Tuma v. Commonwealth
Court of Appeals of Virginia · 2012-06-12 · cited 5×
Tuma was convicted by a jury in Dinwiddie County Circuit Court of taking indecent liberties with a child, aggravated sexual battery, and animate object penetration based on the testimony of his five-year-old stepdaughter, L.S., who described repeated sexual abuse at two locations. On appeal, he argued that the trial court erred by holding that an audio recording of L.S.’s pre-trial interview with investigators was not exculpatory and therefore not subject to pre-trial disclosure under Brady v. Maryland, and by refusing to admit the tape at trial. The Court of Appeals of Virginia, sitting en banc, affirmed the convictions. It held that the tape was not material because any inconsistencies between L.S.’s recorded statements and her trial testimony were minor, cumulative of other evidence already before the jury, or readily explained, and therefore did not undermine confidence in the verdict. The court further concluded that the Commonwealth’s failure to produce the tape before trial did not violate due process.
criminal lawprocedure
Hicks v. Commonwealth
Court of Appeals of Virginia · 2012-05-29 · cited 17×
In Hicks v. Commonwealth, Thomas Lee Hicks appealed his jury convictions in the Circuit Court of Rappahannock County for attempted murder, aggravated malicious wounding, robbery, and use of a firearm in a felony, arising from the shooting and robbery of Clyde Dellinger. Hicks challenged the admission of Dellinger’s statements to family members immediately after the shooting—identifying the shooter as “Tom Thompson,” an alias used by Hicks—as excited utterances, and the use of Dellinger’s preliminary hearing testimony identifying Hicks as the perpetrator, after Dellinger died of unrelated causes before trial. The Court of Appeals of Virginia affirmed the convictions, ruling that the post-shooting statements qualified as excited utterances because they were made spontaneously while Dellinger was still under the stress of the event and in fear for his life. It further held that the preliminary hearing testimony was properly admitted because Dellinger was unavailable due to his death and Hicks had been present with counsel and had the opportunity to cross-examine him, satisfying the requirements of the Confrontation Clause.
criminal lawprocedure
Hubbard v. Commonwealth
Court of Appeals of Virginia · 2012-05-15 · cited 36×
Johnny R. Hubbard pled guilty to first-degree murder under a plea agreement capping his active sentence, after which the circuit court accepted the plea based on the Commonwealth’s proffer of evidence, including Hubbard’s signed statement describing the killing of his estranged wife. Before sentencing, Hubbard moved to withdraw the plea, but the circuit court denied the motion. On appeal, the Court of Appeals of Virginia reversed, holding that the circuit court applied the wrong legal standard by failing to follow the test reaffirmed in Commonwealth v. Bottoms, under which a presentence motion to withdraw a guilty plea should be granted when the defendant offers a reasonable defense and the record shows no prejudice to the Commonwealth or bad-faith delay. Because the circuit court made no such findings of prejudice or misconduct, its denial constituted reversible error, and the case was remanded for further proceedings in which Hubbard may plead not guilty.
criminal lawprocedure
Austin v. Commonwealth
Court of Appeals of Virginia · 2012-04-10 · cited 34×
Sandra Lee Austin was convicted in a bench trial of two counts of obtaining property by false pretense after she took rugs from The Eternal Attic consignment store and glasses from the Spectacle Shop by writing checks that she later stopped payment on, without returning the items or contacting the sellers. She appealed, arguing that the evidence was insufficient to prove she intended to defraud the stores at the time she obtained the merchandise. The Court of Appeals of Virginia affirmed both convictions. The court held that fraudulent intent could be inferred from circumstantial evidence, including Austin’s subsequent stop-payment orders, her failure to return the property or respond to repeated calls, her lack of any explanation, and her repetition of the same conduct within a short period. The court noted that a stop-payment order need not precede possession of the goods to support a finding of intent at the time of the transaction.
criminal law
Moore v. Commonwealth
Court of Appeals of Virginia · 2012-03-20 · cited 19×
Cynthia Dawn Moore was convicted by a jury of three counts each of issuing worthless checks, obtaining money by false pretenses, and uttering a forged writing after she deposited three counterfeit money orders into her credit union account on the same day and withdrew the funds. She appealed, arguing that the single larceny doctrine required the charges to be treated as single offenses rather than three separate ones, and that the trial court erred by allowing the Commonwealth to nolle prosequi an indictment for issuing multiple worthless checks and instead prosecute her under three separate worthless check indictments. The Court of Appeals of Virginia affirmed all convictions. It held that the single larceny doctrine does not apply to uttering forged instruments because that offense is not a form of larceny, and that the doctrine did not merge the false pretenses or worthless check convictions given the distinct acts involved and the lack of legislative intent to limit prosecutions. The court also found no error in granting the nolle prosequi, as the decision rested within the prosecutor’s discretion and was not barred by statute.
criminal law
Little v. Commonwealth
Court of Appeals of Virginia · 2012-03-06 · cited 8×
James Little was convicted in Virginia circuit court of two counts of receiving stolen property after he drove a student to two AT&T stores, where the student broke in and stole eight display (“demo”) cell phones. Little appealed, arguing that the Commonwealth had not proven the phones’ value met the $200 statutory threshold needed to support the convictions. The Court of Appeals of Virginia affirmed the convictions, holding that the evidence was sufficient. The court reasoned that because the stolen demo phones had no established market value, their replacement cost could be used to determine actual value; testimony showed replacement costs totaling $1,922 for the first theft and $1,450 for the second, both well above the threshold, and a fact-finder could reasonably infer the phones were new models in working condition when taken.
criminal lawpropertyprocedure