The Court of Appeals will hear oral argument for the first time in an appeal filed after the expansion of the Court’s jurisdiction on January 1, 2022. On Tuesday, June 28, 2020, a panel sitting in Norfolk will hear argument in Yo v. Commonwealth, 0035-22. Yo, it’s just “Yo” — like “Prince” and “Cher” — is presently being held under the Civil Commitment of Sexually Violent Predators Act and as both “Yo” and under his birth name of Mario Ballard is a frequent flyer in the Appellate Courts, both with appointed counsel and pro se. In fact, Yo has two pending appeals in the Supreme Court and 25 previous ones and at least 12 previous appeals in the Court of Appeals. So while this is the first “new jurisdiction” case to be heard on its merits, I don’t think it will prove to be a particularly momentous one when the opinion is issued later this summer.
The same panel will hear two additional 2022 appeals, another criminal appeal and an appeal involving a termination of parental rights, both of which also would have fallen under the Court’s more limited jurisdiction. So that Court will not take up a civil case on the merits just yet.
Of course, the Court has already dealt with some 2022 cases. Worley v. Commonwealth, 0004-22, was a bond appeal and likely the first “new jurisdiction” case dealt with as it was dismissed upon a notice of withdrawal or settlement on February 4 of this year. And some civil cases have been dismissed for fatal procedural errors, including one in which your humble correspondent was counsel for the appellee.
Well, gang, I followed the well worn wagon tracks up 81 and across 64 to Richmond for my first in-person argument before the Court of Appeals in the Capital City (after prior appearances there before a Supreme Court writ panel and in Salem before a panel of the “middle court” two weeks ago). The Court held sway in the Ninth Street Courtroom, I assume to allow for greater social distancing. The then followed my path in reverse to return home to the Blue Ridge. Before discussing the latest published opinions from the Court of Appeals, let me make an observation about the two arguments I have had before that Court in the space of about two weeks.
In both cases I represented the Appellant, always an uphill slog, and in one case more of a “climb Everest in your shorts” effort. In that case, I was compelled to concede the the issues raised on behalf of my court-appointed client were to be reviewed for plain error and in the light most favorable to the appellee. Fortunately, I had the language from Hammer v. Commonwealth describing the competing roles of appellate counsel in zealously representing the client while not subjecting the Court to frivolous arguments. I had included that language in my brief for today’s argument as well with respect to an issue that was very important to my client, but, frankly, not tenable on appeal. However, with respect to my other two issues, I believed I had at least a good faith argument for reversal even with an unfavorable standard of review, and questions from one of the judges suggested at least that there might some consideration of that.
However, I believe I received a very clear message from a second judge (with occasional support from the third) that the Court was having none of it because the standard of review of the court’s factual findings was unassailable and wasn’t it the appellate court’s job to uphold the judgment that flowed from those facts if at all possible. Now let me be clear that I cannot really argue with that line of reasoning, but I can’t help but feel that there was an undercurrent in those questions of “why are you bringing this appeal at all when you know your client can’t win?” Now I could make a number of responses to this along the lines of “every client deserves a competent counsel if they are going to appeal anyway,” but that’s not really the issue I am getting at here.
Rather, I am wondering if the Court (or at least this Judge) isn’t anticipating having to deal with a lot of “nearly frivolous” appeals on its expanded docket and isn’t trying to limit them (or at least pave the way for lots of summary affirmances) by Hammer-ing the duty to the tribunal. I am not suggesting that the Court should offer lengthy treatises on the law in every case, but if the upshot of the new appeals of right is going to be just a series of opinions stating “what part of the standard of review don’t you get?” I am not sure that some appellate attorneys might not become wistful for the days of orders “Finding no reversible error . . ”
Now on to the cases. The Court issues three decisions in criminal cases today, the first being Dustin Keith Conley v. Commonwealth of Virginia which involves convictions for crimes arising from a violent sexual assault by Conley on his ex-wife. I am not going to burden you with the details as they are mostly irrelevant to the two issues the Court address on the merits.
The first on these involves the trial court’s decision to admit prior bad acts evidence. Now prior bad acts evidence is not admissible to show that the defendant acted in propensity therewith. That is, it cannot be admitted for the purpose of saying “he did it before so it’s likely he did it again.” While the court’s exclude propensity evidence on the ground that it is not “relevant” to prove the current offense, the truth is that it is excluded precisely because juries think that it’s very relevant (or just wish to punish the defendant for his past transgressions). Naturally, the prosecution tries very hard to get such evidence in under some other posture and then convince the court that the prejudicial value is outweighed by the probative value.
The evidence the Commonwealth wanted in and Conley wanted kept out, were videos he had made of sexual committed by him on his wife (and later ex-wife) while she was asleep or unconscious. The criminal charges stemmed from the videos taken after the divorce when the couple had resumed a relationship, and the Commonwealth wanted the earlier videos, that were the subject of other charges, admitted in this trial. The Court ruled that the videos were admissible in a pretrial ruling.
On appeal, Conley, relying on out of jurisdiction case law, first argues that the court was required to articulate the specific basis on which it found the videos to be admissible. The Court of Appeals notes that this is not required under Virginia Law and it declines to adopt a new rule. Conley also asserted that the videos lack probative value, but the Court of Appeals holds that the similarity of the acts was sufficient to show “Conley’s conduct and attitude toward J.M. They also tend to negate Conley’s assertion that J.M. was role playing or feigning sleep and show instead that she was deeply asleep and possibly heavily medicated or intoxicated, as well as his knowledge of her physical helplessness.” Such modus operandi evidence is admissible and not overly prejudicial.
Additional “bad act” evidence showed that Conley may have “slipped her a Mickey.” The court allowed evidence that a residue was found in a beer glass. The Court of Appeals agrees with the trial court that this evidence was probative of Conley’s intent and knowledge of the victim’s helplessness. Moreover, in a footnote, the Court states that this evidence was actually brought out on cross-examination of the wife by Conley’s counsel.
The second issue addressed was whether the trial court erred in not granting Conley’s instructions on consent. With respect to consent, the Court of Appeals notes that consent is not a valid defense to sexual assault accomplished through the victim’s mental incapacity or helplessness. Even though Conley alleged that his ex-wife had given consent for him to have relations with her in her sleep, the Court concludes that “prior consent” is not recognized in Virginia because, by definition, incapacity means the victim lacks the capacity to consent or withdraw consent.\
Astute readers will have noted that I said there were two issues the Court addressed on the merits and deduced that there were more than two issues. There were several more, but the Court finds that these were either not adequately briefed (Rule 5A:20) or not preserved in the trial court (Rule 5A:18).
Before going to the next case, a brief side trip to discuss the expression “Slip him/her a Mickey.” A Mickey Finn (or simply a Mickey) is a drink laced with a psychoactive drug or incapacitating agent (especially chloral hydrate) given to someone without their knowledge, with the intent to incapacitate them. Mickey Finn was a bartender at a saloon in Chicago who was known for robbing drunk patrons and apparently hit on the scheme of using chloral hydrate to expedite the process and also leave the victim with little or no memory of the event.
Tina Dione Woodson v. Commonwealth of Virginia involves charges of assault and battery charges and the parental privilege to use reasonable corporal punishment. Some folks are shocked to find out that the law recognizes corporal punishment by a parent or guardian as permissible, but as the Court of Appeals states in the opening sentence of this opinion, the exception to assault law is found in some degree in every state. By contrast, corporal punishment is completely banned in most European countries and elsewhere. Notable exceptions besides the US are the United Kingdom, Canada, and Australia.
Woodson disciplined her twin 12-year-old children, twin brother and sister, with a belt, and “[w]hile each child had some transient bruise or mark afterward, neither was seriously injured.” The Court states that this case presents the first situation in which it must consider whether “the combination of other facts was enough for criminal liability to result.”
The punishment was intended to redress a misuse of cellphone privileges (the siblings blames one another). The son later reported that both his mother and father had whipped him to a school resources officer, and both children stated that they did not feel safe in the home. While subsequent investigation found evidence of bruising and abrasions on the son, it was unclear whether these had been caused by the whipping administered by the father or the mother. The trial court found the evidence sufficient to convict Woodson of assault and battery of both children.
The Court of Appeals reverses, finding that the evidence was not sufficient to overcome the parental privilege exception. The Court reasoned that the evidence failed to prove that either child was subject to a “risk of serious harm,” which is the standard for finding that the privilege was abused. The Court says that this rule is necessary to avoid “allowing every trial judge to substitute their own parenting views for that of the parent.” I would anticipate at least the suggestion of a Commonwealth’s appeal in this case (though I grant that the current occupant of the AG’s office may nix that suggestion).
The final decision released today, Jason Park v. Commonwealth of Virginia involves the refusal to take a breath test following a single car accident. When police arrived on the scene, the vehicle was unoccupied (with several “empties” scattered on the ground near the driver’s side). Shortly after their arrival, a “ride-share” vehicle pulled into a nearby parking lot and the police questioned the intended passenger, Park, who admitted that he was the owner and operator of the wreck vehicle. Park was visibly intoxicated.
Park was arrested, but declined to take a breathalyzer test. Police obtained a warrant for a blood test which resulted in a BAL of .14 — above the presumptive legal limit of .08. He was charged with 2nd offenses of DUI and refusal, but acquitted of the former charge on the basis that the Commonwealth could not exclude the reasonable hypothesis that Park consumed the beers found at the scene after the accident. I will not that Park told police that the accident had occurred just five minutes before they first questioned him. Given that he was visible intoxicated at that time, it is at least arguably that this “reasonable hypothesis” did not flow from the evidence as Park would have had to consume the beer very rapidly and also have a very low tolerance for alcohol to appear intoxicated within five minutes. Perhaps the judge was feeling generous.
Park was convicted of refusal and appealed asserting that the police lack probable cause to believe he was intoxicated while driving because he could have consumed the beer. The Court of Appeals notes that the standard for finding probable cause is far lower than the reasonable doubt standard at trial that allowed the court to acquit Park of DUI. Therefore, the police suspicions was founded on sufficient cause to require Park to submit to the breath test. The Court also rejects Parks contention that the possibility that he drank after the accident negates his intent to willfully refuse to take the “pointless” breath test.
Park next argues that the officer failed to provide Park with a preliminary breath test at the scene as required by law. Although Park had refused to perform any field sobriety tests, the Court of Appeals says that he was still entitled to a preliminary breath test if one was available. However, as the purpose of the field breath test, which is not admissible to establish intoxication, is to determine if there is probable cause for arrest, the remedy for the failure to offer the test is not exclusion of subsequent scientific BAL evidence. Because independent evidence supports the finding of probable cause, the failure to offer the field breath test cannot serve as a basis for excluding the evidence of the subsequent refusal.
Park argues that when he was advised of his implied consent and signed the form indicating that he had been so advised, the advisal and the form were misleading because they did not inform him that a warrant could be obtained for a blood sample. He contends that this would have led him to believe that refusing to take the breath test would later benefit his defense if charged with DUI. The Court of Appeals responds that the purpose of the refusal advisal is to tell the suspect that he can be charged with refusal. That is all the statute requires and that is what occurred.
Finally, Park contends that to guilty of refusal the Commonwealth must prove that he operated a vehicle and that his “confession” at the scene was uncorroborated. Assuming that the statement at the scene was a “confession,” the Court of Appeals finds that this statement was corroborated by the physical evidence.
I find this last point troubling because, having reviewed Code § 18.2-268.3, the refusal statute, I could find no indication that proof that the defendant was driving is an element of refusal. Quite the reverse. The statute does require proof that the defendant was arrested for a violation of a DUI statute, but not that he was convicted of that offense. Driving is an element of DUI, but it is not an element of the offense of refusing to take a breath test after having been arrested for DUI. Even if it is subsequently proved that the defendant was not driving, the issue remains whether his arrest was supported by probable cause — and the Court already concluded that there was probable cause for the officer to believe Park had been driving. Once arrested, Park was required to submit to the breath test regardless of his actual guilt of the offense. I think the Court of Appeals may find that it has to declare this part of Park “dictum” at some point if a case arises where there is actual doubt that the defendant was driving.
Before leaving off this post, I should mention that the Court of Appeals did release a published decision last week in the form of an order denying an appeal sought under Code § 8.01-626 to review of an order of the Circuit Court of the City of Richmond denying a motion for intermediate relief under Code § 2.2-4028. The issue was whether Code § 8.01-626, which permits the review the granting or denial of an injunction, applied to the denial of intermediate relief under Code § 2.2-4028.
NAACP (Hanover Chapter), et al. v. Commonwealth of Virginia, et al. involves a dispute over a water protection permit, essentially a grant of authorization to perform grading and other construction upon a showing that the work will not significantly impact wetlands and watersheds or cause flooding or impounding in violation of other landowners’ rights. Code § 2.2-4028, which is part of the Administrative Process Act, provides for intermediate relief when a judicial challenge to the issuing of a permit is instituted. Despite having the parties brief whether Code § 2.2-4028 contemplates relief that can be reviewed under Code § 8.01-626, the Court decides to not decide this issue by assuming it has jurisdiction and then ruling that the appellants failed to show that the automatic stay of Code § 2.2-4028 was inadequate thus entitling them to injunctive relief.
A very busy work schedule (not sure when the “semi” part of semi-retired will kick back in) has kept your correspondent from updating this space for a few weeks. Here is what’s happened while I’ve been occupied.
Decisions announced April 12, 2022
Tate Morris v. George Mason University is an administrative law case addressing the dismissal of a state employee who was terminated due to his failure to follow workplace safety protocols related to the COVID-19 pandemic. Now if you are hoping for a riveting tale of deeply held political beliefs challenging the power of the state to enforce rigid protocols based on it police powers, you are in for disappointment. Morris’ transgression was not a refusal to get vaccinated, wear a mask, or social distance. He simply came to work while suffering from clear symptoms of COVID despite requirements that anyone suffering from potential COVID not report to work until they had a negative test. Morris did get tested after being told he was required to but returned to work before the result was available and, as you probably guessed, that result was positive.
Morris was terminated for not following the required procedure. He challenged this decision administratively and, when the hearing officer upheld the termination, as did the director of the Office of Employment Dispute Resolution. Morris the appealed to the circuit court, which also affirmed. The Court of Appeals now reviews that decision and Morris’ argument that he has been denied due process at each stage of the dispute resolution system. The problem is, of course, that the record shows Morris got all the process under the state employee grievance procedures that he was due. This is simply a case of an employee not following a straightforward policy (actually, the hearing officer found four violations of policy), which had been put in place for workplace safety, and being dismissed for that transgression. The fact that the policy had to do with the requirements for returning to work during the latter part of the COVID pandemic was not relevant.
I am always willing to admit when I’ve made an error (well, perhaps not in all aspects of my life, but always in this space dear reader). Back on March 8, 2022 in summarizing the opinion in Paul H. Lundmark v. Commonwealth, I predicted the Lundmark would be satisfied with getting a delayed appeal rather than pursuing a review of the 2-1 decision finding that a procedural error committed by his counsel barred his appeal. I made this prediction even though the same panel of the Court that heard Lundmark’s appeal had previously issued an opinion with remarkably similar facts, but found that the appeal was not barred. Well, it seems I was wrong about Lundmark’s passivity. The other decision of the Court announced April 12, 2022 was an order granting Lundmark a rehearing en banc.
Decisions Announced April 19, 2022
Last week the court issued two published opinions and one published order, the latter granting a petition for a writ of actual innocence. As a grant WAI is pretty rare, let’s start with that case. Michael Haas v. Commonwealth of Virginia is, as are all WAIs in the Court of Appeals, based on claim not founded on biological evidence (DNA), which go to the Supreme Court. That means that there must be some new evidence of a testimonial or non-biological forensic nature or, as is in fact the case here, both. The facts of the underlying conviction are very disturbing as they involve allegations of sexual abuse by Haas of his two pre-teen sons in 1992. Although the allegations arose during a troubled marriage, the evidence, including medical testimony was very damning, and Hass was convicted and sentenced to life imprisonment.
Throughout his trial, appeals and habeas proceedings, Haas maintained his innocence. In 2010, Haas filed his first petition for a writ of actual innocence. The two boys, and their sister, now adults, recanted their testimony and stated that their mother had told them that their father would simply “get treatment for his temper and drinking” and that the family could then be reunited, never mentioning the fact that he would be imprisoned. Haas also offered new medical evidence to refute the evidence presented at trial. Haas’ petition was denied.
Haas was released on parole in 2017, but was required to register as a sex offender.
Effective July 1, 2020, the WRI statute was amended to permit the filing of multiple petitions and changed the standard for finding that a recantation was true from clear and convincing to a preponderance of the evidence. Haas filed his second petition for a writ of actual innocence which was based on additional medical evidence, not available in the 2010 proceeding, that gave further weight to the assertion that the original evidence of the alleged abuse was not sound. The children again filed affidavits recanting their testimony from the trial and reasserting that they had not been abused by their father.
Following a evidentiary hearing in the circuit court where the evidence of the children’s recantations and the new medical evidence was found to be credible, the Commonwealth conceded that Haas had been wrongfully convicted. Although there was a change in administration between this concession and the hearing before the Court of Appeals, the new Attorney General did not seek to withdraw it. The 37 page order granting the petition will undoubtedly serve as a model for the application of the new law of WRI.
John Thomas Keene v. Commonwealth of Virginia is an appeal of a denial of pre-trial bond. Typically, such appeals do not lead to a published opinion because the issue of pre-trial bond is a matter of the trial court’s discretion and difficulty to get overturned. But, as many of you will know, the law regarding pre-trial bond has recently been changed to eliminate the presumption against bond in most (but not all) felony cases. The law does not so much say that bond is presumed to be available as it specifically identifies those instances in which the presumption against bond still applies. Nonetheless, the Court of Appeals presumes that the new statute does favor bond in felony cases.
However, the Court also says that the decision is still committed to the trial court’s discretion and, more specifically, to its findings on eight statutory factors to be considered when denying bond — a decision which must be set forth in writing giving the reasons for the court’s denial, another innovation of the statutory change. The trial court in this case set forth its reasons in a two-page opinion letter and the Court of Appeals finds that the court clearly understood that it was applying a new standard, but found that Keene was likely to be a danger to the public and thus, bond was not appropriate. The Court of Appeals finds that this decision is supported by the evidence and therefore does not constitute an abuse of the trial court’s direction.
Published opinions upholding denial of bond are rare, but only less so are opinion reversing criminal convictions for insufficient evidence, but that is exactly what the final decision of the Court to be addressed in this post does. Aaron Jacob Goldman v. Commonwealth of Virginia is an appeal of a grand larceny conviction. The property that was taken were tools that were stored on a job-site where Goldman was employed. The principal evidence against Goldman was a security video that shows an individual taking tools from the storage container, and, here’s the twist in this commonly told story, Goldman admits that he is the person in the video. That’s right, Goldman agrees that the person seen taking tools was indeed him. Case closed, right?
Well, no. Because while Goldman admitted that the video showed him taking tools from the storage box, the witness who authenticated the video said that it was dated January 31, 2019, whereas the witness who was called to establish the value of the tools said they were purchased in September or October of 2019 and went missing on or after October 31, 2019. Now that’s a problem, as it suggests that whatever Goldman was seen taking, if it was in January 2019, he certainly wasn’t taking tools that were not acquired until nine months later. Goldman also noted that he was in fact authorized to use the tools that subsequently went missing, thus, even if the tape showed him removing tools from the box on October 31, 2019, that evidence was insufficient to prove that he stole the tools because there was no evidence that he did not return them.
Naturally, Goldman moved to strike at the end of the Commonwealth’s evidence. The trial court then opined that there was “some confusion” about the date of the video, but that a “sufficient foundation” had been laid to establish that the taking occurred on October 31, 2019. The court said it would put the matter down for sentencing but “may end up finding him not guilty if the Court is not satisfied there’s sufficient reference to the date, but I’m going to need to review the transcript for that.”
At the sentencing, the trial court stated that it had concluded the proponent of the video had simply misspoke, and that the date he had reviewed the video was January 31, 2020. Conceding that there was no evidence as to the date the video was taken, the court concluded that the Commonwealth was not required to establish the date the video was taken. The court also didn’t really address the issue of whether proof that Goldman removed tools from a box which he was permitted to do and that the tools ultimately went missing was sufficient to establish that he must have taken the tools.
Before getting to the Court of Appeals basis for reversing the decision, let me point out what I view to be the real problem with this case, and its got nothing to do with what the evidence did not did not prove. It has to do with the fact that Goldman was charged under Code § 18.2-95, which is the “simple larceny” statute. But if Goldman was authorized to take the tools from the storage box for his work, he could not have committed simply larceny. What he should have been charged with was “embezzling” the tools. Now most people assume embezzlement involves only the taking of money, or something like money such as a check. But embezzlement includes any property that comes into someone’s possession “by virtue of his office, trust, or employment” and the tools clearly fall into that category. It’s true that embezzlement is “deemed” to be larceny and is punished the same way, but it requires an entirely different method of proof. Apparently, however, Goldman and his counsel were content with the charge of simply larceny (perhaps because they intended to argue that because Goldman was authorized to take the tools, his doing so was not contrary to the rights of the true owner), and then the Commonwealth handed them the gift of extremely muddled evidence.
The Court of Appeals first discards the Commonwealth’s efforts to rehabilitate its evidence by noting, for example, that the file name of the video included the October 31, 2019 date (actually it included “20191031”), but the Court notes that the filename was not offered into evidence, nor was it verified that the filename established the date the video was taken. The Court further notes that it was the Commonwealth that elicited that the date of the video was January 31, 2019 and that no reference to the video having been made on another other date was mentioned prior to the close of the evidence. Likewise, the supposition that the witness simply misspoke and meant to say that he review the video on January 31, 2020, the Court notes that this supposition is not supported by the witness’ testimony, has he admitted that he was unsure of the date he reviewed the video, but specifically testified that the date the video was taken was January 31, 2019. However, reasonable it might be to assume that the witness was confused, the Commonwealth is stuck with the testimony it elicited, not the testimony it wanted to elicit.
Without going into the analysis given above about embezzlement vs. simple larceny, the Court of Appeals does give Goldman a cherry on top by noting that the video only showed Goldman taking some tools from the storage box, which he was allowed to do. The video did not show Goldman taking the specific tools alleged to have been stolen not was the video sufficient to establish that Goldman was taking the tools with the intent not to return them. While this analysis was not necessary to overturn the conviction, it was probably added to point out that even though was can all agree that the witness was just mixed up about his dates (and the Commonwealth’s questions certainly didn’t help), the evidence was still insufficient. A cynical man would wish Mr. Goldman good use of the tools he didn’t steal . . . but your correspondent is trying to be less cynical.