Two New Opinions from the Court of Appeals on October 18, 2022

Still playing catch-up, we have two new opinions from October 18, 2022 from the Court of Appeals. Anthony Patrick Washington v. Commonwealth of Virginia arises from an aggravated malicious wounding conviction and a related firearms cahrge. Washington challenged the sufficiency of the evidence to support the conviction, and more specifically the evidence that he acted with malice rather than in the heat of passion.

The facts of the case are very perplexing, as the opinion does not indicate that there was any prior connection between Washington and the victim, Deedra Cook, except that both were staying at the same motel in Fredericksburg. Washington initiated the conflict in the parking lot of the motel by insulting Cook, apparently because Washington took exception to Cook carrying a concealed weapon, where as Washington preferred to open carry. Cook was in fact not armed at the time, but speculated that Washington may have seen her previously when she was carrying a weapon and the outline was visible through her clothing.

The confrontation escalated with Cook using a "racial epithet." Washington then drew his weapon and pointed it at Cook's head, who turned away and said that Washington "didn't have to do this." Washington then lowered his weapon and shot Cook in the ankle. This entire event was captured on security video and was also recounted in testimony of several witnesses, although there was some discrepancies in their recollections..

Washington testified on his own behalf and contended that he had simply wished to inform Cook of the status of firearms laws in Virginia because she had previously told him that he needed a permit to open carry. Washington maintained that when Cook used "a vile racial slur" and spit on him, he felt threatened and drew his weapon in self-defense. He further maintained that even if his action was not excusable self-defense, there was provocation that negated any intent to maliciously harm Cook, and that his lowering of the weapon showed that he had not acted with malice. Washington did not maintain that the weapon discharged accidentally.

The circuit court agreed that the evidence showed that Cook had "used . . . terrible and ugly words that included slurs that were meant to be offensive," but concluded that this was not sufficient provocation to excuse Washington's decision to escalate the confrontation beyond mere words. The court further found that Washington's claim of self-defense was not credible and found him guilty, sentencing him to 23 years imprisonment.

On appeal, Washington reasserts his claims of self-defense and provocation to heated action. The Court of Appeals begins by noting the deferential standard when reviewing evidence, noting that this standard applies even to the trier of facts interpretation of video evidence. Applying that standard, the Court first addresses Washington's claim of self-defense, which is an affirmative defense and, therefore, was Washington's burden to present evidence sufficient to reduce the Commonwealth's evidence to below a reasonable doubt. It is also necessary to show that the dangerous situation was not attributable to any action by the defendant and it is here that the Court finds fault in Washington's argument. Even assuming that Washington had a genuine fear for of Cook causing him immediate harm, he was not blameless in creating the circumstances.

The Court next considers Washington's claim that the evidence showed he acted in the heat of passion, thus negating the malice required to sustain the charge. It is this issue that probably resulted in this being a published opinion, because the Court finally identifies the "racial epithet" with specificity, describing it was "the N-word." The Court concedes that this epithet is so vile and objectionable that the Court will not use the actual word in its opinion. The Court then goes on to explain that despite this very candid expression of just how vile the word is, its use by Cook in this context was not sufficient to provoke Washington to act in the heat of passion. The Court relies on its prior decision in Palmer v. Commonwealth, 71 Va.App. 225, 237(2019), to hold that the mere utterance of "the N-word" is not sufficient provocation to negate malice through heat of passion.

I must admit that I am troubled by the logic of Palmer as applied here. If "the N-word" is so vile and offensive that it cannot even be spelled out in full in a judicial opinion, how is it that its use as a racial taunt or epithet cannot provoke a violent emotional response? I would have preferred the Court to have distinguished this case on the ground that Washington did not act with spontaneity, but hesitated before discharging the weapon, showing the "moment's reflection" required to show deliberation.

The second opinion released was Andrew Joseph Haefele v. Commonwealth of Virginia, who was convicted of of two counts of maliciously maiming the livestock of another, in violation of Code § 18.2-144, and two counts of conspiring to maliciously maim the livestock of another. Haefele had an interesting argument in the trial court and he brings it to the Court of Appeals for review. He claims that he had the permission of the owner to maim the livestock.

The livestock in question were two goats that were being kept on a residential property in apparent violation of the local zoning ordinance. We know this because after complaints by neighbors, a zoning enforcement officer told the owner so and, rather than issuing a citation, offered to help the owner relocate the animals. As no citation was issued, we can only assume that the animals were not permitted in the zone, but based on that assumption, let's commend the officer for this use of discretionary enforcement.

Apparently the owner declined the offer and instead had three men, one of whom was Haefele, to dispose of the goats. As observed (and videoed) by neighbors Haefele and the other two men used a make shift mace (2x4 with spikes drive through it) to beat the animals. Neighbors call law enforcement, and the officers were initially told that the goats had been removed from the property, but after interviewing the neighbors and viewing the video, a search was conducted and the animals carcasses were found on the property.

So, it seems pretty clear that the owner condoned this brutal treatment. The question is, does Code § 18.2-144 require proof that the owner did not consent to the mistreatment of their property. Let me save your the suspense of wondering if the law could really be that cavalier by quoting the initial sentence of the Court of Appeal's retort to the proposition, "Noticeably absent from the statute, however, is any language limiting the application of Code § 18.2-144 to those cases where the accused acted against the will of the owner."

Haefele wasn't done, however, as he contended further that even if having the owner's permission did not negate the crime entirely, it was sufficient to negate the element of malice. To that the Court of Appeals noted that "the record clearly shows that Haefele cruelly, brutally, and repeatedly struck the small, defenseless goats with a spiked club without any provocation whatsoever—and with evident enjoyment." Perhaps had the animals been put down by some means accepted by veterinary medicine as humane, this argument would have some merit. After all, animals are put down every day to avoid them needlessly suffering (or at times just for the convenience of the owner or the inability of the shelter to provide care for them).

The only benefit Haefele gets from his appeal comes to him for the Commonwealth -- not his own counsel -- which noted a scrivener's error in the sentencing order that imposed a greater sentence in total than had actually been imposed by circuit court. Honestly, I wouldn't have lost any sleep over that error going uncorrected if it had not been noted, but give props to the Assistant AG who called it to the Court's attention. The case is remanded solely to correct the error.

October 11, 2022 Opinion from the Court of Appeals

The Court of Appeals issued a single opinion on October 11, 2022, reversing and remanding in Alejandra Isabel Obregon v. Commonwealth of Virginia. Before you get all excited about the reversal in a criminal appeal . . . this isn't one. The style of the case is the same as the underlying criminal case at issue, but this is not an appeal of that judgment, but rather an appeal of the denial of a petition to have the record of that case expunged. Expungement is governed by Code § 19.2-392.2.

Obregon was charged with underage possession of alcohol in violation of Code § 4.1-305 and fraudulent use of another’s identification to obtain alcohol in violation of Code § 46.2-347.The Montgomery County General District Court dismissed both charges. In 2017, Obregon was arrested for leaving the scene of an accident resulting in property damage in violation of Code § 46.2-896. The Montgomery County General District Court subsequently dismissed the charge. She petitioned for thee record of these charges to be expunged, contending that they prejudiced her employability.

It would appear that these youthful indiscretions were not Obregon's brushes with the law, as she also had been charged in another jurisdiction with felony shoplifting, reduced to a misdemeanor, and a DUI charged that was nol prossed. When she applied to have the dismissed charges expunged in Montgomery County, the Commonwealth argued that these other charges and the one conviction meant that there would be no manifest injustice in not expunging the records. The court agreed, stating that Obregon had failed to prove that having the record of these charges remain would result in a manifest injustice.

Obregon filed a motion for reconsideration in which she argued that the trial court had incorrectly required Obregon to prove “actual” injustice, rather than a “reasonable possibility” of manifest injustice. The Commonwealth responded that Obregon had in the interim been charged with a new offense for domestic assault, also nolle prossed, and that this offense would remain on her record, thus showing no manifest injustice in not expunging the charges,

The issue on appeal was whether the circuit court applied the correct standard by requiring Obregon to prove a manifest injustice would result if the expungement were not granted. (Helpful hint: If you have ever wondered about the correct tense to use when using "if" checkout this handy guide from the Writing Center at UNC Chapel Hill.) The Court of Appeals holds that this is no the correct standard because the statute requires that the court find that the existence of the expungable record "causes or may cause circumstances which constitute a manifest justice." It's that may that takes the court's decision from the "actual" to the merely "probable." On that basis the Court remanded the case for a reconsideration under the correct standard.

I hope that Ms. Obregon has not managed to rack up any additional charges in the meantime, and even if she has not, I rather suspect that the circuit court may find that the shoplifting conviction, which is not expungable, moots her argument that there is even a probability of a manifest injustice in not expunging her other records. That decision, as the Court of Appeals pointed out in its opinion, would be reviewed for abuse of discretion.

Two More Appeals -- October 4, 2022 Opinions of the Court of Appeals

And we are now into October as the Court of Appeals of Virginia Blawg plays catch-up after its hiatus and move to its new home.

Danjuan Antonio McBride must have thought he was going to skate by on two counts of possessing a controlled substance with the intent to distribute when the trial court granted his motion to strike the evidence. Then the circuit court did something extraordinary -- it permitted the Commonwealth to reopen its case an present additional evidence, after which the court "reversed" its decision on the motion to strike and then submitted the case to the jury which convicted McBride.

That hardly seems fair, and it's not. As the Court of Appeals, Judge Lorish joined by Judge O'Brien and Sr. Judge Annunziata, explains

When a defendant moves to strike the evidence as insufficient, a trial court has significant discretion about how to proceed. Even if the court agrees the evidence is insufficient, Rule 3A:15(a) does not require the court to grant the motion. The court can take a recess to consider the evidence, the court can take the motion under advisement, the court can opine that the evidence is thin, or the court can allow the Commonwealth to put on additional evidence. What the court cannot do under Rule 3A:15(c) is grant the motion to strike, ruling that the evidence is insufficient, then allow additional evidence to be presented and enter a different ruling based on that added evidence.

Now, what may be more surprising to you than the Circuit Court's striking the evidence and then giving the Commonwealth a do over is that McBride is not yet able to skate. Instead, the Court is remanding the case for a new trial on lesser offenses. How did that happen? Well, the initial motion to strike was based on the Commonwealth's failure to prove that McBride had prior offenses that elevated the penalty for his offense. The Court reasons that the evidence was sufficient to prove a base offense and that McBride should face a charge no greater than that on remand.

I take issue with the Court's analysis here. The circuit court did not "strike" the greater offense and amend the charge to conform to the evidence. It struck the evidence. I do not believe the Court of Appeals should step into the shoes of the trial judge an speculate what would have been done had the court not erred in allowing the Commonwealth to reopen the case. I suspect a petition to the Supreme Court may be forthcoming from McBride to raise that very issue.

W. Roy Tuthill v. Commonmwealth is a 2022 Appeal of Right and I believe the first such published opinion in which the appellant is pro se. It is also, despite the style of the case, not a criminal appeal. Rather, it is an appeal from a denial of a petition to be removed from the Virginia Sex Offender Registry pursuant to Code § 9.1-910. While the Commonwealth agreed that Tuthill has a "good candidate for removal," it objected to his petition on the ground that he was not entitled to removal because he had two convictions that both qualified for registration, even though those two convictions arose from the same incident.

Tuthill contends that the statute's prohibition of a person being eligible for removal from the registry if he has two offenses was not meant to apply to convictions for a single act or transaction chargeable as two offenses. The Court of Appeals, Judge O'Brien joined by Judges Lorish and Sr. Judge Annunziata, hold that to so find the Court would have to impermissibly add language to the statute. This seems to be a good case to bring to the attention of the General Assembly.