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

Two More Appeals -- October 4, 2022 Opinions of the Court of Appeals

Updated: Nov 9, 2022

And we are now into October as the Court of Appeals of Virginia Blawg plays catch-up after its hiatus and move to its new home.

Danjuan Antonio McBride must have thought he was going to skate by on two counts of possessing a controlled substance with the intent to distribute when the trial court granted his motion to strike the evidence. Then the circuit court did something extraordinary -- it permitted the Commonwealth to reopen its case an present additional evidence, after which the court "reversed" its decision on the motion to strike and then submitted the case to the jury which convicted McBride.

That hardly seems fair, and it's not. As the Court of Appeals, Judge Lorish joined by Judge O'Brien and Sr. Judge Annunziata, explains

When a defendant moves to strike the evidence as insufficient, a trial court has significant discretion about how to proceed. Even if the court agrees the evidence is insufficient, Rule 3A:15(a) does not require the court to grant the motion. The court can take a recess to consider the evidence, the court can take the motion under advisement, the court can opine that the evidence is thin, or the court can allow the Commonwealth to put on additional evidence. What the court cannot do under Rule 3A:15(c) is grant the motion to strike, ruling that the evidence is insufficient, then allow additional evidence to be presented and enter a different ruling based on that added evidence.

Now, what may be more surprising to you than the Circuit Court's striking the evidence and then giving the Commonwealth a do over is that McBride is not yet able to skate. Instead, the Court is remanding the case for a new trial on lesser offenses. How did that happen? Well, the initial motion to strike was based on the Commonwealth's failure to prove that McBride had prior offenses that elevated the penalty for his offense. The Court reasons that the evidence was sufficient to prove a base offense and that McBride should face a charge no greater than that on remand.

I take issue with the Court's analysis here. The circuit court did not "strike" the greater offense and amend the charge to conform to the evidence. It struck the evidence. I do not believe the Court of Appeals should step into the shoes of the trial judge an speculate what would have been done had the court not erred in allowing the Commonwealth to reopen the case. I suspect a petition to the Supreme Court may be forthcoming from McBride to raise that very issue.

W. Roy Tuthill v. Commonmwealth is a 2022 Appeal of Right and I believe the first such published opinion in which the appellant is pro se. It is also, despite the style of the case, not a criminal appeal. Rather, it is an appeal from a denial of a petition to be removed from the Virginia Sex Offender Registry pursuant to Code § 9.1-910. While the Commonwealth agreed that Tuthill has a "good candidate for removal," it objected to his petition on the ground that he was not entitled to removal because he had two convictions that both qualified for registration, even though those two convictions arose from the same incident.

Tuthill contends that the statute's prohibition of a person being eligible for removal from the registry if he has two offenses was not meant to apply to convictions for a single act or transaction chargeable as two offenses. The Court of Appeals, Judge O'Brien joined by Judges Lorish and Sr. Judge Annunziata, hold that to so find the Court would have to impermissibly add language to the statute. This seems to be a good case to bring to the attention of the General Assembly.

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