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

The Tax Man Comes to Court, and Goes Away Empty Handed; Three New Opinions from the Court of Appeals

With the Court of Appeals sitting as a court of general appellate jurisdiction for almost 18 months, would think that there would not be many more “firsts” for the Court to get to, but today we get one of those remaining firsts taken care of – the Court decides its first tax law case. Commonwealth of Virginia, Department of Taxation v. 1887 Holdings, Inc. etc sees the taxman appealing from a grant of summary judgment allowing a multi-state taxpayer to file an amended tax return that alters the method of income apportionment from that used in the original return. Tax Law is akin to Administrative Law in one very important way – it is arcane and best left to the specialists. That having been said, your humble correspondent does not have quite the level of loathing for tax law that he reserves for Administrative Law. However, even without such disdain, this case is really nothing to write home about as it turns on that most common of statutory construction tools the “plain meaning of the statute.” The Court of Appeals, Chief Judge Graff joined by Judges Huff and Callins, affirms the judgment in favor of the taxpayer by observing that nothing in the relevant statute requires the taxpayer to stick to its original method of income apportionment when amending a return. In fact, if you think about it, one particular good reason for amending a return is because you realize that you overpaid when filing your return – and the law of taxation has one maxim that everyone should no – the law requires you to pay your taxes, but you are required to pay only the least amount which the government can require you to pay.

Marquay Christopher Alston, s/k/a Marquay Christopher Lee Alston v. Commonwealth of Virginia is an appeal from convictions for aggravated malicious wounding in violation of Code § 18.2-51.2 and discharging a firearm from a vehicle in violation of Code § 18.2-286. Although both incidents occurred on the same night, they happened at different locations and were tried separately, but were combined for briefing and argument on appeal.

Alston and his girlfriend attended a party in Radford. The opinion does not provide Alston’s age, but both the victim and his girlfriend are identified only by their initials to protect their identity as they were minors at the time. A.S., the girlfriend, became engaged is particularly aggressive cat fight with several women and, J.C. attempted to intervene, taking A.S. in a “half bear hug.” Alston took umbrage at the manhandling (boyhandling?) of his girlfriend, who was several months pregnant, and began punching J.C., who attempted to retreat, with Alston pursuing him and administering a pretty through beatdown which left J.C.’s teeth “mangled” and sending him to the hospital. J.C. lost six teeth.

Alston left the party and shortly afterwards gunfire was heard outside. Joshua Turman and a friend decided it was also time to leave. When Turman and the friend reached friend’s vehicle, Alston and two others “jumped in the backseat.” Turman drove to a convenience store to buy alcoholic beverages and “Alston pressured Turman to buy cigarettes.” As the group drove around, Alston, without warning, fired two shots out a car window, “terrifying” Turman.

Now I think it is fairly plain from this evidence that Alston was guilty of both offenses, so why is this a published opinion? Well, it’s because Alston has a pretty creative lawyer who reads statutes carefully (as we all should) and made some interesting arguments about sufficiency. My guess is that the Court wanted something in writing to help the next trial judge who is faced with similar creativity.

The attorney based his sufficiency challenges to both convictions based on arguments that the Commonwealth didn’t prove malice for the malicious wounding charge because Alston was acting in defense of his (pregnant) girlfriend and that even if he was acting with malice, the loss of six teeth wasn’t a “significant and permanent injury” because implants can make your choppers better than new (albeit J.C. had not yet been able to afford implant surgery).

As the firing from a vehicle offense, Alston fired out of the vehicle in an unpopulated area, so there was no evidence that he “create[d] the risk of injury or death to another person or thereby cause another person to have reasonable apprehension of injury or death.” Turman was frightened, certainly, but never in any real danger.

The Court of Appeals, Judge Callins joined by Judges Friedman and White, are having none of it – and good on them. While these arguments are creative, they just don’t fit the facts of this case. First, Alston’s defense of girlfriend, pregnant or otherwise, was wildly out of proportion to J.C.’s “half bear hug” restraint, and Alson’s pursuit and escalation of his own assault on the retreating J.C. went far beyond a defense of another claim. Second, merely because an injury can be cosmetically repaired does not mean that the injury is not both serious and permanent.

As to Turman was a scaredy cat, but not really in danger, the Court notes that the statute does not require anyone to be in actual danger, merely to be but in apprehension of injury or death. Given that Turman had witness the attack on J.C., I think, especially in the light most favorable to the Commonwealth, the evidence showed that he was “apprehensive” about Turman’s intent at recklessly firing a weapon inside the close quarters of car, regardless of where it was aimed.

Dale A. Happe v. Kathryn Zimmerman involves the standard to be applied when a court extends a protective order under Code § 19.2-152.10. Now as with many, protective orders, this one involved a romantic attachment, though in this case is was decidedly one-sided. Happe was an employee of Zimmerman’s who became obsessed with her and wouldn’t take a polite “no” and a slightly less polite “go away.” Hence, Zimmerman obtained a restraining order.

Zimmerman changed her phone number and email address, but over the course of the next two years would encounter Happe. Although he would not approach or try to communicate with her, he would stare very noticeably at her. As the protective order was due to expire, Zimmerman sought an extension, which Happe opposed.

Let us pause here to consider why someone would oppose a protective order being extended if they no longer had an interest in the person who obtained the order. Well, there are good reasons to do so. Protective orders are matters of public record and can cause embarrassment and worse for the individual subject to the order. Likewise, some protective orders ban the person from possessing a firearm. But, having said that, one gets the feeling from the facts as recited in this case that Happe was not really concerned with such collateral issues. In any case, whatever you may call his behavior, I think we can all agree it’s creepy.

Anyway, Happe argued that merely showing up unexpectedly where Zimmerman happened to be and staring at her was not sufficient to show that he posed a threat to her. The circuit court disagreed and Happe appealed.

The Court of Appeals, Judge Humphreys joined by Judges O’Brien and Chaney, affirm the extension of the protective order. The Court rejected Happe’s argument that an extension of a protective order required what would amount to a new evidentiary hearing under the same standard required to obtain the protective order in the first place. The correct standard, the Court holds, is whether the extension is needed to protect the health and safety of the protectee. If Happe’s interpretation were to be applied, it would naturally necessitate that the person subject to the protective order commit some act in violation of the order, or close to it.

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