The Court of Appeals released three published opinions today. Two are from criminal cases and the third involves the jurisdiction of Boards of Zoning Appeals. We will get the Zoning appeal out of the way first -- it's only 7 pages -- then discuss the more serious of the criminal appeals and round off the final summary with an anecdote on the importance of statutory construction and keeping up with changes to the code that, to borrow a phrase from the US Supreme Court, has a prurient flavor.
Avonlea LLC v. Karl Moritz, Director of Planning and Zoning for the City of Alexandria, et al. is all about variances. Or, more precisely, what can a BZA grant a variance to do. Avonlea owns adjacent lots, one with a home and one "mostly vacant" in Alexandria's historic district in which its zoning ordinance requires that “access to all parking shall be provided from an alley or interior court.” Avonlea maintained that neither of its lots could be accessed from an alley or interior court and proposed building an enclosed parking area on the "mostly vacant lot" accessible from the street.
Before we get into the issues of whether this proposal can be made to happen through the granting of a variance, I would like to consider for a moment whether a lot (or any space) can be "mostly vacant." It would seem to me that either a lot is vacant or it isn't. One there is something built on the lot, it ceases to be vacant and becomes developed. There can be degrees of density of that development, but any development means that the lot is no longer vacant. Perhaps it's like being mostly dead.
Avonlea applied to the the BZA for a variance to permit the construction of the parking yard with street access and the BZA was happy to oblige. But the City and some neighbors (probably mostly the neighbors)was not so sanguine on the idea and appealed the decision to the circuit court. They maintained that the parking restriction was not subject to the granting of a variance and the circuit court agreed.
The Court of Appeal, Sr. Judge Annunziatta joined by Judges Chaney and Frucci, affirm in Avonlea's appeal. This brief opinion explains that under the Zoning Ordinance the BZA has only the power delegated to it by statutory authority. The power to grant variances is found in Code § 15.2-2201 and provides that a variance is available for "provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk or location of a building or structure." It further provides that a variance "shall not include a change in use, which change shall be accomplished by a rezoning or by a conditional zoning." It's pretty easy to see that the request as for a change in use, not a deviation regarding the size of the lot or the buildings on it.
Accomplice testimony is a two-edged sword for the prosecution. While it can be damning as the accomplice is knowledgeable about the details of a criminal plot, it is also true that juries are often distrustful of a "rat," especially where the witness has a already received or is hoping to get a deal from the government in return for testifying. It less common for an accomplice to testify for the defense, and when it does happen, the jury can be equally suspicious of the motives. Juhwaan Barnes v. Commonwealth of Virginia involves the testimony of not one, but three, two who testified for the Commonwealth, and the third for the defense.
Barnes was charged with the first degree murder of Vinshuan Johnson. The Commonwealth's theory was that Johnson was lured to a specific location by two women -- Stephens and Carpenter -- where Barnes and two other men -- Oliver and Bynum -- shot and killed Johnson. Stephens and Carpenter testified for the Commonwealth and gave consistent versions of the events in accord with that theory.
Bynum, who was convicted of the murder in an earlier trial, testified for Barnes. Bynum claimed that he alone shot Johnson. While this would not absolve Barnes entirely -- it is possible to be guilty of murder even if your not the "triggerman," it is more likely that if the jur believed Bynum, they would acquit Barnes. While he might have been guilty of conspiracy to commit the murder because he participated in the plot, conspiracy is not a lesser included offense of the crime which is its object. A quick check of the VCCI database showed that the Commonwealth chose not to charge Barnes with conspiracy.
While it is possible to convict based on uncorroborated accomplice testimony, the court is required to instruct the jury on the "inherent danger" of doing so. Although Stephens' and Carpenter's was mostly consistent, one accomplice cannot corroborate another. Barnes requested an uncorroborated accomplice testimony instruction, but the circuit court found that other evidence presented by the Commonwealth corroborated enough of the two women's testimony and refused the instruction.
The Court of Appeals, Judge Raphael joined by Chief Judge Decker and Judge White, affirmed this decision. There was additional evidence in the form of text messages that were sent to Johnson and the physical location of shell casings which matched their testimony as to the manner of the shooting and established that three different guns were fired. These "silent witnesses" were probably enough corroboration.
The Court, however, also noted that Bynum's testimony partially corresponded to that of the two women. Of course, the jury was privileged to believe some of Bynum's testimony and reject other parts. But wait, wasn't Bynum an accomplice too? Can his testimony corroborate that of another accomplice?
In this specific instance yes, but for procedurally reasons not legal ones. At trial, the requested instruction identified Stephens and Carpenter as the accomplices -- Bynum was never mentioned in the context of the requested instruction. At oral argument Barnes' counsel conceded that Bynum was not an accomplice for purposes of applying the corroboration rule. The Court accepted that concession as a "law of the case," so it does not get into the legal question of whether an accomplice testifying for the defense is capable of corroborating a prosecution witness's testimony.
This week's other criminal case is William Bradley Seat v. Commonwealth of Virginia. Your humble correspondent tries not to be too judgmental of the poor folks who wind up on the wrong side of a criminal conviction, but sometimes its hard not to pause and consider whether a particular defendant has been less than diligent in keeping up with the news and the gossip that one assumes circulates through the criminal grapevine.
Mr. Seat is a case in point. One would think that if he'd being paying attention over the last, say 20 years or so, he might have heard about the presence of police officers -- usually of the decidedly male variety -- posing as vulnerable young women on internet chatboards for gentlemen (and that term is used advisedly) who have less than chaste designs. But then again, perhaps Mr. Seat has had to deal with the lack of affordable housing by taking up residence under a convenient rock.
In this case the "young lady" indicated that she was thinking of getting into the flesh-peddling trade but needed someone to provide business management advice and a safe work environment, though the officer was clever enough to use the more direct description of "pimp." Seat responded to a phone number with a text message in which he assured the prospective associate that he was not a "pimp," but preferred to be thought of "as more a production artist and liaison to high end clientele" who would "“manage, guide, [and] advise” her. You know . . . a high class pimp. Eventually Seat and "Britt" exchanged over 175 text messages and, with the aid of a female officer, spoke on the phone. Despite going into extensive detail about the services he would provide, Seat finally got wise that he was being taken for a ride . . . though he still thought Britt was for real, he decided she was setting him up to be robbed.
Participating in a commercial sex trafficking is a crime in Virginia. At trial, Seat had a good explanation for his actions. According to him he was "trolling" the woman and never had any intention of going through with the scheme, and even if he did, the plan never rose to the level of the activities that constitute sex trafficking. In case you are wondering, here is what the law provides
§ 18.2-357.1. Commercial sex trafficking; penalties.
A. Any person who, with the intent to receive money or other valuable thing or to assist another in receiving money or other valuable thing from the earnings of a person from prostitution or unlawful sexual intercourse in violation of § 18.2-346, solicits, invites, recruits, encourages, or otherwise causes or attempts to cause a person to violate § 18.2-346 is guilty of a Class 5 felony.
So, did Seat have the "intent" to receive money by encouraging Britt to violate Code § 18.2-346, the prostitution statute? Well, the jury seemed to think so, and so does the Court of Appeals, Chief Judge Decker joined by Judges Raphael and White. This is actually pretty much of a slam dunk for the Commonwealth as are most sufficiency of the evidence appeals. I presume this one gets published because the statute was recently amended.
Before we part, let me fulfill my promise to relate that anecdote for the prurient at heart and an all important change to Code § 18.2-346. First, the anecdote (the names have been changed to protect the innocent). Trigger warning -- the ancedote and statutory amendment deal with a subject of an adult nature. You have been warned.
Quite a few years ago (at least prior to the amendment which we will be discussed below), a police officer found an advertisement on Backpage -- the now defuct "free want ads" message board that got busted by the feds for its profiting from "personal" ads that were pretty obviously not of the SWM seeks Life Partner variety unless you measured the length of your life partner relationships by the hour. He found a likely ad, contacted the advertiser and arranged to meet her at a local motel in the seedier part of town.
I will spare you the details of the "dance" that is involved when an undercover officer has to negotiate with a suspected courtesan while avoiding a claim of entrapment. Suffice to say that he opted to arrest her when she stated that one of the services she would perform would be to assist him in placing a latex prophylactic where such implements are usually placed.
At trial, the Commonwealth presented this evidence and rested its case. Judge Stickler looked inquiringly at the prosecutor and inquired "Ms. Jones, what crime has been committed here?" Ms. Jones looked incredulous and stated "Prostitution, your honor." "How so?" replied the judge.
Ms. Jones, a women raised in the gentile Old Dominion, did her best to be delicate. "Judge," she said, "the defendant agreed to touch him in an intimate place." "Indeed she did," replied the equally gentile judge, "but that is not a crime in Virginia." "But of course it is!" exclaimed Ms. Jones.
The judge reached for his copy of 18.2 and flipped to the relevant statute and read it aloud. At that time Code § 18.2-346 provided that prostitution involved the receiving of money or other valuable consideration in exchange for enduing someone to "commit[] adultery, fornication, or any act in violation of § 18.2-361," the "crimes against nature" statute. Turning to that code section, the judge read out the list of acts it prohibited, which decidedly did not include the "manual stimulation of the genitalia for sexual pleasure." The judge dismissed the case.
The following day, Judge Stickler met Ms. Jones in the hallway. Ms. Jones informed the Judge that she had discussed the ruling of h the previous day with her husband, also an attorney, and informed the judge, in a tone that suggest Mr. Jones may have spent the night in the guest bedroom, "He agreed with you!"
Now as to the present state of Code § 18.2-346. The Prostitution statute was amended in 2020 to include as acts which can constitute prostitution if performed as part of a commercial transaction the touching of "the unclothed genitals or anus of another person with the intent to sexually arouse or gratify." That's a more gentile way of saying, as the crime is nominated in Geogia, "masturbation for hire."
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