Walter S. Felton jr

The case involved an appeal by Key Risk Insurance Company from a Virginia Workers’ Compensation Commission award of death benefits to Josephine Crews, the widow and sole dependent of James Crews, a self-employed sole proprietor who died in a 2009 work-related motor vehicle accident while delivering a prefabricated home. The Court of Appeals reversed the commission’s decision to award benefits at the statutory minimum weekly rate of $223.75. The court held that the record contained no evidence of any actual wages or earnings by the decedent during the fifty-two weeks before his death, as his business had operated at a loss, his weekly draws were treated as loans rather than compensation, and tax returns and accounting testimony confirmed zero reportable wage income. Under the Workers’ Compensation Act, average weekly wage must be based on proven earnings or amounts the employee would have earned but for the injury or death, which was not shown here.

labor & employment

The Daily Press, Inc. and reporter Ashley Kelly appealed a circuit court order that removed original photographs and an autopsy report—admitted as exhibits in Lillian Callender’s criminal trial for second-degree murder and felony child neglect—from the public court file and placed photocopies under seal to protect the due-process rights of her co-defendant, whose trial was still pending. The Court of Appeals of Virginia held that the sealing order violated the First Amendment, Article I, Section 12 of the Virginia Constitution, and Code § 17.1-208. The court reasoned that the trial judge failed to make the specific factual findings required by Press-Enterprise Co. v. Superior Court to overcome the presumption of public access, did not evaluate whether less restrictive alternatives existed, and therefore abused its discretion in restricting inspection of the judicial records.

criminal lawfree speechprocedurecivil rights

In Bellamy v. Commonwealth, the defendant was convicted of possession of ammunition by a convicted felon after Norfolk police recovered a bullet during a search incident to arrest. The arrest was based on a police dispatcher's report of an outstanding warrant, which later proved to have already been served. The Court of Appeals of Virginia affirmed the conviction and the denial of the motion to suppress. It held that the officer acted in objectively reasonable good-faith reliance on the dispatch information under Herring v. United States, and that the exclusionary rule does not apply without evidence of systemic police error or reckless disregard of constitutional requirements.

criminal lawprocedure

In this case, a 15-year-old juvenile (D.L.G.) was adjudicated delinquent in juvenile court for attempting to poison his mother’s tea with intent to kill or injure her, in violation of Code § 18.2-54.1. After appealing to circuit court for de novo review, he moved for a psychiatric evaluation to support an insanity defense and argued that denying juveniles this option violated equal protection under the Fourteenth Amendment. The Court of Appeals of Virginia affirmed the circuit court’s denial of the motion. The court reasoned that Virginia law allows juveniles age 14 or older to elect in writing, under Code § 16.1-270, to waive juvenile court jurisdiction and be tried as adults, which would grant them the statutory right to assert insanity under Code § 19.2-168; by choosing to remain in the juvenile system, the appellant declined that option and thus was not treated differently from adults. The opinion noted that the juvenile system’s rehabilitative focus carries both advantages and limitations that a competent juvenile accepts by not transferring.

criminal lawcivil rightsprocedurefamily law

The case involved William Breit’s petition to establish legal parentage of L.F., a child conceived through in vitro fertilization using his sperm after he and the child’s biological and gestational mother, Beverley Mason, had lived together in a long-term unmarried relationship and jointly sought fertility treatment. The trial court sustained the mother’s and child’s pleas in bar, ruling that Virginia’s assisted conception statutes (Code §§ 20-156 to -165) barred Breit, as a sperm donor, from asserting paternity because the couple had never married. The Court of Appeals reversed that ruling, holding that the statutes did not apply to bar the claim under these facts, and also reversed the appointment of the mother’s attorney as the child’s guardian ad litem, while affirming the denial of Breit’s request for attorney’s fees. The court remanded for further proceedings on the parentage petition with a new guardian ad litem to be appointed.

family law

Michael D. Wills and Todd Solomon appealed a Virginia Marine Resources Commission (VMRC) decision granting permits to Dirk Sanford and Charles Gregory to place pound nets in the Chesapeake Bay near the Chesapeake Bay Bridge-Tunnel and Lynnhaven Inlet, claiming the decision was arbitrary, violated permitting statutes and the public trust doctrine, and would interfere with their recreational use of the area. The Circuit Court of Virginia Beach dismissed their petition after finding they lacked standing, as they had not alleged facts showing they were personally aggrieved by the permits. The Court of Appeals affirmed, holding that under the Administrative Process Act and applicable precedent, standing requires an immediate, pecuniary, and substantial interest distinct from the general public; the appellants’ asserted recreational interests were shared with other boaters, swimmers, and fishers and therefore insufficient to confer standing.

environmentprocedurebusiness & regulatory

In Lebron v. Commonwealth, Juan Luis Lebron was convicted following a bench trial as a principal in the second degree of robbery, use of a firearm in the commission of robbery, and participating in a criminal act for the benefit of a prohibited street gang. On appeal to the Court of Appeals of Virginia, Lebron argued that the evidence was insufficient to support any of the convictions and that the trial court improperly considered evidence admitted only against his co-defendant. The court affirmed the convictions, finding the evidence sufficient to prove Lebron's involvement and the gang-related element, including his presence during gang commands, his wearing of Latin Kings-associated beads, and the co-defendant's use of gang colors during the robbery.

criminal lawguns

The case involved Matthew Antonio Salcedo, who was convicted after a bench trial as a principal in the second degree of robbery, use of a firearm in the commission of robbery, and participation in a criminal act for the benefit of a criminal street gang. The Court of Appeals of Virginia affirmed the convictions on appeal, holding that the evidence was sufficient to support each charge. The core reasoning centered on surveillance footage of the group's movements and gang attire, witness accounts of the robbery and getaway, DNA evidence linking a co-participant to items left at the scene, and expert testimony establishing that the Latin Kings qualified as a criminal street gang and that the robbery was committed at the direction of or in association with the gang.

criminal lawguns

The case involved David L. Foltz, Jr., a registered sex offender on probation, who was convicted by a jury of abduction with intent to defile and sentenced to life imprisonment. Foltz moved to suppress eyewitness testimony from police officers who observed him sexually assaulting a victim on a public sidewalk, arguing that the officers' prior warrantless placement of a GPS device on his work van violated the Fourth Amendment and tainted the evidence as fruit of the poisonous tree. On rehearing en banc, the Court of Appeals of Virginia affirmed the conviction, holding that the trial court properly denied the suppression motion. The court reasoned that the officers had independently identified Foltz as a suspect by matching his prior modus operandi, work and probation schedules, and the timing and locations of recent assaults, and that their direct visual observations of the attack occurred without reliance on the GPS data, falling under exceptions like independent source or attenuation to the exclusionary rule.

criminal lawprocedurecivil rights

This case involved an appeal by CVS #1549/CVS of Virginia, Inc. and its insurer from a Virginia Workers’ Compensation Commission decision awarding temporary partial disability benefits to employee Lois Plunkett after she returned to a light-duty pharmacy position following a compensable elbow and arm injury. The employer argued that Plunkett was ineligible for benefits because she had not reasonably marketed her residual work capacity, as required by the Supreme Court’s decision in Ford Motor Co. v. Favinger, and that her reduced hours resulted from self-imposed limitations rather than the injury. The Court of Appeals reversed the commission, holding that accepting an employer-offered light-duty job does not relieve an employee of the duty to market residual capacity, and that prior contrary commission precedents were superseded by Favinger. The court concluded the commission erred as a matter of law in awarding benefits and reversed the award.

labor & employment

The case involved Helen Marie Davis appealing the termination of her temporary partial disability compensation benefits awarded by the Virginia Workers’ Compensation Commission after a 2001 workplace knee injury. The employer, City of Lynchburg Waste Management, had stopped payments in 2006 after Davis returned to higher-paying work but filed an application in 2008 to formally terminate the award. The Court of Appeals affirmed the commission's decision, holding that the application was timely under Code § 65.2-708 because the employer paid benefits current to two years before the filing date, satisfying the 24-month review period from the last day compensation was due.

labor & employment

This case involves an appeal by David L. Foltz, Jr. against the Commonwealth of Virginia in the Court of Appeals of Virginia. The court, on its own motion pursuant to Code § 17.1-402(D)(ii), decided to hear the case en banc rather than by a three-judge panel. As a result, the parties must file briefs complying with Rule 5A:35(b), and the appellant must submit twelve additional copies of the previously filed appendix. The mandate entered on September 7, 2010, is stayed pending the en banc decision, and the appeal is reinstated on the court's docket.

criminal lawprocedure

In Hunter v. Commonwealth, the appellant challenged the trial court's revocation of his probation and reimposition of six months of a suspended sentence for grand larceny, claiming the court lost jurisdiction under Code § 19.2-306 because the revocation hearing occurred more than one year after his three-year probation period ended. The Court of Appeals of Virginia affirmed the trial court's ruling, holding that it retained authority to proceed. The court reasoned that the 2002 amendment to § 19.2-306, which required only that a bench warrant be issued within the specified period rather than requiring the hearing itself, was procedural in nature and applied here because the appellant's probation began in 2003 after the amendment's effective date; the warrant had been timely issued in 2004.

criminal lawprocedure

The case Johnson v. Johnson arose from a divorce proceeding in which the trial court awarded the wife a $1.2 million monetary award payable in ten annual installments of $120,000 as part of equitable distribution, with the decree allowing the husband to satisfy payments by conveying property of equivalent value. After the husband missed the first installment and proposed transferring $120,000 from his retirement accounts, the wife sought enforcement via a show-cause petition and objected to the transfer on grounds that taxes and penalties would net her far less than $120,000. The trial court approved the transfer, finding it complied with the decree's focus on property value rather than the recipient's post-transfer decisions or tax effects. On appeal, the Court of Appeals of Virginia affirmed, holding that the trial court did not abuse its discretion in interpreting the decree or in denying the wife's requests for attorney and expert fees, which lacked adequate supporting evidence or argument.

family lawproperty

The case involved Antwain Levelle Harris, who was convicted after a bench trial of driving on a suspended license, third or subsequent offense, under Code § 46.2-301. The trial court imposed the mandatory minimum jail term for a third offense within ten years. On appeal, Harris argued that his two prior convictions under a substantially similar Danville city ordinance should not count toward the enhancement, leaving only one prior violation of the state code. The Court of Appeals affirmed the conviction, holding that Code § 46.2-301(B) expressly includes violations of substantially similar local ordinances as offenses subject to the enhanced punishment in subsection (C). The court reasoned that reading the statute as a whole shows the legislature intended such prior convictions to trigger the third-offense penalty.

criminal law

This case is a divorce proceeding between Matthew J. Shiembob and Susan Wren Shiembob concerning the equitable distribution of property. The trial court ruled that $37,000 deposited by the husband into the wife's pre-marital investment account to replace funds he had lost was a gift and thus the wife's separate property, that restricted stock shares awarded to the husband in 2008 and 2009 were marital property, that certain protective and sealing orders should be vacated, and that the wife was entitled to $10,000 in attorney's fees. The Court of Appeals of Virginia reversed the ruling that the restricted stock was marital property, remanded for clarification on the classification of the deposited funds and whether they became the wife's separate property or remained part of the marital estate, affirmed the trial court's other decisions, and denied the wife's request for appellate attorney's fees.

family lawproperty

In Roberts v. Commonwealth, the defendant was convicted of possession of cocaine with intent to distribute after the trial court denied his motion to suppress evidence seized during a pat-down search. The Court of Appeals of Virginia reversed the conviction, holding that the officer lacked reasonable, articulable suspicion that the defendant was armed and dangerous to justify the frisk under the Fourth Amendment. The court reasoned that the defendant's presence in a high-crime area, his clenched fist, raised voice, and refusal to consent to a search did not create an inference of a weapon, and the officer's actions were based only on a hunch rather than specific facts. The case was remanded to allow the defendant to withdraw his conditional guilty plea.

criminal lawprocedure

In Lunsford v. Commonwealth, Shawn Lamont Lunsford was convicted after a bench trial of breaking and entering in violation of Code § 18.2-91 and grand larceny in violation of Code § 18.2-95 based on a burglary at an apartment complex where an Epiphone guitar and Samsung television were stolen. The Court of Appeals of Virginia affirmed the convictions, holding that the evidence was sufficient to prove Lunsford's guilt. The court reasoned that serial numbers on purchase agreements from items Lunsford sold to a pawn shop days after the theft matched those of the victim's stolen property, and under precedent, recent unexplained possession of stolen goods after a breaking and entering supports an inference that the same person committed both offenses.

criminal lawprocedure

The case involved Nicholai Kolesnikoff's conviction following a bench trial for custodial indecent liberties with a 15-year-old boy under Code § 18.2-370.1, based on evidence that he touched the victim's penis multiple times while the victim was staying overnight at his home. Kolesnikoff appealed, arguing that the trial court erred in denying his motion to dismiss the direct indictment or remand for a preliminary hearing in juvenile court, and that the evidence was insufficient to prove lascivious intent. The Court of Appeals of Virginia affirmed the conviction, holding that the direct indictment was proper and that the evidence, including the defendant's admissions and the circumstances of repeated touching, was sufficient for a rational factfinder to conclude that he acted with lascivious intent. The court emphasized that it reviews sufficiency claims by viewing evidence in the light most favorable to the Commonwealth and drawing reasonable inferences from the facts.

criminal law

The case involved Mathurin Ngomondjami's conviction for driving under the influence after police found him unconscious in the driver's seat of a running car in a school parking lot, with signs of intoxication and refusal of field sobriety tests. On appeal, Ngomondjami challenged the sufficiency of the evidence to prove he "operated" the vehicle, the trial court's refusal of his proposed jury instruction defining that term, and the admission of his DMV driving record at sentencing without prior notice under Code § 19.2-295.1. The Court of Appeals affirmed the conviction and sentence, holding that the evidence was sufficient to establish operation of the vehicle, that the proffered instruction was unnecessary, and that Code § 46.2-943 permitted introduction of the DMV record at sentencing in traffic cases without the notice requirements of the more general bifurcated-trial statute. The court reasoned that the statutes could be read together without implied repeal and that the trial court properly exercised its discretion in these matters.

criminal lawprocedure