Robert P. Frank

The case involved Michael Anthony Desposito's conviction for driving as a habitual offender, second or subsequent offense. He challenged the denial of his motion to suppress evidence obtained at a traffic checkpoint, claiming the Hanover County checkpoint plan gave officers too much discretion because it specified only a 30-minute minimum duration with no maximum and directed that the checkpoint occur "during lunchtime" without precise hours. The Court of Appeals of Virginia affirmed the conviction, holding that the checkpoint was constitutionally valid under the Fourth Amendment. The court reasoned that the plan, combined with the department's actual practice of limiting checkpoints to two hours and the common understanding of "lunchtime" as midday (implemented here from 11:10 a.m. to 12:45 p.m.), supplied explicit neutral criteria that adequately constrained officer discretion and prevented arbitrary stops of individuals.

criminal lawprocedure

Netsanet Beshah was convicted of four counts of forgery under Virginia Code § 18.2-172 for falsifying entries in a Medicaid patient’s medical records while employed as a licensed practical nurse at a skilled nursing facility. She appealed, contending that the evidence failed to prove intent to defraud or prejudice to another and that the trial court erred by disqualifying her counsel due to a potential conflict of interest arising from the attorney’s simultaneous representation of multiple co-defendants in related cases. The Court of Appeals of Virginia affirmed the convictions, holding that Beshah’s documented administration of medications and performance of treatments she had not actually provided created a risk of misleading physicians in their treatment decisions, from which intent could be inferred. The court further held that the disqualification was proper because a potential conflict existed at the time of the pretrial ruling, as one of the attorney’s other clients might testify against Beshah, and no evidence showed an earlier disqualifying conflict.

criminal lawhealthcareprocedure

Whitney Lyn Wells was convicted of embezzlement after a jury found that, while working as a Macy’s cashier, she gave an unauthorized customer steep markdowns on Polo shirts and allowed the customer to take additional shirts without paying, causing losses exceeding $200. On appeal, she challenged the sufficiency of the evidence, the trial court’s refusal to instruct the jury that the Commonwealth must prove she personally benefited from the property, and the court’s decision not to define “fraud” in response to a juror’s question. The Court of Appeals of Virginia affirmed the conviction, holding that Code § 18.2-111 is satisfied when property is converted to the use of another with intent to permanently deprive the owner, and that the evidence showed Wells acted in her employment capacity to benefit the customer. The court further held that the Commonwealth’s instruction correctly stated the law and that “fraudulent” is a plain, ordinary term that required no further definition; any possible error on that point was harmless because a separate instruction already supplied the meaning of a fraudulent act.

criminal lawpropertyprocedure

In Price v. Commonwealth, the Court of Appeals of Virginia addressed whether Chadwich Deshawn Price’s conviction for robbing a twelve-year-old victim, S.S., could stand when intruders took her cell phone, iPod, and camera from her purse in the living room while she was held at gunpoint in her mother’s bedroom at the opposite end of the trailer. The court affirmed the robbery conviction, holding that the property was taken from S.S.’s presence. It reasoned that Virginia law broadly construes the “presence” element of robbery to include constructive possession, so that a victim remains in control of property throughout her residence even if confined to one room; the violence and intimidation used by the intruders prevented S.S. from protecting items elsewhere in the home, satisfying the statutory requirements under Code § 18.2-58. The decision relied on precedents such as Bunch v. Commonwealth and Clay v. Commonwealth, which similarly upheld robbery convictions involving property taken from other parts of a dwelling while the victim was present on the premises.

criminal law

Jamie Lee Towler was convicted in circuit court of robbery, attempted robbery, statutory burglary, two counts of using a firearm during those felonies, and wearing a mask, all arising from an armed demand for money and Oxycontin at a CVS pharmacy counter in Altavista, Virginia. He appealed solely on grounds that the evidence was insufficient to support the convictions. The Court of Appeals of Virginia affirmed, holding that testimony from the pharmacy technician and pharmacist established the use of a firearm and taking of money by threat, while a store manager who knew Towler identified him by voice, gait, and build. Additional evidence from an informant who conducted a controlled drug purchase with Towler the next day, together with Towler’s own statements admitting he robbed the store for Oxycontin and received over $200, supplied proof of identity and intent. The court further upheld the burglary conviction on the ground that Towler entered the store intending to commit the separate felony of possessing a Schedule II controlled substance.

criminal law

In this divorce case, Norvell West appealed circuit court rulings that arose after a 2008 Court of Appeals remand for recalculating child support. The circuit court had held that the appellate mandate barred it from considering motions to modify child and spousal support, that it lacked jurisdiction without a formal reinstatement order, and that it could vacate all post-remand interlocutory orders. The Court of Appeals reversed in part, ruling that the mandate did not restrict the trial court’s authority to address statutory support modifications outside the mandate’s specific scope, and remanded for consideration of changed circumstances. It affirmed the vacation of the interlocutory orders, explaining that temporary support rulings remain under the trial court’s control and may be set aside without additional findings.

family lawprocedure

The case concerned whether Gena Sifford, who had separated from her husband Anthony but continued living in the marital home, qualified as his actual dependent under Virginia workers’ compensation law after he died in a work-related accident, thereby entitling her to death benefits. The Virginia Workers’ Compensation Commission denied her claim, finding that a separation agreement waiving spousal support and the couple’s living arrangements showed she was not actually dependent on him. The Court of Appeals reversed, holding that Mrs. Sifford was in fact dependent because Mr. Sifford regularly paid the mortgage, insurance, utilities, and other household expenses without reimbursement, the couple commingled funds in a joint account, and her part-time earnings were insufficient to meet her needs. The court reasoned that the statutory test focuses on actual financial reliance for reasonable necessaries at the time of death, not on the existence of a support waiver or court-ordered alimony. It remanded the case for an award of benefits to Mrs. Sifford.

labor & employmentfamily law

The case involved a workers' compensation claim by Harvey Maurice Harris against the Portsmouth School Board seeking reimbursement for a $5,200 six-person spa pool purchased to treat ongoing neck and back pain stemming from a 2005 compensable shoulder injury. The Virginia Court of Appeals reversed the Workers' Compensation Commission's award requiring the employer to pay for the spa pool. The court held that the claimant did not satisfy his burden to prove the specific appliance was reasonable, necessary, and related to the injury, because the treating physician's prescriptions were vague and generic without details on the size, type, or necessity of a large home spa pool, and the record lacked evidence comparing it to alternatives such as aquatic therapy.

labor & employmentprocedure

The case involved the Virginia Department of Medical Assistance Services (DMAS) determining that Patient Transport Systems had been overpaid for ambulance services to dual-eligible Medicaid/Medicare recipients and seeking recovery of those amounts. Transport appealed the overpayment determination through agency review processes, challenging the adequacy of DMAS's case summary under 12 VAC 30-20-540(B). The circuit court set aside DMAS's final decision, finding the case summary insufficient because it failed to address each individual adjustment with a factual basis and DMAS's position for each disputed matter, and the accompanying CD was not properly incorporated. The Court of Appeals affirmed the circuit court's judgment, concluding that DMAS's submissions did not meet the regulation's requirements for detail and that the agency lacked evidentiary support for its position.

business & regulatoryhealthcareprocedure

In Holloway v. Commonwealth, Kevin L. Holloway was convicted in a bench trial of possession with intent to distribute an imitation controlled substance under Code § 18.2-248(G), based on evidence that police saw him make a pitching motion, recovered three individually wrapped baggies of imitation crack from the porch area, and noted the absence of any personal-use items like a smoking device or significant cash. On rehearing en banc, the Court of Appeals of Virginia affirmed the conviction, holding that the evidence was sufficient to prove intent to distribute. The core reasoning relied on expert testimony that such packaging and circumstances were inconsistent with personal use and instead indicated distribution, along with the lack of any other reasonable hypothesis of innocence supported by the record. The assault and battery conviction was not at issue before the en banc court.

criminal law

The case involved the National College of Business and Technology being cited by the Virginia Department of Labor and Industry for violations of asbestos safety standards related to damaged insulation in a boiler room on campus. The circuit court upheld the citations and penalties after finding employee exposure to the hazard. On appeal, the Court of Appeals affirmed the exposure finding based on evidence of asbestos-containing materials, employee access to the area via stored records and equipment, and the need for maintenance. However, it reversed the determination that the violations were "serious" under Code § 40.1-49.3 because the record lacked evidence linking the specific level or frequency of exposure to a substantial risk of serious injury or death, and it remanded for penalty redetermination.

labor & employmentbusiness & regulatory

The case involved Michael Davis, who was convicted by a jury of vehicular aggravated involuntary manslaughter after striking and killing his cousin, who was lying in the road, while driving under the influence and texting. Davis had previously been convicted of DUI in general district court and argued that the manslaughter charge violated double jeopardy under the U.S. Constitution and Virginia Code § 19.2-294, and that the evidence was insufficient to prove causation and criminal negligence. The Court of Appeals of Virginia affirmed the conviction, holding that the prosecutions were simultaneous rather than successive, that Blockburger did not bar multiple punishments given legislative intent, and that the evidence of intoxication, divided attention failure, and failure to take evasive action supported the jury's findings on causation and negligence.

criminal lawprocedure

The case involved Collin Anthony Rice, who was charged with multiple offenses including malicious wounding, attempted murder, and possession of a firearm by a felon following a shooting incident. By agreement of the parties, a jury tried five of the charges and acquitted Rice on all of them, while the trial court separately heard and convicted him on the firearm possession charge under Code § 18.2-308.2. Rice argued that collateral estoppel barred the conviction because the jury's acquittals necessarily determined he did not possess the firearm. The Court of Appeals of Virginia affirmed the conviction, ruling that the doctrine of collateral estoppel does not apply to simultaneous prosecutions within a single proceeding, even when different fact-finders decide separate charges.

criminal lawprocedure

Christopher James Williams was convicted in a bench trial of possessing a controlled substance, Oxycodone, without a valid prescription in violation of Virginia Code § 18.2-250. He appealed, challenging the constitutionality of Code § 18.2-263 on grounds that it was unconstitutionally vague for failing to specify a standard of proof and that it violated due process by improperly shifting the burden to the defendant to prove the existence of a valid prescription. The Court of Appeals of Virginia rejected these arguments, holding that the lack of a prescription is an affirmative defense rather than an element of the offense, that the statute does not impermissibly shift the burden of proof, and that any vagueness claim was waived; it therefore affirmed the conviction.

criminal lawcivil rights

The case involved Sharon Breeden Wood, who was convicted in a bench trial of two counts of felony child endangerment under Virginia Code § 18.2-371.1(B)(1) after being found in a parked car with her two young children while intoxicated. She appealed, arguing insufficient evidence and improper admission of statements, but the Court of Appeals of Virginia affirmed the convictions. The court reasoned that the evidence, including witness observations of her impairment, a blood alcohol content of .19 (extrapolated to .22-.26 at the time of driving), and her ingestion of Ambien, sufficiently showed she knowingly impaired her ability to supervise the children. It rejected her claim of accidentally taking Ambien, finding the trial court could reasonably conclude she acted intentionally based on her statements and behavior. The opinion also noted her struggle with officers while protesting about her children but focused on the sufficiency of proof for endangerment.

criminal law

The case involved Wayne McDowell, who was convicted in a bench trial of fraudulent conversion of leased property under Virginia Code § 18.2-118 after leasing a television from Premier Rental Purchase, making only partial payments, and failing to return it. McDowell appealed, arguing that the evidence was insufficient because Premier's certified "Final Notice" letter—mailed to the apartment address where he had been contacted earlier—was not sent precisely to the street address listed in the lease agreement, so the statutory notice requirements and proof of fraudulent intent had not been satisfied. The Court of Appeals of Virginia held that the notice complied with the statute, that the Commonwealth had established a prima facie case, and that McDowell had not rebutted it or preserved other issues for appeal. The court therefore affirmed the conviction and the related probation revocation.

criminal lawproperty

In this workers' compensation appeal, claimant Frank Montalbano sought additional benefits after a 2006 workplace injury to his wrists, including temporary partial disability and permanent partial disability based on a claimed 46% arm impairment. The Virginia Workers' Compensation Commission denied the claims, finding that Montalbano's termination from a light-duty managerial position was for justified cause due to repeated verbal harassment and intimidation of subordinates in violation of the employer's anti-harassment policy, and that he had not reached maximum medical improvement because conflicting physician opinions were in equipoise. On appeal, the Court of Appeals of Virginia affirmed, holding that the evidence supported the commission's determinations on both the justified-cause termination and the lack of proof of maximum medical improvement, rendering a permanent disability award premature.

labor & employmentprocedure

In Atkins v. Commonwealth, the defendant was convicted in a bench trial of heroin possession, possession of a firearm while possessing heroin, and possession of a firearm by a convicted felon after a traffic stop for a defective license plate light led to his dropping a pill bottle of heroin during a pat-down and the discovery of two guns in the car. The Court of Appeals of Virginia affirmed the convictions, rejecting challenges to the defendant's standing to contest the vehicle search, the denial of the suppression motion, the sufficiency of the evidence for constructive possession, and the indictment's alleged variance regarding the prior felony. The court reasoned that the search was valid as incident to arrest or an inventory search after the driver fled, the gun under the rear seat was in the defendant's immediate control based on its position and visibility, and the indictment did not require additional language about the timing of the prior conviction to support the mandatory sentence.

criminal lawguns

In Reid v. Commonwealth, the appellant was convicted in a bench trial of possessing a firearm while under age 29 following a felonious juvenile adjudication under Virginia Code § 18.2-308.2 and appealed on grounds including Miranda violations, evidentiary sufficiency, and due process. While the appeal was pending, the appellant violated the conditions of his appeal bond by failing to report to probation, missing court appearances, and evading contact, leading the trial court to declare him a fugitive and the Commonwealth to move for dismissal under the Fugitive Disentitlement Doctrine. The Court of Appeals of Virginia granted the motion to dismiss after determining that the appellant qualified as a fugitive, a sufficient connection existed between his status and the appeal, and dismissal was required to advance the doctrine's objectives of discouraging flight, promoting compliance with court orders, and ensuring enforceable judgments. The court noted that no lesser sanction adequately protected these interests, as the appellant's whereabouts remained unknown.

criminal lawprocedure

In Montgomery v. Commonwealth, the defendant was convicted in a bench trial of forcible sodomy, aggravated sexual battery, and object sexual penetration against a child victim. He appealed on the ground that the trial court violated Code § 19.2-298 by failing to afford him allocution—the right to make a statement before sentencing—and that this error required resentencing. The Court of Appeals held that the trial court erred in denying allocution but found the error harmless because the defendant was later offered an opportunity to proffer a statement for the record, declined to do so, and failed to demonstrate any prejudice from the omission. The court applied a harmless-error analysis, noting that denial of allocution is not structural error and that the lack of a proffer prevented review of any potential impact on the sentence. The convictions and sentence were therefore affirmed.

criminal lawprocedure