Yes, there is an appellate law grapevine, and it was all abuzz yesterday from a reliable rumor that the expansion of the jurisdiction (and size) of the Court of Appeals of Virginia is all but a done deal. The unofficial word is that the legislation has or will soon pass and that the Governor will sign it. This means some big changes for the appellate landscape in Virginia:
Except for appeals that are required to be heard in the Supreme Court (State Corporation Commission Appeals, Appeals of Attorney Disciplines Cases, and Appeals of Death Sentences — which will be no longer be a thing soon), all appeals will go through the Court of Appeals as appeals of right — no more petitions for criminal cases, and no need for a petition in civil cases that formerly went direct to the Supreme Court.
The Court of Appeals will have to extensively rewrite its rules to account for the new process.
The Supreme Court will likely have a period where its dockets are even smaller than the very short dockets of recent years as there will be a delay between the Court of Appeals taking over the Supreme Court’s civil docket and cases being appealed to the Supreme Court.
There will be a significant uptick in summary affirmances — in fact, my guess is that court will simply replace the one-judge review of criminal cases with an automatic release of a summary affirmance in those cases that previously were refused by per curiam order. The question is will a summary affirmance be subject to review with a right of oral argument (as petitions for appeal are now) or will it be a “one and done.”
All the preparation will happen sometime in the next 10 months if the January 1, 2022 shift to the new order remains in the legislation. I think this may be a tall order for the Court to redraft its rules and get the necessary staff in place and trained — the new Judges will have law clerks and judicial assistants of course, but I cannot imagine that they will be sufficient to handle the extra workload without a few additional staff attorneys. The Clerk’s Office will likewise need several new staff members.
I freely admit that this post is overdue. But I have the good excuse that I have actually been drawing some interest in my new role as an appellant consultant – no earned fees yet, but perhaps soon. To delay not further, lets jump right into James Daniel Sarka v. Commonwealth of Virginia, the first of three published opinions for the Court of Appeal, all in criminal case. Sarka was charged with failure to return leased property, Code § 18.2-118. Now for those unfamiliar with this statute and its neighbor above in the Code, § 18.2-117, these are crimes of conversion, with -117 dealing with the “failure of bailee to return an animal, aircraft, vehicle or boat,” and -118 dealing with the failure to return leased “personal property.” In 2014, the Court of Appeals determined that because -117 applied to vehicles, a defendant charged under -118 with the failure to return a leased vehicle was not guilty of that crime because the statute expressly excepts its application from “property described in § 18.2-117.” Masika v. Commonwealth, 63 Va. App. 330 (2014). The Court rejected the contention that there was a distinction between bailed property and leased property. This is merely by way of pointing out that Masika is an interesting read for some of its procedural points – it has nothing whatsoever to do with Sarka.
Strictly speaking, that’s not quite true. Although the Court does not cite to Sarka, I wonder if someone didn’t think to do so because the leased property on this instance was a 650-pound “Genie” material lift, and if you’d care to look at the photo of such a device, it has four wheels, though no motor. Now, call me crazy (I’ve been called worse), but I think it looks an awful lot like an industrial sized scooter, and as scooters are sometimes available for lease and, thus, could technically be called “vehicles.” I agree that argument would likely not have gained much traction with the Court of Appeals, but neither did Sarka’s other argument.
Sarka rented the lift for a single day – in fact, given that he picked it up in the afternoon of September 18, 2018 and it was due back at 5 PM, he paid a single day’s rental for just a few hours of use at most. Whether purposefully or not (it is at least debatable that it was not intentional), the rental agreement listed an incorrect address. Somewhat less debatable is that he provided several phone numbers, but the leasing company was subsequently unable to reach him on any of them (the implication is not so much that the numbers were fictitious, as it appeared they belonged to relatives of Sarka and that he was “dodging” the calls).
Sarka did not return the lift that day, or the next, or, well, ever. The leasing company made attempts to contact Sarka by phone and mail, but, using the lingo of the day, he completely ghosted them. Eventually the lift was returned by “someone other than” Sarka in the summer of 2019.
Now this would appear to be a pretty cut and dried case – Sarka leased the lift and didn’t return at the lease’s end, Q.E.D. Well, yes, but recall that conversion is a species of fraud and fraud requires intent. Specifically under Code § 18.2-118, the Commonwealth has to prove that the defendant “with intent to defraud, sell, secrete, or destroy the property, or dispose of the property for his own use, or fraudulently remove the same from the Commonwealth without the written consent of the lessor thereof, or fail to return such property to the lessor thereof within 30 days after expiration of the lease or rental period for such property stated in such written lease,” Alternately, written demand was made for return of the property will serve as prima facie evidence of fraud if the property is not returned within 30 days.
At trial and in the Court of Appeals, Sarka contended that the lease agreement was not sufficiently explicit as to the term of the lease because it provided for charges for additional periods. He further argued that because he never received the written notice (sent to the incorrect address), the prima facie evidence provision of the statute did not apply. Reviewing the circuit court’s rejection of both arguments, the Court of Appeals noted that the first issue was not solely a matter of interpretation of the rental agreement, a matter that would be reviewed de novo, because there was testimony with respect to the meaning of terms (without an objection that parol evidence was not proper from Sarka). In any case, the finding that the contract expressly required return of the lift that evening was not plainly wrong, and merely because the contract provided for overage charges was not evidence of an intent to permit Sarka to modify the terms of the agreement through his course of conduct, and the leasing company’s efforts to recover its property negate any possibility that there was a meeting of the minds to modify the terms.
The Court then addresses the written notice issue, which is odd for two reasons. First, because the evidence was sufficient to convict Sarka by actual proof of fraudulent intent, the need to resort to the written notice/prima facie evidence is moot, and the Court of Appeals says as much. The second odd thing is that because it was not clear that Sarka deliberately gave an inaccurate address (he had the correct street name but gave his apartment number as the street number) and never received the written notice, this seems to be a weak case for asserting fraud based on that provision of the statute.
Apparently, what caught the Court’s attention and led it to address this issue was that second point, specifically that Sarka never received the letter. The Court makes the point that while the statute requires the letter to be sent to the address provided by the defendant in the lease agreement, it does not require proof that the defendant received the letter. Given the evidence that Sarka failed to correct the error in his address or provide an accurate phone number (or at least one which he would answer), the Court concludes that this was actual evidence of his fraudulent intent, not merely a statutory presumption.
Moving on to something a little more familiar, in Lamont Lendell Bagley v. Commonwealth of Virginia we have a garden variety search issue. As many encounters with police are wont to be, this started with a report of a “disturbance” to 911 in which the caller complained of harassing and threatening behavior by two men and a woman in the driveway of the apartment building where he lived. He specifically mentioned that one of the men was brandishing of a firearm. By the time two officers arrived on the scene, the area seemed placid. Two vehicles, at least one of which was the same color as a vehicle described to the dispatcher, were present and each was occupied by a single passenger in the driver’s seat. The nearest was occupied by Bagley, who matched the general description of the two men who had been harassing the caller.
While the officers were some distance from the vehicle, they observed furtive movements by Bagley indicative of an effort to hide or dispose of something under the driver’s seat. He then exited the vehicle and moved quickly toward the apartment building. One officer stopped Bagley to “discuss the situation,” patted him down for weapons and found none, then placed him in handcuffs. The other officer conducted a “protective sweep” of the now empty car. Looking under the driver’s seat she found, not a gun, but a rather large quantity of cocaine and a digital scale. A full search ensued, and additional evidence of drug trafficking was found, but no gun.
The criminal practitioners among my loyal readers (isn’t it cute that I think I actually have reader, loyal or otherwise?) will have spotted the issue that was raised in the suppression hearing and again on appeal – what need was there for a protective sweep of the vehicle when the “person of interest” was well away therefrom and being “detained” by another officer. The more astute among you will be asking, “just how does being handcuffed constitute mere detention?”
As to the issue of the protective sweep of the vehicle – or more precisely the driver’s area where Bagley was seen making furtive movements, the circuit court ruled that the report that a firearm had been brandished was sufficient cause to both pat down Bagley and look in the area within the vehicle in which he might have secreted the weapon. And as to Bagley being “detained,” well, the court reasoned that “could be expected to re-enter the vehicle when the detention ended and would once again have access to the firearm that the police reasonably believed might be in the car.” This is the standard first approved of in Michigan v. Long, 463 U.S. 1032 (1983), and which remains valid today despite some quite trenchant criticism.
As often happens in criminal appeals (in all appeals really), what should be a straightforward issue gets muddled by a belief that more is better. In this case, Bagley raised “eight assignments of error covering four different subject areas,” though really it was just three, as he asserts error in failing to sustain the suppression motion and error also in failing to revisit the issue based on “after discovered evidence.” The other two “areas” deal with the circuit court’s decision to make written additions to the transcript and everyone’s favorite appellate go to, sufficiency of the evidence.
On the first issue (in my view, what should have been the only issue, and it should have been expressed in one, not four, assignments of error), the Court of Appeals spends a fair amount of real estate on explaining that, yes, officers can conduct protective searches of vehicles – something that Bagley was not contesting. He was contesting the claim that he was not merely in custody, but was in fact under arrest, at the time the car was searched and there was no probability that he could have accessed any weapon that might have been there. (In case, you are not versed in this area of the law, I will answer the obvious question that will arise in most fair-minded people and say, “No, it is not relevant that no gun was actually found in the vehicle.”)
So, how is it that Bagley being handcuffed, a classic indicium of arrest, does not alter the analysis? That comes from a phrase that is hated by criminal defense lawyers everywhere, “appellant conceded in the trial court that” followed by the negative of the claim he is making on appeal. Here, Bagley conceded that, despite being handcuffed, he was not under arrest. Exactly why or how he conceded this is not spelled out in the opinion, but nonetheless having done so, he cannot retract that concession on appeal because a party is not allowed to (and herewith is another hated phrase) “approbate and reprobate.”
The remainder of the opinion is not worthy of much mention. The “after discovered evidence” was some discrepancy in whether the officer had to open the door to conduct the protective sweep of the vehicle and whether the other officer could have seen the furtive movements from her vantage point (Bagley had not subpoenaed this officer for the suppression hearing, so the evidence was “discovered” at trial) – a non-starter as it would make no difference to the legality of the search whether she saw the furtive movements or had to open the door. She was aware of the report of a firearm and looking under the seat in which the person of interest had been sitting moments before would have been reasonable without any furtive movements would still have been reasonable.
The modification of the transcript had been at the request of Bagley and he made no objection to the circuit court’s additions – a double whammy to the issue being barred on appeal. Finally, sufficiency was challenged on the alleged lack of evidence of knowledge and character of the contraband – a call to be made by the finder of fact. Bagley lose on all issues, mostly through unforced errors.
Last, and most certainly least, we have the appeal Terrence D’Juan Blackwell v. Commonwealth of Virginia. “Mr. Blackwell” had his best dressed list (you members of the younger set can Google® this), while this Blackwell was into things undressed – specifically the eight-year-old daughter of his fiancée. Blackwell was charged with violating Code § 18.2-386.1 for filming a nonconsenting person, a felony offense when the victim is under 18. The first two videos were discovered by the child’s mother. In one instance it appears that Blackwell was in the room and interacting with the child and filming her with his cellphone, while in another it appeared that the phone had been placed under a door to film the child undressing. Subsequent investigation found additional videos.
Blackwell contended at trial and on appeal that because the statute describes the person being filmed as “nonconsenting,” the Commonwealth had to affirmatively prove that the child had not consented to being filmed. The circuit dismissed this argument out of hand, stating, “An eight-year-old cannot give consent to anything. An eight-year-old cannot give consent to a stranger handing her candy.”
Some will be surprised to learn that the Court of Appeals agrees with Blackwell that because the statute uses the express term “nonconsenting” not only with respect to the general crime, but with respect to the gradation enhancement for victims under the age of 18, the Commonwealth cannot not rely solely on the age of the victim to prove lack of consent. The Court goes on, however, the find that the circuit court’s misstatement of the requirements of the statute with respect to minors is “harmless error” (I would contend that it was not so much harmless as superfluous) because the evidence was sufficient to permit the fact finder to infer that the child did not consent.
First, while age alone is not a de jure determiner of consent under this particular statute, it is a permissible circumstance for the trier of fact to consider. Second, the surreptitious nature of many of the videos likewise was relevant to making the reasonable inference that the child did not consent to being filmed in those instances and thus, likely did not willingly consent in the others.
Blackwell also challenged the sufficiency of the evidence to prove that he had created the videos. Unlike the statutory interpretation issue, this question is resolved under the traditional standard of being neither plainly wrong nor without support in the evidence. Blackwell’s conviction is affirmed.
There is a story, possibly apocryphal, that when a new English translation of the Bible was being edited the committee charged with updating the language was stumped by a term in the Parable of the Prodigal Son. The father, you will recall, upon seeing his son from far off, tells his steward to prepare a fatted calf for a feast. Just how should one convey this quaint term into modern English? Unable to find a fitting answer, it was suggested that they consult a local butcher, and so they did. “What,” they asked the butcher, “did his trade call a young bovine fed a special diet to make it more flavorsome when prepared as a meal for a ceremonial occasion?” “Well,” replied the butcher, “we do have a special term for that. We call it a ‘fatted calf.’”
The foregoing is by way of introducing the case of Paula Jo Smith, who was found guilty of violating Code § 18.2-188 which makes it illegal in Virginia for one to “defraud an innkeeper.” The quaint terminology for receiving food and/or lodging from a commercial establishment without the intent to pay therefore has been around perhaps not quite so long as “fatted calf,” but it still is the most accurate way of describing an offense that had its origins in a time when the acts of dining and lodging were considered inseparable. While taverns and alehouses, which lacked rooms for overnight guests, would occasionally offer some form of victuals, the modern “restaurant” was all but unknown before the late 18th century, but inns where one could be restored (the original meaning of “restaurant”) with food and a bed (or at least a mat on the floor) were a feature of the stopping places, towns and great cities of the Roman Empire and its systems of roads and persisted into the Middle Ages right to the modern day.
In Smith’s case it is unclear whether any food was available with the lodgings she procured for herself and her children, but from the description and the low daily rate cited in the opinion, it is doubtful. Smith fell behind in her payments but assured the owner that she would make good on the balance before leaving. The owner testified that he allowed Smith to stay but increased her daily rate.
Although she made some cash payments over the next several months, she left the hotel with an outstanding balance of more than $2,000 and moved into a different hotel, using $1,000 she had saved to establish her credit. After being unable to find where Smith had decamped, the owner called the authorities.
At her trial, Smith made numerous claims about the living conditions at the hotel and her treatment by the owner and management. She also maintained that she never formed the requisite intent to defraud but left the hotel only because she was unable to pay what she felt was an unfair arrearage. She further maintained that the intent to defraud must arise at the time the lodgings are first occupied. Smith also objected to the circuit court’s limiting her testimony about the conditions at the hotel and her treatment by management.
Smith was convicted and appealed to the Court of Appeals. Although she challenged the circuit court’s alleged limiting of her evidence, she failed to proffer what additional evidence she would have presented, thus most of the specific instances were waived and in those few that arguably were not, the evidence would merely have been redundant, making its exclusion harmless.
The principal issue addressed by the Court was whether the circuit court erred in permitting the jury to determine whether Smith had the requisite intent to defraud. To decide this issue, the Court had to construe another obscure term in Code § 18.2-188, which describes the action of taking lodging as “putting up at a hotel.” Smith maintained that she “put up” at the hotel upon her initial check-in and at that time she lacked the intent to defraud. It was only later, when she fell behind in her payments, that she might have formed such an intent, and by then, in Smith’s view, she had already “put up” at the hotel.
The Court of Appeals notes that “put up” has many meanings, but with respect to lodgings the Court concludes that it simply refers to the act of residing in a place, not the start of the residence. Thus, the Court concludes that Smith “put up” at the hotel each day she was there. It was thus for the finder of fact to decide if and when Smith formed an intent to leave without paying.