It's not officially fall until September 22, 2023 -- and with post-Labor Day temperatures in the upper 90s in the Star City, I can't argue with that.
The wheels of justice continue to grind, however, and give us two new published opinions from the Court of Appeals. Bryan Temple Smith v. Commonwealth of Virginia is a "kitchen sink" appeal from a DUI 3rd offense within 10 years, which is a felony. Ten days before a 2020 amendment took effect that barred police from stopping vehicles for a missing tag light (the tiny bulb that illuminates your license plate and is habitually burned out on most cares more than a few years old), Mr. Smith had the misfortune of being pulled over for that very offense. Generally, when officers pulled you over for this trivial offense it was for one of two reasons -- either they were having a slow day and wanted to stretch their legs a bit a give you a friendly-ish warning to get it fixed or, and this is far more likely -- they had a hunch that there was something going on with you, but that hunch wasn't enough of a reason to stop you.
Smith's case falls into the latter category (they had received a tip) and the police quickly learned, because Smith volunteered the information, that he "wasn't supposed to be driving" because “he was in rehab due to a previous” DUI. He added that he had consumed "a couple of beers." For those not familiar with "Southern English," a "couple" of anything other than human beings is an indeterminate number that is almost certainly more than 2 but likely not reaching into double digits (which in SE is generally referred to as "more than a few"). In this case, "a couple" turned out to be six "since lunchtime."
After performing poorly on field sobriety tests, police arrested Smith. After eading him the implied consent law, Smith responded, “how do you expect a drunk person to understand all that?” As you can probably guess, Smith was charged with both driving on a revoked license and DUI 3rd, but the Commonwealth let the busted tag light slide.
Despite having furnished police with more than adequate evidence to convict him, Smith gamely tried to avoid the consequence of his folly by claiming that the new law should be treated as retroactive and, thus, all that lovely evidence should be suppressed. The trial court disagreed and the case went to trial.
At trial things started going Smith's way when the Commonwealth was unable to prove the bone fides of the BAL certificate. This is good news in that it meant that the court would not here evidence of the specific concentration of alcohol in Smith's blood and deprived the Commonwealth of an easy "presumptive" proof of intoxication.
We pause not to express sympathy for the many, many new (and not so new) attorneys who, having just succeeded in keeping the BAL certificate out in a DUI case, are in the midst of packing up their papers and receiving the congratulations from their client for a well fought case when the they here the judge say, "Just where do you think you're going?"
You see, the lack of a BAL certificate is not fatal to the Commonwealth's case in a DUI. The certificate only permits to court to make an "inference" that the defendant was blotto. The Commonwealth can still prove the defendant's intoxication by other means, like, for example, his statements against interest that he had consumed six beers "since lunchtime" and was a "drunk person."
The Commonwealth did just that. For some reason, the Commonwealth also called an expert, over Smith's objection, to testify on the effect of alcohol on a person's ability to drive. While this might seem a good idea, I hardly think it was necessary. The Commonwealth also a DMV transcript to show that Smith had been first convicted of DUI in May 2016 and the order of conviction for DUI 2nd in June 2020. In lieu of an order of conviction for the first offense, the Commonwealth submitted a letter from the Henrico County General District Court saying that the order could not be found "at this time."
I mentioned that this was a kitchen sink appeal -- meaning that Smith's counsel tried everything that had failed in the circuit court again on appeal. Starting with the "retroactive" application of the "pretextual stop" amendment, the Court of Appeals, Judge Raphael joined by Judge White and Sr. Judge Petty, agreed with the trial court that the legislation evinced no intent for retroactive application (which is disfavored and therefore must be express in the enactment).
Smith next argues that the Commonwealth should not have been allowed to use the DMV transcript and that its evidence as a whole failed to prove that he had two prior DUI convictions. With respect to the former, Smith argued that the inability to produce the order for that first conviction "rebutted" the DMV transcript. The Court, however, found that the transcript was competent evidence of the conviction and the fact that the clerk could not locate the original order was not proof that no order existed (plus, Smith had told one of the officers that he had two prior convictions).
I am going to say here that while I agree with the Court that there was sufficient evidence to prove the two prior DUIs, had I been the prosecutor, I would not have presented the Clerk's Letter. In fact, had I been the prosecutor I would have moved to amend the charge to DUI 2nd when I learned that the court could not find the conviction order for first DUI. In my view, the Commonwealth doesn't need to play hardball in these cases and I don't like sloppy procedures, even if they are sufficient to pass muster on appeal. Plus, in the digital age, I am shocked that one of the wealthiest counties in Virginia does not easily accessible records from just (at the time) 5 years before.
Smith also challenged the admission of the testimony about his prior convictions and the expert testimony. The Court finds that the former point is moot as the prior convictions were proved by other evidence, where as the latter was a decision committed to the discretion of the trial judge.
Silfredo Castillo Canales v. Commonwealth of Virginia involves two revocation proceedings. Canales had comeback time from a 2017 grand larceny and burglary case when he ran afoul of several conditions of his probation. Now probation violation law has undergone some significant revision in the last few years, and one of those changes requires a court to treat all violations ordinally (sic) as the same level of offense if arsing from the same conduct or if tried in one proceeding under a single violation report. The "sic" is used to indicate that I did mean "ordinally" not "ordinarily." That is, violations are treated as being either a "first," "second," or "third or subsequent."
Canales pointed this aspect of the new law out the trial judge, but he was having none of it, saying that the violation report as “chockablock full of discrete incidents” that should not be treated as one. The court therefore decided that it would hold separate proceedings for each incident by the date identified in the report. When the first of the hearings was held that Commonwealth said something along the lines of "Ummm, Judge, not that I don't want to see Canales get what's coming to him, I do think that maybe he has apoint about the new law." That's my kind of Commonwealth's Attorney! I bet he would have reduced Smith's charge to DUI 2nd.
The judge, however, insisted that each of the incidents reported could be treated as a separate violation of each of the suspended sentences. Thus, in quick succession on two separate days, the court entered an total of six orders in which it, somewhat surprisingly, required Canales to serve only 14 days on each violation -- I say surprisingly because under the method used by the court, Canales could have been given all the comeback time. My guess is that he had already served most of the 84 days at the time the sentences were imposed -- maybe all of it.
As you have probably already guesses, the Court of Appeals, Sr. Judge Clements joined by Judges Athey and Otriz, has to do some mental gymnastics to sort out whether the court could decide to try the violations separately (Yes, it could) and if it could, did that allow it treat each violation as being part of a separate course of conduct (No, it couldn't). Judge Clements does an admirable job of explaining this result, but the short version is that while the court cannot be barred from holding separate hearings for each alleged violation, it cannot use that process to do an end run around the requirement that violations that are part of the same course of conduct are to be treated as all one and the same. here there were two "courses of conduct" (failure to follow a probation officer's instructions and using illegal drugs) with three violations each. No matter how many hearings the court held, it had to treat the two "courses" as one "violation" each. This meant that the court should have imposed no more than 14 days of the suspended sentence.
Ok, I am quite sure I am not the first to butcher the Bard when the legal issue is a default judgment, but with only one new opinion from the Court of Appeals in published form and that being about a default judgment, I plead the necessity of the moment.
City-to-City Auto Sales, LLC, et al. v. Ronald Harris involves the sale of used commercial truck by the appellant to the appellee. Now, if you have ever bought a used vehicle of any type, you know to expect some . . . ahem . . . hyperbole from the salesman. Jan and Dean can tell you all about the previous owner.
In this case, the salesman promised Harris that the truck had been inspected and was in top condition except for an issue with the air conditioning. The sales contract included an arbitration clause, but Harris, obviously the trusting sort, wasn't worried about arbitration -- they truck, after all, had passed muster and the honest salesman even admitted the AC was shot.
Well, as it turned out, there was a little more wrong with the vehicle. It had issues with its wheel alignment, suspension, and emission system. It also had dirty oil, transmission fluid, and differential fluid. Less than a month after the purchase, the truck’s engine failed.
Harris sued, and while his complaint was not a Cadillac of legal acumen, it stated a cause. The dealership did not file an answer of any model within the 21 days and Harris moved for a default judgment a few weeks later.
At the hearing on the motion about six weeks later, the dealership appeared with an answer in hand. After kicking the tires of the defense's motion to file a late pleading, the court ruled that no good cause had been shown for not filing the answer in a timely fashion . . . or at any point prior to walking into court and asking the judge to take the answer out for a spin.
A trial solely on damages was set, but shortly there after the dealership filed a motion to continue and compel arbitration and also to set aside the default judgment. The court denied the continuance and arbitration motions as untimely because default had already been entered and wasn't going to set aside. A jury awarded Harris the value of the contract ($33,000) and punitive damages of $50,000. The court added on attorney's fees.
The appeal challenges the failure to enforce the arbitration clause, the sufficiency of the evidence to prove the special damages, and the award of punitive damages and attorney's fees. Chief Judge Decker, joined by Judges Malveaux and Chaney, writes a 14 page opinion to affirm.
The arbitration issue is resolved neatly by the doctrine of implied waiver. The arbitration clause required that at least one party ask for arbitration, and Harris obviously did not. The dealership knew (or was charged with knowledge of the right to seek arbitration), but did nothing until it was facing a default judgment, and even then showed up to court prepared to answer the complaint. Only when it was found to be in default did it attempt to assert arbitration and, as the circuit court observed, that was too late. Likewise, the issue of damages was not subject to arbitration because that issue was controlled by the law of default judgment. As to damages, giving deference to the jury's verdict and finding that the amount award was not shocking to the court's conscience, those too are affirmed.
Now, as to the fault in ourselves bit, we come to the issue of attorney's fees. The Court observes that "[t]he pages that the appellants’ brief cites as showing where they preserved this objection [the attorney's fees] do not in fact do so." Rut Ro Raggy! The dealership has spun out on the dead man's curve of Rule 5A:18.
Today the Court of Appeals gives us two published opinions
Darren Thornton, s/k/a Darren Lamar Thornton v. Commonwealth of Virginia involves the attempted solicitation of a minor for prostitution. In case you were not aware "solicitation" does not apply to just the person offering sexual favors for a pecuniary gain (which doesn't have to be in the form of money), but also applies to the person making the offer of the pecuniary commodity.
As is so distressingly common in such cases (for the person seeking "companionship" that ts), here the person purporting to make the offer of sexual favors was in fact an undercover police woman who advertised on an online forum and claimed to be 19. Thorton responded and exchanged texts with "Emma" who "admitted" to being not yet 18. Alas, Thorton was not bright enough to recognize that he was being baited to commit a more serious crime than mere solicitation. He did, however, assert that he didn't "do under 18" and that he would meet "Emma" to "check her out."
When he arrived at "Emma's address," the police were there already. It isn't clear whether "Emma" was among the arresting officers. Thornton had $160 in cash, condoms, some "green leafy substance" and cigarettes.
Now, at this point, you are probably thinking Thornton has a good shot at beating the "minor" part of the charge and maybe even the solicitation too. First, he expressly said he wasn't interested in "doing under 18" and that he agreed to meet her only to "check her out." But the story does not end there.
If you are familiar with Prof. James Duane lecture (later developed into a book) "You have the right to remain innocent," you know that Duane desperately want's every American to learn what the right against self-incrimination means and how to exercise it by not exercising your jaw muscles around the po-po. Thorton must have missed the YouTube viral video, becuase he agreed to talk to police. And talk he did . . . right into a felony conviction.
Thornton started with a trope familiar to disgraced politicians and televangelists, claiming he had come there to counsel Emma. Eventually, we wound up admitting that he believed she was under 18, but also that they were developing a sexual relationship.
At trial and on appeal, Thorton nonetheless argued that the evidence failed to show that he under tool an act in substantial furtherance of the act of solicitation and also that the evidence failed to show that he knew or had reason to believe that "Emma" was under 18. These arguments went over like a lead ballon at the motion to strike and in a motion to reconsider.
On appeal, the arguments meet the same fate. Judge Chaney, joined by Judge Ortiz and Sr. Judge Haley, makes short shrift of the first argument as there were certainly plenty of overt acts -- the text exchange indicated that Thornton would provide money for sex, he brought condoms and cash to the expected meet, etc.
What gets this case published, I think, is Thornton's argument that since he offered money before Emma claimed to be under 18 and did not do so once she said she was not quite 18, he never solicited her when he might have believed she was a minor. The Court finds several faults with this live of reasoning, including the nature of the ad that "Emma" posted to the fact that Horton did not immediately withdraw from the communication when Emma said, "By the way dude, I'm jail-bait."
The other opinion clocks in at under 7 pages and comes to us from Judge Athey, writing for himself, Judge Ortiz and Sr. Judge Clements. Prasad Salunkhe, et al. v. Christopher Customs, LLC, et al. is all about a subdivision plat and whether it established an easement for the public benefit. I save you the suspense by saying that the circuit court found that it did not and the Court of Appeals agrees. The subdivision plat includes a notation on Lot 28
which refers to a “24’ Ingress-Egress Esm’t.” The subdivision plat also includes a notation for a “35’ Rad. Turnaround Esm’t” which is shown on Lots 28, 29, and 30. The parties are the owners of the respective lots.
Now I really wish the Court had included an image of the plat, because the opinion goes on to say that "[b]oth Lots 28 and 29 include 12-foot adjacent strips of land ('pipestems') which intersect with Appling Valley Road thereby giving both lots direct access to Appling Valley Road." While I could not get the plat, I was able to find the tax map:
The dispute was whether the easements over the pipestems and the turnaround easement which was partially on Lot 30, were specific to Lots 28 and 29 as the cross-dominant estates (with 30 being subservient to both for its share of the turnaround) or whether the developer had intended to create a public easement . . . in effect making the pipestems and turnaround a cul-de-sac in miniature.
The answer lies in the interpretation of the statute covering how pubic easements are created in plats and why the language here was definitely not specific enough to do that. While there were a number of reasons this was so, the main reason, IMHO, is that the county never manifested an intent to accept this alleged public easement (and didn't intervene in this suit to claim that it had). What the plat did was create a shared driveway for the two lots.