QDRO Changed for Wife’s Greater Share

Requirements to Withdraw Plea

By Deborah Elkins
Published: July 30, 2012
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

The Court of Appeals says defendant is not entitled to withdraw his guilty plea to grand larceny before sentencing based on following his attorney’s directions; defendant, who has 14 prior felony convictions, has not shown a good faith basis for changing his plea after changing counsel a third time. Defendant stole a Rolex watch worth [...]

Bank Affidavits Were Cumulative Evidence

By Deborah Elkins
Published: July 17, 2012
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

The Court of Appeals affirms defendant’s bench trial convictions for grand larceny, forgery and uttering two checks; two affidavits defendant’s grandfather executed for the bank to return his funds were merely cumulative of other evidence of defendant’s guilt, including a recorded telephone conversation from jail in which defendant admitted stealing from his grandfather to buy [...]

‘Lunchtime’ Roadblock Upheld for HO

By Deborah Elkins
Published: June 11, 2012
Tags: Judge Robert P. Frank, Traffic Offenses, Virginia Court of Appeals

Although police officers were not told a specific time to operate a traffic checkpoint, but to conduct it at “lunchtime,” the “lunchtime” designation and absence of a maximum duration did not give the officers unbridled discretion that violated the Fourth Amendment, and the Court of Appeals upholds defendant’s conviction of driving as a habitual offender. [...]

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 [...]

LPN Care Records Were ‘Forgery’

By Deborah Elkins
Published: May 9, 2012
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

A licensed practical nurse at a skilled nursing facility who repeatedly logged performance of patient care procedures and medication administration on a patient’s chart, even though she had not done these tasks, as demonstrated by an FBI surveillance video, cannot overturn her forgery conviction in the Court of Appeals. After the FBI investigation, a grand [...]

Sales Clerk’s Discounts Were Embezzlement

By Deborah Elkins
Published: May 3, 2012
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

A former Macy’s sales clerk cannot overturn her conviction for embezzlement for giving unauthorized discounts and additional unpaid merchandise to a customer, even though the sales clerk did not personally benefit from those acts, the Court of Appeals says. Defendant admitted she was stealing and knew it was wrong. She thought she could get away [...]

Tax Returns Proved Wages

By Deborah Elkins
Published: May 1, 2012
Tags: Judge Robert P. Frank, Virginia Court of Appeals, Workers’ Comp

The Court of Appeals affirms the commission decision holding employer entitled to a credit based on reducing employee’s average weekly wage from $1,300 to $800; the evidence does not support a spoliation inference inconsistent with employee’s tax returns; her equitable arguments are procedurally defaulted. Employee began work as a restaurant server in northern Virginia from [...]

Robbery Victim in Different Room

By Deborah Elkins
Published: March 22, 2012
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

The Court of Appeals affirms defendant’s jury trial convictions for two counts of robbery and felony use of a firearm, and one count of armed burglary and animate object sexual penetration; a robbery victim need not be present in the same room when property is stolen and circumstantial evidence is competent to prove defendant’s identity [...]

‘Robbery’ Upheld When Person Nearby

By Deborah Elkins
Published: March 22, 2012
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals

A defendant can be convicted of robbery under Va. Code § 18.2-58 even though the 12-year-old victim whose cell phone, iPod and camera were taken from her purse, was not in the room when the property was taken but had been forced at gunpoint into a nearby bedroom with her mother; the Court of Appeals [...]