Larry G. Elder

This case involved a workers' compensation claim by Genevieve Huffman against her employer Marshalls, Inc., for temporary total disability benefits after she was laid off from light-duty work in 2009 due to an economic downturn. Huffman had previously received permanent partial disability benefits for a 2003 knee injury and had worked light-duty positions at her pre-injury wage until the layoff. The employer argued that her May 2009 change-in-condition claim was time-barred under Code § 65.2-501's one-year limit from the last payment of permanent partial disability compensation. The Virginia Court of Appeals affirmed the commission's award of one week of benefits, holding that Code § 65.2-708 applied because the layoff constituted a qualifying change in the conditions of compensation, providing a longer limitations period, and that Huffman's marketing efforts were sufficient.

labor & employmentprocedure

The case involved Ronald Arthur Tharrington, who was convicted after a jury trial of both grand larceny and larceny with intent to sell or distribute based on stealing a PlayStation 3 game console and pawning it the same day. On appeal, Tharrington contended that the dual convictions for the same course of conduct violated double jeopardy protections against multiple punishments. The Court of Appeals of Virginia affirmed the convictions, reasoning that Code § 18.2-108.01(C) expressly states that a violation constitutes a separate and distinct offense, demonstrating the legislature's clear intent to authorize separate punishments alongside other larceny statutes such as Code § 18.2-95. Because the statutory language unambiguously permitted multiple punishments, the court did not need to apply the Blockburger test and found no double jeopardy violation.

criminal lawprocedure

The case involved George Spiker, who was convicted by a jury in Louisa County of five counts of using a communications system to solicit a minor, based on online chats he initiated while in Henrico County with an undercover detective posing as a 13-year-old girl living in Louisa County. Spiker appealed, arguing that venue was improper in Louisa County because the offenses were complete when he sent the messages from Henrico. The Court of Appeals of Virginia affirmed the convictions, holding that venue was proper in Louisa County under Code § 19.2-244 because the offenses involved electronic contacts that were received there. The court reasoned that the crime of solicitation includes both the sending and receiving of the messages, so the location of the intended impact or receipt supports venue, consistent with analogous precedents from other jurisdictions.

criminal lawprocedure

The case involved John Andrew-Collins Holcomb challenging the sufficiency of evidence for his conviction under Code § 18.2-60(A)(1) for knowingly communicating a written threat. Holcomb had posted violent lyrics and messages on his MySpace profile directed at his ex-girlfriend Miranda Rollman and her family during an ongoing custody battle and after restraining orders were issued. The Court of Appeals of Virginia affirmed the conviction, holding that the posts constituted threats that placed Rollman in reasonable apprehension of death or bodily injury, as evidenced by their explicit content referencing specific incidents and her subsequent actions like moving to a secured home.

criminal lawfamily lawfree speech

This case involved United Airlines appealing a Virginia Workers’ Compensation Commission decision that awarded ongoing benefits to former employee Thomas Hayes for a 2004 work-related traumatic brain injury. The employer argued that Hayes’s 2006 car accident materially aggravated the brain injury and that his settlement of third-party claims from the accident without notice prejudiced the employer’s subrogation rights, warranting termination of the award. The Court of Appeals affirmed the commission, holding that the evidence showed the auto accident did not materially aggravate the compensable brain injury and that any prejudice from the settlement related only to other injuries, which did not justify ending benefits for the brain injury. The court credited the treating psychiatrist’s opinion that the claimant’s symptoms remained unchanged and noted that the commission properly exercised its fact-finding role in assessing credibility.

labor & employment

In Simon v. Commonwealth, the defendant appealed his conviction for taking indecent liberties with a child under Virginia Code § 18.2-370 after a ten-year-old girl reported seeing his genitals exposed through a hole in his shorts while he sat in a truck near her school bus on two occasions. The Court of Appeals of Virginia considered whether the trial court should have instructed the jury on indecent exposure as a lesser-included offense under Code § 18.2-387 and whether the evidence proved the required lascivious intent. The court held that indecent exposure is not a lesser-included offense and affirmed the conviction, finding the evidence sufficient because the defendant repeatedly positioned himself near the child, used intentionally modified shorts, returned to the location even after police awareness, and possessed related pornographic materials. This established his intent to expose himself and act with sexual purpose, distinguishing the facts from prior cases with insufficient evidence of intent.

criminal law

In Taybron v. Commonwealth, Floyd Taybron appealed his jury trial conviction under Virginia Code § 18.2-46.2 for willfully participating in a criminal act for the benefit of a criminal street gang, based on his membership in the 36th Street Bang Squad and its involvement in an assault. The Court of Appeals of Virginia reversed the conviction and dismissed the indictment. The court concluded that the evidence was insufficient to prove the group qualified as a criminal street gang under the statutory definition in Code § 18.2-46.1, as it did not establish the required predicate criminal acts by members of the same organization or a sufficient connection to other qualifying gangs. The court did not reach the appellant's arguments regarding the statute's constitutionality or the admissibility of plea agreements and sentencing orders.

criminal law

Antonio D. Watts was convicted after a bench trial of possessing cocaine and marijuana found during a police search of the car he had been driving. He appealed, claiming the search violated his Fourth Amendment rights because the officer improperly decided to tow the vehicle from a private apartment parking area, and also arguing the evidence failed to prove constructive possession. The Court of Appeals of Virginia held that the trial court erred in denying the motion to suppress. The court concluded the search was invalid as the officer lacked justification to tow the car from the private lot based on the inquiries made and the circumstances observed. The convictions were reversed and the case remanded, though the evidence including the suppressed items was deemed sufficient to support the charges.

criminal lawprocedure

Jon Goble appealed his convictions under Virginia Code § 29.1-553 for selling or offering to sell wild animal parts, specifically three mounted deer heads via eBay listings. The transactions involved items located in Pennsylvania, but Goble posted the offers and received payment while in Virginia; he raised issues of jurisdiction, the burden of proving statutory exceptions, and whether the aggregate value exceeded $200 to support a felony rather than a misdemeanor. The Court of Appeals of Virginia affirmed two misdemeanor convictions and one felony conviction, ruling that the offers to sell were completed in Virginia, that Goble did not establish any exception as an affirmative defense, and that the sales met the statutory threshold for enhanced punishment.

criminal lawenvironment

The case involved Marcious Antoine Cousins appealing his convictions for second-degree murder, use of a firearm during a felony, and possession of a firearm by a convicted felon, stemming from a shooting in a motel parking lot where he claimed self-defense. The trial court had excluded evidence of the victim's membership in the White Rock Crew gang, which the defense sought to use to question potential jurors for bias, cross-examine a prosecution witness about his own gang ties to show bias, and demonstrate the victim's propensity for violence. The Court of Appeals of Virginia held that the gang affiliation evidence was relevant, material, and more probative than prejudicial, that its exclusion to show witness bias constituted reversible error, and that the defendant would be entitled on remand to limited voir dire of the jury panel regarding gang membership biases.

criminal lawprocedure

This case involved a workers' compensation claim where Nicolasa A. Diaz sought continued temporary disability benefits after her employer unilaterally stopped payments following her return to light-duty work, along with penalties and interest for late payments. The Virginia Court of Appeals affirmed the Workers' Compensation Commission's decision that the employer's application for a hearing to terminate the award was properly docketed. However, the court reversed the commission's findings that the wages paid to Diaz counted as compensation under the award and that no penalties or interest were owed, holding instead that the employer failed to properly terminate the ongoing award despite repeated commission notifications, requiring payment of past due compensation, penalties on late payments, and interest on delayed amounts during the appeal.

labor & employmentprocedure

The case involved a dispute over whether Daryl Landon Carter, injured in a fall at a construction site, qualified as a covered employee entitled to medical and temporary total disability benefits under the Virginia Workers’ Compensation Act or instead worked as an independent contractor for Dillon Construction. The Virginia Court of Appeals affirmed the Workers’ Compensation Commission’s award of benefits to Carter. The court held that the evidence supported the commission’s finding of an employer-employee relationship because the company owner retained and exercised significant control over the means and methods of Carter’s carpentry work, including his daily hours, time cards, duties, and integration with other company employees, even though taxes were not withheld from his wages.

labor & employment

In Howard v. Commonwealth, the defendant appealed his convictions for breaking and entering and credit card theft, arguing that delays in his trial violated his statutory speedy trial rights under Virginia Code § 19.2-243 and his constitutional speedy trial rights under the U.S. and Virginia Constitutions. The Court of Appeals of Virginia affirmed the convictions, holding that the statutory speedy trial period was tolled during a continuance granted on the trial court's own motion because the defendant did not object to it, making it unnecessary to address a second continuance. The court also ruled that the constitutional claim was not preserved for appeal under Rule 5A:18, as it was not properly raised or argued below, and the ends-of-justice exception did not apply due to lack of prejudice or other Barker v. Wingo factors. The case involved a grand jury indictment in March 2008, an initial trial date in May 2008 that was continued, and further continuances tied to discovery issues, with the trial ultimately occurring after the defendant moved to dismiss on speedy trial grounds.

criminal lawprocedure

In Sims v. Sims, the Court of Appeals of Virginia addressed a wife's challenge to a property settlement agreement incorporated into a divorce decree from the Circuit Court of Hanover County. The wife argued that the agreement, under which she waived spousal support and equitable distribution and received only minimal personal property while the husband retained the marital home, retirement benefits, and deferred compensation, was unconscionable due to gross disparity and her own disabilities and financial need. The trial court had upheld the agreement after finding no overreaching by the husband, despite recognizing the unfairness. On appeal, the court reversed, holding that the combination of extreme asset imbalance and the wife's infirmity and resulting public assistance rendered the agreement unconscionable under Virginia law, and it remanded the case. The decision was based on the facts as found by the trial court and controlling precedents regarding separation agreements.

family lawproperty

In this case, Corey Tayvon Smith appealed his conviction for possession of a firearm by a convicted felon after entering a conditional guilty plea, challenging the denial of his motion to suppress a gun found during a pat-down search of his person during a traffic stop. The Court of Appeals of Virginia reversed the conviction and remanded the case, holding that the trial court erred in denying the suppression motion. The court reasoned that officers lacked reasonable suspicion for the frisk under the Fourth Amendment because the PISTOL database alert indicating the defendant was 'probably armed and a narcotics seller/user' was based on stale information from arrests eleven and six months earlier, with no contemporaneous corroboration or details about the source or basis of the alert, even when imputing knowledge from the entering officers.

criminal lawprocedure

The case involved an employer, a workers' compensation attorney, who terminated an assistant paralegal after about three months for inconsistent performance and failure to complete tasks, then challenged his claim for unemployment benefits on grounds of misconduct. The Virginia Employment Commission determined the employee was eligible for benefits, finding that the employer had not shown willful disregard of her interests and that any issues amounted only to poor performance or errors in judgment. The circuit court affirmed, and the Court of Appeals upheld that ruling, holding that credible evidence supported the commission's findings and that post-termination evidence of deficiencies was irrelevant to the misconduct determination. The court emphasized that the employer bore the burden of proving misconduct and that the record did not establish the required level of willful behavior.

labor & employment

The case involved Psychiatric Solutions of Virginia, operating Whisper Ridge Behavioral Health System, appealing a DMAS decision under the Virginia Administrative Process Act that the facility had been overpaid for Medicaid inpatient psychiatric services provided to adolescents. DMAS sought to retract general inpatient treatment fees after an audit found deficiencies in the facility's documentation of 21 weekly treatment interventions per patient, even though the services themselves were not disputed. The Court of Appeals held that contract law principles applied to the provider participation agreement but concluded that the ongoing documentation shortfalls amounted to a material breach because they deprived staff and physicians of information needed to monitor patient progress and plan for discharge. On that basis, the court affirmed the circuit court's ruling upholding DMAS's retraction of payments for twenty patients over approximately twenty-nine weeks each.

healthcarebusiness & regulatory

The case involved Genev Denise Clark's conviction for assault after she parked her car to block a school bus driver's vehicle at an elementary school and approached the bus to shout threats at the driver, who had previously disciplined Clark's son. The Court of Appeals of Virginia, sitting en banc, affirmed the conviction, overturning a panel decision that had found the evidence insufficient. The court held that the combination of blocking the bus and approaching closely while making threats amounted to an overt act under the tort-based definition of assault used in Virginia criminal law, sufficient to support the conviction when viewed in the light most favorable to the Commonwealth.

criminal law

This case involved an appeal from a ruling by the Virginia Workers’ Compensation Commission under the Virginia Birth-Related Neurological Injury Compensation Act concerning the death of infant Jaliyah Lee after birth at Maryview Hospital. The administratrix of the estate alleged that medical providers acted willfully and wantonly, and after the circuit court referred the matter to the commission, the commission determined it lacked jurisdiction over the willful conduct portion of the claim and directed that aspect to circuit court. The Court of Appeals dismissed the providers’ appeals without prejudice, holding that the commission’s order was not appealable because it was interlocutory and did not adjudicate the underlying question of whether the infant suffered a qualifying birth-related neurological injury. The court reasoned that the commission had merely excluded one portion of the claim from its proceedings while leaving the primary eligibility determination unresolved.

healthcareproceduretorts & liability

In Shanklin v. Commonwealth, Vivian Shanklin was convicted of felony child neglect under Virginia Code § 18.2-371.1(B)(1) after failing to seek medical treatment for a four-year-old child with burns who appeared lethargic while under her temporary care. The Court of Appeals of Virginia reversed the conviction, holding that the evidence was insufficient to prove that her omission was so gross, wanton, and culpable as to demonstrate a reckless disregard for human life. The court reasoned that while the use of duct tape and the child's sleepiness might have indicated a need for medical attention, these factors did not rise to the level of criminal negligence, as common knowledge would not necessarily alert a reasonable person to the severity of the injuries without further signs or information.

criminal lawfamily law