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

Lucy . . . You've Got Some Summarizin' to Do. Court of Appeals Issues a Slew of Opinions Over Two Weeks and the Appellate Lawyer's Blog is Behind in Summarizing Them.

Updated: Mar 22

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.

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