Criminal Law | Virginia Lawyers Weekly

‘Vulnerable Victim’ Enhancement Approved

By Deborah Elkins
Published: May 22, 2012
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge J. Harvie Wilkinson III

A defendant who, from a Florida jail, appropriated a social security number and identity belonging to a disabled woman in Florida, has her sentence for social security fraud and aggravated identity theft increased under the sentencing guidelines’ “vulnerable victim” enhancement, in this decision from the 4th Circuit.
In 1995, the Sentencing Commission adopted Amendment 521 rendering [...]

Prosecutor’s Comments Not Error

By Deborah Elkins
Published: May 22, 2012
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge Henry F. Floyd

A prosecutor’s references to defendants as “liars” was not plain error, in light of precedent from other appellate courts, and the 4th Circuit affirms defendant’s conviction for making a false entry in a bankruptcy-related document.
Defendant was convicted of making, or aiding and abetting his codefendant in making, a false entry in a bankruptcy-related document, in [...]

Comments to Social Worker Not ‘Testimonial’

By Deborah Elkins
Published: May 22, 2012
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge Albert Diaz

Statements made by defendant’s eight-year-old stepson to a social worker about defendant’s abuse were nontestimonial and admission of the statements did not violate defendant’s Confrontation Clause rights under Crawford v. Washington; the 4th Circuit upholds defendant’s convictions of second-degree murder and assault in the death of his stepson.
We are satisfied – after reviewing the child’s [...]

DUI Appeal Procedurally Defaulted

By Deborah Elkins
Published: May 18, 2012
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

Defendant is not entitled to reversal of his bench trial conviction for third offense driving under the influence of alcohol on the basis of the inadmissibility of his second offense conviction, the Court of Appeals says; defendant failed to assign error to the admissibility of his second conviction and his brief fails to address the [...]

Dwelling Occupied for Arson

By Deborah Elkins
Published: May 18, 2012
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

The Court of Appeals affirms defendant’s jury trial conviction of arson of an occupied building under Va. Code § 18.2-77; our cases hold a dwelling is occupied when residents are temporarily absent and the evidence proves defendant and others regularly inhabited the dwelling he burned after his employment was terminated.
Defendant worked as a banquet server [...]

Robber’s Girlfriend Guilty as Principal

By Deborah Elkins
Published: May 18, 2012
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

The Court of Appeals affirms defendant’s bench trial convictions as principal in the second degree on felony firearm charges, abduction, and robbery of a business; the combination of circumstantial evidence proves defendant aided her boyfriend’s armed robbery of a clothing store and its customers, she knew and shared his intent to use a firearm to [...]

Drug Guilty Plea Binding

By Deborah Elkins
Published: May 18, 2012
Tags: Criminal, Judge Rossie D. Alston Jr., Virginia Court of Appeals

Defendant is not entitled to withdraw his guilty plea after sentencing for cocaine possession based on possible exculpatory evidence, the Court of Appeals says; the trial court made the inquiry required under Boykin v. Alabama, 395 U.S. 238 (1969), and defendant fails to meet the two-part test for withdrawing a guilty plea: a good faith [...]

Toddler’s Escape Not Felony Neglect

By Deborah Elkins
Published: May 18, 2012
Tags: Criminal, Judge Rossie D. Alston Jr., Virginia Court of Appeals

Mother is entitled to reversal of her bench trial conviction for felony child neglect for insufficient evidence, the Court of Appeals says; no evidence proves mother guilty of wanton or willful actions or reckless or indifferent disregard for her child’s welfare.
Mother lives in a trailer with her twin three-year old sons and boyfriend. One Friday [...]

Driver’s Suspended Sentence Revocation Upheld

By Deborah Elkins
Published: May 18, 2012
Tags: Criminal, Judge Randolph A. Beales, Virginia Court of Appeals

A trial court that found defendant violated his probation a second time after multiple offenses of driving while a habitual offender has his sentence suspension revoked again, and the Court of Affirms the sentencing decision, despite defendant’s claim the trial court erred by revoking his suspended sentence for behavior that occurred prior to a “previous [...]

Jailhouse Wallet Search Upheld

By Deborah Elkins
Published: May 18, 2012
Tags: Judge William G. Petty, Search & Seizure, Virginia Court of Appeals

Police who responded to a domestic violence call and arrested defendant after they found his live-in girlfriend with a cut above her eye did not violate defendant’s Fourth Amendment rights when they found marijuana and heroin in his wallet when he was processed at the jail, and the Court of Appeals upholds denial of defendant’s [...]

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