Rossie D. Alston jr

In Falls Church Cabinetry v. Jewell, the employer and its insurer appealed a Virginia Workers’ Compensation Commission award of benefits to claimant Thomas Jewell for a May 2007 work-related thumb injury. The employer argued that the claim was barred by the two-year statute of limitations under Code § 65.2-601, that the evidence was insufficient, and that any prejudice from its late-filed accident report was cured by commission notices sent to Jewell about an earlier January 2007 wrist injury. The Court of Appeals affirmed the award, holding that the May 2008 notice—referencing only the wrist injury and a different carrier—did not trigger the per se presumption of non-prejudice under Code § 65.2-602, that Jewell remained unaware of the filing deadline for the thumb injury, and that the employer’s delay in reporting the second accident therefore tolled the limitations period.

labor & employmentprocedure

In Wal-Mart v. Poorman, the employer appealed a Virginia Workers’ Compensation Commission decision denying its application to suspend benefits for claimant Ashley Poorman, who had refused a selective employment offer after a 2007 workplace ankle injury that led to an awarded compensable condition of reflex sympathetic dystrophy (RSD). The commission had ruled that the employer bore the burden of raising and disproving causation for additional conditions (such as seizures and stress) that Poorman cited to justify her refusal, even though those conditions were not part of the existing award. The Court of Appeals reversed and remanded, holding that the employer’s initial burden was only to show it offered suitable work based on the ankle injury and RSD alone; once that was done, the burden shifted to the claimant to prove her refusal was justified, including establishing any causal link between the accident and non-awarded conditions she relied upon. The court reasoned that the commission’s approved award limited review to the compensable injury, and the evidentiary burden on causation could not be shifted to the employer.

labor & employmentprocedure

In Virostko v. Virostko, the father appealed a trial court ruling that he owed $39,000 in child support arrearages to the mother under a Separation and Property Settlement Agreement (PSA) that had been incorporated into their 2009 divorce decree. The PSA required the father to pay $2,300 per month while employed under his Iraq deployment contract with Triple Canopy, after which the amount would be renegotiated or set by a court. The Court of Appeals of Virginia affirmed the trial court’s judgment, holding that the father’s unilateral reduction in payments and any private agreement for lower amounts ($200 or $550 per month) did not relieve his obligation because child support provisions in a court decree cannot be modified without judicial approval. The court further determined that arrearages properly accrued at the PSA rate beginning in October 2009, as no timely petition for modification had been filed and past-due installments vest as they accrue.

family law

Dean and Ashley Marrison appealed a circuit court order adjudicating their three surviving children abused and neglected, arguing that the Fairfax County Juvenile and Domestic Relations District Court lacked subject matter jurisdiction because it failed to hold a preliminary removal hearing within five business days of the children's emergency removal, as required by Code § 16.1-251(B). The delay occurred after the children were removed on February 1, 2010, when multiple court closures due to snow and a holiday pushed the hearing to February 18. The Court of Appeals of Virginia affirmed the denial of the parents' motions to dismiss. It held that the statutory five-day requirement is procedural and directory rather than mandatory and jurisdictional, because the statute contains no explicit penalty for noncompliance, does not state that an untimely hearing is invalid, and does not reflect legislative intent to strip the court of authority. The court further noted that the parents had shown no prejudice from the delay.

family lawprocedure

John Flanagan was convicted under Virginia Code § 18.2-85 for possessing and manufacturing explosive materials after law enforcement found chemicals, fuses, and a batch of the highly volatile substance TATP (triacetone triperoxide) at his business, along with his admissions that he made the materials to experiment and hear explosions. He appealed, claiming the statute was unconstitutionally vague, that the trial court improperly shifted the burden to him to prove a lawful purpose such as education or science, and that the evidence was insufficient to support the conviction. The Court of Appeals of Virginia affirmed the conviction, holding that the statute clearly prohibits the acts in question while providing affirmative defenses that the defendant must prove, establishes a strict-liability offense without requiring proof of malicious intent, and was supported by competent evidence that Flanagan produced TATP without a permit or qualifying lawful purpose. The court further found that the fact-finder could reject Flanagan’s testimony and any claim that the materials were fireworks.

criminal law

In Perry v. Commonwealth, the defendant was convicted after a jury trial of two counts of attempted robbery and two counts of using a firearm during those attempts, stemming from an incident where he approached two minors at a playground, demanded their belongings while brandishing a gun, and struck one victim. On appeal, Perry challenged the admission of a victim's out-of-court statements to his father under the excited utterance hearsay exception, argued that the admission violated his Sixth Amendment confrontation rights, and claimed the trial court should have granted a mistrial because a juror appeared to fall asleep during testimony. The Court of Appeals of Virginia affirmed the convictions, holding that the statements qualified as excited utterances given the short time frame and the victim's visible injury, that no confrontation violation occurred because the victim testified and was cross-examined at trial, and that the mistrial request was waived because Perry failed to object or seek relief when the juror issue was first raised during trial. The court further declined to apply the ends-of-justice exception to the procedural default rule.

criminal lawprocedure

Edward Johnson appealed his convictions under Virginia Code §§ 18.2-51 and 18.2-41 for malicious wounding and maiming by mob, arguing that the evidence was insufficient and that the dual convictions violated double jeopardy. The Court of Appeals of Virginia affirmed the convictions after reviewing the facts of a group assault on two airmen outside a McDonald's restaurant. The court determined that the evidence, viewed in the light most favorable to the Commonwealth, supported the jury's findings. On the double jeopardy claim, the court concluded that the offenses are distinct because malicious wounding requires proof of malice while maiming by mob can be established by either malicious or merely unlawful conduct.

criminal law

The case involved a dispute over whether a Virginia trial court had personal jurisdiction over Tammy Miriam Harrison in divorce proceedings initiated by her husband, Robert Curtis Harrison, after he relocated to Virginia while she remained in Belgium with their children. The trial court ruled it lacked in personam jurisdiction, preventing adjudication of personal and property rights from the marriage. On appeal, the Court of Appeals of Virginia affirmed this decision, holding that the evidence did not establish jurisdiction under relevant Virginia codes or through a theory of constructive matrimonial domicile based on alleged fraud by the wife. The court also found no error in weighing credibility or excluding testimony about an alleged extramarital relationship as it was not relevant to the jurisdiction issue.

family lawprocedure

The case involved Jerrod Tyree Quarles's appeal from convictions for robbery and conspiracy to commit robbery after the trial court denied his motion to suppress statements made during custodial interrogation. Quarles had invoked his right to counsel, but a detective then made comments referencing the crime and what Quarles might tell a judge, after which Quarles waived his rights a second time and confessed. The Court of Appeals of Virginia, sitting en banc, held that the detective impermissibly reinitiated communication in violation of Miranda and Edwards v. Arizona, making the waiver involuntary and the statements inadmissible. The court therefore concluded that the trial court erred in denying suppression, as police may not resume questioning once counsel is requested unless the suspect reinitiates.

criminal lawprocedure

The case concerned Tony Williams's appeal from convictions on two counts of misdemeanor failure to appear under Code § 19.2-128 and two counts of failure to provide support for his minor children under Code § 20-61. The Court of Appeals affirmed the child-support convictions and the failure-to-appear conviction for November 17, 2006, but reversed and dismissed the conviction for failure to appear on December 5, 2006. The court held that the evidence was sufficient to support the affirmed counts, that judicial notice properly established the relevant hearing dates and orders for those counts, and that res judicata did not bar the criminal prosecutions because the parties in the prior civil child-support proceedings differed from the parties in the criminal case brought by the Commonwealth.

criminal lawfamily lawprocedure

In Brown v. Commonwealth, the defendant appealed his first-degree murder conviction, arguing that the trial court should have dismissed the case because the Commonwealth failed to bring him to trial within the speedy trial deadlines set by Virginia Code §§ 19.2-241 and -243. The Court of Appeals of Virginia affirmed the conviction, holding that the speedy trial period was properly tolled during the time the defendant was found incompetent to stand trial and that the clock resumed only after the circuit court formally restored his competency on July 10, 2009. The court reasoned that only the circuit court could make the competency restoration determination under Code § 19.2-169.1, and the three-day gap between restoration and trial did not violate the statutory limits. The opinion rejected the argument that delays in transporting the defendant or receiving competency reports should restart the speedy trial clock absent a formal court order.

criminal lawprocedure

The case involved John Brian Redmond appealing his conviction under Virginia Code § 18.2-308.2 for possessing firearms after a prior felony conviction. The Court of Appeals of Virginia affirmed the conviction, finding no error in the trial court's denial of the motion to suppress evidence obtained via a search warrant or in the sufficiency of the evidence. The court reasoned that police observations during a lawful real estate showing provided probable cause for the warrant, and evidence of Redmond's joint ownership of the property, his periodic presence, and the visible firearms established constructive possession.

gunscriminal lawprocedure

The case involved Edward A. Williams, a licensed real estate agent, appealing a circuit court decision that upheld the Virginia Real Estate Board's revocation of his license and imposition of $9,000 in fines for multiple regulatory violations during two property purchase transactions in 2004-2005. The violations included failing to make required escrow deposits, notify parties of contract changes, and properly document terms, based on complaints from his brokerage principal. The Court of Appeals affirmed the Board's findings and sanctions on most counts, holding that substantial evidence supported the determinations and that the penalties were within statutory authority, but reversed on one count under Code § 54.1-2138 regarding disclosure of brokerage relationships, vacating the associated $1,000 fine and education requirement.

business & regulatory

In this case, Calvin Lee Argenbright, Jr. was convicted by a jury in the Circuit Court of the City of Waynesboro of uttering a forged writing and obtaining money by false pretenses. On appeal, he contended that the trial court abused its discretion by excluding testimony from his proffered character witnesses regarding his reputation for truthfulness, veracity, and law-abidingness. The Court of Appeals of Virginia affirmed the convictions, holding that the trial court did not abuse its discretion because the witnesses failed to establish a proper foundation for the character evidence under Virginia law; one witness's testimony amounted to an impermissible personal opinion rather than community reputation, and general references to being a 'good guy' were not equivalent to the specific traits at issue. The court reasoned that character evidence is admissible for limited purposes but must meet strict foundational requirements to avoid proving specific acts or personal views.

criminal lawprocedure

In Smith v. Commonwealth, the appellant challenged his convictions for abduction with intent to defile and attempted rape, arguing that the evidence was insufficient and that any restraint of the victim was merely incidental to the attempted rape rather than a separate offense. The Court of Appeals of Virginia reviewed the facts in the light most favorable to the Commonwealth, which showed that the appellant lured the sixteen-year-old victim into his home under false pretenses about his girlfriend's presence, then physically restrained and assaulted her before releasing her. The court affirmed the convictions, holding that the evidence supported the jury's findings and that the abduction by deception occurred prior to and was distinct from the attempted rape, as it was not intrinsic to that offense and created an additional danger to the victim.

criminal law

The case involved Kevin L. Holloway, who was convicted of possession with intent to distribute an imitation controlled substance and assault and battery on a law enforcement officer after police responded to a report of a man with a gun and observed him throw a bag containing imitation crack cocaine. Upon rehearing, the Court of Appeals of Virginia reversed the drug conviction, finding the evidence insufficient to prove intent to distribute because it failed to exclude the reasonable hypothesis that Holloway had been defrauded and possessed the substance for personal use. The court affirmed the assault conviction, determining that the evidence supported the requisite state of mind. The reasoning focused on the lack of conclusive evidence distinguishing distribution from personal use under the facts presented.

criminal law

The case involved Woodrow Wilson Nicholson, who was convicted in a bench trial of aggravated sexual battery under Virginia Code § 18.2-67.3 for an incident in which a 44-year-old man with Down syndrome and severe mental retardation touched Nicholson's exposed penis after being propositioned. Nicholson appealed, arguing that the evidence was insufficient because the statute requires proof of actual force to establish sexual abuse, even when the victim is mentally incapacitated. The Court of Appeals of Virginia affirmed the conviction, holding that the statute does not require actual force in these circumstances; instead, the victim's lack of mental capacity to understand the nature and consequences of the act means he could not legally consent, rendering the touching abusive through constructive force based on mental incapacity.

criminal law

The case involved Anne Boston Parish's appeal of her conviction for assault and battery under Virginia Code § 18.2-57, stemming from an incident where she yelled at and insulted a postal worker delivering mail, then grabbed the worker's shoulder and pulled her hair to turn her around during a dispute over mail delivery. The trial court found Parish guilty after determining that the evidence supported both assault and battery. On appeal, the Court of Appeals of Virginia affirmed the conviction, holding that the evidence was sufficient to prove the required intent. The court reasoned that intent could be inferred from Parish's prior statements, angry conduct, and the circumstances of the physical touching, which occurred in a rude or angry manner and placed the victim in reasonable apprehension of bodily harm.

criminal law

In Johnson v. Commonwealth, the defendant appealed his five-year mandatory minimum sentence for possession of a firearm by a convicted felon under Virginia Code § 18.2-308.2, arguing that the statute's mandatory sentencing provision violated the separation of powers doctrine by usurping the judiciary's role in determining sentences. The Court of Appeals of Virginia affirmed the trial court's imposition of the sentence. The court reasoned that the legislature has plenary power to define the scope of punishments and that mandatory minimum sentences are within its authority, distinguishing prior cases that addressed the roles of the executive and judicial branches. The court rejected the argument that the judiciary could sever the mandatory provision and apply a different sentencing range under the general Class 6 felony statute.

criminal lawprocedure

In Kovalaske v. Commonwealth, Jesse Albert Kovalaske appealed his conviction for credit card fraud under Virginia Code § 18.2-195 after using his employer's Home Depot credit card for approximately $5,600 in unauthorized purchases in August 2008. The appellant argued that the evidence was insufficient because he had permission to possess and use the card on at least two prior occasions, and that the jury's acquittal on related credit card theft charges showed he had permission during the relevant period. The Court of Appeals of Virginia affirmed the conviction, holding that the evidence supported the conclusion that permission was limited to specific authorized purchases and did not extend to the additional transactions. The court further ruled that inconsistent jury verdicts are permissible when the evidence is otherwise sufficient to sustain the challenged conviction, and that credibility determinations regarding the employer's testimony about the scope of permission were for the fact-finder.

criminal law