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

Three published opinions from the Court of Appeals

I missed getting analysis and discussion of last week’s opinions as I was busy doing other law stuff (an essay about which will be posted in this space anon), so I am playing catch-up this week.  In addition to the two opinions for April 27, we have one more from today, and I shall take them in chronological order seriatim (a favorite word of the Supreme Court of Virginia of late which simply means in the order they come).  In doing so, I promise that I have saved the best for last, so be sure to read to the end.

Atlantic Orthopaedic Specialists v. City of Portsmouth, is a workers’ compensation case, and if you were (as I am) a regular consumer of the opinions of the Court of Appeals, you would be forgiven if you experienced “Déjà vu all over again” as Yogi Berra liked to put it.  That’s because in the particulars other than the parties this case is virtually identical to Summit Pharmacy Inc. v. Costco Wholesale (R) and Costco Wholesale Corporation, decided at the end of March.  Although the composition of the panels was different, Judge Beales was on each and authored the opinion.  There are a few differences in the facts, of course, and the provider in this case made a slightly different argument, but the result is the same.  If you are providing any kind of medical service as part of a workers’ compensation award, you need to make sure your accounting department is keeping up with the bills and seeing that they are timely paid.  In both cases, the issue was that the self-insured employer was not paying the bills in full, and the provider was tardy in pursuing full payment.  Tardy is a politic word – in fact, I would go so far as to say whoever was responsible for the accounts at each business was asleep at the wheel as the claims were not filed until well after the statute of limitations under Code § 65.2-605.1(F) had passed.  [As an aside, I am not sure that Code § 65.2-605.1(F) is a “statute of limitations” so much as a “statute of repose” – this is usually a distinction without a difference as in either case it means that if you act after the limitations period, you are usually SOL].

Jessica Danielle Barrow v. Commonwealth of Virginia is the first case I’ve seen from the Court of Appeals where the issue involves an alleged abuse of the trail court’s discretion in revoking a suspended sentence for failure to complete a court-ordered diversion program was based in part of the unavailability of the program due to it’s being shut-down for a time as a result of COVID.  Barrow was convicted a possessory drug offense and offered diversion.  This was in June of 2019 when COVID-19 was not yet known t exist.

Barrow made what can at best be described as a half-hearted attempt to participate in the program but failed to comply with the requirements placed upon her by the VASAP case manager or pay any of the costs associated with the program.  In a show cause hearing in January 2020, Barrow gave no indication that she was having health issues, nor did she contest the allegation that she had failed to participate in the program.  The court admonished her that she would have to complete the program within the original 1-year period.  And then COVID19 happened.

When Barrow returned to Court in June, her attorney asked for a 3-month extension, claiming that Barrow had suffered from health issues that had prevented her from enrolling in the program before VASAP was essentially shutdown because of the Governor’s emergency measures to limit the spread of COVID and the Supreme Court’s concurrent declaration of a judicial emergency.  The circuit court denied the request and Barrow appealed.

The Court of Appeals held that the circuit court did not abuse its discretion in not granting the extension.  The evidence showed that Barrow had made only a minimal effort to participate in the diversion program prior to the show cause hearing and had taking no additional steps to arrange to do so afterwards.  Although guidance from the Supreme Court with respect to the judicial emergency included advice on liberally granting continuance, the Court of Appeals concluded that the record showed the trial court was aware of the impact of the COVID pandemic on Barrow’s ability to participate in the diversion program, but that given the other evidence that she had not made any effort to fulfill the requirements of the program that an extension of time was not likely to result in her compliance with the court’s order.

While I am not surprised with the Court of Appeals’ decision in this case – abuse of discretion is an extremely high standard (arguably the highest) to overcome on appeal.  I am, however, a little chagrined that the circuit court was not more lenient.  I really don’t suppose that Barrow would have suddenly become energetic and completed the course, but there is at least the possibility that she could give it the old college try and show the court that she wanted to continue.  That’s why abuse of discretion is difficult to prove – think differently than the judge does not mean the judge is wrong.

I promised to save the best for last and here it is:  A REVERSAL IN A CRIMINAL CASE WITH A DISSENT WHERE THE STANDARD OF REVIEW IS ABUSE OF DISCRETION.  You can tell by the all caps (and the commentary on the prior case) that this just doesn’t happen that much in the Court of Appeals (or any appellate court) and it is almost surely a sign that a request for an en banc hearing and/or an appeal by the Commonwealth will follow.  For appellate court junkies, this is the pure, uncut drug of choice.  The majority opinion, Judge Huff writing for himself and Judge Russell, in Stephen James Kilpatrick v. Commonwealth of Virginia starts this way, “Among the tools available to parties in a criminal trial is the use of expert testimony to assist the jury’s understanding of the evidence and its resolution of facts at issue. To be sure, that right comes with certain limitations, many of which serve to guarantee that an expert’s testimony does not express opinions on issues entrusted exclusively to the jury for its own consideration, such as the defendant’s mental state at the time of the alleged offense and, ultimately, whether the defendant is guilty. But so long as a party’s experts do not violate these limiting principles, they have substantial latitude in terms of the relevant information they may present.”  I can already feel that appellate opinion high kicking in.

Kilpatrick was caught in a sting operation in which a sheriff’s deputy posed as a female looking for a “casual encounter” on [While I had heard of Craigslist, I must confess that I did not know it was online as an “.org” domain; so, TIL this, which I recently learned means “today I learned].  The deputy used the name Jenny and told Kilpatrick that she was 13 years old, although the deputy also indicated that “Jenny” could drive, which is not legal for a person under the age of 15 ½ in Virginia.  The correspondence was sexually explicit but did not involve any specific request by Kilpatrick that the two meet.

The deputy requested that Kilpatrick meet “Jenny” at a specific location.  Kilpatrick went to the rendezvous location where he was confronted by law enforcement officers and agreed to e taken in for questioning.  Kirkpatrick admitted that he had corresponded with “Jenny” and that the correspondence had been of a sexual nature.  Kilpatrick further maintained, however, that she “was able to communicate” like someone much older than a thirteen-year-old and that “there’s no way [someone of Jenny’s purported age] speaks” in the way she did to him.

Kilpatrick was ultimately charged with multiple counts of soliciting a minor by computer.  At trial, he sought to introduce an entrapment defense and to that end wished to have an expert testify as a forensic psychologist, but t assured the trial court that the expert would not offer any opinion on appellant’s mental state at the time he was alleged to have committed the offenses.  The trial court sustained the Commonwealth’s objection that the expert’s testimony regarding Kilpatrick lack of predisposition to solicit a minor and his subjective belief that “Jenny” was older than 15 (the maximum age of the victim to which the offense of solicitation by computer applies) would invade the province of the jury.

Now you are probably wondering how the majority gets around the “reasonable minds can differ” part of abuse of discretion analysis, and the answer is that it doesn’t.  Instead, the majority notes that before it can decide whether the trial court abused its discretion by excluding the evidence, it must first answer the legal question of whether the evidence was admissible – and that is an issue reviewed de novo.  This may seem like a pointless exercise, as a judge can never abuse her discretion by refusing to admit inadmissible evidence, but in truth there is a good reason to take this approach.  If Kilpatrick is correct that the expert’s testimony could be fashioned to avoid the ultimate issue of fact, then the Commonwealth’s object that it would necessarily do so was not well taken, and the sustaining of an objection on improper grounds is an abuse of discretion.

Since I have already told you that the majority has reversed the conviction, it is not difficulty to guess that it found the although the expert’s testimony “certainly comes close to the realm of opinion on ultimate issues,” it would not have invaded the province of the jury – or at least the court should have permitted the testimony to go forward and then entertained specific objections from the Commonwealth if the line were about to crossed.

The majority makes clear that such testimony is not likely to be admissible in cases where the offense involves an actual sexual assault or where the victim’s true age was known to the defendant.  Here, however, the evidence was sufficiently in doubt as what Kilpatrick would have believe to be “Jenny’s” age that his psychological predisposition to solicit a minor was a relevant factor in his entrapment defense.

The majority goes on to reject the Commonwealth’s assertion that the exclusion of the evidence was harmless, and this is where Judge Malveaux parts company with her fellow panel members.  Adopting the Occam’s Razor approach of assuming that the trial court erred, Judge Malveaux would have found that the presumed error was subject to non-constitutional error analysis and that there was sufficient evidence to rebut the assertion that Kilpatrick was not predisposed to soliciting a minor.

I am going to take issue with the dissent on the assertion that this case can be evaluated under the lesser standard of non-constitutional harmless error.  While evidentiary issues typically are considered to be procedural, and thus not of constitutional dimension, here the alleged error prevented Kilpatrick from presenting evidence in his favor, a violation of the Sixth Amendment’s compulsory process clause, which has been expanded beyond the simple right to compel the attendance of witnesses but to also include the right to have that evidence heard.

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