Virginia Family Law Appeals

Appeals court OKs juror who believed “no man ever has a right to raise a fist to a woman”

Virginia's Court of Appeals upheld a conviction for "assault and battery of a family member" even though the trial judge refused to strike a potential juror who agreed with the statement, “no man ever has a right to raise a fist to a woman.”  The court struck four other prospective jurors who indicated that they would use a different standard for self-defense if a man was defending against a man rather than against a woman. The appeals court said the juror’s own statements demonstrated that he was able to sit as an impartial juror, and while he expressed a view that men should be held to a different standard regarding self-defense, his statements, viewed in the totality, simply demonstrate the legally permissible belief that size and strength are factors that can be considered in determining whether self-defense is justifiable.

Weis v. Commonwealth (Malveaux), Va. Ct. App. unpublished 10/18/16.

Man broke into his daughter's room in co-parent's home late at night, convicted of unlawful entry

Jennings v. Commonwealth (Frank) No. 1625-15-1, Oct. 18, 2016; Norfolk Cir. Ct. (Lannetti) J. Barry McCracken, APD, for appellant; Benjamin H. Katz, AAG, for appellee. VLW 016-7-245(UP), 6 pp. 

The defendant and the victim had a child together. He entered the woman’s home at 3:30 a.m. by forcing the air conditioner out of the bedroom window, and went into the daughter’s bedroom. At the time he entered the house, defendant knew the woman had terminated their relationship and had banned him from the house. It is reasonable to infer he knew that the children and their mother would be asleep and any invasion would be frightening and disruptive to the quiet enjoyment of her property. The woman had the right to enjoy the serenity of her home. A rational fact finder could conclude that defendant, who was estranged from the mother and who had recently assaulted her, would be aware that his late-night, surreptitious invasion into the woman’s unlit home would cause her and her children to be fearful and would interfere with her privacy and peaceful enjoyment of her home. Taking into account the history of the relationship between defendant and the woman, as well as his threatening actions following his entry, the evidence was sufficient to uphold his conviction under Va. Code § 18.2-121. The Court of Appeals affirms defendant’s conviction of unlawful entry upon the property of another, for entering his ex-girlfriend’s home, despite defendant’s claim that the evidence did not prove he intended to interfere with the woman’s right to use the property. 

Driving with kids and blood alcohol of 3X the limit is felony child neglect

The Court of Appeals upholds a conviction for felony child neglect. The mother was driving with the children with a BAC of 0.25%,  two flat tires that she seemed unaware of, had hit a median, and appeared "heavily and highly intoxicated.” Camp v. Commonwealth, 5/8/18.

Code § 18.2-371.1(B)(1) requires a "willful act or omission in the care of such child ... so gross, wanton, and culpable as to show a reckless disregard for human life."

‘Willful act’ imports knowledge and consciousness that injury will result from the act done. The act done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury.” Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004). Thus, to fall within the scope of the statute, a parent’s act or omission must be such that “an objectively reasonable person would understand that injury to the child is likely to result” from the act or omission. Hannon, 68 Va. App. at 94, 803 S.E.2d at 359.

..."The term “gross, wanton, and culpable” describes conduct. The word “gross” means “aggravated or increased negligence” while the word “culpable” means deserving of blame or censure. “Gross negligence” is culpable or criminal when accompanied by acts of commission or omission of a wanton or wilful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts." Barrett, 268 Va. at 183, 597 S.E.2d at 111 

Accordingly, to sustain appellant’s convictions, the evidence must be sufficient to allow the factfinder to conclude that appellant’s actions exposed the children to more than a mere possibility of injury; the factfinder must be able to conclude from the evidence that injuries were likely.

The court concludes that driving with a BAC of three times the limit is, itself, child neglect:

In Stevens v. Commonwealth, 272 Va. 481, 487-88, 634 S.E.2d 305, 309 (2006), ... the Supreme Court expressly stated that the defendant’s “high level of intoxication, approximately three times the legal limit . . .. alone justifies a finding that Stevens’ conduct was gross, wanton, and culpable[,]” and thus, met the standard found in Code § 18.2-36.1(B).5.

In addition, though not necessary for conviction,  "Significant other evidence supported the trial court’s conclusion: appellant’s inability to control her SUV when she nearly struck Lasco’s marked police cruiser; appellant’s inability to control her SUV to the point that she struck a median with sufficient force to flatten two tires; her continued operation of the vehicle with two flat tires; and her inability to complete one of the field sobriety tests without falling down."

 

Leaving 5-year-old home alone was criminal, but it depends: duration, maturity, known dangers, precautions, availability ...

The Court of Appeals upholds a decision that leaving an unruly, wandering-prone 5-year-old boy home alone for "the better part of an hour" was felony child neglect. Gibbs v. Commonwealth, unpub. 4/3/18. The Court stresses that it does not retry the case, but only looks at whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The boy was found walking from his apartment complex across the street towards some businesses, on a very cold day, with no jacket or socks. He said he thought his father was at work and he was going to find him. Actually, the father was at a meeting at the child's school about some safety-threatening misbehavior for which the child had been suspended, which is why he was at home.

We certainly create no per se rule that a parent who leaves a five-year-old child at home by himself will be guilty of felony child neglect. "“[a] parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.” Thus, although there are varied opinions about what constitutes “good parenting” and the appropriate level of parental supervision, parents are afforded a great deal of latitude regarding the care of their children." Circumstances – and children themselves – can be quite different. A parent has a right to decide, within reason, when and for how long, a child is sufficiently mature to be left alone at home. ...

Based on the specific facts and circumstances of this particular case, ... appellant should have known that five-year-old J.G. was insufficiently mature to be left alone in their apartment for the better part of an hour ... and that leaving him as appellant did here showed “a reckless disregard” for J.G.’s life and safety and created circumstances that would “probably result in an injury” to him. ... Appellant was aware of his child’s significant “history of unruly or undisciplined behavior,” his immaturity, and his impulsiveness as evidenced by J.G.’s actions at school – in addition to this kindergartener’s young age. Significantly, appellant’s meeting with school officials was to discuss their concern that

The Court also found it significant that the father did not leave the son with any way to reach him, and that he knew that a month earlier, the boy had left the apartment and gone to the complex's pool when left home with his older brother. 

 

Protective order violation upheld without proof of exact distances or dates; stamped/initialed Statement of Facts OK

The Court of Appeals affirms a conviction of a father for violating a protective order by coming within 1,000 feet of the mother to exchange their child. The mother could not testify to the exact date it happened, nor how far apart they were, and only saw him as they both were leaving the parking lot. But she testified that she saw a car "associated with" him parked within 1,000 feet of where she was parked, in the shopping center where the exchange was to happen. When leaving, she paused at a stop light at the exit, behind his car. He

expressed exaggerated laughter and gestured to her in a threatening manner. He made the sign of a pistol with his hand and then pulled an imaginary trigger. The judge took judicial notice of the fact that, due to the size of the shopping center, the appellant would have been within 1,000 feet of Ellis’ location anywhere in that lot.

The father claimed there were inconsistencies in the mother's testimony. The Court does not say what they allegedly were, nor refute this accusation; it says that inconsistencies in the winning side's testimony do not matter on appeal. They "go to the weight," not the witness's competency, and the trial judge has the discretion to weigh credibility and accept only the testimony that tends to the conclusion he or she reaches, even if testimony from that same witness contradicts it.

Not remembering the date, and not proving it, does not matter if time is not an element of the crime. Time was an element, to the extent that the offense was only a crime if it happened while the protective order was in effect, but that much was proven by the date given ni the agreed-on Statement of Facts.

The Court found a Statement of Facts acceptable though it was not signed by the trial court judge. It was agreed on by both sides, and stamped with the judge's initials, the word "Seen", and the date of its filing. "In the case of an agreed-upon statement of facts, initials of the trial court are sufficient to comply with the Rules," the Court declares. It notes that initials are allowed to constitute a signature in the Uniform Commercial Code, Black's, Virginia estates law and other contexts. (Citing Pilcher v. Pilcher, 117 Va. 356, 366-67, 84 S.E. 667, 670-71 (1915)). The initials in this case were made "with the intention of authenticating," and they did so. The "Seen" indicates that the judge has reviewed it, which serves the rule's purpose of ensuring an accurate, complete statement of the facts and procedural history. 

Also, Rule 5A:8 says only that the judge MAY sign the Statement, not must, and if he believed it was not accurate, he could have done as the Rule provided, and made changes to it.

Lee v. Commonwealth, unpublished 7/28/15

State may deny religious name change to murderer to prevent confusion, preserve notoriety and victims' peace of mind

Virginia's Supreme Court upheld the denial of a religion-based name change to a prisoner serving a long sentence for a brutal robbery and murder. The trial court had said the name change would frustrate criminal law's goals of "retribution, deterrence, and incapacitation. ... Someone so dangerous should have his identity fixed, certain and intractable not only with the Department of Corrections but with all of society. There should never be even a hint of confusion as to who this person is ... ."

The name change would have left the prisoner's last name in place, but changed his first and middle names to Muslim ones.

The Supreme Court says Code §8.01-217(D) grants a trial court wide discretion to disapprove a name change, and that on the other hand it requires denial of the change unless it "would not frustrate a legitimate law enforcement purpose, is not sought for a fraudulent purpose, and would not otherwise infringe on the rights of others."

The trial court had also said the victims had a right to know that the convict would serve his sentence under his original name. The Supreme Court says that the reasons the trial judge gave are within the scope of his discretion, as he could reasonably conclude that such a brutal murderer must keep his name "for the peace of mind of the victims and their families and to avoid any possible future confusion ... ." It also cited the fact that the convict would be released at age 65, and that he had admitted that if he could not change his name, that would not hinder his free exercise of religion.

BRIAN WENDALL JORDAN v. COMMONWEALTH, 2/22/18

 

Son, 5, disappears while mother sleeps, later found dead in septic tank, abuse/neglect conviction overturned

Virginia's Court of Appeals overturned the child abuse and neglect conviction of a woman whose five-year-old went outside while she was sleeping  and at some point drowned in a septic tank, saying the law

does not impose criminal liability on parents who fail to take positive action to ferret out every potential hazard to ensure the premises are safe. ... Over a century ago, Supreme Court Justice Harlan observed that “it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.” ... The tragic death of a young child is a hard case. When the child’s body is found in a septic tank after four days of searching, the case is even harder. But it would not benefit the general good of the community to expand Code § 18.2-371.1’s requirement of “willful” conduct to include a parent’s failure to protect a child from an undiscovered and unknown danger. Septic tanks are common in many areas of this Commonwealth. As tragic as the facts of this case are, to affirm this conviction would be to hold that Code § 18.2-371.1 requires a parent to search out potential dangers and continuously supervise his or her child. A parent could be subject to a felony conviction if he or she failed to recognize the danger posed by the unsecured tank cover, the unlatched gate, the rotted board, the unfenced pond, or any other hazard that, in hindsight, could have been corrected.

After driving her husband to work, the mother took a prescription suboxone -- a drug used to cure opioid addiction -- and fell asleep. She woke up to find her infant crying, the front door open, and her five-year-old son missing. Neighbors, the landlord, police and even the FBI searched for her son. One of them "lightly kicked" a septic tank lid, which popped off. He and another officer poked around in the tank's contents with a metal rod and felt nothing. Over the next few days, police officers and an FBI agent took the lid on and off several times, but at least two of them did not "secure" it "on the opening". Four days later the tank was drained and the boy's body was found in it. When it was drained there was only one screw in the lid, and no others were found anywhere nearby.

The trial court found that the mother knew about the septic tank; she knew her son loved to play near it, and that toys were typically left all over the yard and some had been found inside it the previous year, but the appeals court notes that there was no evidence of a reason for the mother to think the child had dropped them into it, rather than flushing them down the toilet, nor indeed that he was able to open the lid. Once, a month or two earlier, he had stood on the lid, and the mother had told him to get off it and never to stand on it again. The trial court took this as evidence that the mother knew of the danger of falling in the tank, but the Court of Appeals sees it as prudent and caring. And "no evidence suggested White knew of subsequent occasions when her son played on or near the lid, or engaged in dangerous activity in the yard."

The mother knew that her son liked to play outside in the fenced-in backyard, and that he had sometimes unlocked the door and gone outside on his own. But "is not sufficient to find that White was advertent to the likelihood that lack of supervision would result in serious injury. The Commonwealth was also required to show that White knew of a heightened risk in the yard such that the son would likely be injured if he played there unsupervised."

No evidence was presented from which the trial court could have inferred that the mother knew the lid could be opened easily. “Inferences must be based on facts and not upon other inferences or mere speculation.”

The mother told a lie which may have been unrelated to her son's death but, the Court says, played a major role in her conviction. When she took her husband to work, she left the five-year-old and the infant home alone. She initially told police she had taken them along, then admitted she left them home. That negligence was not criminal, the Court says, because it played no role in the boy's later disappearance, but it did legitimately affect her credibility.

The Court overturns the conviction because there was no proven willful act or omission, as required by the criminal statute, that caused the death.

Code § 18.2-371.1(A) provides, in part, “Any parent, guardian, or other person responsible for the care of a child under the age of 18 who by willful act or willful omission . . . causes or permits serious injury to the life or health of such child is guilty of a Class 4 felony.” The word [willful] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when ‐ 7 - used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely[.] The word is also employed to characterize a thing done without ground for believing it is lawful.  

The standard for willfulness in this context depends on an awareness of a particular danger, the Court says, combining the standards set out in Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999), where there was no known danger, and Barrett v. Commonwealth, 268 Va. 170,  597 S.E.2d 104 (2004), where there was. Continuing, with citations omitted:

"The term willful is stronger than voluntary or intentional; it is traditionally the equivalent of malicious, evil or corrupt.” “The term ‘willful act’ imports knowledge and consciousness that injury will result from the act done. The act done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury.” The terms “bad purpose” or “without justifiable excuse” necessarily imply knowledge that particular conduct will likely result in injury or illegality. “In other words, the defendant must have been aware that [the] [omission] was likely to result in serious injury.”  “[S]omething more than negligence must be proved beyond a reasonable doubt to support [a] conviction ... the parent “must have been advertent to the likelihood that the conduct [omission] in question would cause or permit serious injury.” "The statute punishes willful omissions, which requires an awareness that the conduct would cause or permit serious injury. It proscribes advertence, not inadvertence. "

All this raises two major factual issues, which were more or less ignored:

1. How do we know that the mother was not lying when she said her son disappeared while she was sleeping, instead of while she was gone? After all, she initially lied about having left the children home alone while she took her husband to work. Then again, if she were lying about that, and the disappearance happened while she was  away, would that be enough for a conviction, considering that it was the five-year-old, not the infant, who came to harm?

2. The appeals court notes that there was no proof that the child's possibly playing on the tank lid had anything to do with his death, but they don't come out and talk about what must have happened if that didn't happen, so I will:

A searcher initially found the septic tank with the lid ON. That means one of three things:

• The child jumped into the tank and put the lid on it from the inside. He was not found in the first search of the tank because it was not thorough enough.
• The child did not go into the tank when he first disappeared, but later, at some point when one of the searchers had left the lid off. (If indeed they ever did; the opinion is unclear, saying only that at one point it was not "secured" on the tank.) That is why was not found when the tank was first discovered, because he was hiding somewhere else at that time.
• Someone else put the child in the tank, alive or dead, and closed the lid. They may have done this after the first search of the tank, which would explain why the child was not found in the first search.

Postscript: By the time the appeal was decided, the mother had already served the 23 months of her sentence that had not been suspended.

White v. Commonwealth, 9/19/17

Imputing recent income to imprisoned support payor not "speculative." - Va. Ct. of App. in Niblett case

Virginia's Court of Appeals once again favors imputing income to an imprisoned parent, this time reversing a trial court that decided otherwise, in Niblett v. Niblett, published, 12/15/15. 

The trial court had found that the father was "voluntarily unemployed" as a result of his voluntary criminal acts, but held that even so, the 1995 case of Donnell v. Donnell, 20 Va. App. 37, barred imputation against an imprisoned felon as "premised upon the occurrence of an uncertain future circumstance". In that case, like this one, the payor was convicted of sexual conduct with minors in his home, and imputation of his previous level of earnings was sought. That "would be speculating as against the requirements of the Jacobs[ v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58 (1979),] and the Payne[ v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987),] case[s].”, the trial court ruled.

But there was evidence of recent past earnings, and the trial court was required to look at it as evidence of current earning capacity, the appeals court says. This is not speculative, because "we are not concerned with what the father might earn upon his release from incarceration. Rather, we are concerned with what the father would have been earning on the date of the hearing but for his voluntary unemployment." 

This opinion also quotes a useful standard for proving abuse of discretion:

An abuse of discretion . . . can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.

Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (alteration in original) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).

Still, the ultimate result in this appeals court opinion is remand, as in Donnell:

although the trial court must consider each of the statutory factors for which evidence is presented, the weight, if any, to give any particular factor in the overall decision lies within the trial court’s sound discretion. Robbins, 48 Va. App. at 481, 632 S.E.2d at 622. Thus, we do not hold that the trial court must deviate from the presumptive guidelines because of the income imputed to father. Rather, we hold that the trial court erred in failing to first consider recent past earnings to calculate the amount of income that should be imputed to father because of his voluntary unemployment. After considering the evidence and the factors, the court may add “‘a just and appropriate amount [to] the amount reflected in Code § 20-108.2,’ accompanied by the requisite written findings,”7 Brooks, 18 Va. App. at 592, 445 S.E.2d at 729 (alteration in original) (quoting Richardson, 12 Va. App. at 20, 401 S.E.2d at 895), or the court may conclude that deviation from the presumptive guidelines is not appropriate in this case.

Third party's filing of transcript triggers appeal deadline; and other odd points of appeal procedure, construction

If a court reporter or anyone else sends a transcript to a Circuit Court, that counts as the "filing" of the transcript even when that means it starts the time limits for the appeal, the Va. Court of Appeals says in Commonwealth v. Spinola (9-8-15).

The Court of Appeals summarily dismissed the appeal on the grounds that the initial petition for appeal and the transcript notice were untimely filed. The appeal was an interlocutory one allowed in criminal cases under a statute which requires the appellant to file a Notice of the transcript's filing within three days after the transcript is filed; and the Petition for Appeal to be filed within 25 days after the Notice. 

The transcript was provided to the clerk of the circuit court for the express purpose of being filed, and all parties were given notice [by copy of the reporter's cover letter] that the transcript had been delivered to the clerk “to be filed this day . . . in the above styled case . . . .” ...  The clerk accepted it and marked it filed. Furthermore, we previously have held that “‘[a] document is considered filed when delivered to the clerk for filing.’” Waller v. Commonwealth, 27 Va. App. 71, 75, 497 S.E.2d 508, 510 (1998) (quoting Rhem v. State, 820 S.W.2d 946, 947 (Tex. Crim. App. 1991)). 

The statute had recently been amended, changing "filed by the Commonwealth" to merely "filed" when saying the filing notice is due three days later. The Court cites

 Washington v. Commonwealth, 46 Va. App. 276, 281, 616 S.E.2d 774, 777 (2005) (“[W]e assume legislative familiarity with Virginia case law when the legislature enacts a statute which might impact upon that law.”). 

The case law referred to above is Commonwealth v. Mitchell, No. 0741-13-3, 2013 Va. App. LEXIS 251 (Va. Ct. App., unpublished, Sept. 10, 2013). In it, a third party filed the transcript, and the appellant's Notice of its filing was filed within the deadlines caused thereby. But the appellant did not file a duplicate of the transcript, and the statute at the time said the transcript had to be filed “by the Commonwealth”. The Court decided there was no need to have re-filed a duplicate of a transcript that had already been filed. The appellant did not file the appeal petition within the required time after the transcript was filed, but the majority said the appeal was still timely because a literal reading would require the appeal in that case to be filed before the trial court's decision. 

On the always-sensitive topic of citing the Court's unpublished opinions, the Court says,

Although they have no precedential value, unpublished opinions of this Court are nevertheless persuasive authority. Otey v. Commonwealth, 61 Va. App. 346, 351 n.3, 735 S.E.2d 255, 258 n.3 (2012).

Judge Humphreys dissents, saying the legislative change must have been intended to let a third party file the transcript on behalf of, or request of, the Commonwealth, and that the majority's interpretation   "allows any person to trigger the time clock" for filing an appeal, and letting a non-party to the case do so, when not acting as a party's agent, is absurd. It is likewise absurd that under the majority's opinion, the appellant "is now required to file notice of the filing of a transcript that anyone may have filed at any time." And that, since a transcript may be (and in this case was) filed before the case was decided, the appeal deadlines might likewise come before the end of the case. Therefore:

This Court is precluded from construing “a statute . . . so that it leads to absurd results.” Auer v. Commonwealth, 46 Va. App. 637, 651, 621 S.E.2d 140, 147 (2005). Thus, “where a particular construction of a statute will result in an - 16 - absurdity, some other reasonable construction which will not produce the absurdity will be found.” Miller v. Commonwealth, 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942). 

However, this was an interlocutory appeal allowed under a special statute for criminal cases, and the special requirements based on the filing of a transcript are in that statute, which begins, "The provisions of this subsection apply only to pretrial appeals.", so this case should not lead to deadlines for appeal falling before the order being appealed is entered. 

Assault conviction was "domestic violence" making firearms possession illegal -- US 4th C

The federal 4th Circuit Court of Appeals offers guidance on what exactly is a "domestic violence" misdemeanor conviction which makes it illegal to possess firearms under 18 U.S. Code §921(a)(33)(A) and §922(g)(9), in U.S. v. Vinson (7/21/15). The decision turns on the the fact that common-law assault in North Carolina can include several forms, including what is more commonly called assault & battery, and whether what he was convicted of was a charge which "categorically" would always constitute domestic violence. The Circuit court adopt's the government's "modified categorical approach" which establishes that in Vinson's case, the conviction was for domestic violence. It cites the charging document which makes clear that the victim was the defendant's wife, and the conviction judgment which states the exact acts that constituted assault in this case. A dissenting judge says that the majority is essentially taking a very wide crime that includes things that are and are not domestic violence, and claiming that it is functionally divisible into separate crimes, merely because that the charging and convicting documents in this case describe acts that qualify as domestic battery.

 

For more insight: 

Divided panel vacates dismissal

U.S. judges to decide whether man who hit wife can keep gun, stemming from local case