No ED for ‘Negative Equity’ Real Estate

Suppression Order Reversed in Meth-Lab Case

By Deborah Elkins
Published: May 16, 2013
Tags: Judge Robert P. Frank, Search & Seizure, Virginia Court of Appeals

A deputy who accompanied a social worker to a home to investigate the possible presence of children in a methamphetamine-manufacturing site had probable cause and exigent circumstances to enter the home, after observing items used to manufacture the drug in a burn pile outside the home and hearing movement inside when the deputy knocked at [...]

Upset Mom’s Messages Were Threats

By Deborah Elkins
Published: May 3, 2013
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

A majority of the Court of Appeals affirms mother’s misdemeanor conviction for making telephone threats but reverses and dismisses her conviction for interfering with a 911 call for lack of evidence she disabled or destroyed any device required under the statute charged, Va. Code §18.2-164(B)( 2); the dissent argues both convictions should be reversed because [...]

Faulty Firearm Still Counts for Conviction

By Deborah Elkins
Published: April 5, 2013
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

Although defendant contends the black firearm found near where he had thrown away an object consisted only of components of a firearm, as it had no barrel and was in a rusty and unmaintained condition, the Court of Appeals affirms his conviction for possession of a firearm as a convicted felon. Defendant argued the object [...]

Victim’s Loss List Supports Restitution Order

By Deborah Elkins
Published: April 4, 2013
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

The Court of Appeals upholds an order requiring defendant to pay restitution of $2,000 for his theft of jewelry from the victim’s home, despite a claim that testimony of the victim and a list of her losses submitted to an insurance company did not support this value. Defendant contends the evidence of the victim’s loss [...]

Appeals court allows do-over for procedural defaults

By Deborah Elkins
Published: March 27, 2013
Tags: Civil Procedure, Judge Glen A. Huff, Judge Robert J. Humphreys, Judge Robert P. Frank, Judge Stephen R. McCullough, Judge William G. Petty, Virginia Court of Appeals

Some procedural errors that may have meant dismissed appeals will no longer be fatal, a divided Virginia Court of Appeals said today in a trio of en banc cases. Specifically, in two cases, the court allowed amendments to retool assignments of error and to specify page references to show an appellate claim had been preserved. [...]

Companion’s Throw Justified Search

By Deborah Elkins
Published: February 4, 2013
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

Defendant is not entitled to suppress heroin found after a police officer saw a companion throw suspected contraband, the Court of Appeals says; the circumstances of their encounter in the stairwell of an apartment complex known for drug activity and the officer’s experience created a reasonable suspicion, and defendant’s conviction for possessing heroin with intent [...]

Sodomy Conviction Upheld for Penetration

By Deborah Elkins
Published: January 17, 2013
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

The Court of Appeals affirms defendant’s jury trial sodomy conviction based on the 38-year old victim’s testimony that he licked her vagina; this case is controlled by Horton v. Commonwealth, 255 Va. 606 (1998). Victim, a 38-year old female rented a room from defendant. One day in July, he entered her room, forced her on [...]

No Sentence Change After DOC Transfer Error

By Deborah Elkins
Published: January 17, 2013
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

Even though the trial court said defendant would have been entitled to some relief on his pending post-trial motion for a sentence modification, defendant’s mistaken transfer from the local jail to the Department of Corrections meant the trial court no longer had authority to modify the sentence; the Court of Appeals affirms denial of defendant’s [...]

Passenger’s Possession Proved

By Deborah Elkins
Published: December 6, 2012
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

The Court of Appeals affirms defendant’s bench trial conviction for possessing marijuana with intent to distribute; defendant got in his friend’s car with two large bags of marijuana in plain view and had seen his friend, a convicted felon, smoke marijuana before. A concurring opinion expresses concern that recent cases appear to conflate mere proximity [...]