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

The Most Frequently Ignored Advice -- "KEEP YOUR MOUTH SHUT!" ignored, and Easements Not Public

Today the Court of Appeals gives us two published opinions

Darren Thornton, s/k/a Darren Lamar Thornton v. Commonwealth of Virginia involves the attempted solicitation of a minor for prostitution. In case you were not aware "solicitation" does not apply to just the person offering sexual favors for a pecuniary gain (which doesn't have to be in the form of money), but also applies to the person making the offer of the pecuniary commodity.

As is so distressingly common in such cases (for the person seeking "companionship" that ts), here the person purporting to make the offer of sexual favors was in fact an undercover police woman who advertised on an online forum and claimed to be 19. Thorton responded and exchanged texts with "Emma" who "admitted" to being not yet 18. Alas, Thorton was not bright enough to recognize that he was being baited to commit a more serious crime than mere solicitation. He did, however, assert that he didn't "do under 18" and that he would meet "Emma" to "check her out."

When he arrived at "Emma's address," the police were there already. It isn't clear whether "Emma" was among the arresting officers. Thornton had $160 in cash, condoms, some "green leafy substance" and cigarettes.

Now, at this point, you are probably thinking Thornton has a good shot at beating the "minor" part of the charge and maybe even the solicitation too. First, he expressly said he wasn't interested in "doing under 18" and that he agreed to meet her only to "check her out." But the story does not end there.

If you are familiar with Prof. James Duane lecture (later developed into a book) "You have the right to remain innocent," you know that Duane desperately want's every American to learn what the right against self-incrimination means and how to exercise it by not exercising your jaw muscles around the po-po. Thorton must have missed the YouTube viral video, becuase he agreed to talk to police. And talk he did . . . right into a felony conviction.

Thornton started with a trope familiar to disgraced politicians and televangelists, claiming he had come there to counsel Emma. Eventually, we wound up admitting that he believed she was under 18, but also that they were developing a sexual relationship.

At trial and on appeal, Thorton nonetheless argued that the evidence failed to show that he under tool an act in substantial furtherance of the act of solicitation and also that the evidence failed to show that he knew or had reason to believe that "Emma" was under 18. These arguments went over like a lead ballon at the motion to strike and in a motion to reconsider.

On appeal, the arguments meet the same fate. Judge Chaney, joined by Judge Ortiz and Sr. Judge Haley, makes short shrift of the first argument as there were certainly plenty of overt acts -- the text exchange indicated that Thornton would provide money for sex, he brought condoms and cash to the expected meet, etc.

What gets this case published, I think, is Thornton's argument that since he offered money before Emma claimed to be under 18 and did not do so once she said she was not quite 18, he never solicited her when he might have believed she was a minor. The Court finds several faults with this live of reasoning, including the nature of the ad that "Emma" posted to the fact that Horton did not immediately withdraw from the communication when Emma said, "By the way dude, I'm jail-bait."

The other opinion clocks in at under 7 pages and comes to us from Judge Athey, writing for himself, Judge Ortiz and Sr. Judge Clements. Prasad Salunkhe, et al. v. Christopher Customs, LLC, et al. is all about a subdivision plat and whether it established an easement for the public benefit. I save you the suspense by saying that the circuit court found that it did not and the Court of Appeals agrees. The subdivision plat includes a notation on Lot 28

which refers to a “24’ Ingress-Egress Esm’t.” The subdivision plat also includes a notation for a “35’ Rad. Turnaround Esm’t” which is shown on Lots 28, 29, and 30. The parties are the owners of the respective lots.

Now I really wish the Court had included an image of the plat, because the opinion goes on to say that "[b]oth Lots 28 and 29 include 12-foot adjacent strips of land ('pipestems') which intersect with Appling Valley Road thereby giving both lots direct access to Appling Valley Road." While I could not get the plat, I was able to find the tax map:

The dispute was whether the easements over the pipestems and the turnaround easement which was partially on Lot 30, were specific to Lots 28 and 29 as the cross-dominant estates (with 30 being subservient to both for its share of the turnaround) or whether the developer had intended to create a public easement . . . in effect making the pipestems and turnaround a cul-de-sac in miniature.

The answer lies in the interpretation of the statute covering how pubic easements are created in plats and why the language here was definitely not specific enough to do that. While there were a number of reasons this was so, the main reason, IMHO, is that the county never manifested an intent to accept this alleged public easement (and didn't intervene in this suit to claim that it had). What the plat did was create a shared driveway for the two lots.

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