We have two published opinions from the Court of Appeals today. One has the curious result of the appellant winning the battle but losing the war -- the circuit court gets reversed on its ruling that it lacked jurisdiction to hear the case, but on remand is instructed to enter a judgment on the merits against the appellant. In the second case, we have a partial dissent that is sure to result in a rehearing en banc petition and/or a petition the the Supreme Court -- either way the parties are likely headed to Richmond for Round II.
Susan Marie Focke, f/k/a Susan Marie Spearman v. Commonwealth of Virginia despite its style is not a criminal appeal. Rather it is an appeal from the dismissal of a petition by a non-resident for the restoration of her right to possess a firearm after having been convicted of a felony under Code § 18.2-308.2(C). The circuit court dismissed the appeal for lack of subject matter jurisdiction because she was an out-of-state resident and in Commonwealth v. Leone, 286 Va. 147 (2013), the Supreme Court ruled that the gun rights restoration act did not apply to out-of-state residents. However, Leone was legislatively overruled in 2015 – which apparently passed the notice of the Commonwealth and the circuit court.
So Focke gets a remand and hearing on the merits of her petition, right? Well, half-right. The case will be remanded, but not for a hearing, but only to set aside the dismissal of the petition for lack of subject matter jurisdiction and instead enter an order denying the petition on the merits because on its face the petition does not entitled Focke to the relief she sought.
How can the Court of Appeals, Judge Raphael joined by Judges Humphreys and AtLee, be so certain that Focke cannot prevail on the merits? Because Focke was not convicted of a felony in a Virginia state court. Her conviction was rendered by the United States District Court for the Eastern District of Virginia. You see, the 2015 amendment that allowed non-Virginia residents to apply for restoration of their gun rights requires them to file that application in the circuit court in which they were “last convicted of a felony.”
What Folkes wants is the right to possess a gun in her home state of North Carolina, which will grant her that right if she gets her right restored “pursuant to the law of the jurisdiction where the conviction occurred,” which she reads to mean “Virginia,” not the “Eastern District of Virginia” The Court of Appeals expressed no opinion on whether this is a correct interpretation of North Carolina law, but did note that an unpublished decision of the North Carolina Court of Appeals opined that “North Carolina state law regarding restoration of an individual’s firearm rights is inapplicable to a felon convicted in federal court.” However, even assuming that North Carolina would recognize a federal restoration of gun rights, the current federal law permitting a restoration of gun rights is moribund because, as the opinion points out, Congress has never provided the funding necessary to support the process.
Telegraph Square II, A Condominium Unit Owners v. 7205 Telegraph Square, LLC is interesting for a number of reasons, including the presence of an amicus brief from the Washington Metropolitan Chapter of the Community Associations Institute, which is the largest chapter of the CAI. The CAI is in turn the largest international trade and lobbying organization for “planned communities,” which is another way of saying they represent HOAs, COAs, and other such “private governments” for subdivisions, condo developments, etc. To some, these organizations are views as beneficial groups that protect property values and by others as tin-pot busybodies who interfere in the enjoyment of private property, or worse, who use the power of the association to their own benefit. These differing views result in litigation, like the one that gives us today’s 34 page opinion from Judge Chaney joined by Judge Athey, with a brief partial dissent from Judge Ortiz.
This case is about parking spaces, which in Fairfax County, where Telegraph Square II is located, are always at a premium. 7205 Telegraph Square, LLC owns the three commercial condominiums that are collectively Phase IV of Telegraph Square II, which is governed by the eponymous Condominium Unit Owners’ Association that also controls the common elements of the development.
The opinion does not go into the whys and wherefores of the Roman numerals, but a little browsing on the internet determined that first there was Telegraph Square I, LLC, which built the Shops at Telegraph Village, a strip mall along Telegraph Road in the Ft. Belvoir area of Fairfax County south of Alexandria. Then Telegraph Square II, LLC, came along and developed the Telegraph Square II business park with a condominium style of ownership in five phases in the area behind the shops and further along Telegraph Road. Despite the name, there is no “square” in Telegraph Square. As the photos below show it’s more of a road connecting a number of parking lots, and 4025 is at the very back of the development with little parking access.
The site plan for Telegraph Square II required there to be at least 108 reserved parking spaces, which were assigned as follows: 40 for phase I (recall that this in not the parking for the Shops at Telegraph Square but the row of parking on the unnamed road/driveway leading to 7205 Telegraph Square in the photo immediately above), 18 for phases II and III, 30 for phase IV (which was not then owned by 7205 Telegraph Square), and 20 for phase V. In 1997, however, the board of directors for Telegraph Square II decided to reassign the parking spaces based on the square footage of the units, resulting in 35 spaces being assigned to phase IV, some of which were within the area designated as phase V. The spaces were reallocated in 2015, this time requiring the units to use only the spaces that fell within the phase of the development to which they belonged. However, Telegraph Square II continued to assess all unit owners for the maintenance of the entire common area.
7205 Telegraph Square, which had acquired the three phase IV units some time between 1997 and 2015, saw its available parking go from 35 to 12, including 2 handicapped spaces. 7205 Telegraph Square was then leasing two of its units and the lease required it to assure the tenant at least 20 parking spaces. That lease was to run until 2019, but the loss of the parking spaces caused 7205 Telegraph Square and the tenant to enter into a substitute lease in 2017, despite being aware that it could no longer provide the 20 spaces, which attempted to mitigate the loss of the parking spaces by providing more “interior space for parking” (apparently inside the third unit).
I think you can see where this is going. 7205 Telegraph Square’s tenant was still not happy and eventually had to be let out of the lease because of the inability to provide the required parking spaces. What’s more, the limited parking reduced the marketability of the units which could neither be. let or sold despite a good faith effort by 7205 Telegraph Square.
7205 Telegraph Square sued Telegraph Square II and got a nice juicy judgment -- $481,434,84 for breach of contract, most of which was from the lost rental income, $324,977.60 in attorney’s fees, and a few other goodies including cancellation of over assessments and a declaratory judgment requiring Telegraph Square II to return to the 1997 allocation of parking.
Telegraph Square II appealed and assigned five errors to the circuit court’s judgment. Four of those five assignments of error, dealing with issues like whether Telegraph Square II’s monkeying with the parking allocation violated local zoning and whether the evidence of lost income was speculative, find no purchase with the panel, but Judge Ortiz dissents with respect to whether the change in the parking regime proximately caused the termination of the lease and subsequent loss of rental income. Judge Ortiz contended that when 7205 Telegraph Square renewed the lease in 2017, it was already aware that it could not provide the required 20 spaces, so the subsequent cancellation of the lease was not, in his view, directly caused by the 2015 reallocation of parking. The majority responds in a footnote the evidence showed that the lease was set to run through 2019 and that 7205 Telegraph Square’s efforts to mitigate the harm in 2017 was not an intervening cause.
While I find myself in sympathy with 7205 Telegraph Square, I can see Judge Ortiz’s point. Mainly, I am wondering why 7205 Telegraph Square didn’t immediately sue Telegraph Square II? The 2015 “reallocation” of parking spaces was nothing short of a bald-faced land grab by the board, which had just two members who, we can assume, benefited from the 2015 reassignment of spaces to Phase I. The opinion recounts that 7205 Telegraph Square sent multiple letters of complaint to the association but did not initiate legal action until long after the lease was cancelled. I find this troubling enough to foresee a petition for rehearing en banc and/or an appeal to the Supreme Court, especially with the CAI backing Telegraph Square II.
We get three published opinions from the Court of Appeals today -- one which unsurprisingly finds that suing your wife's attorney and two friends who supported her decision to leave you does not amount the the tortious interference of your parental rights in the divorce proceedings. We also get a rare application of the ends of justice exception in a criminal case and a 10-1-6 split in an en banc decision addressing what is necessary to establish a reasonable hypothesis of innocence.
The tort of interference with parental rights was recognized in Wyatt v. McDermott, 283 Va. 685 (2012), a 4-3 decision which was a certified question of law case from the federal Eastern District of Virginia. Since that case, however, the a claim for the tort has not been successfully brought in any cases since then in state courts that I am aware of. Today the Court of Appeals, Chief Judge Decker joined by Judge’s AtLee and Friedman, finds that the circuit court did not err in sustaining to a demurrer asserting the tort in Shiye Qiu v. Chaoyu Huang, Anna Ouspenskaya and Arlene Starace. Qiu is the father of a daughter who is close to emancipation if she has not already turned 18. Qiu and the mother separated when the child was eight and divorce proceedings dragged on for several years. In 2016, Qiu filed a pro se complaint alleging that Huang, a friend of his estranged wife, Ouspenskaya, the child’s piano teacher, and Starace, the wife’s attorney, were engaged in a conspiracy to interfere with his parental rights.
The complaint was repeatedly amended and reached 50 pages and nine counts before the circuit court said, “Enough!” and sustained demurrers. The thurst of Qiu’s assertion of interference was that the three women encouraged and aided the mother in leaving the father and in obtaining a divorce and the award of shared custody. The complaint also averred that the women “played a role in physically, mentally and emotionally alienating M.Q.” from her father without his consent, “severely damaging the [parent-child] relationship. Qiu, however, conceded that they had not actually take physical custody of the child or directly interfered in his contact with her.
The proceedings in the case lasted even longer than the divorce proceedings, and by 2019 the Supreme Court was preparing to hear arguments in Padula-Wilson v. Landry, 298 Va. 565 (2020), which was expected to provide significant guidance on the limits of the tort action for interference with parental rights, so the case was stayed pending that decision. It was after Padula-Wilson, a unanimous decision, determined that where the alleged interference occurs where the “backdrop” is a domestic battle for custody and visitation, there are alternative remedies within that proceeding to satisfy due process, that the circuit court decided to call quits of Qiu’s effort to blame his wife’s friends and her lawyer for his not getting everything he wanted in the divorce, which was presumably sole custody of the child and his wife been banned from all contact with her. The Court of Appeals goes through each of Qiu’s variations on the theme of interference with parental rights such as fraud and conspiracy and finds no error in the circuit court’s sustaining of the demurrers.
We also get two published criminal appeals. Marcus C. Holman v. Commonwealth of Virginia is the more interesting of the two as the Court applies the “ends of justice” exception because this is one of those rare cases where the defendant was convicted of a crime that he factually could not have committed.
Holman was charged with maliciously wounding and the use of a firearm in the commission of that crime, a felony. However, the trial court affirmatively found that Holman did not act with the requisite malice when he discharged a shotgun injuring the victim, granting his motion to strike and proceeding only on a charge of unlawful wounding. Holman, however, failed to argue that the reduction of the primary offense meant that he was de jure not guilty of use of a firearm in the Commission of a felony. The circuit court convicted him of that offense along with unlawful wounding.
On appeal, the Commonwealth argued that Holman had either waived the issue by not raising it in the trial court or that he could not “approbate and reprobate” on appeal. The Court of Appeals, Judge Ortiz joined by Judges O’Brien and Raphael, today hold that where the ends of justice apply, waiver and approbation/reprobation cannot bar the Court from doing justice. The Court did not cite Somerset v. Stewart, 98 ER 499 (1772) for the maxim fiat justitia ruat caelum, “let justice be done though the heavens fall,” but it certainly would apply in this case. The Court reverse’s Holman’s conviction for the firearm’s offense and vacates the mandatory five year sentence. However, Holman will still serve time for the unlawful wounding . . . and convictions for unlawfully discharging the shotgun in public . . . and being a felon in possession of a firearm.
Michael Melvin Fary v. Commonwealth of Virginia is a 10-1-6 split en banc decision. Judge Humphrey’s writes the majority, Judge Ortiz concurs, and Judge Causey stands her ground from her panel dissent joined by Judge Friedman, Chaney, Raphael, Lorish, and Callins. The case is about sufficiency of the evidence where the defendant asserts that a reasonable hypothesis of innocence precludes finding guilt beyond a reasonable doubt.
The facts of the case might best be described as an incident of “river rage” in that Fary was operating a boat and the Mattaponi River and took exception to how another boater passed him cause Fary’s boat to rock and turn and to be “almost swamped.” He chased the boat for over 25 minutes, growing angrier. Eventually the other boater, who had six passengers including several children, pulled into a dock. He attempted to apologize to Fary, but the latter rammed the offending vessel, going over its bow and striking one of the children, then for good measure repeated the maneuver. As he pulled away, Fary said “I’m sorry.”
A marina employee copied down Fary’s boat’s registration number and Fary was identified and charged with and convicted of reckless operation of a watercraft and seven counts of attempted malicious wounding. He appealed the malicious wounding convictions, asserting that the evidence supported his hypothesis that he had not intended to hit the other boat, but merely wanted to cause a wake to rock it has the other boater had done to him. He also denied having struck the other boat a second time.
The substance of Fary’s argument in the trial court and on appeal is that his actions lacked the malice sufficient to prove his intent to wound the passengers in the boat. To my way of thinking, this argument is adequately addressed by the trial court, which was the trier of fact in this bench trial, expressly rejected Fary’s testimony as not credible – that should put paid to his “reasonable hypothesis of innocence.” The majority is of a like opinion, and in so doing holds that a prior decision of the Court which Fary relied upon, Haywood v. Commonwealth, 20 Va. App. 562 (1995), misstated the reasonable hypothesis of innocence doctrine.
Judge Ortiz writes separately to concur with the result, but disagrees that it was necessary to “clarify and correct” the reasonable hypothesis of innocence doctrine. The dissent, however, not only does not think that the doctrine needs to be clarified and corrected, it concludes that the majority has not properly applied it to this case. The majority would find that the evidence Fary only intend to frighten, not injure, the boat driver and his passengers– despite being rejected the trier of fact – was sufficient to reduce the quantum of evidence below the reasonable doubt threshold. I would expect Fary to seek a writ from the Supreme Court.
- John S. Koehler
- Apr 13, 2023
- 6 min read
Updated: Apr 26, 2023
We get three new published opinions from the Court of Appeals this week, all from criminal cases.
Travis Alexander Bland Henderson v. Commonwealth of Virginia is all about the word “shall,” which the Court of Appeals, Judge Raphael joined by Judges O’Brien and Ortiz, notes “has multiple possible meanings.” Typically, shall will be considered to be directory – that is merely suggesting that an act take place – when it applies to an action of a court, but is mandatory – that is the act must take place – when applied to a requirement of some action by a litigant. However, where the context of the statute can be said to imply a mandatory action by the court, it will be read as such.
The “shall” in question here is found in Code § 19.2-295(A), which contains not one, but two instances of the word: Within the limits prescribed by law, the court shall ascertain the term of confinement in the state correctional facility or in jail and the amount of fine, if any, when a person is convicted of a criminal offense, unless the accused is tried by a jury and has requested that the jury ascertain punishment. Such request for a jury to ascertain punishment shall be filed as a written pleading with the court at least 30 days prior to trial.
A jury convicted Bland-Henderson of possessing a firearm after being previously convicted of a violent felony, and the trial judge sentenced him to the mandatory minimum of five years’ incarceration. The judge sentenced Bland-Henderson because Bland-Henderson did not file a written pleading requesting jury sentencing within 30 days prior to trial, but he did do so 13 days before trial. Bland-Henderson asked the circuit court to let the jury sentence him anyway, but the court said no.
On appeal Bland-Henderson argues that both shalls are directory and, thus, even if he failed to file a timely request for a jury sentencing, the circuit court was not required to impose the sentence, because the first “shall” does not mandate that the court sentence a defendant, only that it may do so, and the second does not prohibit a defendant from asking for a jury sentencing less than 30 days before trial. The Court of Appeals disagrees, finding that the second “shall” is plainly mandatory – a defendant must request jury sentencing in a written pleading at least 30 days before trial. The opinion has a lengthy and comprehensive discussion of the “can/must” dichotomy in construing “shall”.
But what of the first “shall”? The Court does not expressly say so, but one would presume that it too is directory – that is, when no valid request for jury sentencing is made, the trial court should be the one determine the sentence of a convicted defendant – otherwise no one would, but, presuming the trial court were willing to do so, could it honor a late filing of a jury sentencing demand. I don’t think the Commonwealth would like it and I doubt many judges would consider doing so, but the Court of Appeals began its discussion by saying that when applied to court, must is generally directory and not mandatory.
There is, of course, one point that the Court of Appeals overlooked, or perhaps recognized, but chose not to address. That is that even if Bland-Henderson was correct that the circuit court somehow erred in not allowing the jury to sentence him, that error was plainly harmless because the mandatory sentence for being a felony in possession is also the maximum sentence allowed. Once Bland-Henderson was convicted, he was getting five years no matter who imposed the sentence, so why bother?
Well, the Court bothered because Bland-Henderson also appealed the circuit court’s not permitting him to ask the prospective jurors about their views on mandatory sentences. If the court erred in not allowing jury sentencing, the analysis of this issue might be different. As it is, the Court quite sensibly says that as the jury was going to be sentencing the defendant, their views on sentencing were irrelevant. Bland-Henderson also challenged the sufficiency of the evidence because it was basically his word against that of the arresting officer, which the Court found to be sufficient in less than a page of analysis.
The defendant in Jose Guadalupe Vera, Jr. v. Commonwealth of Virginia had a prescription for the substance, gamma-hydroxybutyrate better known as GHB. GHB has legitimate uses for treating certain diseases including narcolepsy, from which Vera suffers, but it is sometimes used as a 'party drug' in the dance and club scene. It produces feelings of euphoria, relaxation and sociability, and an increased urge for sex. Vera, who was 18, and a 17-year-old male friend, ingested GHB prior to “hanging out” with two female minors. Vera then offered GHB to the two females, but, taking the evidence in the light most favorable to the Commonwealth, did not tell them what that it was a drug. – Now, allow me to pause here to say that while I am fully willing to believe (or rather, required to accept under the standard of review) the testimony of the two girls (though one was very equivocal) that they did not know that Vera was offering them GHB, I do question the wisdom of their accepting the proffered substance in a shot glass without inquiring what it was. One testified she thought it was “tea.”
Anyway, the girls wound up in the hospital and Vera wound up charged with PWID – PWID, if you don’t know the lingo, is “possession with intent to distribute” some controlled substance. At trial, the Commonwealth sought to question Vera about a prior incident involving GHB, and he objected on the ground that this was inadmissible “prior bad acts” evidence. The circuit court overruled the objection, finding that the Commonwealth’s proffer that this evidence was admissible to prove Vera’s modus operandi and lack of mistake outweighed the prejudice of the bad act. As this was a bench trial, the court is presumed to have disregarded the prejudicial effect. Vera argued that he provided the drug to the girls as an “accommodation,” which is a misdemeanor, rather than a class five felony. The circuit court disagreed.
The Court of Appeals, Judge White joined by Judges Huff and Fulton, affirms. This is not really surprising – except that this is a published decision, so one suspects that the Court felt that the accommodation issue was sufficiently important to warrant publication, as the bad acts evidence aspect of the case was hardly a new or novel application of that law. I think it is fair to say that the Court may have had some doubt regarding the young ladies’ naïveté and perhaps wanted to give guidance for future such situations. In short, if you are going to share your party drug, make sure your friends know what it is first, or it’s a felony.
Clifton Haley Harper, Jr. v. Commonwealth of Virginia involves the rarely brought charge of subornation of perjury. Harper was charged with assaulting K.M. at a motel where the two were apparently occupying the same room. Despite an emergency protective order preventing Harper from having contact with K.M., he called her more than once from jail, which, naturally, were recorded. Harper professed his undying love for K.M. (well, he might not have used that exact phrase) and sought her aid in having the charges dismissed. He instructed her to “just not show up” or to testify that he “didn’t do anything” to her.
At Harper’s bond hearing, K.M. denied that she had been assaulted, but that she and Harper had argued. She also said she had lied to police. Her testimony, however, was very much at odds with the forensic evidence. Harper was eventually charged with several offenses arising from the assault and also with inducing K.M. to give false evidence.
At trial, K.M. revised her testimony from the bond hearing, admitting that Harper pushed her off the bed and against a wall and struck her. She admitted that the phone conversations with Harper “contributed” to her decision to perjure herself at the bond hearing.
Harper argued that he did not induce K.M. to commit perjury because her testimony at the bond hearing did not fully exonerate him because she had shown up at the hearing and had not said that he “didn’t do anything” to her. The circuit court did not agree and neither does the Court of Appeals.
In an opinion by Judge Humprheys joined by Judges Huff and AtLee, the Court finds that K.M.’s testimony at the bond hearing was false and that it was induced by Harper’s statements in the jail calls. It is not necessary for the defendant to “script” the false testimony for the perjuring witness, or even that the witness testifies as the defendant wants. Rather, it is enough to show that the witness testified falsely because of the actions of the defendant. Harper also challenge a conviction for failure to appear, but the Court found that his argument was not properly preserved in the trial court.