Robert J. Humphreys

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

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

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

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

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

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

Bart D. Smith, Sr. appealed a circuit court order that revoked the suspension of his 2007 petit larceny sentence after finding he violated its terms by incurring new convictions. The Court of Appeals of Virginia affirmed the revocation of twelve months with six months re-suspended. The court held that Smith’s no-contest plea waived his claims that the revocation was untimely under Code § 19.2-306 and that the sentence was an abuse of discretion, and it declined to apply the ends-of-justice exception because the record showed the new offenses occurred before his two-year good-behavior period expired and the sentence imposed was within statutory limits.

criminal lawprocedure

In Stevens v. Stevens, husband Danny Stevens appealed a Nelson County circuit court divorce decree that classified a 19-acre farm as marital property subject to equitable distribution and ordered related financial adjustments between the parties. The Court of Appeals affirmed the circuit court’s rulings. The farm had been conveyed by contract in 2002 from a family trust to both spouses jointly for $100,000 (later reduced by a $75,000 note paid off with proceeds from the couple’s prior home); the court found no evidence of a partial gift or inheritance to husband alone, as the contract named both spouses as purchasers, contained an integration clause, and reflected a sale rather than a donative transfer. Husband’s additional claims concerning personal-property distribution and the monetary award were not addressed because he failed to obtain a timely ruling on his motion to reconsider, leaving the trial court without jurisdiction under Rule 1:1.

family lawpropertyprocedure

Jennifer G. Francis appealed a circuit court ruling that upheld the Virginia Employment Commission’s denial of unemployment benefits after she resigned from her position as a merchandising supervisor at Wal-Mart rather than face termination. The Court of Appeals of Virginia affirmed the denial, holding that Francis’s guilty plea to felony welfare fraud constituted misconduct connected with her work under the Unemployment Benefits Act. The court reasoned that Francis’s duties—which included operating the cash register, handling merchandise and financial paperwork, and supervising employees—placed her in a fiduciary capacity and position of trust, and that her conviction for a crime of moral turpitude demonstrated a willful disregard of her employer’s interests. Although Francis had no prior discipline and disclosed the charges herself, the court found no mitigating circumstances that would allow benefits.

labor & employmentcriminal law

The case concerned Wayne Allen Russell’s challenge, as administrator of an estate, to a Virginia Board of Agriculture and Consumer Services regulation on scrapie in sheep and goats; after the Board adopted the regulation in 2008, Russell sought judicial review in circuit court but the Board moved to dismiss on procedural grounds. The circuit court granted the motion and dismissed the case for lack of jurisdiction because Russell had not filed his notice of appeal within the 30-day period required by Rule 2A:2 of the Supreme Court of Virginia. On appeal, the Court of Appeals of Virginia affirmed, holding that the timely filing of the notice of appeal is a jurisdictional prerequisite for circuit-court review of agency regulations and that Russell’s October 30, 2008 filing was untimely regardless of how he calculated the start of the 30-day clock. Because the circuit court never acquired jurisdiction, the appellate court did not reach Russell’s arguments that the regulation was void. The judgment of the circuit court was therefore affirmed.

business & regulatoryprocedure

In Downey v. Commonwealth, Robin L. Downey appealed from the Circuit Court of Chesterfield County’s revocation of her previously suspended thirteen-year sentence for convictions including cocaine possession and passing worthless checks. The revocation stemmed from her probation officer’s report that she had admitted consuming alcohol multiple times in violation of her supervised probation terms, even though no other evidence such as positive tests or observed intoxication was presented. Downey argued that the evidence was insufficient because her uncorroborated statement alone could not establish a violation, invoking the corpus delicti rule that requires corroboration for confessions in criminal cases. The Court of Appeals of Virginia affirmed the circuit court, holding that the corpus delicti rule does not apply to probation revocation proceedings and that a defendant’s voluntary admission, if credited by the court, is sufficient by itself to prove a violation of probation conditions. The court concluded that the trial judge did not abuse its discretion in finding the admission adequate to support revocation and re-suspension of the sentences.

criminal lawprocedure

In Gonzin v. Commonwealth, Daniel Jason Gonzin and Walter Cousins, Jr. appealed their joint convictions in the Circuit Court of Appomattox County for aggravated sexual battery, arguing that the evidence was legally insufficient to support the felony offense. The Court of Appeals of Virginia reversed the convictions and remanded the cases for resentencing on the lesser-included misdemeanor offense of sexual battery. The court held that the Commonwealth failed to prove at trial that the victim suffered a “serious” mental injury, an essential element of aggravated sexual battery under the statute. Although the victim experienced counseling, dropped out of school, quit her job, moved out of state, and developed trust and anxiety issues, the court found this evidence did not establish a greater degree of injury—by frequency, duration, or severity—than would typically accompany any sexual battery, as required by the plain meaning of the word “serious.”

criminal law

In Turner v. Commonwealth, Mario Lamar Turner was convicted in a bench trial of aggravated malicious wounding and use of a firearm during a felony after being identified as the shooter of a high school student in Newport News. On appeal, Turner argued that the trial court erred by allowing his former public defender, who represented him at the preliminary hearing, to testify at trial about a witness's prior identification of Turner, using a transcript to refresh his recollection. The Court of Appeals of Virginia affirmed the convictions, holding that the attorney could properly testify with reasonable accuracy based on the refreshed recollection of the sworn testimony, without violating any evidentiary rules or privileges. The court found no abuse of discretion in admitting the testimony and declined to conduct a harmless error analysis since no error occurred.

criminal lawprocedure

The case involved Mary Rahim's claim for workers' compensation benefits after a 2007 workplace injury to her back and knee while employed by the Prince William County School Board. Rahim received light-duty wages at or above her pre-injury pay for over two years and later sought temporary total disability benefits for time lost due to surgery; the employer argued the claim was barred by the statute of limitations under Code § 65.2-708 because no prior award for wage-loss compensation had been entered. The Workers' Compensation Commission ruled the light-duty wages qualified as compensation pursuant to an award, rendering the change-in-condition claim timely, and the Court of Appeals affirmed. The court's core reasoning was that the statutory language treats such payments as satisfying the award requirement for tolling purposes even in a medical-only award scenario.

labor & employmentprocedure

Dennis Barson was convicted in Virginia Beach Circuit Court of one count of harassment by computer under Code § 18.2-152.7:1 after sending his wife and her family and friends dozens of explicit emails alleging her sexual misconduct on Craigslist, with the intent to harass her. A divided panel of the Court of Appeals reversed, but upon rehearing en banc the full court affirmed the conviction. The court held that the emails were obscene because their dominant theme as a whole appealed to a shameful or morbid interest in sexual conduct that exceeded customary limits of candor, distinguishing them from mere vulgarity or name-calling in prior cases. The trial court, as factfinder, properly applied community standards to find the communications obscene and that Barson acted with intent to harass.

criminal lawfree speech

Henderson, on probation following a 2001 robbery conviction, faced revocation proceedings after new robbery allegations in 2009 that were later nolle prosequied or resulted in no charges. At the hearing, the circuit court admitted a detective's testimony relaying hearsay statements from alleged victims and others over Henderson's objections that it violated due process by denying confrontation rights. The Court of Appeals upheld the admission, ruling that in revocation hearings hearsay is permissible if shown to be reliable and good cause exists for not producing live witnesses, such as a victim's demonstrated fear of retaliation supported by threats and prior refusal to testify. The court found the evidence met these standards and affirmed the use of the testimony to support the revocation.

criminal lawprocedure

This case involved a dispute over the extension of medical benefits in a workers' compensation settlement agreement between Hampton Inn and its insurer and employee Jessica King, who had suffered a back injury. The Virginia Workers' Compensation Commission approved the settlement limiting medical benefits to six months but later extended that period by five months based on the doctrine of imposition due to the employer's handling of a post-settlement claim for a weight loss program. The Court of Appeals of Virginia reversed this decision, holding that the commission erred in applying the doctrine of imposition because the settlement terms were clear and the employer's conduct did not justify modifying the agreement. The court reasoned that the parties had explicitly agreed to limit medical payments to six months after the settlement date, and no series of acts by the employer warranted an extension.

labor & employmentprocedure

The case involved Sebastian Cortez-Hernandez's appeal of his convictions for first-degree murder and use of a firearm in the commission of a felony, arising from a fatal shooting during a street fight that followed an earlier altercation. The defendant contended that the trial court erred by denying him recross-examination of a prosecution witness after redirect and by refusing jury instructions on excusable self-defense and voluntary manslaughter. The Court of Appeals of Virginia affirmed the trial court's rulings, finding no reversible error in the limitation on recross-examination because any issue was not properly preserved with a proffer and the evidence did not support the requested self-defense or manslaughter instructions.

criminal lawprocedure

In this case from the Court of Appeals of Virginia, Nasser Dezfuli was charged with malicious wounding and use of a firearm in the commission of a felony after an altercation with his brother involving a handgun. The trial court found the evidence insufficient for those charges but convicted Dezfuli of brandishing a firearm as a lesser-included offense of the firearm charge. On appeal, Dezfuli argued that brandishing is not a lesser-included offense and that his statutory speedy trial rights were violated. The court held that brandishing is not a lesser-included offense under the Blockburger test because each offense requires proof of an element the other does not (threatening manner versus use in committing a felony), reversed the conviction, and did not reach the speedy trial issue.

criminal lawguns

In Marsh v. Commonwealth, Bernard Chesley Marsh was convicted in a bench trial of grand larceny under Code § 18.2-95 after taking and pawning multiple pieces of his girlfriend's jewelry without permission to obtain cash, later returning some items only after police involvement. On appeal, Marsh argued the evidence was insufficient to prove he intended to permanently deprive the owner of her property, as he claimed he planned to redeem the items upon receiving payment. The Court of Appeals of Virginia affirmed the conviction, finding the evidence sufficient because Marsh had pawned numerous items for loans totaling nearly $3,000, failed to promptly return them despite his promises, and lacked the substantial ability to redeem them all within a reasonable time. The court reasoned that these facts supported an intent to permanently deprive under Virginia larceny law, as his conditional intent to return the property did not negate the required mens rea.

criminal lawproperty