Virginia Criminal Law Case Outline: Offenses M through Z

The following is an outline of Virginia criminal case law related to offenses (alphabetically, M through Z). It is copied from an outline maintained by Richard Collins, an attorney at Collins & Hyman, PLC. Because Mr. Collins created the outline for his own reference, rather than for publication, the outline contains many abbreviations. Questions regarding the abbreviations, or case cites, can be sent to rick@williamsburglaw.net.

Malicious Wounding

Ferguson (COA, published, September 11, 2007)- a parent can use reasonable force to punish a child, but can’t use that to justify excessive force- whether the force is excessive is for fact finder, considering totality of the circumstances. If a person acts intentionally, and the probable consequence is the permanent disability of another, even if the disability does not result, he can be found to have intended to cause a disability. Repeatedly kicking and whipping foster kid that resulted in bruising was sufficient to convict for M/W.

D drove car over 100 mph in a 35 zone. D crashed car, resulting in multiple injuries. There was no evidence that D tried to avoid hitting the other car. “In making the determination whether malice exists, the fact-finder must be guided by the quality of the defendant’s conduct, its likelihood of causing death or great bodily harm, and whether it was volitional or inadvertent . . . .” “A motor vehicle, wrongfully used, can be a weapon as deadly as a gun or a knife.” “Generally, implied malice is equivalent to ‘constructive malice;’ that is, ‘malice as such does not exist but the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist.’”

Burkeen, VSC, published October 31, 2013. To be guilty of malicious wounding, accused must intend to permanently harm V. D punched V once in the face, causing a “significant injury.” After hitting V, D began taunting V. When a third party moved to protect V, D hit the third party several times. Because V did nothing to provoke the attack, D taunted V after, attacked the third party trying to protect V and stopped only when he heard the police were called, the evidence was sufficient to show an intent to permanently injury V.

Mob Offenses

Abdullah, COA, published April 14, 2009- Assault by mob case. V walking down street. V noticed a group of four men, with another group of three standing nearby. V became nervous, changed direction, and walked down an alley to cut over to his destination. The group, which had grown to twelve, intercepted V. They approached him, and multiple men began striking V. V testified that he could not tell whether D was one of those who were striking him, but he did state that D was one of the men that had prevented him from escaping. For a group of persons lawfully gathered for whatever purpose to “assemble” as a mob within the intendment of Code § 18.2-38, they need only to collectively band together with the common purpose and intention of committing an assault and battery upon a person.

Paiz, COA, published August 25, 2009- D convicted of use of f/a as a member of a mob. No dispute that D was member of a mob. Challenged use convictions because use of f/a is not listed as a violent crime under § 19.2-297.1. Court expressly did not consider whether D could have been convicted of the use offenses under other theories of vicarious liability. § 18.2-42.1 criminalizes mob members when that mob commits an act of violence in 297.1 Because use of f/a is not listed as a violent crime in that statute, D’s convictions were reversed.

Murder- Felony Murder

Kennemore (December 11, 2007)- V found wrapped in a cloth with her body burned. No certainty as to whether V was dead prior to the arson, or whether the arson hastened her death by asphyxiation. Felony murder applies where the killing is so closely related in time, place and casual connection so as to be part of the same criminal enterprise. Under this rule, it doesn’t matter if the killing precedes the felony or follows it.

Woodward, COA, published 2013. D sold V ecstasy. V used it later, after drinking and smoking cigarettes for two hours. V later died. D admitted he sold the ecstasy and that he knew it could kill someone. Notably, “[T]he required elements of the [res gestae] rule, i.e., time, place, and causal connection, are stated in the conjunctive. Therefore, all three elements must be established for the felony-murder statute to apply.” Accordingly, if the underlying felony and the killing are separated by time, place, or causal connection, then they are “not ‘parts of one continuous transaction,’ [Haskell, 218 Va. at 1041, 243 S.E.2d at 482], and the killing did not occur ‘in the prosecution of some felonious act’ in violation of Code § 18.2-33.”
Because the sale occurred in a different place, and the killing occurred when V injested the drugs over two hours later, the killing did not occur within the res gestae.
COA distinguished facts from two cases involving felony murder in the drug context.

Obscene/Threatening Phone Calls

Lofgren, COA, published November 3, 2009- D and V previously dated. On offense date, D went to V’s house, and V refused to talk to him. D asserted they had plans. D left, cursing her. Later, he called her and said “I can’t believe you fucking cunt . . . . You’re a fucking bitch . . . . I hate you. . . . I can’t believe you’re doing this. [W]e had plans.” In a voice message later, D called her a “fucking cunt” and said, “you fucking suck.”
Court uses the definition of obscenity in Code § 18.2-372: that [1] which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and [2] which goes substantially beyond the customary limits of candor in description or representation of such matters and [3] which, taken as a whole, does not have serious literary, artistic, political or scientific value.
Here the evidence demonstrated that D spoke out of anger, and did not direct his comments toward the prurient interest in sex, or go beyond the customary limits of candor in description or representation of such matters.

Barson, 284 Va. 67 (2012)- discusses obscene communciations.

Obstruction

Atkins, COA, published July 14, 2009- Officer noticed D’s license plate dangling. Officer located D in parking lot talking to another officer. Officer ran plate and found it was stolen and told other officer to arrest D, but D ran into the woods. Could not located D, but found a gun and m/j in the car. Next morning, officer found D walking on side of the road. D told officer he’d been in the woods all night and refused to answer questions. D lied about his name, but had keys on his person that opened the car.
Obstruction means to obstruct the officer himself not merely to oppose or impede the process with which the officer is armed. Commonwealth conceded that D’s “mere flight” was insufficient to convict D.

Thorne, COA, published April 19, 2016. D refused to roll down window to allow officer to test her window tint, as well as look at the back seat for “officer safety.” Actions that make an officer’s discharge of his or her duty simply more difficult, but achievable, do not constitute obstruction of justice without force. D’s refusal to roll down her window did more than make the officer’s job more difficult- it prevented him from investigating and therefore constituted obstruction.

OL Cases

Carew, COA, published November 26, 2013. D convicted of driving without a valid license. COA assumed, based on the Commonwealth’s position throughout the case, that evidence did not establish D had notice her license was suspended, and therefore invalid. “Bibb holds that a suspension is not effective when the order is entered but rather when the party charged has been given notice of its entry.”
In this case, the notice of administrative suspension letter was returned unclaimed. When the predicate for invalidity is a license suspension, the Commonwealth must prove the defendant received notice of the suspension.

Pandering

Tart (COA, published July 15, 2008)- language of exception indicates that exception creates an affirmative defense. D has the burden to produce or point to evidence permitting him to invoke the exception. D did not provide lawful consideration in exchange for the prostitute’s earnings: he purchased illegal alcohol and drugs, and also provided transportation and other services designed to further her prostitution- none of this is deemed lawful consideration.

Perjury

Sutphin, COA, published December 18, 2012. COA followed “the common law rule that a conviction of perjury requires proof of the falsity from at least two witnesses or one witness and corroborating evidence.” Conviction was affirmed on procedural grounds.

Cossitt-Manica, COA, published November 17, 2015. Insufficient corroboration.

Possession- Drugs

Castilloux (unpublished, September 29, 2007)- evidence sufficient for simple possession when D had cocaine in his pocket, despite his claim that they weren’t his pants and that his brother had planted the cocaine, and his brother testified to that fact. D had legal possession of the cocaine and reasonable for judge to infer knowledge.

Maxwell (VSC, February 29, 2008)- D had his hands down his pants, ran when the officer said he was going to pat him down, when he was next located he was walking in the area where the drugs were found and his demeanor changed when the drugs were found. This was insufficient to prove constructive possession.

Young (VSC, April 18, 2008)- Police found pill bottle with name of Stephanie Woody on label. Contained controlled substances. Wood testified that they were her pills, and trial court accepted her testimony. VSC reversed conviction because mere possession, without more, is insufficient to establish guilty knowledge of nature and character. The Court noted that in this case, there was nothing about the contents of the pill bottle to give any indication of their character.

McMillan (VSC, January 19, 2009)- D passenger in car that eluded police. Trooper searched car, and during search located a Crown Royal bag in the glove compartment. When the trooper pulled out the bag, D ran from the scene. The bag contained cocaine. One of the issues was whether the evidence was sufficient to find that D possessed the cocaine. In addition, a gun was behind D’s seat, and D’s DNA was found on the gun. Packaging material consistent with drug distribution was found next to the gun. These facts were sufficient to support a finding that D possessed the cocaine.

Merritt, COA, published March 2, 2010- evidence insufficient where Commonwealth’s position was that D acted as the lookout/enforcer for drug operation.

D must know that the substance is a controlled substance, but need not know the exact identity of the substance.

Prostitution

Bakran, COA, published October 26, 2010. Discusses use of vehicle to promote prostitution.

Protective Orders

Elliot, VSC, published April 17, 2009- Harvey obtained a protective order against D, which prohibited any contact with Harvey. There were two incidents at issue. In this first, D called Harvey and asked to speak to their son. In the second incident, the parties were in court related to another protective order. After court, D cursed at Harvey’s mother, and then said he’d beat them to her house. On the way home, D passed their car. D parked one block from Harvey’s house, during which time they had an unobstructed view of him. D was on the phone, and pointed at the house, but he didn’t call them or approach the house.
The protective order statute was designed to protect certain individuals from family abuse. “We are of the opinion, however, that ‘such contacts’ contemplated by the statute to be included as a condition in a protective order are intentional acts. In other words, contacts are those acts by the respondent that intentionally pierce the protective barrier between the petitioner and the respondent fashioned by the protective order.” The Court specifically declined to define the limits of “contacts”, however. “[T]he statute permits a protective order that prohibits the respondent from entering a reasonable distance-defined space around the petitioner and, thus, intentionally making visual contact with the petitioner.” In the second incident, D was a block away, and not in a position to harm Harvey. Since the evidence was insufficient to establish that D intended to visually communicate with Harvey, the evidence was insufficient to support that conviction.

Public Place

Turner, COA, published November 22, 2016- Analyzed whether a noose hanging on private property in view of the road and neighbors constituted doing so in a public place. “[W]e hold that the use of offensive language by use of a symbol on one’s own premises constitutes a – 15 – violation of the law when that symbol is used as a means to communicate it to the public, and thus disturbs persons who are within the viewpoint of the communication, display, or message.”

PWID

Watson (unpublished, November 13, 2007)- Courts can consider weight and packaging to establish D’s intent, and evidence that the amount D possessed was greater than is normally possessed by a user is sufficient to establish intent to distribute.

Hunter v. Commonwealth, 213 Va. 569 (1973)- Possession of drugs in a quantity greater than the supply ordinarily possessed by a narcotics user for his personal use, is a circumstance which, standing alone, may be sufficient to support a finding of intent to distribute.

Gregory, 22 Va. App. 100 (1996)- possession of 3.7 grams of crack was sufficient to prove he intended to distribute it.

Williams, VSC, June 4, 2009- D possessed heroin, cocaine and methadone. Court only considered sufficiency of evidence re: PWID methadone. D had bag containing 10 tablets- one of those tested positive for methadone. The street value of the tablets was $50-$100. Expert testified that it was inconsistent w/personal use because of total value of drugs, D was unemployed, fact that he possessed methadone and heroin together since the two drugs have the same effect and the packaging. Court did not consider D’s argument that evidence was insufficient b/c state only tested one tablet because the totality of the evidence was sufficient.

Scott, COA, published November 17, 2009- D caught with small amount of drugs, but multiple kinds of drugs, that were packaged in baggie corners. D also possessed a firearm, and no user paraphernalia. COA held evidence sufficient for PWID.

Holloway, COA, published January 26, 2010- D convicted of PWID imitation for possessing 3 small baggies of imitation crack worth $20 each. Expert testified that amount and packaging inconsistent with personal use due to individual baggies (not cost effective), fact of imitation means he was either ripped off or distributing it, and no smoking devices.
The Commonwealth need not present evidence of factors courts consider to determine whether a substance is inconsistent with personal use; however, competent evidence that overcomes the inference that the substance was possessed for personal use is necessary for the evidence to be sufficient as a matter of law. Here, no evidence suggested D knew it was an imitation substance and the character of the substance alone was insufficient. Many of the factors were lacking as well, and the packaging itself was insufficient for conclusion.
AFFIRMED EN BANC ON AUGUST 10, 2010.

Burrell, COA, published June 28, 2011. D challenged sufficiency because chemist didn’t test all of the drugs. Court rejected that argument. “Logically, then, when a portion of an unknown substance is tested and confirmed to be an illegal drug, it is not unreasonable for the fact-finder to infer that the entire amount is the same illegal drug if the totality of the circumstances supports that inference.”

Rape

Smart (unpublished, August 28, 2007)- evidence sufficient to convict of rape where victim waited two years to report incident, was unusually quiet following the rape, and parts of her claims corroborated.

Carter, 16 Va. App. 118 (1993)- generally rape is not a continuous offense’” and “‘each act of intercourse constitutes a separate and distinct offense.

Receiving Stolen Property

Whitehead, VSC, June 4, 2009- D’s boyfriend broke into cars and stole items. D confessed that she knew he was stealing things, storing them in their apartment and selling them to pay their bills. To convicted under that statute, the Commonwealth must prove the items were stolen by someone other than the defendant, the accused received the goods from such other person, at the time of receipt D knew it was stolen and that D received it with dishonest intent. Actual possession is unnecessary; constructive possession is sufficient. However, since the Commonwealth did not assert that argument at trial, the doctrine that a correct decision for the wrong reason will not be reversed is inapplicable, and the Court refused to consider that argument.
The Commonwealth may also convict if it can prove that D aided in the stolen property’s concealment. Commonwealth must show that property was stolen and that D aided in its concealment with knowledge it was stolen and with dishonest intent. The Court refused to consider that theory b/c the Commonwealth did not present it at trial.
The Court held that the fact that D’s received benefits from the stolen property was insufficient to sustain a conviction because such receipt is not part of the statute.

Reckless Driving

Chibikom, COA, published August 4, 2009- improper driving is not a lesser-included offense of reckless driving.

Blevins, COA, published August 27, 2014. D driving on 95, when he moved into V’s lane, clipping V on the rear passenger side of the car. As a result, V ran off the highway, hit a tree and flipped over, killing a passenger. Two issues on appeal: 1) whether the evidence was sufficient to support r/d conviction and 2) whether the jury should have been instructed on improper driving.
COA listed circumstances “tending to show recklessness”, including “lack of control” and “noncompliance with traffic markers.” D’s driving in excess of the speed limit on a rainy night, act of speeding up when V’s car sped up, failure to control his truck (regardless of his innocent explanation of possible mechanical failure) and the resulting death and injuries made the evidence sufficient to support his conviction.
Regarding the jury instruction on improper driving, the COA held “that, based on Code § 46.2-869, the applicable statute, the culpability determination for improper driving was exclusively the prerogative of the trial court, and in this case the court made no such finding.” Therefore, the trial court did not err in refusing to provide an improper driving instruction.

Refusal

Brothers (COA, published October 9, 2007)- implied consent is not a qualified or conditional consent. Refusal to take breath test without attorney present was not a reasonable refusal.

D’Amico, VSC, published February 27, 2014– D arrested for DUI. Arresting officer read the implied consent law from a standard card. Later, breath test operator read the refusal form, which indicated that arresting officer had read the form to D. At trial, D objected to admission of the refusal form. Commonwealth argued substantial compliance.
VSC ruled that the procedural elements in the refusal statute provided safeguards to the accused but that they are not elements of the offense.

Resisting Arrest

Joseph, COA, published February 10, 2015. D stopped for speeding. Officer determined there were outstanding warrants for D. D uncooperative with officer, and physically resisted handcuffing him. However, he stayed on the scene and in close proximity to the officer. Statute requires that a defendant “flee.” “Applying the plain meaning of the word “flee” in the context of the statute, we hold that fleeing from a law enforcement officer requires a form of running away or physically departing from the officer’s immediate span of control.” Statutory title is not part of the statute and is not controlling.

Robbery

Anderson (COA, published August 5, 2008)- D was part of conspiracy to rob his store. During the staged robbery, D was the cashier that turned over the money. To sustain a conviction for robbery, the force, threat or intimidation must be directed at the victim. Where the victim’s fear results from the taking itself, it is a larceny, not a robbery. Whether the subjective fear induced by the D’s actions or merely facilitated the taking or merely resulted from the taking depends on the particular circumstances. The intent of the accused, if it is merely to take, while not determinative, is a factor in this calculus. The facts did not support D’s robbery because the acts were not directed at the witness to the crime, who the Commonwealth alleged was the victim.

Adeniran, COA, published August 19, 2014. Assault is not a lesser included offense.

Robbery-Use of force, threat, intimidation

Beard, 19 Va. App. 359 (1994). D going through V’s subordinate’s wallet in an office. V tried to interfere, and D used violence to get away. Court held this was a robbery because V intervened at a point when V’s possessory right to the property was superior to D’s.

Sex Offenses- Incapacity of Victim

Sanford, COA, published July 14, 2009- D did not contest the sodomy element of his conviction- just the finding that the V was incapacitated. Expert testified that V had IQ of 46, which was closer to severe retardation than mild retardation. Expert testified that V scored very low in other tests and her ability to assess cause-effect in a social interaction was the lowest possible score.
Courts cannot infer mental incapacity from an IQ score or mental assessment alone. A person suffers from a ‘mental incapacity’ within the meaning of the statute, if he or she has a mental ‘condition’ that ‘prevents’ the person from being able to ‘understand’ either the ‘nature’ or ‘consequences’ of engaging in sexual intercourse. Trial court did not err in finding that V lacked capacity of understand consequences of cunnilingus, and drew a possible (fact specific) distinction between that act and intercourse.

Sex Offender

Johnson, COA, published March 31, 2009- for an out-of-state conviction to require registration in Virginia, it need only be “similar” to a Virginia offense, not the “substantially similar” standard employed for repeat offenders. Johnson had been convicted of second degree rape in North Carolina, an offense more narrowly defined than rape in Virginia. The Court held that since a rape in North Carolina would be rape in Virginia, and the two statutes were “similar”, D was required to register in VA. It did not change the result that D was convicted as a P2 in North Carolina, since the statute directs court to construe it liberally, and a P2 is liable to the same extent as P1.

Marshall, COA, published May 3, 2011. Court rejected “Marshall’s argument that Code § 18.2-472.1(B) requires specific intent or purpose, and hold that an accused “knowingly fails to register or reregister” in violation of the statute if he has knowledge of the fact that he has a duty to register or reregister, but does not do so, as occurred here. That is to say, we hold that Code § 18.2-472.1(B) is not a specific intent law.”

Shooting at a Vehicle

Armstead, COA, published December 15, 2009- assault is not a lesser-included offense of unlawful shooting at a vehicle. This offense does not require specific intent to cause bodily harm.

SOL

Hodges, COA, published May 5, 2015. D’s DMV transcript showed notified by law enforcement. This was sufficient notice.

Barden, COA, published May 12, 2015. D had two revocation for DUI that had expired, as well as suspensions for fines and costs that he had paid in full. D admitted that he had not paid his reinstatement fee or applied for a license. Court ruled that once the period of revocations and suspensions were terminated, D was no longer driving on a suspended or revoked license. The fines and costs suspensions terminated when D paid them in full, regardless of whether he was properly licensed.

Stalking

Frazier v. Commonwealth (unpublished, July 31, 2007)- repeated course of conduct sufficient to prove that D should’ve known his actions would cause victim to fear being killed or serious bodily injury.

Stephens v. Rose, VSC, published September 12, 2014. Civil protective order case analyzing stalking. That portion of the analysis will apply to criminal stalking cases. Three elements to stalking: 1) defendant directed conduct toward the victim on at least two occasions: 2) defendant knew or should have known that his conduct would cause fear and 3) the defendant’s conduct caused the victim “to experience reasonable fear of death, criminal sexual assault, or bodily injury.”

Strangulation

Dawson, COA, published May 27, 2014. D choked his mother. She had a bruise on her neck. Issue is whether the strangulation caused a bodily injury (V’s other injuries were caused by the assault and battery). Bodily injury includes any bodily hurt: it includes any ‘detriment, hurt, loss, [or] impairment’ that could fairly be considered an injury to the human body.” “To prove a bodily injury, the victim need not experience any observable wounds, cuts, or breaking of the skin. Nor must she offer proof of ‘broken bones or bruises.’” Internal injuries fit within this definition.

Threats

Holcom-Collins, COA, published June 7, 2011. § 18.2-60(A)(1) contains no requirement that D communicate a threat directly to V. The statute is concerned with neither the mode of communication nor the number of recipients of the alleged threatening communication.
D also alleged that the statements were “lyrics”, not threats. “A threat, in the criminal context, is recognized to be a communication avowing an intent to injure another’s person or property.” Courts analyze the statement in the totality of the circumstances. D’s statements were specific to V. Therefore, the Court found that they constituted a threat.

Traffic Offenses- Public Highway

Seaborn, COA, published July 28, 2009- HO case, where D argued evidence was insufficient to prove he drove on a public highway. Court disagreed. Case provides good overview of public highway case law.

Traffic Offenses- Speed

Evidence of radar calibration is not an element of the offense.

Trespassing

Raab (published COA, October 30, 2007)- DUI case, but the issue was in a suppression argument was whether a sign that said “patrons only” was sufficient to give office RAS that D was trespassing. Court said that signs don’t have to explicitly say “no trespassing.”

Baker, VSC, published November 5, 2009- Commonwealth must prove that an authorized person posted a “No Trespassing” sign.

Trespassing- 121

Lux, COA, unpublished, December 17, 2013. D went on former juror’s property and essentially harassed her husband. D argued that he had implicit consent to go on property based on Robinson, 47 Va. App. 533 (2006), which held that landowners implicitly consent to limited intrusions by the public, but only on those areas that would be used to approach the residence in an ordinary attempt to speak to the occupants. Court held that this constituted interference with V’s peaceful use of property. A court order barring contact with the jurors eliminated the implicit consent, and the Court further held that the implicit consent rule doesn’t apply to intruders intending to interfere with owners’ rights.

Use of a Firearm

Startin, COA, published September 8, 2009- D convicted of use of a replica weapon visually indistinguishable from a real firearm but was not capable of firing a projectile. Case gives good overview of the law. AFFIRMED EN BANC ON OCTOBER 20, 2009. AFFIRMED BY VSC ON MARCH 4, 2011.

Wubneh (COA, published, February 5, 2008)- Undisputed that D displayed a BB gun. Court held that since the BB gun had the appearance of a firearm designed to fire projectiles by the exploding gunpowder, an instruction including the “appearance” language was proper.

Rowland, VSC, published March 4, 2011. Evidence insufficient to support conviction of use when the burglary was completed prior to his use of firearm. Court overruled Creasy. Furthermore, Court rejected Commonwealth’s argument that circumstantial evidence showed that D had gun at time of burglary. Court said that D did not use or display the firearm until after.

Barney, COA, published January 8, 2019. Two robberies. In first, D presented note that clerk didn’t notice. Then, D made motion like she had a weapon and clerk noticed imprint of gun barrel. Clerk then noticed the note and gave D money. Next day, she robbed a store by telling clerk that she had two guns pointed at her. Clerk didn’t see gun but saw that D had hand in her pocket pointing at her.
Case law makes clear that “what controls is the objective fact that the instrument used was either an actual firearm or an object that gives the appearance of a firearm and not the victim’s subjective perception that it might have been a firearm.”
Accordingly, “to convict an accused of violating Code § 18.2-53.1, the Commonwealth must prove that the accused actually had a firearm [or replica firearm] in his possession.”

Uttering

Goodwin, COA, published Feburary 3, 2015. We hold that the definition of uttering is “an assertion by word or action that a writing
known to be forged is good and valid.”

Vandalism

Nunez, COA, unpublished, April 3, 2007- vandalism general intent crime- one just need to show that there was an intent to commit the act, not specific intent to cause the damage. Discusses distinctions between general and specific intent.

Richard Collins is an attorney in Williamsburg and Newport News, Virginia.

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