Your humble correspondent was gratified to have more than one person comment about the dearth of posts in this space over the last seven weeks. In truth, I have more than once intended to get back into the swing of my weekly summarizing and occasional bloviating, but life kept getting in the way. Accordingly, I resolved to begin dealing with the backlog but addressing at least one opinion a day, but even at that rate it shall be April before I am caught up -- and while I have the best intention of doing more, we all are familiar with the infernal paving material that good intentions often become.
Fredericksburg Ambulatory Surgery Center, LLC v. C. Rosser Massey, III, M.D. (January 30, 2024), as you might guess from the title, is a dispute between a medical practice and a former participant therein. The issue is fairly straightforward -- Massey was withdrawing from the practice and sought redemption of his shares. The parties disputed the proper valuation of the shares, and the circuit court entertained a motion for partial summary judgment filed by Massey to adopt his valuation. The shareholder agreement required appraisal of the "whole company" while Massey maintained that the appraisal supported by the practice valued only his shares. He preferred an earlier draft appraisal that valued the practice as a whole, while the practice disputed that the "draft" constituted an appraisal. The court took no evidence other than to review the documents, then ruled that the terms of the agreement were unambiguous and the earlier draft was the only valuation that met those terms.
The Court of Appeals, Judge O'Brien joined by Judges Fulton and Callins, reverse in a short opinion the logic of which is inescapable. Summary judgment is only available where there are no material issues of fact in dispute. Unlike certain pre-trial proceedings where the court takes evidence and decides the issue on its merits, summary judgment can only be granted where the court need not make a judgment of credibility as to the facts. Here, the circuit mistook the issue as being whether the documents, which speak for themselves, were unambiguous. While it is true that no one disputed that the agreement, the appraisal and the draft appraisal were what they purported to be, the medical practice disputed whether the appraisal of shares was not also an "appraisal of the business" and also whether the "draft" was an appraisal at all. Even if the court might have been able to resolve these issues by examining the documents, summary judgment was the appropriate vehicle for doing so. The case is remanded for further proceedings.
Tina C. Rodrigue, M.D., et al. v. Loretta Butts-Franklin (January 30, 2024) again is the sort of title that suggests the nature of the case -- medical malpractice. The underlying issue, however, is one that is common to many cases -- whether the jury should be instructed on a duty to mitigate damages. Typically, there is no duty to mitigate damages proactively. In other words, the injured party is not required to seek out ways of mitigation that are not readily available to her. Although the Court, Judge Raphael joined by Chief Judge Decker and Judge Beales, affirms upon finding that the defendant failed to offer evidence of when and how the patient had an opportunity to mitigate damages and failed to do so and, thus, there was not the "more than a scintilla" of evidence to support the instruction, the opinion is more interesting for its discussion of the difference between the affirmative defense of contributory negligence and the assertion of failure to mitigate.
This discussion is interesting because it notes that the principal legal distinction is that contributory negligence must precede of be concurrent with the injury, while mitigation can occur only after there is an injury. Even more interesting is the observation that while both contrib and FtM are both referred to as "affirmative defenses," only the former must be pleaded in the answer. I would argue that because FtM can be raised within the case without have been raised in the answer, it really shouldn't be called an affirmative defense. Rather, I think it is merely a quantum that is to be considered in the assessment of damages. After all, at least under Virginia's system of fault, contributory negligence is an absolute bar to recovered, where as failure to mitigate merely bars recover to the extent that damages could have been avoid through reasonable efforts.
John B. Russell, Jr. v. Commonwealth of Virginia (January 30, 2024) is a pro se appeal. Mr. Russell was appealing his conviction by nolo contendere plea to a charge of practicing law without a license for which he received a 6 month sentence and $2,500. The conviction happened on September 24, 2021. Russell was represented by counsel, but filed his own motion to vacate the conviction and withdraw his plea sometime between September 24 and October 1. On October 1 the circuit court entered an order suspending the execution of the sentence to December 17, 2021, noting also that Russell's counsel had withdrawn from the case.
On December 17, 2021, the court entered an order continuing Russell's motion. A hearing was finally held on March 31, 2022, and on April 18, 2022 the court entered an order denying the motion and ordering Russell to report to jail on April 15. Russell then moved the court to reconsider its denial of his "stay of execution," and after a bit more wrangling the case was finalized and Russell appealed.
Those of you who know that italics should be used sparingly and only to denote words of great import has probably already cottoned onto how Judge Callins, joined by Judges O. Brien and Fulton, resolved this case in under 6 pages. The October 1, 2021 order suspending the execution of the sentence imposed by the September 24, 2021 conviction order. It did not suspend the conviction order. Because no order had been entered modifying, vacating or suspending the conviction itself, the circuit court lost jurisdiction to consider any substantive issue related to the case 21 days after the entry of the order.
Before you get on you high horse and start saying "form over substance!", let me remind you that trial courts speak only through their orders, and suspending a sentence is something quite separate and apart from suspending the order that imposed that sentence. Indeed, by statute a court has authority to suspend the execution of a sentence well after the 21 day period of Rule 1:1 -- that statute in fact requires the court to do so. Its Code § 19.2-319, which provides that once a court is advised that the defendant has "an intention to apply for a writ of error, the circuit court shall postpone the execution of such sentence for such time as it may deem proper." Since appeal notices do not have to be filed for up to 30 days, there will obviously by a 9-day period where the court lacks jurisdiction to suspend the conviction order but must suspend the execution of the sentence. There are other cases where the court can suspend execution as part of its duty to superintend its order.
So perhaps the wording of the order was a scrivener's error and the judge meant to suspend the conviction, rather than the sentence. Russell certainly didn't help that argument when he later referred to the relief he was seeking as a "stay of execution." In any case, the order says what is says, and the Court of Appeals correctly determined that jurisdiction was lacking both as to the entry of the order and the power of the appellate court to review its entry.
David W. Fauber v. Town of Cape Charles, et al. (January 30, 2024) reminds that the adage "all politics is local" is certainly true in Virginia -- and more specifically in this case, the Eastern Shore. Cape Charles is a town of just over 1000 with a town council of 6 and a separately elected mayor. Cape Charles uses a town manger form of government, but its charter provides that when that office is vacant, the powers of the manager devolve onto the mayor. During one such interregnum, the mayor fired the town's director of public works and utilities, Fauber. Fauber sued the town and mayor proposing the novel theory that the charter's provisions giving the mayor the power of the town manager violated Article VII, § 6 of the Virginia Constitution which prohibits an elected officer of a governing local body to hold any office filed by the government body. The circuit court granted summary judgment, finding that it was undisputed that the mayor had not been made the town manager, but was only exercising the authority of that office which was the governing body's power to delegate.
Given the Court's decision in Fredericksburg Ambulatory, supra, you may be surprised to learn that the Court in this case, Judge Raphael joined by Chief Judge Decker and Judge Huff, have no issue with this case being proper for summary judgment. After all, you might argue, wasn't Fauber disputing the "fact" that the mayor was action Town Manager? Well, yes, but actually no.
Two of Fauber's four assignments of error argued that there were material issues of fact in dispute, but the Court found that these issues were not ones of fact, but of law. First, whether the mayor was serving as town manager or merely exercising the authority that would normally be delegated to that office as was very clearly stated in the town charter, which is approved by the General Assembly, and as such is presumed to be constitutional. Moreover, while the mayor lacked the power to eliminate the public works office (which was done by the town council later), there was no dispute that one of the powers of the town manager was the hiring and firing of town employees.
I must say that I was honestly surprised to learn that Cape Charles has the resources to employ of town manager and a director of public works (as well as a police chief) and enough other employees that it has a human resources manager. Roanoke County, which as a population almost 100 times that of Cape Charles has a board of supervisors of just 5, and while it has many municipal employees, it has a tax base to support them. I wonder even more about Clinchport, with a population of just 64, the smallest chartered town in the Old Dominion.
The Court of Appeals issued 5 published opinions last week, which due to pressing matters were not summarized in this space. Today the Court released 8 (!) more published opinions, so we got some summarizin' to do. The volume may keep my usual piquant observations to a minimum (but it is unlikely).
It is a little known fact, but a forensic opinion regarding the precise cause of death is not necessary to establish that a death was caused by another person's criminal agency. See, e.g., Bowie v. Commonwealth, 184 Va. 381, 390 (1945). It is popularly known that one can be charged with the murder without a body having been found, so no autopsy could be performed. But where an autopsy is performed and the cause of death is given as "by natural causes" or "undetermined," it is a bold prosecutor who seek a murder indictment. Even if the indictment is obtained, the defense is sure to call the coroner (originally the office was "crowner" as these officials in Medieval England were officers of the Crown) and use the lack of a finding of homicide as raising a reasonable doubt.
James D. Shaw, a/k/a Roscoe James Shaw v. Commonwealth of Virginia involves the infrequently prosecuted offense of concealing "a dead body with malicious intent and to prevent detection of an unlawful act or to prevent the detection of the death or the manner or cause of death," a class six felony. Code § 18.2-323.02. The corpse in this case belonged to James Fisher, Shaw's romantic partner of several years. Fisher died sometime on the evening of May 5, 2020 in the apartment to couple shared. Several others had been present during the evening including Moika Nduku.
Despite the body being "battered, bloody, and bruised," the coroner did not rule the death a homicide, listing the cause as undetermined. The coroner could not rule out that the victim died of a seizure, to which he was prone, and choked on his own tongue nor could he say whether the blunt force trauma that occurred prior to death would have contributed to the death.
Between May 5 and 8, Shaw kept the body in the apartment wrapped in a shower curtain. He cleaned blood and other evidence of the struggle that had resulted in Fisher being battered. During this time, Shaw's behavior could be described as unusual and in retrospect incriminating as he exchanged messages with Nduku which used innocuous terms about cleaning the apartment and "moving furniture." Nduku also advised Shaw to keep the air conditioning in the apartment on its lowest setting.
Shaw behavior became increasingly bizarre as observed by a neighbor and acquaintance, who was able to deduce that something had happened to Fisher. Although Shaw asked the neighbor to give him time to call the police himself, she called police shortly afterwards while Shaw then went to the home of another acquaintance and admitted that he and Nduku had beaten Fisher to death. This acquaintance also called police.
Police arrived in response to one or both calls by the acquaintances, but Shaw would not allow them to enter the apartment. Shaw told police that Fisher had suffered a seizure and had been taken to the hospital. While there, additional police officers arrived based on a report received from a probation officer who reported that one of his probationers has reported that Shaw had said that he had a dead body in his apartment. Shaw left the apartment.
Police secured the area, determined thatFisher had not been admitted to the hospital, and obtained a warrant. Upon entering the apartment, they found Fisher's body. Shaw surrender to police on May 10. He made several incriminating statements to police.
Following the autopsy report which was unable to rule the death a homicide, the Commonwealth indicted Shaw for a violation of Code § 18.2-323.02 for his concealment of the body. Shaw was convicted by a jury.
On appeal he challenged the circuit court's instruction on malicious intent and how it was to be applied, the sufficiency of the evidence to prove malice and whether the statute was unconstitutionally vague. The Court of Appeals, Judge Raphael joined by Judge Cuasey and Senior Judge Clements, find that the statute uses this term in its traditional sense and that it was properly defined and applied by the trial court. The Court also found that statute was not vague. Likewise, the Court found that the evidence was sufficient to show that Shaw acted with malicious intent in concealing Fisher's body.
During trial, Shaw sought to present mental condition testimony under Code § 19.2-271.6 to negate evidence of mes rea. The circuit court ruled that Shaw failed to establish how evidence of his alleged mental health issue would negate the mens rea of intent. In finding that the circuit court did not err, the Court of Appeals discusses the application of Code § 19.2-271.6 in what to date is the longest consideration of this relatively new evidentiary rule. The discussion, which is extensively annotated, will no doubt prove to be a seminal case for arguing for (and against) the introduction of such evidence in future cases -- and may form the basis for a petition to the Supreme Court which has yet to offer its opinion on the statute.
Finally, the Court addressed challenges to the circuit court's refusal to order a bill of particulars and to exclude evidence "of unlawful acts, manner or cause of death, and other adjudicated or unadjudicated criminal acts." Both these rulings being committed to the sound discretion of the court, they were affirmed.
Shannon B. Boyette v. Carrie E. Sprouse is a vehicular personal injury case in which the jury found for the defendant after bring instructed on the sudden emergency doctrine. Details of the accident are very precise because the car in which Boyette was a passenger had a dash-mounted camera. The video showed that on a dark and winding road, the vehicle approached two vehicles stopped on the opposite side of the road (whether they were in the lane of travel on nearer to the curb is not clear as at one point the opinion says the cars were "parked" but also they they were "in the opposing lane"), with their headlamps burning and the rearmost vehicle's high beams on, blinding the driver who removed her foot from the accelerator.
As the car slowed, a dog suddenly appeared immediately in front of the vehicle and was struck. The driver continued forward at 5-10 miles per hour. Shortly thereafter the vehicle was struck from the rear by a vehicle driven by Sprouse. Sprouse testified that she was also blinded by the headlights from the cars on the opposite side of the road and did not see the vehicle in front of her slow. She estimated her speed at 45 miles per hours and the distance at which she had been traveling behind the other vehicle as two care lengths.
Boyette sued Sprouse for injuries he sustained in the accident. Sprouse gave notice of intent to present a sudden emergency defense. At the close of the evidence the circuit court denied Boyette's motion to strike and for a directed verdict of negligence and submitted the case to the jury with an instruction on sudden emergency. After the verdict for Sprouse, Boyette appealed the refusal of the motion to strike and the granting of the sudden emergency instruction.
The Court of Appeals, Judge Fulton joined by Judges O'Brien and Callins, affirm. As there was sufficient evidence to submit the issue of negligence and the defense of sudden emergency to the jury, it is self-evident that if the giving of the instruction was correct then so to was the denial of the motion to strike, and the Court addresses the issues in that order. Sudden emergency does no negate avoidable negligence -- rather, the issue is whether the occurrence of the factors that constituted the emergency combined to deprive the defendant of the opportunity to avoid the accident even if acting as would a person of ordinary prudence under those circumstances. To find that the defendant confronted a sudden emergency, the jury must find that prior to the occurrence of the emergency the defendant was not already acting in a negligent matter that contributed to accident and that upon encountering the emergency acted in a prudent manner yet could not avoid the accident.
Boyette contended that neither the blinding light of the stopped vehicles nor the appearance of the dog in front of the leading vehicle constituted an emergency for Sprouse. The Court finds, however, that while it might be true that the appearance of an animal in a roadway is not a sudden emergency for drivers of vehicles following the one encountering the animal when that is the sole basis for asserting an emergency and that in other cases the incident of being blinded by oncoming headlights is likewise not deemed a sudden emergency, each case must be based on the totality of the circumstances of the particular case. Here, the jury could have found that the emergency was caused by the convergence of an animal entering the roadway and causing the lead vehicle to slow or break suddenly combined with the following driver being blinded by the oncoming headlights on a dark and winding road. While it is true that had Sprouse been traveling at an excessive speed or following too closely, the court could have struck her evidence on sudden emergency finding that he prior negligence was a contributing factor to the accident, this would normally be a question for the jury.
Markees Gross, s/k/a Markees A. Gross v. Commonwealth of Virginia when can police conduct a protective sweep of a stopped vehicle. In a short opinion, Judge Beales, joined by Judges Humphreys and Lorish let us know.In the wee hours of November 1, 2021, to Richmond City police officers were patrolling in a high crime area. If I had time for for piquant commentary, I might ponder whether the City of Richmond as a while is not a high crime area -- especially now that the General Assembly is in session -- so its fortunate that I don't have time for such thoughts.
A vehicle was observed blowing past a stop sign and through an intersection at a high rate of speed. Gross, the driver, eventually stopped after a four block pursuit. The officers testified that there had been ample opportunity for Gross to stop earlier and that the length of the chase was "more than [they were] comfortable with." The windows of the vehicle were heavily tinted and the officer's used the patrol car's take-down lights to illuminate the interior of Gross' vehicle. As they approached, Gross reach down to his left and contorted his body, then reached into the back seat area then back to the driver's side door panel. Judge Beales takes about 2 pages to review the law for protective sweeps and another two to explain how this case fits neatly into the category of circumstances where we yield the right of privacy in favor of protecting the safety and lives of police officers.
Gross, who appeared very nervous (umm . . . it was an after-midnight traffic stop), denied that there were any firearms in the vehicle. Gross was removed from the vehicle and handcuffed and patted down. When advised that the police would conduct a protective sweep of the car, Gross suddenly remembered that it was his girlfriend or his wife's car (presumably, the officer could recall which term Gross had used . . . or maybe Gross was not sure which lady owned the car) and therefore he wasn't sure, but maybe there was a gun in there somewhere. It turned out to be in the glove box. And Gross turned out to be a convicted felon.
Gross moved to suppress the fruits of the warrantless search of his vehicle, and when that motion was denied, entered an Alford plea preserving his right to appeal. Judge Beales takes two pages to review the law of the level of reasonable belief that a suspect is dangerous and may gain immediate control of weapon within the vehicle. It takes another two pages to reiterate the facts that place this case squarely into the zone where we require people to yield their right to not be subject to warrantless searches in favor of protecting the safety and live of law enforcement officers.
Taylor Amil Wallace v. Commonwealth of Virginia is an en banc rehearing of a 2-1 decision. The Commonwealth was the loser (more or less) in the panel decision from February of last year and got the Court to agree to a rehearing en banc. Code § 18.2-152.3 makes it a crime to access a computer network without authorization for a fraudulent purpose. Wallace used his own ATM card to access his bank account from what we used to call an "autoteller" (see how I avoid using ATM twice in the sentence -- read on for why this was not merely a stylistic choice) and then deposited fraudulent checks into his account. The majority found (Judges Ortiz and Lorish) found that because he used his own card to access his own account, there was no evidence that he access the computer network without authorization. Judge Athey dissented. First, he addressed an issue skirted by the majority -- is an ATM a "computer" when used to access the bank's computer network. His take was interesting -- he found that "autotellers," that is ATMs that can perform functions other than dispensing cash and checking balances (like those often found in hotel lobbies, convenience stores and strip clubs, or so I am told) for outrageous fees are computers. He also would have found that using an ATM to deposit a fraudulent check, even into one's own account (or perhaps especially into one's own account) is not an authorized use of said computer and its network.
The en banc decision is also from Judge Ortiz, joined by Chief Judge Decker and Judges Beales, Huff, O’Brien, AtLee, Malveaux, Fulton, Causey, Friedman, Chaney, Raphael, Lorish, and White adhere to the panel majority's view that "without authorization" refers to the method of accessing the network, not the use made of it. Judge Athey is joined by Judges Humphreys and Beales in finding that this type of ATM is a computer and Wallace's authorization to access the network was limited to lawful transactions.
A quick count of those in the majority and dissent gets to 16. Who's missing? That would be Judge Callins, who concurs in the result, but would limit the decision to the issue not addressed by the majority -- is an ATM a computer. Judge Callins finds that, at least as the record established the functionality of the ATM in this case, it does not meet the definition of a computer under the statute. I anticipate the Commonwealth will apply to the Supreme Court for review.
In United Continental Holdings, Inc. v. Molly Sullivan Judge Callins, joined by Judges Chaney and White, tackle the ever vexing issue in Workers' Compensation of when an injury arises out of and in the course of the employment when the employ is walking to or from their car which is parked in an area not under the control of the employer. There are easy cases, as when the employee chooses to park in a private or public lot and then walks on public sidewalks to the place of the employment and is injured well off the property -- clearly that's not out of and in the course of the employment. At the other extreme is the obvious example of the employee being required to park in a lot owned and maintained by the employer, even if the lot is on the opposite side of a public street and the employee is injured while attempting to cross the street using the most direct, lawful route, that will be compensible.
This case falls just about square in the middle of that spectrum. Sullivan worked for United Continental in ground operations at Dulles International. The airport authority provides free parking for employees of the various companies that have service at Dulles or work in the concessions. To get to the airport from this lot, employees can take a covered sky bridge to the third level of the terminal or walk across the ring road that separates the terminal from the garage on the ground level. Sullivan was required to "clock in" on the third level and chose to take the sky bridge as it was more convenient and, in her view, safer than crossing the road, which was always busy. Having been to Dulles many times -- and I know this will shock you -- I can attest that many cars, buses and airport shuttle vans do not drive at moderate speeds or heed the signs requiring them to yield to pedestrians.
One day while following her usual path, Sullivan slipped on water that had somehow collected on the walkway and suffered injuries to her foot, knee and arm. She sought compensation for her medical care, recovery and temporary disability. Continental disputed the claim and a deputy commissioner ruled that Sullivan's path from the garage to where she clocked, which was almost entirely under the control of the airport authority and, thus, did not occur in the course of her employment because the route was too long to be considered part of the employer's "extended premises." The Commission reversed this decision and Continental appealed.
The Court of Appeals affirms this judgment. First, the Court notes that the extended premises doctrine does not implicate the "going and coming rule" which applies only when the employee is going to or coming back from a worksite but is not then at the workplace. When considering whether the parking area and path under the control of another, the question is do these areas constitute part of the workplace by extension, thus the employee is already at the workplace -- not going to or coming back from it.
The next distinction is between parking areas and passageways. The former present special hazards which, not being subject to monitoring or control by the employer, may warrant finding that the premises does not extend to them, or to the public streets adjoining them. Various factors are considered for parking lots such as the proximity to the workplace, whether the employee us required to park there and if so whether there is a designated area or space, etc.
Once the employee is leaving the parking lot and is on a privately controlled passageway, the analysis shifts in favor of finding that the premises does extend from the employer's premises. Continental contended that because Sullivan was still 80 yards from her clock-in station and had just stepped from the parking lot on the walkway, she was too distant from the workplace for the premises to be extended to her. The Court disagrees, noting that "whether a location constitutes an extension of an employer’s workplace does not turn on the distance from the passageway to the workplace but on the character of the passageway on which the claimant fell."
Sometimes you just get lucky -- but luck may not be what you need. This afternoon I was waiting for a sentencing hearing in circuit court to begin. I was to be appointed appellate counsel for the defendant and had consulted with the trial counsel about a motion to reconsider so that we could be certain the issue we wanted to raise was preserved. While I waited, I perused the opinions released that morning and found Jaquantis Daeshon Yellock v. Commonwealth of Virginia in which the issue was whether the Commonwealth had proved that Yellock was a "family or household member" as that term applies to Code § 18.2-57.2, the domestic assault statute. Guess that the issue we wanted to raise in the motion to reconsider (and subsequently on appeal) was? You guessed it (I assume) -- Had the Commonwealth proved that the defendant was a family or household member of the victim.
Code § 18.2-57.2 requires a little explanation -- because "family or household member" covers two different classes of people. "Family member" means just what you would think a relation by blood of the first order of consanguinity or the bonds of holy matrimony (or the civil equivalent) whether living in the same household or not. A "household member" however includes person related not by blood or marriage who reside in the same household or have done so in the previous 12 months. It is not required to show that they were "living in sin," that they were besties, or even that they tolerated each other.
In Yellock's case, the victim was undoubtedly his "girlfriend" but during the trial it was never established that they were cohabiting. Also, by the time of the trial, she had forgiven him and testified that the offensive touching which, according to other witness testimony, left a visible mark, was merely a playful, loving pat. The incident occurred at gas station adjoining a grocery store and was observed by many other customers and an officer called to the scene say the mark on the victim's neck.
The trial court was focused on the credibility of the victim and found that in light of the evidence that contradicted her potentially biased testimony, Yellock had assaulted her. Having reached this conclusion, the court found Yellock guilty and neither his counsel nor anyone else in the court said, "what about the domestic situation, judge?"
On appeal Yellock has two claims -- the evidence was insufficient to prove that he and the victim were household members and that the court erred in not accepting the victim's testimony that the touching was not unwanted of offensive. The Court of Appeals, Judge Friedman joined by Judges Humphreys and White, agrees that there was simply no evidence of cohabitation -- it is not sufficient to infer that there was cohabitation merely because of a romantic relationship.
So where does that leave Yellock? Is he off the hook entirely? No, because the Court holds that the judge was within his province to discount the testimony of the victim where there was clear evidence that contradicted it and she had a motive to fabricate. Because simple assault is a lesser included offense of domestic assault, the case is remanded for re-sentencing on simple assault.
Back to the sentencing hearing this afternoon. The trial attorney dutifully made the motion and mentioned that a decision of the Court of Appeals had just been handed down. The learned trial judge had apparently spent his lunch hour reading the new opinions and stated the holding. The Commonwealth responded that there was sufficient evidence of past cohabitation within 12 months. But why, queried the judge, does it make a difference to the Commonwealth as both offenses are class one misdemeanors? The Commonwealth responded that Code § 18.2-57.2 has the a third offense enhancement and Yellock might commit the same offense twice more. The judge decided to grant the motion and reduced the offense to simple assault.
Now that was lucky . . . not. You see, the purpose of the motion was not get the domestic assault charge reduced to simple assault, but to convince the judge that the Commonwealth had proven the defendant and victim were cohabiting. Why? Because he was also charged with breaking and entering and we were actually arguing that the proof of cohabitation meant that he had a possessory interest in the shared living space and could not be guilty of breaking and entering. I am not 100% certain that the judge wasn't thinking several moves ahead and wanted to be sure that the B&E would hold up on appeal.
It's unusual for an unpublished decision to get a review by the full Court of Appeals even where there is a dissent. It's even more unusual for the original dissenter to pick up just one more vote -- meaning that the en banc was granted by some judges who agreed with the result (or changed their minds to that view after some thought), but that's what happened in Dana Mark Camann, Jr. v. Commonwealth of Virginia. The result is that an unpublished opinion that would have been little more than a blip on defense attorneys' radar is now a 15-2 published decision that will give the Commonwealth trouble in its efforts to ladder up charges for drug possession.
The issue is pretty straight forward -- if a defendant is found in possession of a white powder that tests positive for two different controlled substances, does the Commonwealth have to prove that the defendant was aware that both substances were present in order to convict him of possession of both?
Before revealing the result of the appeal and the reasons given by the 15 member majority and the 2 member dissent, I will state for the record I am troubled by the way defense counsel chose to argue the case. From my perspective, the issue is not whether the Commonwealth needs to prove that the defendant knew the character of both substances, but whether the possession of a compound or adulterated substance can be charged as as if the defendant possession of two pure or unadulterated substances separately. I believe the correct answer is where a substance is shown to be a mixture (whether deliberately compounded or accidentally adulterated), this constitutes a single instance of possession of a controlled substance. There was no way to separate the two substances in the powder. That, to my mind in ONE substance being possessed, not two. But that was not the argument made, so let's turn to the argument that was.
Camann contended that while was guilty of possessing fentanyl, he had no idea that the fentanyl was mixed with etizolam. Indeed, he said he had no idea what etizolem was. In case you are interested, it's chemically related to benzodiazepines and is commonly used to treat insomnia and anxiety -- but not in the US where it has not been approved for clinical use. Its illicit use is sufficiently of concern that the NIH has published a study, Fentanyl, etizolam, and beyond: A feasibility study of a community partnership using handheld Raman spectrometry to identify substances in the local illicit drug supply. The Commonwealth contended that because Camann knew that he possess fentanyl, the mens rea for that crime transferred to his possession of eitzolam.
In the circuit court, the judge sided with the Commonwealth. In the original panel decision, Judge Raphael, joined by Judge Chaney, found that the Commonwealth failed to prove that Camann knowingly possessed the eitzolam, while judge Athey dissented. In the en banc, Judges Raphael and Chaney pick up 13 additional votes from Chief Judge Decker, and Judges Humphreys, Huff, O’Brien, AtLee, Malveaux, Fulton, Ortiz, Causey, Friedman, Lorish, Callins and White. Judge Athey is joined by Judge Beales.
The majority reasons that the statute in question, Code § 18.2-250, requires proof that the defendant knowingly or intentionally possesses a controlled substance. Thus, the be guilty of that offense, the Commonwealth must show that the defendant had the requisite mens rea to posses "a substance," meaning that he was aware of the particular character and nature of the substance. Here, the evidence proved that Camann was aware of the character and nature of the fentanyl, but had no awareness that etizolam was also present. Mere possession of a substance is not sufficient to prove that awareness.
The problem with the majority's opinion, which Judge Raphael anticipates and addresses, is that there is a line of cases that says its sufficient that the defendant know the illicit character of the substance even if he does not know its specific nature. For example, let's say I agree to deliver a packet containing a white powder which I believe to be fentanyl, but its actually heroin. I am clearly not guilty of possessing fentanyl, but the majority would say that I was guilty of possessing a controlled substance, which happened to be heroin. However, for Judge Raphael, it would stretch this principle too far to allow my accurate belief that I possessed fentanyl to serve as a basis for saying I intentionally possessed cocaine as well. The dissent obviously does not have a problem with stretching the principle.
This brings me back to my original problem with how this case was argued. To demonstrate my concern, let me propose four scenarios:
Defendant possess white power he believes to be cocaine, but it is in fact heroin. The majority and dissent agree that the defendant is guilty of possessing a controlled substance.
Defendant possesses white powder which he believes to be cocaine, but is in fact a mixture of cocaine and heroin. The majority says he is guilty of possession of one controlled substance, cocaine, but not guilty of possessing heroin; the dissent says he is guilty of both.
Defendant possesses white powder which he knows to be a mixture of cocaine and heroin. The majority and dissent agree he is guilty of possession of TWO controlled substances.
Defendant possesses two identical packages of white powder which he believes to be cocaine, but one of which is in fact heroin. The dissent would say he was guilt of possessing two controlled substances, while the majority would say he is . . . what?
Clearly, there is a problem with the majority's logic if the defendant in 4 is guilty of possessing only one controlled substance, because that runs counter to its agreement in scenario 1 that there can be transferred mens rea when the defendant is mistaken about the exact character of the substance while still believing it to be a different illicit substance. But the same problem arises if the majority says that the defendant in 4 is guilt two possession offenses, because that doesn't gibe with the majority's outcome in 2, which is this case.
The problem here is that word "substance" means two different things. It can mean "a particular kind of matter with uniform properties," or it can mean "the real physical matter of which a thing consists and which has a tangible, solid presence." The former meaning clearly defines a "pure" substance, while the latter defines an object which has constituent parts, but which we recognize as a single "thing."
Instead of talking about drugs, let's talk about cars. If I steal the catalytic converter from a car to sell for its platinum, I am guilty of larceny and selling stolen property. If I steal the car itself, and sell it, again, I am guilty of larceny and selling stolen property. But suppose I steal the car, and then remove the radio, the catalytic convertor, the water pump, the seats, and the spare tire and sell them all to different people. How many larcenies have I committed? One, right? I might be guilty of multiple acts of trafficking in stolen goods, but I stole the car, not the radio, the catalytic convertor, etc. And I am quite certain that if I steal the car and then sell the car, I am NOT guilty of stealing and selling the radio, the catalytic convertor, etc.
Now go back to drugs. I have a compounded drug and I know it contain five different chemicals that individually are controlled substances. I have no problem with saying that every individual transactions in which I sell that compounded drug is a separate distribution offense. I have a big problem with the Commonwealth saying I am possessing five different drugs, and I would have a HUGE problem with the Commonwealth saying I was distributing five different drugs.
I believe the real issue here is that the United States has become addicted to the idea that the War on Drugs is winnable if we just find more ways to charge people with possessing and selling illegal drugs. Statistics and Sociology have long shown that treating drug abuse as criminal problem does not stop drug abuse, and therefore does not stop drug crime. What does work is addressing the sociological issues that drive people to use drugs and treating those who are addicted. Eliminate the demand and you eliminate the need for suppliers.
By comparison to the en banc, there is very little to get agitated about in the other two published decisions this week. Sh'Kise Fazion Cappe v. Commonwealth of Virginia gets published, I think, because it was a high profile crime and a current "hot topic" in criminal cases -- "non-identification testimony". Cappe was accused of participating in the murder of Stephen White in the City of Newport News in 2022. In a region of the state where such killings are distressingly common, this case caught the public's interest because the incident was captured on three video surveillance cameras, and images from these videos were broadcast by the news media. Shortly after the first images were released, Cappe texted with an accomplice telling him to "get low" and assuring him that he had gotten "rid of everything ASAP."
The images lead to tips that resulted in the police finding Cappe's car, which was identified as that being driven by the suspects and cartridge cases, but not the gun. Apparently, Cappe had not considered the cartridge casings to be part of "everything" he was supposed to get rid of.
Cellphone data also placed Cappe at the scene of the crime at the time of the murder. (Note to self: When planning to commit a major felony, ditch the cellphone or better yet, put it in a bus head away from the crime scene).
As you can guess, Cappe was arrested and charged with the murder and several other crimes along with the accomplice. Cappe successfully argued pre-trial to exclude testimony of a police officer who said that he recognized Cappe as one of the perpetrators in the videos. Not satisfied with this, Cappe then sought to present lay witness testimony that Cappe was not the person in the video.
The relevant case is Bowman v. Commonwealth, 30 Va. App. 298 (1999), in which the Court held that a lay witness who is sufficiently familiar with a defendant can testify with respect to whether an image depicts that person. Here, the trial court held that Bowman does not extend to "non-identification" testimony.
The Court of Appeals, Judge Friedman joined by Judges Fulton and Chaney, extends Bowman to allow non-identification testimony. However, Judges Friedman and Fulton find that the error in excluding the testimony was harmless in light of the overwhelming evidence of guilt. Judge Chaney dissents, contending that identification of Cappe was the central issue asserted by the defense in the case and the non-identification testimony was therefore essential and its exclusion was not harmless. Expect this to go en banc and probably to the Supreme Court. I would not be surprised to see the Commonwealth seek to overturn Bowman rather than risk allowing non-identification testimony.
The last case released this week is a Workers' Compensation appeal involving an employee of the Department of Corrections. The facts are undisputed, so the issue is easily set out. Lucinda Walker was injured while on the job and the Commission awarded medical benefits. The DOC also assigned Walker to light duty while paying her equal wages, although this was not part of the award.
Two years and 12 days later, while she was still on light duty, Walker filed a claim for temporary total disability based on a change in condition and sought retroactive application of the award. The DOC contested the claim, asserting that it was time barred because a change in condition petition must be brought within 2 years of the last date on which payment of compensation is paid. The DOC argued, and the Commission agreed, that light duty for full pay was not "compensation" when it was not required by the award.
Judge Lorish, joined by Judge Humphreys and Beales, reverse and remand for an evidentiary proceeding. The Court holds, citing darn good precedent, that voluntary payment of compensation, including full wages for light duty, is sufficient to toll the statute of limitations on filing a change of circumstances.
Frankly, I am shocked that the Commission dismissed the claim. The opinion sets out the history of the "every evolving" status of the law with respect to the statute of limitations for both filing claims and changes of circumstance petitions. The central theme of the changes to the law and the cases interpreting them is that the legislature wanted “to prevent employers from lulling partially disabled workers into a false sense of security during this two-year period by providing employees light duty work at their pre-injury wage for two years and then terminating the employee without liability for future disability benefits.” Scott v. Scott, 16 Va. App. 815, 819 (1993). While I am not willing to state flatly that I think that is what the DOC was doing when it agreed to let Walker have light duty for full pay, I am pretty ticked off that once she sought the change in circumstance, the Attorney General had the audacity to argue that the petition was barred. Scott seems to be definitive and other cases cited by the Court clearly show that today's holding is in keeping with the remedial purpose of Workers' Compensation.