Reversal for Inadmissible Prior Robbery Evidence

Later Bad Act Comes In at Sentencing

By Deborah Elkins
Published: April 25, 2013
Tags: Criminal, Judge Larry G. Elder, Virginia Court of Appeals

At defendant’s sentencing on cocaine possession and driving after being declared a habitual offender, the court did not err in considering evidence of defendant’s participation in a cocaine sale three months after his guilty plea and prior to sentencing; the Court of Appeals says an officer’s testimony, including evidence from an informant, was sufficiently reliable [...]

Evidence Insufficient on Nighttime Entry

By Deborah Elkins
Published: April 5, 2013
Tags: Criminal, Judge Larry G. Elder, Virginia Court of Appeals

The Court of Appeals reverses and dismisses defendant’s bench trial convictions for burglary and conspiracy to commit burglary for insufficient evidence of nighttime entry alleged specifically in the indictment; this variance is fatal considering that the indictment informs the defendant of the charge against him. At 6:00 p.m. on August 10, 2010, accomplice texted defendant [...]

Victim’s 911 Call Contradicts New Evidence

By Deborah Elkins
Published: April 5, 2013
Tags: Criminal, Judge Larry G. Elder, Virginia Court of Appeals

The Court of Appeals affirms defendant’s jury trial convictions for aggravated malicious wounding, robbery and burglary of an elderly woman; portions of victim’s 911 call about a potentially armed suspect at large were admissible as non-testimonial response to an ongoing emergency and contradicted defendant’s proffered new evidence implicating another assailant. At 2:40 a.m. one May [...]

Post-Entry Use Supports Burglary Gun Use

By Deborah Elkins
Published: April 5, 2013
Tags: Criminal, Judge Larry G. Elder, Virginia Court of Appeals

The Court of Appeals rejects defendant’s contention that his burglary was complete before he crossed the threshold of the victim’s home and held a gun to her head, and refuses to reverse his conviction for use of a firearm in the commission of a burglary. Here, in contrast to Rowland v. Commonwealth, 281 Va. 396 [...]

Second Knee Surgery Justifiably Declined

By Deborah Elkins
Published: April 1, 2013
Tags: Judge Larry G. Elder, Virginia Court of Appeals, Workers' Comp

The Court of Appeals affirms the commission decision reinstating disability benefits to a convenience store assistant manager who suffered a compensable injury to her right knee; the record supports the commission finding that considering all of the circumstances, employee reasonably declined the second knee surgery her treating physician recommended. In July 2008, employee suffered a [...]

Jail Cell ‘Public’ for Indecency Statutes

By Deborah Elkins
Published: March 12, 2013
Tags: Criminal, Judge Larry G. Elder, Virginia Court of Appeals

The Court of Appeals affirms defendant’s bench trial convictions for indecent exposure and sexual display under Va. Code §§ 18.2-387 and 18.2-387.1; we construe Virginia’s indecency statutes harmoniously with the legislative purpose and other jurisdictions to reach defendant’s conduct standing in front of his first floor jail cell masturbating where he could be seen by [...]

Striking Juror Harmless in Murder Case

By Deborah Elkins
Published: February 25, 2013
Tags: Criminal, Judge Larry G. Elder, Virginia Court of Appeals

Defendant is not entitled to reversal of his jury trial convictions for murder, robbery and firearms offenses based on the striking of a juror; any error omitting voir dire was harmless; defendant does not contend he was denied a fair and impartial jury. During jury selection, one venireman disclosed he was a former General Assembly [...]

Post-trial Affidavit Rejected

By Deborah Elkins
Published: February 25, 2013
Tags: Criminal, Judge Larry G. Elder, Virginia Court of Appeals

Defendant is not entitled to reversal of his bench trial convictions for aggravated maiming, felony use of a firearm and violent felon firearm possession based on the post-trial affidavit of a witness interviewed by police, the Court of Appeals says; defendant cannot show either that he used reasonable care to obtain this testimony before trial [...]

Suspension Revocation Order Void

By Deborah Elkins
Published: December 6, 2012
Tags: Criminal, Judge Larry G. Elder, Virginia Court of Appeals

Because the trial court revoked two years of defendant’s suspended sentence when he had only one year 11 months remaining, the revocation order is void ab initio and the Court of Appeals, accepting the commonwealth’s concession of trial court error, reverses and remands the matter to the trial court with instructions to recalculate the revoked [...]