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Insufficient Legal Research Waives Error

Defendant cannot avoid his bench trial conviction for third or subsequent felonious violation of a protective order by challenging the sufficiency of evidence and his prior violations lacking an act of violence, the Court of Appeals says:  the circumstantial evidence was sufficient without eyewitness testimony; defendant’s argument about his prior violations is procedurally defaulted.

A protective order was issued against defendant under Va. Code § 16.1-279.1 to refrain from contact with victim and stay away from her residence.  About 12:30 a.m. one night in May, victim received a telephone call from an official automated service to notify victims of offenders’ release from custody.  About two hours later, she heard knocking on the window outside her bedroom, the rear of the house and front door.  After looking, she saw defendant walking away in the ditch line on the edge of the yard.  Victim’s girlfriend a couple of houses down stated she refused to answer when defendant knocked on her door for about five minutes around the same time.  A deputy sheriff found defendant about a block from victim’s house.  Defendant stated he was going to victim’s house to get his personal belongings.  The trial court convicted defendant of third or subsequent felonious violation of a protective order under § 16.1-253.2.

On appeal, defendant disputes the sufficiency of evidence and argues that the lack of an act of violence in his prior convictions prevents a felony conviction.  We affirm.  Circumstantial evidence supports the trial court finding defendant was on victim’s property.  Eyewitness testimony of actually seeing defendant on the property is not required.  Defendant cites no authority supporting his argument about the lack of act of violence in his prior violations in his brief as required by Rule 5: 20(e).  His counsel at oral argument incorrectly characterized the issue as “first blush” when there are plenty of cases analyzing the issue of proving a prior conviction.  Defendant abdicated his burden of research to us.  His failure is significant and waives his right of review on this assignment of error.

Wright v. Commonwealth (Petty) No. 0003-13-2, Feb. 18, 2014; Dinwiddie Cir. Ct. (Cella) Marlene A. Harris for appellant; Susan M. Harris, AAG.  VLW 014-7-043(UP), 7 pp.

VLW 014-7-043

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