the video.
The relevant case is Bowman v. Commonwealth, 30 Va. App. 298 (1999), in which the Court held that a lay witness who is sufficiently familiar with a defendant can testify with respect to whether an image depicts that person. Here, the trial court held that Bowman does not extend to "non-identification" testimony.
The Court of Appeals, Judge Friedman joined by Judges Fulton and Chaney, extends Bowman to allow non-identification testimony. However, Judges Friedman and Fulton find that the error in excluding the testimony was harmless in light of the overwhelming evidence of guilt. Judge Chaney dissents, contending that identification of Cappe was the central issue asserted by the defense in the case and the non-identification testimony was therefore essential and its exclusion was not harmless. Expect this to go en banc and probably to the Supreme Court. I would not be surprised to see the Commonwealth seek to overturn Bowman rather than risk allowing non-identification testimony.
The last case released this week is a Workers' Compensation appeal involving an employee of the Department of Corrections. The facts are undisputed, so the issue is easily set out. Lucinda Walker was injured while on the job and the Commission awarded medical benefits. The DOC also assigned Walker to light duty while paying her equal wages, although this was not part of the award.
Two years and 12 days later, while she was still on light duty, Walker filed a claim for temporary total disability based on a change in condition and sought retroactive application of the award. The DOC contested the claim, asserting that it was time barred because a change in condition petition must be brought within 2 years of the last date on which payment of compensation is paid. The DOC argued, and the Commission agreed, that light duty for full pay was not "compensation" when it was not required by the award.
Judge Lorish, joined by Judge Humphreys and Beales, reverse and remand for an evidentiary proceeding. The Court holds, citing darn good precedent, that voluntary payment of compensation, including full wages for light duty, is sufficient to toll the statute of limitations on filing a change of circumstances.
Frankly, I am shocked that the Commission dismissed the claim. The opinion sets out the history of the "every evolving" status of the law with respect to the statute of limitations for both filing claims and changes of circumstance petitions. The central theme of the changes to the law and the cases interpreting them is that the legislature wanted “to prevent employers from lulling partially disabled workers into a false sense of security during this two-year period by providing employees light duty work at their pre-injury wage for two years and then terminating the employee without liability for future disability benefits.” Scott v. Scott, 16 Va. App. 815, 819 (1993). While I am not willing to state flatly that I think that is what the DOC was doing when it agreed to let Walker have light duty for full pay, I am pretty ticked off that once she sought the change in circumstance, the Attorney General had the audacity to argue that the petition was barred. Scott seems to be definitive and other cases cited by the Court clearly show that today's holding is in keeping with the remedial purpose of Workers' Compensation.
The Court of Appeals of Virginia released its first published opinion of 2024 today and it comes with a very bad lesson that I implore my readers to ignore. While it will appear that the attorneys involved in Smith Development, Inc. v. Martin C. Conway, et al. were clever like an earth of foxes (more on that turn of phrase later), I would argue that they were just lucky and it was dumb luck at that.
The Conway of the case name is a name attorney of the firm Pesner Kawamoto Conway, P.C. Smith Development, Inc. (SDI) hired the firm in 2008 to represent it in a Chapter 11 Bankruptcy -- commonly known as a "reorganization." The firm provided a representation letter which was countersigned by the president of SDI. So far, so good.
Conway filed the chapter 11 proceeding in January 2009 and obtained approval from the
bankruptcy court to be employed as counsel to debtor-in-possession SDI and made efforts to collect on some debts owed to SDI. So far, so better. Then SDI in 2010 failed to pay the required fees to maintain a chapter 11 proceeding.
As will happen in such cases, the bankruptcy court "on its own motion" converted the case to a chapter 7 liquidation, which ousts the debtor's attorney as representative for the estate and substitutes the bankruptcy trustee. The trustee engaged Conway to litigate the pending collection actions. Eventually the bankruptcy was concluded in 2012.
Now while all this is interesting (to some) as a lesson in bankruptcy proceedings, this clearly isn't a bankruptcy case -- because bankruptcy is a federal matter. So let's get to what this case is really about -- legal malpractice. SDI sued Conway alleging that it received bad legal advice concerning the Chapter 7 proceeding. Whether that is true, we will never know, because, have some of the more astute among you may have already noticed, the bankruptcy happened a longish amount of time ago . . . 15 years to be precise from the filing, and 11 years from the conclusion, of the bankruptcy. And that means we are probably talking about a statute of limitations issue.
Just under five years after the bankruptcy was concluded, Conway is served with SDI's suit for malpractice. Now you are probably thinking that the issue before the trial court was when did Conway allegedly first breach the agreement set out in the representation letter that, given that malpractice, while it "sounds in tort," derives its limitations period based on contract law and the limitations for filing suit on a written contract is five years.
As it turns out, the issue wasn't when the breach occurred, but whether the five year statute of limitations even applied. Conway argued that the representation letter specified that the firm was retained for the Chapter 11 reorganization, but the suit alleged the malpractice arose during the Chapter 7 liquidation. This raised two issues -- first, since Conway was retained by the trustee, was there even a client-attorney relationship with SDI and second, if there was such a relationship, was it based on the written agreement from 2008 or on some unwritten agreement implied by the course of conduct in or after 2010.
The statute of limitations on a contract relationship not in writing is 3 years -- meaning that regardless of when the breach occurred, the suit file 4+ years after the conclusion of the bankruptcy was definitely too late, regardless of when the breach occurred. That is, assuming that there was a client-attorney relationship and the liquidation was a new matter.
The circuit court determined that the dispositive issue was whether the representation of SDI was based on the written agreement or was a new matter based on an "oral" agreement. It concluded that it was the latter and sustained a motion for summary judgment based on the statute of limitations having run.
Before getting to the Court of Appeals' opinion, let me take issue with the term "oral" in this context. The code does not use the term "oral," rather it describes "(i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied." So really, its not an "oral contract," but a contract "not enforceable in writing."
On the the Court of Appeals. We get a split decision with Judge Raphael joined by Sr. Judge Clements affirming the circuit court, and Judge Causey dissenting. The majority comprises 17 of the 21 pages of the opinion, in part because it addresses the ethical implications of Conway continuing to provide legal advice to SDI while the firm was working for the trustee as well as issues of not advising Conway that the representation for the reorganization had terminated. The majority concludes that while these issues are troubling, Conway did not necessarily violate the Code of Professional Responsibility; though I suspect SDI may be filing a complaint with the Bar if it has not already done so.
Suffice to say that is is the bad lesson I do not want attorneys to take from this case. Conway did the right think by getting the initial engagement in writing and specifically stating that it was for the Chapter 11 case, it should have followed up with a case closing letter when it ceased to represent SDI in the converted Chapter 7. Whether it was providing SDI with legal advice or representation in the Chapter 7 proceeding, and whether this was a conflict of interest with the firm's representing the trustee, is not a question the majority addresses. Like the trial court, it assumes that the statute of limitations period is dispositive to the motion for summary judgment.
Judge Causey dissents on this very point -- that the statute of limitations was raised in a motion for summary judgment, not a plea in bar. The difference is that a motion for summary judgment should be granted only if there are no material facts in dispute -- and Judge Causey believes that whether Conway was representing SDI in the Chapter 7 proceeding and, if so, whether it was under the representation agreement or some other agreement "not enforceable in writing" are material issues.
I find myself in agreement with the majority on the substantive law, but with Judge Causey on the procedure. Even though I think it will be difficult for SDI to prove that Conway was providing legal advice and representation to SDI in the Chapter 7 proceeding under the representation letter that specified it was for a Chapter 11 proceeding, this is a disputed fact that should not be decided on summary judgment (or, for that matter under a plea in bar -- but the designation of the pleading as one or the other is not dispositive, its the substance of the pleading).
I am less concerned about whether Conway was representing SDI in the Chapter 7 -- the opinion notes that the pleadings were signed “Counsel for chapter 7 Trustee, Richard A. Bartl, for Smith Development, Inc." -- than whether whether communications between Conway and SDI constituted legal advice. As the trustee said in requesting Conway represent the estate in the debt collection actions, this is a common process in bankruptcy proceedings, but I think maybe it creates some blurring of the lines when a debtor's former attorney is communicating with him about the bankruptcy proceedings.
Now, an "earth of foxes" . . . Earth is one of the lesser-known collective terms for a group of foxes. Other terms are "skulk of foxes," a "troop of foxes," a "lead of foxes," and a "pack of foxes." According to one source three foxes, no more no less, is a "leash." I would like to propose that a "cleverness of foxes" would be more appropriate than any of these pedestrian terms. A male fox is a "dog" or "tod," while a female is a "vixen" and their young are "pups," "kits," or "cubs."
And to answer the eternal question, "What to the fox say?" is:
The fox's vocal repertoire is vast, and includes:
Whine -- Made shortly after birth. Occurs at a high rate when kits are hungry and when their body temperatures are low. Whining stimulates the mother to care for her young; it also has been known to stimulate the male fox into caring for his mate and kits.
Yelp -- Made about 19 days later. The kits' whining turns into infantile barks, yelps, which occur heavily during play.
Explosive call -- At the age of about one month, the kits can emit an explosive call which is intended to be threatening to intruders or other cubs; a high-pitched howl.
Combative call -- In adults, the explosive call becomes an open-mouthed combative call during any conflict; a sharper bark.
Growl -- An adult fox's indication to their kits to feed or head to the adult's location.
Bark -- Adult foxes warn against intruders and in defense by barking
- John S. Koehler
- Jan 3, 2024
- 5 min read
The Court of Appeals issued two more published opinions as 2023 closed out. Lisa G. Boxley v. Estel R. Crouse, et al. is about a prescriptive easement and comes from Judge Humphreys, joined by Judges Friedman and White. Judge Humphrey's retirement officially started on Sunday (if you are wondering why he would retire on the last day of the year and not sometime in 2024 after his successor was named, it is likely something to do with the requirement of having to wait 3 months before be can resume duties as a senior judge -- this requirement was introduced to comply with a provision of the ACA that is intended to keep employers from terminating employees and the immediately bringing them on as contractors who aren't entitled to health insurance). This is likely not the last opinion from Judge Humphreys as an active Judge, but future opinions will have the notation that he sat on the case "prior to his retirement on December 31, 2023."
The case itself is not uncommon for the area of prescriptive easement. Boxley owns the land in question and Crouse claimed a right of way by prescription. Boxley blocked that right of way with a fence and gate and off they went to court. The parties own adjoining parcels in Highland County, with Crouses' property being accessed by "Hawk Trail" from State Route 220 (Jackson River Road) via Whippoorwill Lane. As you can see from the tax map below, Crouse's property is landlocked and Hawk Trail runs through the back portion of Boxley's property, while Whippoorwill Lane runs along the border of that parcel and then diverts into a neighboring parcel before intersecting with Hawk Trail.
The previous owner of Crouse's property maintained, widened and improved the road beginning in 1976. The property changed hands in 1988, and the new owner held the land for just about a year before selling to Crouse. In 1995, the prior owner of Boxley's parcel erected gate, but provided Crouse with a key, though the evidence showed that the gate was never locked. In 2020, Boxley acquired the right to the property through a devise to a trust and replaced the existing gated with a new gate which she proceeded to lock, excluding Crouse from her property.
To prove a prescriptive easement, the party seeking the easement must show that the use "was adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the land over which it passes, and that the use has continued for at least 20 years." The evidence certainly showed that this happened for at least 19 years (1976-1995) before the first gate was installed, but did the presence of the unlocked gate constitute some evidence that the use was no permissive? Boxley certainly though so, but the circuit court disagreed and the Court of Appeals affirms that decision.
The installation of the gate in 1995 did not convert the adverse use by the prior owner (or by Crouse) into a permissive use. Because the evidence was the gate was never locked, the mere presence of the gate was not sufficient to bar Crouse (or anyone really) from using the road.
Boxley had another issue -- it seems the gate merely blocked the right of way, but was not connected to a fence. She claimed that Code § 33.2-110(A) somehow permitted her to maintain a gate so long as it was not part of a fence-line because that statute permits the erection of gated fence-lines across private rights-of-way. Unfortunately, there was a 1997 case right on point that said the statute does not apply to gates that are not attached to fences. The purpose of Code § 33.2-110(A) is to allow owners of land subject to a dominant right of way to maintain fences to, for example, contain livestock or exclude wildlife. A gate without a fence does not do that.
Christopher Patrick Carter v. Commonwealth of Virginia involves whether Mr. Carter should have be allowed to withdraw conditional guilty pleas allowing him to appeal the circuit court's denial of his motion to suppress evidence obtained in a warrantless search of his person and vehicle. Carter was driving in an area of Fredericksburg "known to be frequented by drug users and dealers" when he caught the attention of a patrol officer. The officer stopped the vehicle for speeding (50 in a 45) and proceeded to engage Carter in conversation.
Noticing to plastic baggies on the car console, the officer inquired as to their contents. Carter stated that it was marijuana, and the officer conceded that it was legal for Carter to possess a small amount of that substance for person use. The officer called for a K-9 unit and then proceeded to write a "warning ticket."
Carter consented to a weapons pat-down and no weapons were found. During this search, the officer found $294 in cash. He also found a key-card for a room of the motel where Carter had pulled into when the stop occurred. Carter had told the officer he was staying at the motel.
The officer then asked to search Carter's vehicle, but Carter expressly refused to permit the search. As the K-9 unit had not arrived, Carter again radioed for a unit to be dispatched. Shortly thereafter a supervisor arrived and told the officer that he had "gone to far unless you get us something major." At this point the officer turned off his body camera. The officer and the supervisor continued speaking for several minutes, then the officer returned to Carter's vehicle and continued to question him. Another officer arrived and stood near Carter. During this time, the first officer remained in possession of Carter's room key.
More than 10 minutes after completing the "warning ticket," the officer told Carter that he was going to perform a "probable cause" search of the car. Of course, the search produced a firearm, cocaine, heroin and various items of use in the illegal drug trade.
We already know the circuit court denied the motion to suppress -- though how the judge reached the conclusion that there was probable cause to search is beyond my ken. It was beyond the ken of the Court of Appeals. Judge Chaney, joined by Judges Callins and White, reverse the denial of the suppression double quick. First, the Court finds that the evidence recovered in the pat-down was improperly obtained because the officer was specifically looking for weapons (well, we all know that he wasn't really, but he said he was), so reaching into Carter's pockets to remove the cash -- the only real evidence of possible drug dealing -- was not permitted. Second, there as simply no other basis for a "probable cause" search of the vehicle.
I would add that Carter was seized the moment the officer took his hotel room key card and certainly he would not have felt free to leave once the additional officers arrived. But what really seals the deal for me is the text I highlighted -- the officer turned off his body camera while discussing whether he had probable case with his supervisor (who had just told him he didn't have it). There is no excuse for an officer turning off his body camera, and judges should start taking that circumstance into account when the camera is turned off (or "accidentally" left in the cruiser. The purpose of the body camera is to protect the officer from false claims of abuse, but also to protect the public from police misconduct.