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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

On November 22, 2022, your humble and obedient reported on the unpublished decision in Maust v. Commonwealth, 2-1 reversal of a criminal conviction. Today, the Court publishes the en banc decision affirming the judgment, with only the two judges who reversed in the panel dissenting. Judge Malveaux, the original dissenter, is joined by Chief Judge Decker, and Judges Humphreys, Beales, Huff, O’Brien, AtLee, Athey, Fulton, Ortiz, Friedman, Raphael, Lorish, Callins and White, while Judge Chaney joined by Judge Causey dissents. The issue that separates that two sides is sufficiency of the evidence to prove guilt beyond a reasonable doubt. What makes this result interesting is that in an unpublished panel decision Judge Causey is joined by Judges O'Brien and Friedman in overturning another conviction finding the evidence was insufficient.


In Maust, the issue was whether the defendant could be found guilty of distribution of a controlled substance in violation of Code § 18.2-248 where the evidence was provided by an informant conducting a controlled buy. The problem was that while the officer seeting up the buy "did not recall" the informant's girlfriend accompanying him to the buy -- she was clearly with him in his car when he arrived. The officer also "lost sight" of the informant for a time. Although the audio has innocuous conversation between Maust, another woman, and the informant, but no express mention of purchasing drugs. A subsequent search discovered numerous pills in prescription bottles and cash including most of the case supplied to the informant.


In the original summary, I expressed surprise that there was apparently no motion to suppress the evidence from the controlled buy. Neither the original opinion and dissent nor today's en banc opinion and dissent say expressly that there was not, but had there been, Maust would almost have certainly challenged the failure to supress -- and I think might have prevailed. I am particular disturbed by the lack of evidence that the informant's girlfriend was search by police and allowed to accompany him to the controlled buy.


What happened instead was that Maust challenged the sufficiency of the evidence to prove her guilt beyond a reasonable doubt against her alternative theory that the informant obtained the drugs from his girlfriend and that any of the marked bills could in Maust's possession were in payment of a debt. In the panel, and again today en banc, the question becomes whether Maust's theory of innocence was enough to move the needle below the reasonable doubt standard. The majority concludes that the standard of review gives "the highest degree of appellate deference" to the trial court's fact-finding. The dissent agrees that deference is owed, but not to the point of ignoring the absence of evidence and strained inferences.


The unpublished opinion is Stephen Lamar Garrick v. Commonwealth of Virginia and involves the question of constructive possession. The facts are consistent with the typical constructive possession case involving an automobile. Garrick was "operating" the vehcile by sleeping in it with the engine running. The police searched the vehicle (the opinion gives no details of why they did this or even whether they woke Garrick before doing so) and found a gun and a baggie of white powder that turned out to be heroin also with two receipts for maintenance of the gar made out in Garrick's name in the glove compartment. Garrick said that his mother owned the car and that he drove it about three days a week.


Garrick's motion to suppress the evidence was denied and at trial his argument that there was insufficient evidence that he was aware of the character and presence of the contraband found not joy from the trial court. He appealed both decisions, but the Court decides that it need not consider the suppression issue because in its view the trial court was just plain wrong to think that Garrick could be charged with knowledge of the drugs in the glove box. The Court finds that no action Garrick took when the police conducted the search gave any indication that he was concerned about what they might find. In other words, Garrick kept his cool -- no furtive movements or jitters -- so the judge could not infer that Garrick was harboring a guilty conscience.


I have a filling that even without a dissent, the Commonwealth is going to challenge this decision -- and I am going to go one step further and say that the Court of Appeals en banc or Supreme Court will give it another look. I am having a hard time reconciling Garrick and Maust. Had Garrick been reversed on the suppression -- which granted we don't know what the basis would have been -- I would not have been surprised unless Garrick consented. But with two of the panel members in Garrick having just said en banc that the trial court is due "the highest degree of appellate deference" in its fact-finding, I am absolutely gobsmacked that they are letting Garrick off.

With the Court of Appeals sitting as a court of general appellate jurisdiction for almost 18 months, would think that there would not be many more “firsts” for the Court to get to, but today we get one of those remaining firsts taken care of – the Court decides its first tax law case. Commonwealth of Virginia, Department of Taxation v. 1887 Holdings, Inc. etc sees the taxman appealing from a grant of summary judgment allowing a multi-state taxpayer to file an amended tax return that alters the method of income apportionment from that used in the original return. Tax Law is akin to Administrative Law in one very important way – it is arcane and best left to the specialists. That having been said, your humble correspondent does not have quite the level of loathing for tax law that he reserves for Administrative Law. However, even without such disdain, this case is really nothing to write home about as it turns on that most common of statutory construction tools the “plain meaning of the statute.” The Court of Appeals, Chief Judge Graff joined by Judges Huff and Callins, affirms the judgment in favor of the taxpayer by observing that nothing in the relevant statute requires the taxpayer to stick to its original method of income apportionment when amending a return. In fact, if you think about it, one particular good reason for amending a return is because you realize that you overpaid when filing your return – and the law of taxation has one maxim that everyone should no – the law requires you to pay your taxes, but you are required to pay only the least amount which the government can require you to pay.

Marquay Christopher Alston, s/k/a Marquay Christopher Lee Alston v. Commonwealth of Virginia is an appeal from convictions for aggravated malicious wounding in violation of Code § 18.2-51.2 and discharging a firearm from a vehicle in violation of Code § 18.2-286. Although both incidents occurred on the same night, they happened at different locations and were tried separately, but were combined for briefing and argument on appeal.

Alston and his girlfriend attended a party in Radford. The opinion does not provide Alston’s age, but both the victim and his girlfriend are identified only by their initials to protect their identity as they were minors at the time. A.S., the girlfriend, became engaged is particularly aggressive cat fight with several women and, J.C. attempted to intervene, taking A.S. in a “half bear hug.” Alston took umbrage at the manhandling (boyhandling?) of his girlfriend, who was several months pregnant, and began punching J.C., who attempted to retreat, with Alston pursuing him and administering a pretty through beatdown which left J.C.’s teeth “mangled” and sending him to the hospital. J.C. lost six teeth.

Alston left the party and shortly afterwards gunfire was heard outside. Joshua Turman and a friend decided it was also time to leave. When Turman and the friend reached friend’s vehicle, Alston and two others “jumped in the backseat.” Turman drove to a convenience store to buy alcoholic beverages and “Alston pressured Turman to buy cigarettes.” As the group drove around, Alston, without warning, fired two shots out a car window, “terrifying” Turman.

Now I think it is fairly plain from this evidence that Alston was guilty of both offenses, so why is this a published opinion? Well, it’s because Alston has a pretty creative lawyer who reads statutes carefully (as we all should) and made some interesting arguments about sufficiency. My guess is that the Court wanted something in writing to help the next trial judge who is faced with similar creativity.

The attorney based his sufficiency challenges to both convictions based on arguments that the Commonwealth didn’t prove malice for the malicious wounding charge because Alston was acting in defense of his (pregnant) girlfriend and that even if he was acting with malice, the loss of six teeth wasn’t a “significant and permanent injury” because implants can make your choppers better than new (albeit J.C. had not yet been able to afford implant surgery).

As the firing from a vehicle offense, Alston fired out of the vehicle in an unpopulated area, so there was no evidence that he “create[d] the risk of injury or death to another person or thereby cause another person to have reasonable apprehension of injury or death.” Turman was frightened, certainly, but never in any real danger.

The Court of Appeals, Judge Callins joined by Judges Friedman and White, are having none of it – and good on them. While these arguments are creative, they just don’t fit the facts of this case. First, Alston’s defense of girlfriend, pregnant or otherwise, was wildly out of proportion to J.C.’s “half bear hug” restraint, and Alson’s pursuit and escalation of his own assault on the retreating J.C. went far beyond a defense of another claim. Second, merely because an injury can be cosmetically repaired does not mean that the injury is not both serious and permanent.

As to Turman was a scaredy cat, but not really in danger, the Court notes that the statute does not require anyone to be in actual danger, merely to be but in apprehension of injury or death. Given that Turman had witness the attack on J.C., I think, especially in the light most favorable to the Commonwealth, the evidence showed that he was “apprehensive” about Turman’s intent at recklessly firing a weapon inside the close quarters of car, regardless of where it was aimed.

Dale A. Happe v. Kathryn Zimmerman involves the standard to be applied when a court extends a protective order under Code § 19.2-152.10. Now as with many, protective orders, this one involved a romantic attachment, though in this case is was decidedly one-sided. Happe was an employee of Zimmerman’s who became obsessed with her and wouldn’t take a polite “no” and a slightly less polite “go away.” Hence, Zimmerman obtained a restraining order.

Zimmerman changed her phone number and email address, but over the course of the next two years would encounter Happe. Although he would not approach or try to communicate with her, he would stare very noticeably at her. As the protective order was due to expire, Zimmerman sought an extension, which Happe opposed.

Let us pause here to consider why someone would oppose a protective order being extended if they no longer had an interest in the person who obtained the order. Well, there are good reasons to do so. Protective orders are matters of public record and can cause embarrassment and worse for the individual subject to the order. Likewise, some protective orders ban the person from possessing a firearm. But, having said that, one gets the feeling from the facts as recited in this case that Happe was not really concerned with such collateral issues. In any case, whatever you may call his behavior, I think we can all agree it’s creepy.



Anyway, Happe argued that merely showing up unexpectedly where Zimmerman happened to be and staring at her was not sufficient to show that he posed a threat to her. The circuit court disagreed and Happe appealed.

The Court of Appeals, Judge Humphreys joined by Judges O’Brien and Chaney, affirm the extension of the protective order. The Court rejected Happe’s argument that an extension of a protective order required what would amount to a new evidentiary hearing under the same standard required to obtain the protective order in the first place. The correct standard, the Court holds, is whether the extension is needed to protect the health and safety of the protectee. If Happe’s interpretation were to be applied, it would naturally necessitate that the person subject to the protective order commit some act in violation of the order, or close to it.

Of late it has be fairly rare for the Court of Appeals to issue a single published opinion, but that is what happened today, and wouldn't you know it the counsel for the disappointed appellant is a name familiar to the regular readers of this blawg (both of you!). So it is a little awkward to report on the decision of the Court in Sidney Jordan Brandon, III v. Laurie Coffey.


The issue in the case was straightforward (sufficiently so that the Court takes only seven and a half pages to deal with the case): When a court is making an initial custody decision as between natural parents and the evidence shows that one parent will reside outside the Commonwealth, should the court make express consideration of the hardship this removal will have on the parent remaining in the Commonwealth with respect to the best interest determination? Now if you have a passing familiarity with the law of custody, you know that a parent who is award primary physical custody of a child in Virginia and then subsequently decides to move outside the state, they can't just pick up stakes and move. Typically, the non-custodial will have a right to object and may even be able to obtain a change of primary custody. At the very least, the court is going to have to make some hard decisions about visitation schedules if the new home if significantly distant from the non-custodial parent. However, it may surprise you to learn that when making an initial custody determination, the statutes are silent as to whether the child being taken out of Virginia is a relevant factor that the court must consider and make an express finding of its impact on the best interests of the child.


The parents in this case were never married, but were for the first ten or so years of their daughter's life amenable to shared custody by informal agreement with the mother having primary custody including when she was living overseas. This changed, however, when mother was going through a career transition and the daughter went to live with the father in Virginia. When mother subsequently returned to the United States, she wanted to resume primary custody and take the child to live with her family in upstate New York, father objected and the parties ultimately wound up in court to have the custody of the child legally determined for the first time.


This, as it turns out, was a unique (to that point) situation so far as appellate guidance is concerned and probably explains the reason that today's short opinion is going to be published. While the issues had common up in the context of divorcing parents, there is comparatively little case law about children conceived in relationships that lacked "benefit of clergy" in the old vernacular where one party was intending to take the child out of the Commonwealth if awarded physical custody.


Although the trial court issued a lengthy opinion letter (far longer than today's opinion because the court went in to great detail about the specifically required factors in making a custody determination), nary a word was said about the mother's intention to relocate the child to New York before awarding her primary custody.


Let me begin by saying that the result against my client, the father, was not entirely unexpected. First, while the fact pattern of the case was unique, it was likely that the Court of Appeals was going to consider this a difference without distinction. After all, while a few generations back there would have been scandal attached to a custody fight over a child born out of wedlock, there is really no legal distinction between married parents and unmarried parents disputing custody.


Second,during oral argument it was fairly clear that the panel, Judge Ortiz, who authored today's opinion, Judge Chaney and Sr. Judge Haley, were going to stick to the strict letter of the law that if the General Assembly did not expressly designated the future domicile of the child as a factor the trial court must consider, then it is entirely within the court's discretion to give great, little, or no weight to that issue and says as much, as little, or nothing at all about it in writing. That is actually what I expected and had advise my client early on that the Court was likely to say the this was a matter for the legislature to address, as it is not for the courts to add language to a statute that the General Assembly chose not to include.


What did surprise me about the oral argument (and the opinion) was the view expressed by two of the judges that "when they were practicing law and sitting on the trial bench" it was common practice to consider the domicile of the child in making the "best interest" determination, but to do so tacitly. I don't doubt that this is true -- and as the opinion implies, the judge in this case was aware of the situation and probably weighed it as part of his best interest determination. However, by not saying specifically that future domicile was considered (because the law does not require it), I am not sure that the "probability" that the judge considered it is much of a sop to the parent who is separated from their child by hundreds of miles.


Like a good many cases that I analyze in this space, I reach the conclusion that the the remedy for future cases lies with the elected branches. Specifically, Code § 20-124.3 needs to be amended to include whether the intended domicile of either parent will be outside the Commonwealth as one of the mandatory factors to be considered in an initial custody determination. As with all other observations, I won't be holding my breath.

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