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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

After a Trip to Richmond, Three New Opinions From the Court of Appeals (and one order from last week

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.

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