Criminal – Leaving Accident Scene – ‘Involved’ In Accident 
By Deborah Elkins
Published: July 28, 2008
A defendant who spun out his motorcycle shortly after leaving his cousin’s driveway and who was moving the motorcycle out of the roadway with assistance from his cousin and a friend when another car came along and veered into the median to avoid striking a man and woman jumping up and down in the roadway, [...]
Workers’ Comp – Marketing Residual Capacity – Home Construction
By Deborah Elkins
Published: July 28, 2008
The Virginia Court of Appeals reverses an award of temporary partial disability benefits for an employee who injured his eye with a nail gun while framing homes, because claimant did not adequately market his residual work capacity.
Claimant admitted he made no efforts to conduct a job search outside increasing his hours at his pre-injury, part-time [...]
Criminal – Right To Silence – Continued Conversation
By Deborah Elkins
Published: July 28, 2008
Although defendant made a statement invoking his right to remain silent, he then immediately contradicted his declaration by arguing for his innocence with the officer, reinitiating discussion about whether he was driving a vehicle and had cocaine, and waiving his right to remain silent, and the Court of Appeals upholds defendant’s conviction for possession of [...]
Criminal – Firearm Charge – Prior Juvenile Offense
By Deborah Elkins
Published: July 28, 2008
A defendant’s prior conviction for carrying a pistol into a public school in violation of Va. Code § 18.2-308.1 means he can be convicted for possession of a firearm after having been adjudicated delinquent as a juvenile for an offense that would have been a felony if committed by an adult, and the Court of [...]
Criminal – Voluntary Manslaughter – Principal In Second Degree
By Deborah Elkins
Published: July 28, 2008
The Court of Appeals holds there was sufficient evidence to convict defendant as a principal in the second degree to voluntary manslaughter in the shooting death of one of a group of men who, over the course of an evening of drinking, card playing, and discussion of their interrelated romantic relationships and rivalries, fell into [...]
Domestic Relations – Equitable Distribution – VRS Pension – Husband’s Salary
By Deborah Elkins
Published: July 28, 2008
The Court of Appeals affirms a divorce court’s decision dividing husband’s pension from the Virginia Retirement System, despite husband’s claim that the trial court should have included his salary as of the date of separation in the formula that divided the marital share of his retirement.
Husband believes under the formula used by the trial court, [...]
Domestic Relations – Contempt – Cohabitation
By Deborah Elkins
Published: July 28, 2008
A divorce court did not err in denying father’s petition to hold mother in contempt for multiple claimed violations of the court’s custody order that required mother to file for child support from fathers of her other children and refrain from having overnight male guests, and the Court of Appeals affirms the trial court decision, [...]
Domestic Relations – Equitable Distribution – 401(k) Share – Wife’s Request
By Deborah Elkins
Published: July 28, 2008
A divorce court erred in awarding wife 65 percent of the present value of husband’s 401(k) account, when wife only asked for 50 percent, and the Court of Appeals reverses the equitable distribution award and remands the case.
It is axiomatic that a court may generally not award more relief than a party expressly requests. In [...]
Criminal – Attack On Security Guard – ‘Concert Of Action’
By Deborah Elkins
Published: July 28, 2008
Although defendant contends he had a change of heart and waited in the bushes while his codefendant attacked a security guard in order to take his gun, and was shot in the arm, the Court of Appeals says there was sufficient evidence that defendant engaged in a “concert of action” with his codefendant to convict [...]
Criminal – Confession – Defendant’s Question – Reinitiation
By Deborah Elkins
Published: July 28, 2008
A defendant being questioned first about conspiracy to commit robbery, and then about a felony murder, who first said he did not want to talk “right now,” but then asked, “Can we just talk later?” reinitiated conversation with the police, and the trial court did not have to suppress defendant’s statements that flowed from the [...]
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