The following is an outline of Virginia criminal case law related to offenses (alphabetically, A through L). It is copied from an outline maintained by Richard Collins, an attorney at Collins & Hyman, PLC. Because Mr. Collins created the outline for his own reference, rather than for publication, the outline contains many abbreviations. Questions regarding the abbreviations, or case cites, can be sent to rick@collinshyman.com.

Abduction

Smith, COA, published August 17, 2010- discussion of incidental detention doctrine.

Burton, VSC, published April 2011- To prove that the defendant intended to deprive the victim of her personal liberty, the Commonwealth must prove that the defendant intended to deny the victim her freedom from bodily restraint. Although Tracy was briefly detained by Burton’s ruse, Burton’s actions were made in pursuit of his sexual gratification and not with the intent to deprive Tracy of her personal liberty. When a defendant accomplishes an abduction by seizing, taking, transporting, or secreting a victim, it may be a reasonable inference just from those physical actions that the defendant’s intent was to deprive the victim of her personal liberty. Such an inference, however, does not flow as freely when the alleged abduction consists of detaining a person by means of deception.

Aggravated Malicious Wounding

Lamm, COA, published February 9, 2010- discusses permanency element. To prove an injury is permanent, the Commonwealth need not present definitive testimony that a victim’s injuries will never improve, but instead can leave it to the common sense of the jury to determine if the injuries are permanent.

Aggravated Sexual Battery

Bowden (COA, published October 7, 2008)- ASB is not a lesser-included offense of forcible sodomy.

Cousins, COA, published October 25, 2011. Case reversing conviction due to Commonwealth’s failure to prove serious bodily or mental injury.

A&B

Clark, COA, published May 5, 2009- V was school bus driver that would not let D’s son ride on her bus due to disciplinary problems. When V pulled her bus into the bus circle, she noticed a parked car blocking her exit. When V let off a rider, D walked up to open door and threatened V while standing about two feet from the bus with her arms crossed. V shut the door and told school personnel what happened. After school, V was about to get off bus in front of the school when D again approached her and reiterated her threat to harm V. V immediately closed the door.

Virginia, like many jurisdictions, “has merged the common law crime and tort of assault so that today, a common law assault [punishable as a criminal offense] occurs when either set of elements is proved.” An assault occurs under the traditional criminal definition “when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm.” An assault occurs under the merged tort law definition when an assailant “engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim.” A menace alone, without a consequent inconvenience, makes not the injury, but to complete the wrong there must be both of them together[— an overt act both intended to cause and actually causing a reasonable fear of bodily harm in the victim]. Under either definition, the bodily harm threatened need not be serious or deadly harm.

Our case law is clear that words alone are never sufficient to constitute an assault under either the traditional criminal definition of assault or the assimilated tort definition. However, “[w]ords are never spoken in a vacuum, and they cannot be utterly divorced from past conduct, or from the accompanying circumstances.” Under the criminal definition of assault, the overt act must have been committed with the actual “inten[t] to inflict bodily harm” and the perpetrator must have a present ability to inflict such harm; under the tort law definition, by contrast, the overt act may be committed merely with the “inten[t] to place the victim in fear or apprehension of bodily harm” where the act “creates such reasonable fear or apprehension in the victim.”

The totality of the circumstances: her threats, act of blocking V’s bus with her car, and approaching V later in the day and reiterating her threats were sufficient to support an assault under the tortious definition.

Carter, 269 Va. 44 (2005)- A common law assault, whether a crime or tort, occurs when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm or engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim.

A&B- LEO

Guinyard v. Commonwealth (unpublished, July 31, 2007)- a private university campus police officer did not fit the definition of “law enforcement officer”.

Cline, COA, published April 21, 2009- an ABC agent is not a law enforcement officer for the purposes of A&B on an LEO.

Rolfe, VSC, published April 17, 2009- V was a Va Beach officer driving home on 64. He was driving a personal vehicle, but was in uniform, etc. V pursued D, whom he suspected of DUI. When D, stopped, V got out of his car and identified himself as a PO. D drove off, subsequently crashing.

Animal Cruelty

Pelloni, COA, published February 2, 2016. D was owner of puppy who had not been to the vet and who died from several causes, the primary cause being starvation. D claimed said he had provided food and claimed he lacked money to take puppy to the vet. D argued that the cruelty was not willful.

“A voluntary act becomes willful, in law, only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong.” Furthermore, “willfulness” is defined as “[t]he voluntary, intentional violation or disregard of a known legal duty.” Willfulness, Black’s Law Dictionary. In accordance with these definitions, the Supreme Court has held that “[t]he term ‘willful act’ [or omission] imports knowledge and consciousness that injury will result from the act [or omission] done. The act [or omission] done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury.”

Attempts

James (VSC, April 18, 2008)- During a controlled buy, undercover officer attempted to purchase m/j from D. D wouldn’t show her the weed until she got in the car, which she refused to do. Finally, officers came and arrested D, and gun was located that was traced to D. D admitted that he had planned to scare the officer and take her money. The elements for an attempt are 1) intent to commit a crime and 2) a direct act [overt act] done toward its commission, but falling short of the execution of the ultimate design. Because D didn’t commit any overt acts toward using force to take the UC’s money, it was not an attempted robbery. The overt acts must be more than merely preparatory.

Rogers, COA, published October 6, 2009- D and two others planned to rob V. D and co-D knocked on V’s door. While waited for V to open the door, D put on a mask and pulled out a gun. Co-D had a bat. When V didn’t open the door, they returned to their car and drove away. They never saw V. D charged with attempted robbery and use.

An attempt in criminal law is an unfinished crime and is composed of two elements, the intent to commit the crime and the doing of some direct act toward its consummation, but falling short of the accomplishment of the ultimate design. The attempt contemplated by the statute must be manifested by acts which would end in the consummation of the particular offence, but for the intervention of circumstances independent of the will of the party. When the evidence proves that a defendant had the intent to commit a completed crime, “any slight act done in furtherance of this intent will constitute an attempt.”

The Court distinguished Hopson, 15 Va. App. 749, and held that D went beyond mere preparation. The evidence was sufficient to convict D of attempted robbery. In Hicks, and in other cases since 1889, Virginia courts have discussed attempted crimes and explained that, if a crime is stopped before its completion by “‘the intervention of circumstances independent of the will of the party’” who intended to commit a completed crime, then that party can be convicted of attempting to commit that crime. In Sizemore, the Supreme Court explained that, if a person intends to commit a crime and also takes actions to initiate the crime, an intervening cause that prevents the completion of the crime (even a perpetrator’s own reluctance to complete the act) does not preclude a conviction of attempting to commit the crime.

D was convicted felon. He went to store, filled out firearm consent forms and paid for a gun. He later went back and cancelled the order. “An attempt is composed of two elements: the intent to commit the crime, and a direct, ineffectual act done towards its commission.” The act does not have to be the last proximate act before completion, but it must go beyond mere preparation and be done to produce the intended result. “It may be said that preparation consists [of] . . . arranging the means or measures necessary for the commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made.” D’s acts constituted an attempt to unlawfully possess a firearm.

Brandishing

Dezfuli, COA, published March 29, 2011- brandishing isn’t a lesser included offense.

Burglary

Velasquez v. Commonwealth (VSC, June 6, 2008)- a jury instruction indicating that the jury could infer that the defendant’s unauthorized presence in victim’s apartment was with the intent to commit rape was improper. Burglary is a specific intent crime. While an unlawful entry gives rise to a presumption that it was made with an unlawful purpose, the intent to commit a specific crime is a matter for the fact finder to be determine from the facts and circumstances. This instruction amounted to an incorrect statement of the law.

Lay (COA, published September 4, 2007)- breaking can be constructive through trickery, fraud, intimidation, etc. When an intimidated or defrauded victim opens the door and the thief enters, that’s breaking. A jury instruction stating that breaking is the use of force, however slight, does not preclude the jury from finding constructive breaking.

Vincent (unpublished, November 20, 2007)- where no evidence that any items were taken during a break-in, the court may still infer that the unauthorized entry into the store was with the intent to steal, absent evidence of any contrary intent. The Court rejected D’s argument that the evidence showed an intent to commit vandalism, because the means of breaking into a building is different from D’s intent once inside.

Burglary- Breaking

Burglary- Dwelling

Giles (COA, published April 8, 2008)- D convicted of breaking into a house where the owner would sleep about one weekend per month. The Court held that a house constitutes a “dwelling” if the house is furnished so as to be suitable for “reasonably prompt habitation”, which is a fact-specific inquiry, and where there is in fact periodic habitation.

Johns– COA, published April 14, 2009- D convicted of statutory burglary of a dwelling house. V’s company owned a single-family residence and was remodeling the house. There was no furniture or other items normally found in an inhabited house. The only things in the house were construction supplies and tools. When V left house on Dec. 6, everything was secure. He received call on Dec. 7 that he had to go to the house. When he arrived, front door was open, and a window was broken. It was after dark, so he could only determine that one item was missing. He secured the window, locked the door, and went home. When he came back the next day, the front door was open, a different window was broken and a pane of glass in the rear door was broken. Evidence established that D sold tools to a pawnshop. D said he’s found them in a trashcan and denied ever entering the house.

The Court reviewed earlier cases, including Giles, and concluded that the house was not a “dwelling house” because no one lived there, no previous resident intended to return there to live, and it was not maintained for immediate occupancy.

Lacey, COA, published April 29, 2009- D convicted of burglary and petit third. D entered attached garage through an open garage door in the daytime. D broke a door leading into the house from the garage and stole money. The issue was whether the garage was part of the dwelling.

The Court reviewed cases from other jurisdictions, including one that said a carport that lacked a direct entry to the residence was part of the dwelling, and held that the garage was part of the dwelling. Since the garage door was open, D did not break into the house.

Grimes, October 29, 2013. D broke into crawl space, which was part of the dwelling house.

Beck, published April 26, 2016. D lived in what was essentially an in-law suite with its own entrance and the only connection to the rest of the home was through a utility room with a door to the rest of the house. He stole items from the garage, which was not part of his suite. Court held that the rest of the house was a distinct dwelling.

Court noted in footnote 3 that whether a garage, crawl space etc is part of the dwelling is fact intensive and the prior cases relied on those factual situations.

Burglary- Possession of Stolen Goods

Finney (VSC, published January 16, 2009)- V left property for 7 or 8 days. One day during that period, a neighbor saw D carrying V’s tools. When V returned to property, storage shed had been broken into and tools stolen. V opined that more than one person would have been needed to carry all of his tools. On that same day, V and neighbor saw D enter his property and go into the shed. D denied he took any of the items, but said he knew who did. Court held that the evidence didn’t establish beyond a reasonable doubt that the shed was burglarized at the same time that D stole the tools. The Court reversed the burglary conviction, and affirmed the grand larceny conviction.

Burglary Tools

Williams v. Commonwealth (COA, published September 4, 2007)- a plastic bag is not an “implement” within the meaning of the statute (court distinguished Mercer, 29 Va. App. 380 (1999), which held that pants were an “outfit” that may be sufficient if worn with intent to commit larceny). “Implements” refer to items designed for an occupation, but when used, facilitate committing burglary, larceny or robbery.

Burnette, 194 Va. 785 (1953)- possession of burglary tools may be joint or several. The Court recognized the principle of constructive possession of burglary tools, but reversed D’s conviction because there was no evidence that D and co-D conspired to commit a crime.

Owens, COA, published May 5, 2009- D and friends conspired to burglarize a house at D’s suggestion. D stayed in car while co-D used a screwdriver to pry open a sliding door. When the glass shattered, they all fled. The Court said that the screwdriver was “unquestionable” a burglary tool, and its use was a probable consequence of the burglary attempt. D was therefore liable as a principal in the second degree.

Gheorgiu, COA, published August 25, 2009- D used laptop and another computer device to defraud Vs of credit card information. Court explicitly did not address whether these items were burglary tools, but reversed his conviction because Commonwealth did not prove that D possessed these items with intent to commit common law larceny (as distinguished from identity and credit card theft), robbery or burglary.

Carjacking

Pressley, COA, published July 28, 2009- V was delivering pizza when D appeared wearing a mask. D asked V if he was the pizza man, and V denied that he was because he was afraid. V ran to his car and D ran toward him and said “you are the pizza man” and “give me my pizza.” V said it was in the car. V said he’d give it to him if he moved to the other side of the car, but D opened the car door, reached in and grabbed the pizza. D then demanded money, and V complied because he was afraid. D then demanded V’s cell phone, but V lied and said he didn’t have one. D then demanded V’s car keys, and V initially refused, but eventually complied because he was afraid. D then drove off in V’s car.

Carjacking is a species of robbery, so courts apply robbery case law to carjacking. Where the D’s actions are calculated to produce fear or amounts to intimidation, and is concomitant with the taking, carjacking is established. Threats of violence or bodily harm are not an indispensable ingredient of intimidation. It is only necessary that the victim actually be put in fear of bodily harm by the willful conduct or words of the accused. The fear of bodily harm, however, must result from the words or conduct of the accused rather than the temperamental timidity of the victim. D’s actions and mask-wearing were sufficient to support his conviction.

Carnal Knowledge

Paduano, COA, published December 31, 2014. Multiple acts can result in multiple convictions of carnal knowledge.

Child Pornography

Chapman, COA, published August 17, 2010- discussion of relevant law regarding constructive possession.

Kobman, COA, published October 27, 2015– no constructive possession when police required software to view photos.

Computer Crimes

Jaynes (VSC, February 29, 2008)- D convicted of sending bulk spam emails from his home in Raleigh to thousands of AOL addresses. AOL’s servers are in VA. D argued that VA didn’t have jurisdiction because he didn’t use a computer in VA and there was no “immediate result” in VA. Under § 18.2-152.3:1(B), Commonwealth must prove not only the volume element, but must also prove the sender used a computer and that such use was with the intent of falsifying routing information and that the transmission of such false routing information occurred in connection with the use of an email provider’s computer network for that transmission. Since D selected AOL subscribers as the recipients, he intended that his emails would utilize AOL servers. OVERRULED BY VSC ON 9/12/08.

Concealed Weapon

Harris (VSC, September 14, 2007)- A box cutter is not a weapon “of like kind.”

Pruitt (VSC, September 14, 2007)- when D put pistol in locked console inside his car, then got out of the car and shut the door behind him, with the windows up, the evidence didn’t support the finding that the weapon was “about the person.”

Thompson (VSC, February 27, 2009)- during a pat-down, officer felt what he recognized to be a weapon. He discovered a butterfly knife in D’s pocket. D was charged with possessing a weapon described in 18.2-308 as a convicted felon.

The issue before the Court was whether the type of knife found on D’s person was one of the enumerated weapons, or a weapon of “like kind.” The officer described the knife: it had a four inch blade, and a ¾ inch handle. It was designed to fold into itself, with the sharp edge inside, and the blunt, “safe edge”, outside, so the holder wouldn’t cut himself. He said they’re designed for one handed use- you just have to flip it open. He testified that they are dangerous to officers, but admitted that they had lawful uses. D testified that he had that knife, as well as some pliers, in his pocket from working as an auto mechanic that morning. The officer didn’t recall any pliers in D’s pocket.

The Court utilized the Farrakhan framework, and first concluded that the knife was not one of the weapons specifically enumerated in 18.2-308. Next, the Court had to determine whether it was a weapon, meaning whether it was designed for fighting purposes or commonly understood to be a weapon. The Court concluded that a butterfly knife is a weapon. However, the Court overruled the COA’s opinion in this case, and in Delcid, and held that a butterfly knife is not a weapon of “like kind” to a dirk. The trial court had cited the circumstances in which D was found to possess the weapon, but the Court stated that subsequent use or circumstances cannot be considered in the analysis of whether an item is a weapon or a weapon of like kind.

Doulgerakis, COA, published February 5, 2013. Gun found in latched glove compartment in private vehicle. COA held that the compartment does not have to be locked to satisfy the exception in (B)(10). Conviction reversed.

Consensual Sodomy

McDonald, 274 Va. 249 (2007). Lawrence v. Texas does not apply to conduct between minors and adults.

Saunders, COA, published February 4, 2014. The Fourth Circuit’s ruling in MacDonald that 18.2-361(A) is facially invalid is not binding in Virginia in light of McDonald.

Concealed Weapon- Exceptions

Foley, COA, published March 25, 2014. D found with concealed weapon on road adjacent to his house. Road was part of his property but was subject to a non-exclusive easement. Question was whether his location was within the curtilage of his home. The central consideration is whether the area in question is an extension of the home that is so intertwined with the home that the law must provide it the same protection as the home itself. D had the burden to establish that the location was within the curtilage, and he failed to do so. Conviction was affirmed.

Hodges¸ COA, published May 5, 2015. During investigation, officers found gun in a closed, but not latched, center console with a cup over it. Trial court found that since gun was immediately accessible and the cup demonstrated an attempt to find it, D was guilty.

COA stated the accessibility under these circumstance was no longer relevant because of the statutory exception for private cars. COA determined that Commonwealth has the burden to prove that the exception does not apply and rejected the burden shifting argument.

Conviction reversed because there was no evidence whether the console was latched.

Conspiracy

Anderson (COA, published August 5, 2008)- Conspiracy requires 1) an agreement between two or more parties and 2) an intent thereby to achieve a certain objective. When the parties agree to commit the offense, they have committed the conspiracy.

James (COA, published March 31, 2009)- undercover detective contacted D and they made arrangements for detective to purchase marijuana. When D arrived on scene, he refused to get in detective’s vehicle and wanted her to get in his car. She went up to his car, but refused to get in. Other officers were listening in, they got concerned, and converged on D’s car. When that happened, a handgun fell out of D’s clothing. In addition, police found a second man hiding underneath clothing in the back of D’s vehicle. D told police that the drug sale was a ruse, and that he really planned to just take the detective’s money. He said that the plan was for the two men to scare her and intimidate her into taking the money. He initially said that he was going to use the gun to scare her, but backed off that statement.

Since most conspiracies are clandestine, they must often be proved using circumstantial evidence. When it has been shown that that the defendants ‘by their acts pursued the same object, one performing one part and the others performing another part so as to complete it or with a view to its attainment, the factfinder will be justified in concluding that they were engaged in a conspiracy to effect that object. As result, liability as a conspirator does not require knowledge of the whole conspiracy. The crime is complete when the parties agree to commit an offense- no overt act is necessary. The evidence was sufficient to support D’s conspiracy conviction.

Merritt, COA, published March 2, 2010- evidence insufficient to show that D was enforcer/lookout during drug operation.

Velez-Suarez, COA, published January 27, 2015. While many times conspiracy can only be proven by circumstantial evidence of the conspirators’ actions from which the fact-finder may infer the existence of an agreement, the evidence of those actions is necessary only to the extent that it shows the fact of an agreement, not because acts in furtherance of the agreement are required to prove a conspiracy.

Construction Fraud

Phillips (COA, unpublished, January 29, 2008)- insufficient evidence that D possessed fraudulent intent when he accepted the money. Lack of communication is evidence of fraudulent intent, but Court has reversed conviction where D maintains contact with other party concerning reasons for the delay.

Rader, 15 Va. App. 325 (1992)- D performed some of the work, then received an advance. The fact that he’d completed substantial work on the project didn’t preclude a finding of fraudulent intent.

Holsapple, 266 Va. 593 (2003)- there is no requirement that the Commonwealth prove D actually received the notice. Poor workmanship, if it renders a structure unsafe, or uninhabitable, can be sufficient to meet the element that D failed to perform after receiving an advance.

Testerman, COA, published October 5, 2010. D made promise to perform construction and accepted advance for supplies only. COA held that this violated the statute when he failed to perform as promised.

Dennos, COA, published March 11, 2014-D accepted advance to seal leaky roof. Then he came back and said the original contract wouldn’t fix the roof and that the roof needed to be replaced. D accepted a second advance. D generally avoided V and her attorney. Lists circumstances from prior cases that can be used to establish fraudulent intent.

Contempt

Gilman (VSC, February 29, 2008)- on an appeal to circuit court of a JDR summary contempt conviction, the trial court’s admission of the certificate of the JDR court summarizing the facts giving rise to the contempt conviction did not violate the Sixth Amendment. Since the maximum punishment for this offense was 10 days, it is considered petty contempt, and therefore the Sixth Amendment does not apply to this offense, because they are not criminal prosecutions for constitutional purposes. There is no confrontation clause problem because the Code does not provide for a trial de novo in circuit court.

Parham, COA, published July 31, 2012- history and summary of contempt law.

Abdo, COA, published March 24, 2015. Summary of contempt law involving officer who repeatedly arrived late to court.

Credit Card Fraud

Saponaro (COA, January 15, 2008)- where D had the card with cardholder’s permission to have it and use it for work purposes, and D exceeded the permissible uses, it was not credit card fraud because the statute only talks about consent of the holder, and does not limit the consent to specific purposes.

Credit Card Theft

Meeks (VSC, November 2, 2007)- “retention”, in the context of “withholding”, is not covered by CC theft. Credit card theft is complete when D takes the card or number or receives it with knowledge that it’s stolen and with intent to use it or transfer it. Venue is where this occurs.

Credit Card Crimes- Venue

Gheorgiu, COA, published August 25, 2009- D charged with, among other crimes, credit card fraud in Arlington. D possessed credit card of out-of-state V, and used it in Fairfax. Court found that evidence created a strong presumption that an act in furtherance of the credit card fraud occurred in Arlington due to D’s possession of the card there.

Disorderly Conduct

Battle (published July 24, 2007)- conviction reversed because of statutory language that conviction proper only when conduct could not be punished under other code provisions- this means only when D could be found guilty beyond a reasonable doubt for other conduct, not merely prosecuted under other provisions.

Howard (published January 16, 2009)- discusses First Amendment considerations.

Drugs- Historical Cases

Dunaway (COA, published July 15, 2008)- good summary of proving character of the substance. When a substance cannot be recovered, tested or introduced into evidence, its nature can be proved by proof of circumstances and effects of its use.

Drunk in Public

Crislip, 37 Va. App. 66 (2001)- a man on drunk on his front porch that’s visible to neighboring houses and the public street may be convicted of DIP. The offense applies to intoxication in a place in open view, visible to the community.

United States v. Brown, 401 F.3d 588 (4th Cir. 2005)- issue was whether officer had PC to arrest Brown for DIP. Brown had odor of alcohol and red, glassy eyes, but no evidence of physical impairment. Court said it was significant that every reported Virginia case on the subject had evidence of physical impairment. Court ruled that police lacked PC to arrest Brown.

DUI

Jackson (VSC, November 4, 2007)- the source of intoxication must be self-administered.

Brown-Fitzgerald (COA, published February 5, 2008)- D arrested for DUI. D having trouble breathing so a blood test was administered. Trial court excluded test results because didn’t prove D was physically incapable of taking a breath test. Convicted of DUI based on other evidence. D argued that failure to give breath test required dismissal because it deprived her of right to have potentially exculpatory evidence. Court held that while the statute mandates that a person arrested submit to a breath test, it does not mandate that an officer offer one. In fact, the statute no longer requires the officer to submit evidence for chemical testing.

Wimbish (COA, published April 8, 2008)- the mandatory minimum provisions of § 18.2-270 do not contain an unconstitutional presumption requiring the court to presume that because D had an elevated BAC at the time of testing that he had an elevated BAC at the time of driving because the latter level is irrelevant. The BAC at the time of testing is the only thing that matters under that statute.

DUI- Implied Consent

Sprouse, COA, published March 4, 2009- D in single vehicle accident. Trooper arrived at 2:00 am. D told trooper the accident occurred at 1:30. D transported in ambulance to hospital, where nurse drew blood at 3:45 am. Trooper obtained the blood sample, and issued D a summons for DUI. At no point did trooper tell D he was under arrest, did not handcuff him, or take him to a magistrate.

The Commonwealth argued that the lack of arrest did not require exclusion of the blood test results because D’s signing the summons constituted submission to the trooper’s authority. The Court did not address this point because the signing occurred after he submitting to the blood test.

Bristol, 272 Va. 568 (2006)- Because the driver’s timely arrest triggers the statutory consent requirement, the arrest must be completed before the driver may be required to take the test.

Roseborough, COA, published February 16, 2010- Security guard heard an accident occur at 2:00 a.m. Rushed to scene and found D standing outside a car on a private apartment complex road. Officer arrived 30 minutes later and D told him his friend was driving the car. D later told officer they were at a bar and D brought his friend to the location. D arrested for DUI. On way to station, D said he was considering taking a breath test and that he would take a breath test if the officer would let him go. Officer said if he blew less than a .05, he’d let him go. After arriving at station, D was read Miranda and D said he wanted to take the test. D blew a .09.

D argued that a breath test could never be admitted into evidence unless it was pursuant to the implied consent statute. Thomas and Durant hold that a suspect cannot legitimately consent to a breath test if (1) he is unlawfully or untimely arrested and if (2) the officer informs the suspect of the provisions of the implied consent law, and if (3) the suspect then consents to provide a breath sample under the mistaken belief that he could be penalized under the implied consent law for refusing to cooperate. Thomas and Durant, however, do not address the facts here, where the breath test was not obtained pursuant to the implied consent law. Since these cases do not apply, and D volunteered to take the test, trial court did not err in admitting the certificate.

DUI- Maiming

Riley, VSC, April 17, 2009- the statute requires criminal negligence. “Criminal negligence is judged under an objective standard and, therefore, may be found to exist where the offender either knew or should have known the probable results of his acts.” ” ‘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.” The level of intoxication is “relevant to a determination of the degree of the defendant’s negligence: whether ordinary, gross, or wanton.” “It may serve to elevate the defendant’s conduct to the level of ‘negligence so gross, wanton, and culpable as to show a reckless disregard of human life.’ ” The facts of this case were sufficient to support the conviction, as D overdosed on Ambien, and combined that drug with another drug.

DUI- Operating

Ngomondjami, COA, published June 30, 2009- officer approached D in a parking lot, reclined and asleep with the engine running. Trial court refused to use D’s proferred jury instruction that stated that “to operate” meant to engage the vehicle’s electrical functions, etc. with the intent of putting the car into motion. COA held that it was not error because D’s instruction did not state the law accurately- earlier VSC case held that it was not necessary to prove that D intended to put car into motion.

Enriquez– VSC, published March 2, 2012- D behind seat with radio on, officer could not remember whether ignition was in “on” position. Good summary of operating case law. Court explicitly held that the position of the key in the ignition switch is not determinative: when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266.

Sarafin, VSC, published October 31, 2014. Officer arrived to find D sleeping in the driver’s seat of his car, which was parked in his private driveway. The key was in the ignition, and the “vehicle’s auxiliary power” was activated. D said he’d been out drinking, came home, drank some more, and then went to his car to listen to the radio. He said he’d never intended to leave the driveway.

The Court noted that the GA prohibited operating a moped on public highways. “[W]hen the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.”

Court held that operating includes being in actual physical control of a vehicle on private property.

DUI-Reckless Driving

Lawson, COA, published December 11, 2012. D convicted of reckless at same time court certified felony DUI. COA stated that trial court erred in not dismissing felony DUI pursuant to 19.2-294.1.

Eluding

Gray (published, COA, October 23, 2007)- although D didn’t exceed speed limit, he crossed double yellow lines, wove in an out of traffic and cut off vehicles at 3:30 in the afternoon. This was sufficient to support felony eluding conviction.

Jones, COA, published February 10, 2015. D stopped for police. However, when officers were questioning D and his passenger, D sped off with the officers partially inside. During the questioning, the cruiser’s lights remained flashing and the cruiser was behind D’s car. Issue on appeal was whether the eluding occurred “in disregard” of the command to stop. Court noted that both officers attempted to stop D from driving away, and that the lights remained on, and found that the evidence was sufficient regarding this element.

Embezzlement

Franklin (COA, unpublished, September 25, 2007)- when an accused has access to employer’s missing assets, proof that D acted deceptively or deliberately in contravention of company policy may establish fraudulent intent. Evidence of similar frauds can be used, particularly under the theory that an experienced employee would make the same mistake over a period of transactions.

George (VSC, October 31, 2008)- D committed embezzlement when he withheld taxes from his employees’ wages but did not remit them to the Commonwealth. A statute says that such money is held in trust for the Commonwealth. The withheld wages were not segregated, but were kept in the company’s sole bank account.

Wells, COA, published May 1, 2012- D was store employee who marked down merchandise for customers’ benefit. COA held that statute did not require D to benefit personally.

Leftwich, COA, published March 5, 2013. D was attorney for firm. She signed employment agreement stating that all funds received for legal services were firm’s property. SSA paid her directly for legal services, which she deposited into her personal account. COA said it didn’t matter whether she was entrusted with the funds, as she received them by virtue of her employment and the funds were the property of the firm.

Zoretic, 13 Va. App. 241. Evidence must show specific intent of D to convert property in violation of statute.

Escape

Hubbard (VSC, published June 6, 2008)- D was stopped by a trooper. D sped off during traffic stop and then abandoned his car. Trooper chased D, yelling that he was under arrest. Trooper caught D and had him on the ground, telling him again that he was under arrest. D fought with the trooper and then kicked him off and ran away again. D was later apprehended and charged with felonious escape from custody. The VSC said that there were three elements of the offense: 1) that D was in custody of the police; 2) that D was charged with a criminal offense before being taken into custody and 3) that D escaped from custody by force or violence. In order to prove the second element, the Commonwealth must prove that D was taken into custody pursuant to a written charge. Probable cause to arrest does not suffice.

Failure to Appear

Nelson (COA, published September 18, 2007)- evidence sufficient to convict D of willfully failing to appear when D gave false ID upon initial arrest, broke terms of bond by leaving state, where he was incarcerated during the trial date and failing to notify anybody of that incarceration.

Failure to Return Bailed Property

Molash, 3 Va. App. 243 (1986)- D employed with trucking company. D became disillusioned with employment on way back to Virginia, and stopped in Kentucky to visit family. D left trailer at a rest stop, and told the company of its general location. Court of Appeals held that the Commonwealth must establish D’s mens rea, and there was no evidence of criminal intent in this case.

Reed, COA, published August 6, 2013. D rented car for one day. Rental period extended verbally multiple times and company received payment of over half the total amount charged on the account. D did not attempt to return the car until after she learned that a warrant was outstanding. Proof of intent to permanently deprive is not required to sustain a conviction. All that is required is fraudulent intent to keep the property after expiration of the rental contract.

False Pretenses

Groves (published June 19, 2007)- evidence sufficient for false pretenses conviction where D made unauthorized transactions using ex-H’s debit card for personal expenses.

Reid (COA, published February 2, 2016)-D flagged people down and asked for a loan to retrieve car he claimed was towed. Issues were 1) whether loan was sufficient to pass title to the money and 2) whether the pretenses were proven false.

“An essential element of larceny by false pretenses is that both title to and possession of property must pass from the victim to the defendant.” “The requirement that the defendant obtain ownership of the property, rather than mere possession, distinguishes the offense of larceny by false pretenses from the offense of larceny [by trick].”

“The fact that the transfer was a loan with a promise of repayment and interest does not preclude, categorically, a larceny by false pretenses conviction. See Jewel v. Commonwealth, 30 Va. App. 416, 517 S.E.2d 264 (1999), aff’d, 260 Va. 430, 536 S.E.2d 905 (2000).” The Court cited LaFave’s discussion of when loans for a specific purpose created an agency relationship. The question, then, is if the transfer of currency was so that the defendant would use it on behalf of the victim (larceny by trick) or for his or her own benefit (false pretenses). In other words, we must determine if the victim intended to create an agent or trustee relationship.

“The false pretense must be a false representation of an existing fact or past event.”

Felony Elude

Phelps (VSC, January 11, 2008)- the defendant can be a “person” within the meaning of the statute.

Felony Child Neglect

Ferguson (COA, September 11, 2007)- evidence sufficient to convict where D told 2 young foster kids to stay outside on cold night without warm clothes for five hours, barred them from coming inside and told them to guard against criminal activity while D slept. Evidence insufficient to show reckless disregard for safety of third kid where D did not prevent him from coming inside.

Miller (COA, unpublished, February 12, 2008)- mom’s boyfriend was responsible for the care of the victim at the time of the offense. The role includes those who have a temporary, custodial relationship with a child.

Shanklin, COA, published April 7, 2009- V suffered burns while in the care of D’s son and his girlfriend, V’s custodian. They did not bring him to the hospital, but they did treat the injuries themselves. The following afternoon, D’s son brought V over to D’s house so she could babysit- D saw V’s duct tape bandages and was told V injured himself while playing in hot water. During that evening, V was very lethargic. She didn’t ask D’s son about V when he picked him up.

The issue of the accused’s mental state requires “an examination not only of the act that created the risk, but also of the degree to which the accused ‘was [or should have been] aware of the danger’ that resulted from the act.” The Commonwealth must show more than mere “inattention and inadvertence”; the defendant’s negligence must rise to the standard of “gross negligence.” “Criminal negligence . . . is a recklessness or indifference incompatible with a proper regard for human life.” The conduct in this case fails to meet these standards: the evidence did not demonstrate that D knew, or should have known, that V needed immediate medical attention.

Wood, COA, published November 23, 2010. D drunk and on prescription drugs with two little kids in the car. Thus, the Commonwealth need not prove that an accused actually knew or intended that her conduct would likely cause injury or death, but rather that the accused should have known her acts created a substantial risk of harm. Case provides a good summary of case law.

Her statement about future conduct (her intent to drive out of the parking lot) was relevant.

Riddick, COA, unpublished, August 12, 2014.

Hannon, COA, published August 29, 2017. Five year old and four month old left unsupervised in unlocked car in store parking lot. Defendant in the store for 14 minutes. For purposes of Code § 18.2-371.1(B)(1), “[t]he term ‘willful act [or omission]’ imports knowledge and consciousness that injury will result from the act [or omission].

Here, there is no question that appellant intentionally left her two children unsupervised and alone in an unlocked car in the Dollar General parking lot while she shopped. Thus, the question becomes whether or not an objectively reasonable person would have understood that injury to the children was likely to result.

Although there are a myriad of possible ways one could imagine that the children might have been injured, even the aggregation of those possibilities does not result in a situation where the children were likely to suffer injury. Accordingly, appellant’s conduct here is insufficient to support a felony conviction under Code § 18.2-371.1(B)(1).

White, COA, published September 19, 2017. D took suboxone and fell asleep. While she was asleep her four year old left the house and drowned in a septic tank in the back yard. “However, the mere presence of potential hazards in the yard, such as a swimming pool, pond, or septic tank, 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.” There was no evidence that would have permitted the trial court to infer that D knew the lid was unsecured.

Firearm Consent Forms

Smith, VSC., published November 4, 2011- D waived prelim on felony. Received notice that his case had been pre-set for trial. Never received explicit notice that he was under indictment. Conviction reversed.

Firearms

Barlow, COA, published April 4, 2013. Inoperability because of missing parts did not remove weapon from statutory definition of firearm. However, it appears possible that some state of disrepair can constitute a defense: an “instrument originally designed, made, and intended to expel a projectile by force of an explosion can lose this characteristic in many ways such that it would no longer be fairly considered a firearm.”

Jordan, VSC, published September 12, 2013. D pointed gun at V and implicitly threatened to kill him. V was familiar was firearms and described the gun. Court held that the description, coupled with the threat, was sufficient to prove that the object was a firearm.

Jones, COA, published October 15, 2015. Definition of “firearm” same in reckless handling cases as it is for felon in possession of firearm.

Firearm- Discharge at Occupied Dwelling

Ellis, VSC, published March 4, 2011. To sustain a conviction under Code § 18.2-279, the Commonwealth need not prove that the defendant had the specific intent to shoot at or against a particular building. Rather, the evidence need only show that a defendant who unlawfully discharges a firearm knew or should have known that an occupied building or buildings were in his line of fire.

Firearm by Felon

Blake, (unpublished August 21, 2007)- evidence was sufficient to demonstrate D exercised dominion and control over firearms found in room with his possessions.

Elder (unpublished, October 9, 2007)- evidence of firearms instructor that weapon designed to expel bullets sufficient to prove object was firearm.

Hunter, COA, published March 30, 2010- D was front passenger in stopped car. Driver consented to search and everyone got out. D went behind car to wait, but before he did so, he walked up to the front of the car, looked in and went back. During search, D asked driver, “what are you doing?” and driver said not to worry, the box was locked. Officers ended up seizing the keys, and discovered a gun in the locked compartment. D said it was his, and that he would take the charge.

Issue was whether evidence was sufficient to establish that the gun was on or about D’s person. Court determined that 18.2-308.4(B), which requires possession of firearm on or about the person, continues to permit convictions based solely on constructive possession. D’s statements about possession firearm in NC and fact that he knew it was in glove box do not establish possession in VA BRD. Evidence was sufficient for constructive possession.

Since 1909, our Supreme Court has maintained that for a firearm to be “about the person” it must be “so connected with the person as to be readily accessible for use or surprise if desired.” Court distinguished Leith, in which it held that gun in locked compartment to which D had the key was readily accessible, based on fact that D did not have the key. Evidence insufficient to establish on or about the person.

Dezfuli, COA, published March 29, 2011- brandishing isn’t a lesser included offense.

Baker, VSC, published November 1, 2012. D seen on three occasions possessing the same firearm. The evidence was sufficient to convict of three separate offenses.

Firearm with Drugs

Bolden (VSC, January 11, 2008)- Officer encountered D sitting in driver’s seat. When D exited car, he dropped drugs, and when searched, he had drugs on his person. Officer searched car, and found a blue plastic bag on the driver’s seat next to the armrest. When the officer searched it, he discovered a gun. Drug expert testified that a dealer would carry a gun for protection. Due to D’s efforts to contact the officer before officer could get to car, the obviousness of the bag to anyone inside the car, its proximity to D, and the expert’s testimony, the evidence was sufficient to show constructive possession.

Forcible Sodomy

Bell (unpublished, December 18, 2007)- intimidation differs from an explicit threat of bodily harm. The opinion lists factors to be considered.

Forging/Uttering a Public Record

Rodriguez, (published COA, December 4, 2007)- D stopped for traffic infraction and gave the officer his brother’s information. Officer used that information to fill out summons and D signed the summons with his own name. This was a forgery because D provided the false information used to fill out the summons and would know that it might be relied upon.

Accord and satisfaction agreement was a public record.

Fortified Drug House

Jones (VSC, June 6, 2008)- Police executed a search warrant at a house. When the police arrived, D placed a stove next to the door and used a 2X4 to bar a window. A screwdriver was placed in a door as well. The issue was whether this substantially altered the structure as required by statute. A house is not substantially altered by temporarily moving items of personal property.

Gangs

Philips, COA, published July 13, 2010- D recruited minor to join the Bloods. D arranged for minor to fight another member as his beating in. Minor testified that he went on 6 missions and D helped with two of them- a burglary and an armed robbery. Police testified that they’d seen D in gang areas wearing red. Search warrant executed linked D to the Bloods. Evidence demonstrated that three members of the Bloods committed several predicate offenses, but did not introduce evidence showing that these crimes occurred during the relevant time period.

The statue requires the Commonwealth to prove the existence of a street gang. The predicate acts element requires that the Commonwealth prove that these acts occured prior to the offense charged at trial. The evidence of other Bloods members’ crimes were

insufficient: To prove both the specific gang participation offense at issue herein and the recruitment of a juvenile into a gang offense, the Commonwealth had to prove that at the time appellant committed the offense, a criminal street gang existed. One of the predicate acts described, an attempted murder prior to the offense date, fit the requirements, but the companion use charge did not, since they occurred as part of the same transaction. However, due to D’s admission that he recruited members in the past, which is one of the predicate acts, the evidence was sufficient to establish the second predicate act.

Court reversed D’s conviction for recruiting a juvenile into a gang with a juvenile member because the only evidence of a juvenile member was the minor being recruited.

Rushing, VSC, published June 7, 2012. Analysis of admissibility of evidence regarding other members’ commission of predicate offenses.

Habitual Offender

Bishop (VSC, January 11, 2008)- a DMV transcript showing that D was notified by law enforcement was insufficient to prove BRD that D had notice that he was an H.O.

Claytor, COA, published December 17, 2013- D had restricted OL. Restricted OL insufficient to remove HO status, which is terminated only when full privileges are restored. Court limited Reed’s notice requirement to the initial declaration of HO status rather than the current status.

Heat of Passion- Unlawful wounding; manslaughter

Witherow, COA, published December 1, 2015. Deliberate and purposeful acts may nonetheless be done without malice if they are done in the heat of passion.” Williams, 64 Va. App. at 249, 767 S.E.2d at 257. Indeed, “[m]alice and heat of passion are mutually exclusive; malice excludes passion, and passion presupposes the absence of malice.” Barrett, 231 Va. at 106, 341 S.E.2d at 192. “Heat of passion is determined by the nature and degree of the provocation and may be found upon rage, fear, or a combination of both.” Id. (citations omitted). “Heat of passion excludes malice when provocation reasonably produces fear that causes one to act on impulse without conscious reflection.” Graham v. Commonwealth, 31 Va. App. 662, 671, 525 S.E.2d 567, 571 (2000).

Woods, COA, published March 8, 2016. Voluntary manslaughter is the unlawful killing of another, “committed in the course of a sudden quarrel, or mutual combat, or upon a sudden provocation, and without any previous grudge, and the killing is from the sudden heat of passion growing solely out of the quarrel, or combat, or provocation.” Wilkins v. Commonwealth, 176 Va. 580, 583, 11 S.E.2d 653, 654 (1940). “‘Heat of passion refers to the furor brevis which renders a man deaf to the voice of reason.’ ‘[It] excludes malice when provocation reasonably produces fear [or anger] that causes one to act on impulse without conscious reflection.’” Rhodes v. Commonwealth, 41 Va. App. 195, 200, 583 S.E.2d 773, 775 (2003) (first quoting Caudill v. Commonwealth, 27 Va. App. 81, 85, 497 S.E.2d 513, 514-15 (1998), and then quoting Graham v. Commonwealth, 31 Va. App. – 7 – 662, 671, 525 S.E.2d 567, 571 (2000)). “Malice and heat of passion cannot coexist.”

Hit and Run

Brannon (COA, published November 4, 2008)- D sideswiped two parked cars, and rear-ended V’s car. V got out and talked to D in his car. V didn’t tell D about her injuries. V got back into her car, and while she was calling 911, she saw D drive off. V testified that she had no visible signs of injury. The damage to her car was $400. The issue was whether D knew or should have known that V suffered injuries. Knowledge of injuries can be imputed to the driver where the injuries were visible, or the accident was so serious that a reasonable person would conclude that injuries resulted. The Court acknowledged that the “quantum” of impact and damage could have put D on notice that injuries likely resulted. However, because V was able to walk back to D’s car, where she had no visible injuries, militate against the inference flowing from the accident itself.

Belew, COA, published May 7, 2013. The ordinary meaning of the word “injury” leads to the conclusion that a so-called “soft tissue” injury such as muscle pain or damage constitutes harm, damage, or hurt and is therefore sufficient to prove an injury under Code § 46.2-894.

Cocke, COA, July 11, 2017. Repair costs may be included in calculations to determine whether the accident caused more than $1,000 in damage to property.

Indecent Exposure

A.M., unpublished, COA, February 12, 2013. D was student who told a bus driver she had pretty lips and then mooned her. COA held that it was insufficient under the statute. Good overview.

Barnes, COA, published March 5, 2013. D convicted of indecent exposure in jail. Court held that places and circumstances where the offender does not have a reasonable expectation of privacy, because of the foreseeability of a non-consenting public witness.

Indecent Liberties

Simon, COA, published May 3, 2011. Indecent exposure is not lesser-included offense of IL. Provides overview of intent element.

Linnon, VSC, published January 10, 2104. The key question in determining whether a given relationship falls within the statute is whether the defendant “had the responsibility for and control of the [child’s] safety and well-being.” Teachers, who are assigned to supervisory roles outside of their normal teaching duties, have “a duty to supervise and care for” all students who are on school premises or engaged in school activities. Regarding whether D maintained such a relationship during the off-campus incidents were not determined solely by his status as a teacher, but nor was it determined solely by the fact they did not occur at school. In this case, school was on break, but was going to resume, so the required relationship did not cease to exist.

Farhoumand, VSC, published October 31, 2014- exposure does not include tactile exposure.

Identity Theft

Gheorghiu (COA, published January 20, 2009)- D arrested for credit card theft, identity theft, etc in Arlington. D from NY and traveled down to VA, where he was arrested with stolen credit card numbers. One victim was from NY, and hadn’t been to Arlington. No evidence suggested that D accessed the number in Arlington.

Venue depends on the nature of the crime. In most cases, venue will be where all the elements of the crime were committed. If relying on the general venue statute, the Commonwealth must establish a “strong presumption” that all elements took place within the selected jurisdiction. Here, the Comm relied on the identify theft venue provision, requiring it to prove that one of the elements was committed in Arlington.

The Court distinguished this case from Meeks, which dealt with credit card theft. Identity theft is not credit card theft. Despite its name, the completion of the crime of identity theft is not limited to a discrete moment in time marked by the unlawful taking or receiving of an individual’s identifying information. Rather, identity theft can be committed by recording or accessing an individual’s identifying information, actions that continue after the initial obtaining of the information, or by obtaining goods through the use of the illegally obtained identifying information. Indeed, the very nature of identity theft is that, once an individual’s identifying information is stolen, the individual’s identity remains stolen by the perpetrator as long as the perpetrator possesses that information with the intent to defraud the victim for his own benefit or for the benefit of another unauthorized individual. Identity theft continues after the identity is illegally taken from its lawful owner.

REASONING AND HOLDING AFFIRMED BY COA on August 25, 2009 on rehearing. Evidence provided a strong presumption that D committed a part of the crime in Arlington.

Imitation Controlled Substance

Powell, COA, published November 26, 2013. U/C officer driving through open air drug market. Pulled up and talked to D. D used language indicting he could sell officer cocaine. D handed officer what looked like a “white rock substance” that was actually a pill cut in half. Chemist testified that “just looking at it” it was a white substance in a bag, rather than crack, and an identified it as a schedule VI substance.

Item qualified as an imitation controlled substance. It looked like crack and D implicitly represented that it was crack. The substance’s classification supported finding that the substance was not subject to abuse.

Supreme Court stated that the substance’s

Involuntary Manslaughter

Large (unpublished COA, October 30, 2007)- evidence sufficient where D had reason to know that her pit bulls were dangerous and they killed a woman.

Coyle (published, COA, November 27, 2007)-evidence was sufficient to show D’s criminal negligence in giving V DXM pills, even though DXM is a lawful substance. To convict of involuntary manslaughter during course of a lawful act, it must be shown that the negligence in performing the lawful act (that resulted in death) constituted criminal negligence. Evidence showed D was aware of the danger of certain levels of DXM. The evidence also showed that D’s negligent act was the proximate cause of death. In order for an intervening act to exempt D from criminal liability, the act must not be reasonably foreseeable, and even if it wasn’t reasonably foreseeable, the intervening act must not have been set in motion by D’s own negligence. It was reasonably foreseeable that V would take the dosage that D provided him.

Noakes, COA, published August 18, 2009- D ran daycare business out of her home. V, 15 months old, kept trying to get out of crib, so D fashioned barriers that were designed to keep him in the crib. While D wasn’t watching V, V was fatally trapped in between the crib and the barrier.

IM requires an accidental killing in the course of an unlawful, but not felonious act, or in D’s improper performance of a lawful act. To constitute involuntary manslaughter, the “improper” performance of a lawful act must amount to an unlawful commission of that lawful act, manifesting criminal negligence.

There’s a good discussion of the difference between upholding a factfinder’s verdict and whether the factfinder’s decision is the only one that rational minds could reach. To prove a defendant’s criminal negligence in relation to an otherwise lawful act, the Commonwealth must show that the performance was so improper as to constitute negligence so gross and culpable as to indicate a callous disregard of human life.

The Court distinguished Forbes, stating that D voluntarily created the situation that killed V. It is not necessary that D foresaw the specific manner in which injury and death occurred. It is sufficient that she reasonably could have foreseen that risk of death or serious harm might result from her actions. D “affirmatively and knowingly created this danger to Noah, and then, despite her initial concerns, failed to check on him for several hours. Furthermore, the nature of Noah’s death could not be considered improbable, given appellant was aware that Noah was tall enough to stand with his head above the crib side.”

AFFIRMED BY VSC ON SEPTEMBER 16, 2010.

Forbes v. Commonwealth, 27 Va. App. 304 (1998)- D killed someone in a traffic accident and told police he may have had a diabetic blackout. Since D established that he had substantially followed medical recommendations related his diabetes, he had no reason to know that his driving was risky.

Larceny

McEachern (published, COA, October 17, 2008)- D was seen driving V’s car after a violent argument with her. He called her later, and she demanded that it be returned. D told her he’d abandoned the car, and it was later found. D argued that the abandonment demonstrated that he didn’t have the intent to permanently deprive V of the vehicle. Court noted that there is not “one case in a hundred” where the criminal intent can be proved using direct evidence. It also cited cases showing that a trespassory taking permits the inference, unless other circumstances negate it, that the taker intended to steal the property.

Britt (VSC, October 31, 2008)- An item is taken, for the purpose of larceny, when a defendant secures dominion or absolute control over the items, even if only for a very brief period of time. In addition, there must be some asportation, however slight, coupled with an intent to permanently deprive the owner of the property. The intent to steal must exist at the time the property is moved.

Jones, 3 Va. App. 295 (1986)- To constitute the crime of simple larceny, there must have been a felonious taking of the property from the possession of the owner, and the thief must, for an instant at least, have had complete and absolute possession of the stolen property, and during such possession and control he must have feloniously removed the same from the place it occupied just before he grasped, seized or laid hold of the same. “Where the property has been feloniously taken, the slightest removal, even if it is only a hair’s breadth, with intent to steal the same, is sufficient to constitute the asportation.”

Welch, 15 Va. App. 518 (1992)- “All that is required is that a defendant remove ‘the items from the locations in the store where they were displayed by the owner.’”

Carter, COA, published September 1, 2009- D removed cans of paint from shelves at Home Depot and met co-D at the front of the store. D gave co-D the paint cans and, as they planned, co-D took them to the register to attempt to return them for a refund. D argued that he couldn’t have committed a larceny because the intent to temporarily deprive the owner of property is not a larceny. However, the COA ruled that because the taking was trepassory, the trial court could have inferred that D had the intent to permanently deprive the owner of the paint. The return of the paint was conditioned on receiving the refund.

Commonwealth also argued that D could be convicted of larceny because he intended to steal the “value” of the paint. In footnote 7, court rejected that, noting that an intangible cannot be the subject of larceny.

Dissent recites some helpful cases.

SEE VSC OPINION OF JUNE 14, 2010 AFFIRMING OPINION.

Hall, COA, published November 17, 2015- summarizes procedure under § 19.2-270.1 for admissibility of photographs.

Larceny- Single Larceny Doctrine

Moore, COA, published March 20, 2012- The premise of the single larceny doctrine is that “[a] series of larcenous acts will be considered a single count of larceny if they ‘are done pursuant to a single impulse and in execution of a general fraudulent scheme.’” The application of the doctrine is a fact specific analysis. When deciding whether the single larceny doctrine applies to a particular case, a court must consider “(1) the location of the items taken, (2) the lapse of time between the takings, (3) the general and specific intent of the taker, (4) the number of owners of the items taken and (5) whether intervening events occurred between the takings.” Id. However, “‘[t]he primary factor to be considered is the intent of the thief . . . .’”

Dennos, COA, published March 11, 2014- In all of its applications, however, the single-larceny doctrine carries the same meaning: A “series of larcenous acts” can constitute a “single larceny” if the factfinder reasonably concludes that “the several acts [were] done pursuant to a single impulse and in execution of a general fraudulent scheme.” The standard is in the conjunctive. It is not enough for a series of larcenous acts to take place during the execution of a general fraudulent scheme. Each act must be the product of a common single impulse.

In this construction fraud case, the contractor received two different advances on two different dates involving different promises. The single larceny doctrine doesn’t apply.

Larceny- Value

Baylor, COA, published October 13, 2009- D charged with stealing catalytic converters. Commonwealth presented evidence of the replacement value of the converters, but did not testify to the missing converters’ original purchase price or their fair market value at the time of the larceny. The Commonwealth can establish value in a number of ways, including the testimony of a lay person as to the property’s fair market value, the opinion of an expert, “or by traditional accounting principles, starting with the original cost of the item and then factoring in depreciation or appreciation.” However, “where an item has no market value, the actual value must be shown.”

The Court explicitly did not hold that replacement value can never be sufficient to establish value. But, where, as here, there is no evidence linking the replacement value to the actual value of the stolen goods, it is insufficient.

Little, COA, published March 6, 2012. Court used actual value where stolen goods were for display purposes only, and therefore had no retail value.

Grimes, COA, published October 29, 2013. Copper pipes stolen. Summarizes different ways to prove value, especially replacement value. The cost of labor necessary to replace stolen goods is relevant to restitution but not to proving the value element.

Dunn, 222 Va. 704 (1981)- original cost of item is relevant, but there must be proof of depreciation. The opinion’s value is mainly related to cases involving technical equipment, but the reasoning should hold for anything that depreciates.

Richard Collins is an attorney at Collins & Hyman, PLC, with offices in Williamsburg and Newport News.

The material in this post is for informational purposes only and should not be utilized as legal advice. In order to properly analyze the contents as related to your specific circumstances, a consultation would be necessary.