Indictment for removing Lee statue upheld

Where defendant was indicted for taking down the Robert E. Lee statue located in Lee Park in the city of Roanoke using his truck and chains, and damaging the statue in the process, his motion to dismiss the indictment is denied.

The indictment gives defendant reasonable notice of the charge against him, and there is probable cause to believe that the cost of removing the statue from the park, added to the repair costs, will exceed $1,000, the threshold amount for a felony charge.

Background

The indictment charged defendant “with Damaging Property in excess of $1000, a Class 6 Felony in violation of Va. Code § 18.2-137. After a preliminary hearing on October 13, 2020, the General District Court certified the matter to the Circuit Court upon a finding of probable cause. At the preliminary hearing, a witness from the City of Roanoke testified to both the cost of removing the statue, $934.64, and the cost of repair the statue, $3,119.07.”

Defendant has moved to dismiss the indictment on three grounds: “because 1) the indictment does not allege that he acted intentionally, 2) that the damage to the property is less than $1000 and therefore does not meet the Felony threshold, and 3) the accord and satisfaction provision of Va. Code § 18.2-137(A) requires a dismissal of the indictment.”

Discussion

“Defendant contends that because the indictment fails to include the word ‘intentional’ that this somehow does not put the Defendant on notice of the charge against him. Mr. Foreman further argues that such language is necessary in the indictment in order to properly charge the defendant with a felony, and because it lacks this vital language, Mr. Foreman can only be indicted for a ‘less culpable mental state.’ … The Court finds this argument unpersuasive. 

“Here, the indictment against Mr. Foreman states that he did ‘unlawfully and feloniously destroy, deface, damage or remove the property of the City of Roanoke[.]’ …  The Court acknowledges that this language is different from the language in the statute which reads ‘[i]f any person who is not the owner of such property intentionally causes such injury … to the property, memorial … if the value of or damage to the property is $1,000 or more.’ Va. Code§ 18.2-137(B) (emphasis added). 

“But even given this, the Court is still not persuaded by Mr. Foreman’s argument. The indictment clearly includes the pertinent statute, the language related to the monument at hand, and the cost threshold required for a felony charge. These facts together put the Defendant on notice of the charges pending against him. …

“Next, the Defendant argues that the indictment ought to be dismissed because the injury to the monument at hand was $934.64. The statute provides that the value of or damage to the memorial must be $1,000 or more. … At this stage of the case, the Commonwealth only need to show probable cause of the alleged offense to charge the Defendant. At the preliminary hearing that was conducted on October 13, 2020, the Commonwealth introduced evidence that cost for removing the statue was  $934.64, which the Defendant highlights. …

“However,  the Commonwealth also introduced evidence for the cost of repairing the statue valued at $3119.07. … Given this, the Court finds that, at the very least, probable cause exists to go forward to trial. Moreover, the Court need not determine the actual cost of the damage to the statue at this time, as the damage caused by the Defendant is a question for the trier of fact. … 

“Lastly, Defendant maintains that the indictment should be dismissed because of the accord and satisfaction provision of Va. Code § 18.2-137(A). Mr. Foreman delivered a check of $934.64, the cost of removing the statue, to the Commonwealth’s Attorney’s office on October 29, 2020. 

“While the Court certainly finds this admirable, the Court has already determined that the felony indictment against the Defendant is not defective. As a result, the Court does not have the  discretion to dismiss the charge because no authority exists to resolve a felony criminal charge by accord and satisfaction.”

The motion to dismiss is denied.

Commonwealth v. Foreman, Case No. CR 20-1102-00, Jan. 13, 2021, Roanoke City Cir. Ct. (Ware). Andrew Stephens for the commonwealth, John P. Fishwick Jr. for defendant. VLW 021-8-011, 5 pp.