When I started this “blawg” I indicated that I would concentrate on summarizing and commenting on the published opinion of the Court of Appeals of Virginia, with occasional sojourns into the vast trove of unpublished opinions. I have been somewhat remiss in that latter mission, and have decided that it is time to rectify that circumstance. Let’s begin by heading back to December 6, 2022 and the decision in Horan v. Commonwealth. The circuit court convicted Horan of assault and battery of a law enforcement officer, in violation of Code § 18.2-57(C), attempting to disarm a law enforcement officer, in violation of Code §§ 18.2-57.02 and 18.2-26, trespassing, in violation of Code § 18.2-119, disorderly conduct, in violation of Code § 18.2-415, attempting to prevent his arrest, in violation of Code § 18.2-460(E), and public intoxication, in violation of Virginia Beach local ordinance 23-22. In addition to these charges, Horan was acquitted of assault, failure to provide identification to law enforcement, and obstruction of justice.
As you can probably guess, the underlying incident involved Horan having visited an establishment that serves adult beverages. What you may not have guessed is that Horan conceded that he was already several sheets to the wind upon arriving at the restaurant in the afternoon after leaving his job at a local brewery, suggesting that perhaps he had been sampling the product. In any case, Horan get into a brouhaha (or perhaps brew-haha) with the bartender and eventually “fell asleep” at the bar.
Horan refused the bartender’s request that he vacate the premises, but agreed to do so at the request of the manager. Except that he didn’t. While it is not entirely clear how, the bartender came into possession of Horan’s wallet, which she gave to the manager, who then emerged from his office to find several other customers from attempting to restrain Horan from assaulting the bartender. Now there is an interesting side note that the circuit court found the bartender’s testimony to be incredible – but nonetheless found the testimony of the other patrons and the manager sufficient to convict Horan, which makes one wonder exactly what the bartender said on the stand that was inconsistent with this other evidence, which included Horan throwing his sunglasses at her and calling her sexual and racial slurs.
Eventually, the police arrived, and Horan immediately complied. No, I’m kidding, of course. Horan, despite being handcuffed, continued to struggle and knock the police and another patron to the ground. At one point, Horan placed his hand on one of the officers’ service weapon and tugged at it. The weapon’s security strap was engaged, preventing Horan from removing the weapon. Horan, testifying on his own behalf, admitted to touching the weapons, but claimed he was merely “feeling around” to find something to allow him to steady his balance.
While the Court of Appeals, Judge Huff joined by Judges O’Brien and White, have no difficulty in affirming the rest of Horan’s conviction, they find the evidence insufficient to support the conviction attempting flee arrest. The Court reasons that Horan was never verbally advised that he was being placed under arrest and was never outside the officers’ “immediate control” despite his breaking free from their grasp when knocking them to the ground.
I am going to express some surprise that the Court did not find that this was a disputed issue of fact to be resolved in the light most favorable to the Commonwealth. While it is true that the officer’s never said “You are under arrest,” Code § 18.2-460(E) stated that “arrest” can arise as a result of “(i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest.” The officers definitely applied physical force to Horan, and he definitely tried to break away from that arrest. Perhaps the Court of Appeals is applying the Lynyrd Skynyrd “three steps rule”?
- John S. Koehler
- Apr 7, 2023
- 5 min read
This week we have three published opinions from the Court of Appeals – one from a criminal revocation case and two from the administrative law docket. Before we get to the new opinions however, an word about Osman v. Commonwealth. The original opinion was issued in November of 2022 and a panel rehearing requested by the Commonwealth was granted. The panel reissued its opinion on February 14, 2023 clarifying, but not altering its affirmed in part, reversed in part decision. The case has now been appealed to the Supreme Court of Virginia by Osman and the Commonwealth. While I expected that Commonwealth to seek review, I am somewhat surprised that Osman did as well. I suppose in for a penny in for a pound.
Another case on its way to the 9th Street side of Franklin Street is Aundrey (not Audrey, as in the Court of Appeals list of cases appealed to the Supreme Court) Hubbard v. Scott Jenkins, Sheriff. This case also decided in February had no majority opinion, but three separate opinions, and seems destined for a grant in the high court. One reason it might be ripe for review is that the same panel decided Karey Burkholder and Douglas Thompson, Jr. v. Palisades Park Owners Association, Inc. on the same day by a 2-1 majority that, in my view was logicall inconsistent with the result in Aundrey. Burkholder has likewise been appealed to the Supreme Court.
Rounding out the list of cases appealed to the Supreme Court are Daniel Rock v. Commonwealth and Stephen Moncrieffe v. Adam J. Deno, d/b/a Law Office of Adam Deno, both decided on January 24, 2023. I suspect that Rock would appeal to the Supreme Court, but Moncrieffe is a bit of a surprise.
Criminal Law
Edgar Alexander Diaz-Urrutia v. Commonwealth of Virginia involves a novel argument concerning the nature of a “technical” violation of probation where the defendant is required to “be of good behavior” and his conduct would constitute a breach of that requirement, but also constitutes a breach of a specific provision of the suspended sentence. Of course, this is just the latest in a serious of appeals address the revised procedures for revocation of suspended sentences under Code § 19.2-306.1.
In this case, back in 2016 Diaz-Urrutia was required to be of good behavior following his release from prison on a charge of rape sometime around 2036. In addition to the 20 years for rape, Diaz-Urrutia was sentenced to 10 years for abduction, but the court suspended that time. In 2019, the Commonwealth brought a show cause alleging that Diaz-Urrutia had violated a specific provision of the suspended sentence by contact the victim.
In the circuit court, Diaz-Urrutia contended that while he had violated that specific provision, it also constituted a violation of the requirement to be of good behavior and, thus, was merely a first technical violation for which the court could not impose any active time of the suspended sentence. The circuit court was having none of this, and added two years to Diaz-Urrutia’s sentence.
The Court of Appeals, Judge Humphreys joined by judges Huff and AtLee, affirms wholeheartedly. It should be fairly obvious that a specific provision of a suspended sentence, even if it might otherwise constitute of minor violation, is imposed because the circuit court wants to “make damn sure” that the defendant doesn’t engage in the behavior. The Court of Appeals hold that the basis of a revocation of a suspended sentence is a good conduct violation only if the sole basis for the revocation is the defendant’s violation of the condition that he remain of good behavior.
Administrative Law
I have never made a secret of my disinterest for administrative law. PharmaCann Virginia, LLC v. Virginia Board of Pharmacy does not improve that view at all even though the subject matter is marijuana “pharming.” PharmaCann was given a provisional approval for a medical cannabis cultivation facility (you know, a “pit farm”). Provision approval requires that applicant to meet certain deadlines within 12 months and Pharacann missed that deadline, and in fact had not even started construction of its facility. The Pharmacy Board denied Pharmacann’s motion for an extension of time and revoked the provisional license. It should come as no surprise that the circuit court did not find the Board’s action to be violative of any due process right or otherwise to be arbitrary. The Court of Appeals, Judge Lorish joined by Judges Cahney and Athey, affirm.
Abu Jalloh v. S. W. Rodgers and Arch Insurance Company comes direct from the Workers’ Compensation Commission. It involves an issue of statutory interpretation as to whether Code § 65.2-603 is satisfied when the employer makes a “good faith effort” to provide the claimant with a panel of physicians to select for his treatment. The Commission found that S.W. Rodgers and its carrier made a good faith effort, and therefore Jalloh’s choice a different physician was not authorized. The Court of Appeals, Chief Judge Decker joined by Judges AtLee and Friedman, disagree that a good faith effort is sufficient to meet the employer’s obligation under the statute.
The facts showed that Jalloh was clearly resistant to seeing a physician selected by his employer. However, it was not disputed that the employer never provided Jalloh with a panel list of physicians to select a treating doctor. In effect, the employer argued that Jalloh’s resistance justified its failure to provide him with the list. The deputy commissioner review Jalloh’s claim disagreed, but the Commission, in a 2-1 decision, reversed, accept the view that a “good faith effort” was sufficient to satisfy the requirements of the statute.
The Court of Appeals reverses the judgment of the Commission. While “not unsympathetic to the position taken here by a majority of the Commission. Employees should not be encouraged to engage in obstructionist behavior or be rewarded for doing so. However, the injured employee was entitled to appropriate medical care, and the law governing the requirements for providing a panel of physicians is clear.” Had the General Assembly intended for the timely provision of a panel list to be subject to a good faith effort, it could have said so – it did not.
While I agree with the result, for the statute is plain that the timely provision of a panel list is required, I wonder what the result would have been if the employer had taken just slightly more effort to get the list Jalloh. A representative of the company visited his home, spoke to his wife, and spoke to him on the phone, but did not leave the list with the wife. Thus, it was clear that Jollah never received the list.
But what if the representative had left the list with the wife, but Jollah told her to throw it away? Could Jollah still claim that he had not “received” the list? What if the list was mailed to Jollah by registered mail, but he returned it unopened? I suppose these are questions for another day.
As predicted in this space a bare three weeks ago, the Court of Appeals has granted a rehearing en banc in Taylor Amil Wallace v. Commonwealth of Virginia. Honestly, I am not worthy of any self-congratulation for this one. A novel issue with a 2-1 decision overturning (in part) a criminal conviction is virtually assured an en banc grant – so I didn’t exactly need to be Nostradamus to spot Wallace as a likely candidate.
Accordingly, I will go ahead and say that the first of today’s published opinion from the Court of Appeals, which is also a 2-1, is probably not likely to get an en banc review because this time the majority upheld the conviction of William Ezell Taylor. Taylor purposefully engaged Kimani Donovan in an altercation in the food court of a shopping mall. The fight was broken up, but Taylor retrieved a firearm from his nearby backpack, returned to the mall and, presumably without any real effort, found himself again engaged in a confrontation with Donovan, who ended up dead from two gunshot wounds; Donovan’s sister was also wounded during this incident.
The jury rejected Donovan’s claim to self-defense and convicted him of “many different charges” arising from the incident including malicious shooting within an occupied building in violation of Code § 18.2-279. While Donovan raises nine – yep, you read that right, nine – assignments of error, it is the triple conviction for malicious shooting that caught the Court’s attention and leads to this opinion being published.
The reason is that apparently no one has ever before raised the issue of whether “shooting” (or more specifically, “discharging”) a firearm under this statute means doing so as one incident regardless of how often one does so, or whether each instance of a projectile leaving the muzzle of the weapon is a separate offense. While this is the novel issue of the appeal, it is not the basis for the partial dissent, as one might have thought – this is another reason why it’s unlikely to get a rehearing grant.
Let’s start with the novel issue on which Judge Chaney, the dissenter, finds no objection to the result reached by Judge Lorish, who is joined by Judge Athey in the majority opinion. The three agree that the statute must be read to be “bullet specific,” meaning each instance of pulling the trigger is a “discharge” of the weapon, even if in rapid succession. I have no problem with this, provided we are not speaking of an automatic weapon. I am not going to weed into the discussion of where one draws the lines between double-action, single-action, semi-automatic, and full-automatic are drawn, but I will say that I think “trigger pull specific,” rather than “bullet specific,” would have been a more apt turn of phrase.
The other issues that are “unanimous” in the majority are: 1) two of the shooting charges are not subsumed in the more serious homicide charge; Taylor’s argument on this point was already rejected in a 2003 case; 2) sufficiency of the evidence as to each conviction; and, 3) the imposition of the maximum for his homicide conviction.
The issue of contention for Judge Chaney is the circuit court’s rejection of Taylor’s proffered self-defense instruction, and giving the Commonwealth’s, which paralleled the model jury instruction on “self-defense with fault.” Taylor maintained that the model instruction somehow tacitly shifts the burden of proof, and that the court should have given his proffered instruction which simply required the jury to find that his claim of self-defense created reasonable doubt as to his guilt. The Commonwealth responds that the court separately instructed the jury on reasonable doubt, this cured any possible harm from the self-defense instruction “tacitly” shifting the burden of proof.
The majority finds that the instructions given (along with the instruction on the presumption of innocence) were a proper statement of the law. Judge Chaney disagrees, in part because she was of opinion that the Commonwealth improperly commented on the model jury instruction in such a way as to emphasize Taylor’s objection to its wording. The majority says, “so what? Taylor didn’t object to the closing argument,” which, to be fair, is a basis for not considering whether the argument was improper – but Judge Chaney does not see it as a basis for not considering the impact of the argument on the jury based on the instruction.
Keefe Butler v. Martha Ann Thomas Stegmaier, et al., is a will contest. Butler alleged that Stegmaier, the executor, had used undue influence to procure the decedent’s execution of the will and also have breached her fiduciary duties as executor. Butler and his sister were the step-grandchildren of the decedent; Stegmaier was the decedent’s neighbor and friend who cared for him after his wife, Butler’s grandmother, died.
Shortly after the grandmother’s death, the decedent made a will that left a chase bequest to each of the grandchildren and made them the residuary heirs of his estate. Four years later, he made a new will, reducing the cash bequest and making Stegmaier the residuary beneficiary. Several months after this, a third will, the one ultimately submitted to probate, was executed which reduced Butler’s (but not his sister’s) cash bequest.
At trial, Stegmaier presented expert testimony from a trust and estates attorney without objection. After the witness was excused and the defense had rested, Butler moved to strike the expert’s testimony. Now you are probably thinking that the circuit court looked at Butler’s attorney with a mild look of disdain and said, “too late, counsel.” That is certainly what I would have thought – in fact, did think as I was reading the opinion. So, imagine my surprise to read that the court granted the objection. I am imagining your surprise now. Well, double surprise! The circuit court rethought the matter and the following day said, “Do-Over!” and ruled that the objection was untimely.
If the Court of Appeals, Judge Athey this time writing for both Judges Lorish and Chaney, were to reverse on that issue it would be a triple surprise, but Butler gets no joy there. Likewise, his objection a being questioned about certain “live-in girlfriends” which the circuit court allowed find no sympathy from the Court. You see, there was evidence that step-grandpa was unhappy with Butler’s bon vivant lifestyle and that this was justification for the further reduction of his cash bequest in the final will, so the live of question, if prurient, was relevant. There were a few more issues, none of which gave Butler any better result that the first two. Worse for him, there was a no contest clause in the will, so now he gets nothing.
Edward Brian Evans v. Truist Bank, f/k/a Branching Banking & Trust Company, as the name implies, predates the merger of SunTrust and BB&T as Truist (a name which when I first heard it implied that my banker could not spell either “trust” or “truest,” but for some reason I still bank with them – so let that serve as a disclaimer about the very tangential bias I may have – though which way I will not divulge). Evans took out a big loan from BB&T (well, big by my standards, not Bill Gates’), which he obtained by “materially false statements concerning the condition of his finances.” This was back in 2011, and the bank did not suspect anything untoward until 2013 when Evans stopped making payments and, as it turned out, didn’t have the assets he claimed to have (or apparently much of the cash he borrowed). Shortly after the bank called in the note, Evans filed for bankruptcy.
Alas for Evans, the Bankruptcy Court takes a dim view of them that wants to bankrupt a debt they got by fibbing. The petition was denied, and Evans remained on the hook for the debt. This was in 2015.
Why the bank waited until 2019 to pursue Evans for the debt is hard to say. Perhaps they knew Evans was a bloodless turnip and not worth pursuing, or assumed there were a lot of secured creditors ahead of them. However, we can speculate what changed in 2019 – the aforesaid merger was in the works and a judgment looks better on the books that a defaulted note. Sure enough, BB&T got a confessed judgment against Evans.
Pausing here, we note a curious aspect of this case which is that BB&T got the confessed judgment in Fairfax County, but then nonsuited it and refiled in Wythe County. This is a no-no. You cannot nonsuit a confessed judgment in one jurisdiction and refile it in another; that’s just one of the arcane rules pertaining to the arcane practice of confessed judgments. Code § 8.01-380(A). Alas, Evans didn’t catch this, so the issue is waived.
What Evans did try to argue is that the action was too late. He reasoned that the statute of limitations was five years on a contract, had started running in 2013 when he defaulted, and, while tolled during the bankruptcy proceedings, the statute resumed on the dismissal of that case and ran out just before the confessed judgment was filed. The bank argued, and the circuit court agreed, that the promissory note, while a contract, was also a negotiable instrument, and under the UCC has a six-year statute of limitations. Code § 8.3A-118.
Evans’ next gambit was a bit more nuanced. “But wait,” he said, “I just remembered that I lied like a sleeping dog when I applied for the loan! I was in breach in 2011, so the statute started running then! Checkmate BB&T . . . err . . . Truist!” “Not so fast,” says BB&T . . .err . . . Truist, “You may well have been in breach then, but we were not required to sue you then. We shouldn’t be punished for our forbearance (not to mention we didn’t know you were in breach).”
The circuit court agreed with the bank and today, so does the Court of Appeals. Judge Athey, with Judges Lorish and Callins, recognize that the material misstatements of fact were indeed a violation of the contract, but merely violating a contract is not a breach. The breach actually occurs when the other party suffers some damage or injury. Now in this case, the bank was, for over two years, getting regular payments on the note. It only suffered an injury when Evans stopped paying and then failed to honor the demand for accelerated payment. In essence there were three violations by Evans, the misrepresentation, the default, and the failure to honor the acceleration clause. The first would have been grounds for calling the note, but was not an injurious breach by itself, so the statute of limitation did not begin in 2011.