The Supreme Court of Virginia announced that it has granted five new appeals today. That may not seem like "big news," but its actually one more appeal than the court has granted in the last five months and the most appeals announced on a single day since July 14, 2020 when eight grants were announced. I don't keep quite as close an eye on the Supreme Court Docket as does the Sage of Virginia Beach, but I reckon there are 7 cases that have been argued and are awaiting decision and 12 cases (not counting any OJ or appeals of right, which do not show up on the "appeals granted" webpage) in the bullpen for argument in October or January.

I missed reporting on the new published opinions from the Court of Appeals last week due to commitments elsewhere, so let's start with those, starting with the 54 page (yes, you read that right) en banc decision in Dilliraj Bista v. Commonwealth of Virginia. That length is not surprising given that the original panel decision was 49 pages. At the time I summarized that opinion, I predicted that it would go en banc given that it was an issue of first impression analyzing an new statute. I know predict that it is likewise destined for a review by the Supreme Court of Virginia and may be even the US Supreme Court.

Why make such a bold prediction? Well first, this is a Confrontation Clause cases, and confrontation is always a hot button issue for the Justices of both Supreme Courts with jurisdiction over Virginia. Second, here is how the 17 judges of the Court of Appeals broke on the decision: Judge O'Brien authors a plurality in which Chief Judge Decker and Judges Beales, Huff, Malveaux, Athey, Fulton, and White join; Judge Humphreys, joined by Judge AtLee, concurs separately; and, Judge Lorish, joined by Judges Ortiz, Causey, Friedman, Chaney, Raphael, and Callins, dissent. That's an 8-2-7 decision -- technically its a 10-7 as the concurrence gave the plurality the votes need to affirm on the first part of the decision construing Code § 19.2 268.3, the concurring judges would not have reached the Confrontation issue.

Code § 19.2 268.3, which makes admissible at trial certain hearsay statements of child victims of specified crimes, was first enacted in 2016 and modified by the first Special Session in 2021. It appears that Bista was tried before the effective date of the 2021 amendments, but the Court does not make it clear whether this was so or whether the amendments have any impact on its decision.

As I recounted in the original summary, this case involves allegations of sexual abuse of an 11 year old special needs child with an approximately age/intelligence level of a 4 year old, through actively verbal. The circuit court determined that the child was not competent to testify, but nonetheless admitted the out-of-court statements made to a forensic examiner. As did the majority in the panel decision, a majority of the judges en banc find that Code § 19.2 268.3 does not require a finding that the out-of-court declarant is competent to testify. The plurality goes on to address whether the admission of hearsay under Code § 19.2 268.3 violates the defendant's right to confront a "witness" against him and concludes it does not, in part because Bista was allowed to cross-examine the victim when she testified at the preliminary hearing and the hearing on her competency as a witness, the latter of which was introduced at trial.

The concurrence wouldn't reach the confrontation issue, in effect finding that because the evidence is admissible hearsay does not fall within the realm of evidence subject to confrontation when the "witness" is a child. Relying on Ohio v. Clark, 576 U.S. 237

(2015), the concurrence would hold that hearsay of a per se incompetent child witness is admissible as hearsay and confrontation is not at issue.

The dissent takes the view that this case is about confrontation, which in the dissent's view was not adequately afforded in the preliminary and competency hearing. The dissent concludes that in the absence of confrontation of the victim's statements, the other evidence supporting her claims was not sufficient to over come the standard for harmless error where there is a violation of due process.

James Wenzel Forbes, et al. v. Jason W. Cantwell, the other decision published last week, is of a far less monumental nature as it involves an express easement. Thus, the only ones directly impacted by the case are the owners of the dominant estate (they one who can use the easement) and the owner of the servient estate (the one who has to allow it). Naturally, after a trial to determine just what the easement allowed the dominant holders to do, neither side was satisfied. The Forbeses, the dominant estate owners, appealed and Cantwell, the servient estate owner assigned cross-error.

The "estates" in question are two lots on Stoneview Circle in Lexington. The two lots were originally one, but subdivided in 2005 by the Forbeses a predecessor-in-interest, who happened to be Cantwell's parents, who sold one lot to Cantwell's predecessor-in-interest. In doing so, the deed included the following express easement:

Now, I would like you to look at two illustrations (not provided by the Court, but nonetheless presented for your edification since the Court's verbal description of the properties does not, in my humble opinion, do them justice). The first is the GIS tax map for Rockbridge County showing the two lots:

The loopy dark line on the map would appear to be the driveway in question. But now have a look at the Google Maps view of the same area.

First, I don't see the loopy driveway . . . or for that matter any driveway to Cantwell's house. More to the point, The Forbeses wanted an injunction barring Cantwell from installing "gates, fences, landscaping or plantings" in the easement or removing the same installed by the Forbeses.

In any case, Cantwell's parents subsequently sold their lot to the Huntsmans, who made expanded the driveway and in so doing removed some of the landscaping. Cantwell, meanwhile, had acquired the other property in a foreclosure. He filed an action against the Huntsmans, who were apparently in the process of selling their lot to the Forbeses, who were then drawn into the suit.

The circuit court ruled that the easement was ambiguous and permitted the introduction of parol evidence. Now I find that peculiar, as I see nothing particularly ambiguous in the language. Next, the court did something even more peculiar: it determined that "ingress-egress" element of the easement was was less than the 40' of the total easement and that improvements made by the Forbeses immediate predecessor-in-interest, the Huntsmans, violated the easement, awarding $5,000 in damages to Cantwell. The court also ruled that while Cantwell could not make any changes to the existing landscaping, the Forbeses were likewise barred from maintaining or altering it. In effect, the court declared the easement to be a "neutral zone" which neither side could encroach upon, except to the extent that the Forbeses could use the original portion of the driveway.

The Court of Appeals, Judge Causey joined by Judge Ortiz and by Judge Malveaux in part, first holds that the circuit court did err not in admitting parol evidence as to the limitations on landscaping. The majority disagrees, however, that both parties were barred from altering the landscaping, and remands the case back for a determination of the extent of the rights of the dominant estate to maintain or alter the landscaping. The majority also finds that the court erred in taking parol evidence regarding the driveway, holding that the entire easement is allowed for ingress and egress provided that this is consistent with the other purpose of maintaining a buffer.

The dissent argues first that the circuit court did not err in taking evidence as to the width of the ingress/egress portion of the easement and limiting it to the original driveway. The dissent also argues that the remand is beyond the scope of the Court's jurisdiction because neither party asked for such relief.

When I said that I saw nothing ambiguous about the language, I meant it. I think with out parol evidence the Court could have found that 1) the driveway was the limit of the vehicular ingress/egress easement and 2) the dominant estate could alter, but not completely remove, the landscape buffer. But, as the General Assembly hasn't given me a robe, I don't get a vote.

Today, the Court released two more opinions, both in criminal matters. Jeffrey Douglas Cheripka v. Commonwealth of Virginia is as unpleasant factually as Bista in that it also involves the sexual assault of a child, his step-daughter. Cheripka raised numerous issues on appeal related to admission of evidence and a jury instructions. These issues fall on the Court of Appeals, Sr. Judge Petty joined by Judges Raphael and White, on the usual standards applicable in such cases.

An issue which I have not seen before is whether the circuit court erred in refusing a request to give Cheripka access to the internet while he was incarcerated and awaiting trial. He alleged that he need this access to obtain evidence from "cloud storage" and prepare his defense. As you can probably guess from the nature of the request, Cheripka was, at least at the time he made the motion, representing himself -- always a bad sign. In this case, the problem is that Cheripka made no proffer of the evidence that he had "in the cloud" or how using the internet would have otherwise aided his case. The Court therefore finds that the record does not allow it to "competently determine error." So learning whether a pro se defendant is entitled to internet access will have to wait for another day.

Cheripka also argued that the circuit court erred in not ordering a pre-sentence psycho-sexual evaluation under Code § 19.2-299. While the court undoubtedly erred in failing to follow the dictate of the statute, the Court rules the error was harmless because the purpose of the evaluation is to assist the trial court in determining the appropriate sentence. Here, however, the only sentence was mandatory life imprisonment.

Finally, Cheripka challenged the mandatory life sentence as unconstitutional because his attorney "could do nothing to change the mandatory sentences," thus he was denied his right to counsel. The Court responds that the attorney (whom Cheripka had belatedly allowed to do his job), did argue against the imposition of a life sentence on numerous grounds and, despite not convincing the trial court to find such a sentence violative a due process, did a credible job. Assistance of counsel is not lacking merely because the law is not availing.

John Randolph Hooper v. Commonwealth of Virginia was convicted of involuntary

manslaughter and also of felony hit and run. What makes this case notable is that the vehicle Hooper was operating was while under the influence of intoxicating substances was not an automobile, but a "twenty-one-foot Boston Whaler"

The accident and death occurred when Hooper and a friend took the boat out late at night. At some point the boat struck a dock with sufficient force to split a timber piling in two. Hooper's friend was thrown from the boat. Hooper, stating that his friend was a good swimmer, left the scene of the accident. The body of the friend was subsequently found not far from the dock. The cause of death was determined to be drowning.

Hooper initially denied having taken the boat out that night and also lied to police about which boat had been used earlier in the day. Presumably, this was to keep the police from examining the Boston Whaler for damage. As evidence mounted that contradicted Hooper's statements. he eventually admitted to having been in the boat at the time of the accident, but maintained that he was very intoxicated and could not remember who was operating the boat.

Hooper was charged with felony murder, aggravated involuntary manslaughter, and

felony hit and run. The jury convicted him of involuntary manslaughter and hit and run. On Appeal, he challenged the sufficiency of the evidence on the ground that there was not proof beyond a reasonable doubt that he was the operator of the boat at the time of the accident.

The Court of Appeals, Judge Beales joined by Judges Huff and Chaney, affirm the jury's verdict. The principal evidence which allowed the jury to find that Hooper was the operator of the boat was from the negative inference to be drawn from Hooper's initial failure to admit his involvement. Additionally, there was evidence that Hooper was the only one who operated the boat at other times and the fact that he could clearly remember details of the accident and his actions immediately after, such as navigating back to his dock and putting the boat into a lift, to render his statement that he could not remember who was operating the boat to be not credible.

This tragedy was obviously preventable. Alcohol and the operation of any vehicle -- on land, in the water or in the air -- is a deadly combination. While this is a close case on the evidence, the substantial justice of the case is not close at all.

Hooper's parents reached a settlement with the family of the victim. The settlement was for $4,000,000 and came without any admission of liability.

Hooper was sentenced to 15 years in total with six years to serve. Hooper was 34 when the death occurred and spent most of the time awaiting trial on bond. Hooper was actually very close to getting a sweetheart deal. He was originally scheduled to enter a plea to with a guaranteed maximum sentence on one-year. That deal fell apart when the judge was alleged to have had improper ex parte communications with the prosecutor. The judge denied the accusation, but recused himself and the case was transferred to a new venue. Later, the prosecutor was found to have made material misstatements to the victim's family about the judge and the likelihood of a conviction. The prosecutor, who lost his re-election bid, agreed to a year's suspension of his license rather than face a full disciplinary hearing.