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No late revisions on assignments of error without permission, court says

The Virginia Court of Appeals has re-emphasized its admonition to criminal lawyers: think about the wording of your assignments of error before it is too late.

The advice comes in a case that might also stand as a warning about provoking other drivers.

Kevin Bukowski was at the wheel of his truck, waiting for a colleague to pick up Chinese food, when another driver accused him of blocking her exit from a parking space. Bukowski refused to move, so the other driver threw a Gatorade bottle at his truck, according to the court’s account of the trial evidence.

The other driver managed to get her car past Bukowski’s truck, but she was in for a surprise. Bukowski and his colleague were partners in a private security firm and they had guns at the ready.

They cornered the Gatorade-tossing driver and pulled their pistols on her and her passenger. Two young children were in the car, as well.

Newport News Circuit Judge H. Vincent Conway Jr. found no justification for Bukowski’s display of force and convicted him of brandishing and using a firearm in a felony.

On appeal, Bukowski said Conway erred in “concluding the evidence was sufficient to convict” him of the crimes, without explaining why.

Even though Bukowski sought to bolster his assignment of error in his opening brief, it was too late, the Court of Appeals said Tuesday.

In his amended assignment of error, Bukowski contended the evidence was insufficient “because Bukowski, a special conservator of the peace, was lawfully effecting an arrest for a felony committed within his presence and was not subject to any territorial restrictions on his arrest powers within the City of Newport News.”

Bukowski will not get to argue that point, because the Court of Appeals dismissed his appeal. In an unpublished opinion penned by Judge Randolph A. Beales, the court’s three-judge panel emphasized that the court requires assignments of error that state in what way evidence is insufficient.

Amendment is possible, but a litigant has to first ask for leave of court, something Bukowski did not do.

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