Stay Home - Consult With Us From Your Living Room
Justia Lawyer Rating
Avvo Client's Choice Award 2019 - Andrew Sheridan Criado
Martindale-Hubbell - Peer Reviewed badge
Avvo Client's Choice Award 2019 - Bret Danwill Offan Lee
Avvo Client's Choice Award 2019 - Benjamin N. Griffitts
Martindale-Hubbell - Client Champion Platinum 2019
Avvo Client's Choice Award 2017 - Michael Andrew Robinson
Super Lawyers badge - Michael A. Robinson
Super Lawyers Risnig Stars badge - Michael A. Robinson
Avvo Client's Choice Award 2019 - Matthew Richard Crowley
Avvo Client's Choice Award 2019 - Seth Quint Peritz

In a recent opinion from a Virginia court involving unlawful filming during sexual activity, the defendant’s request for the court to reconsider his guilty verdict was denied. The defendant was found guilty of one count of unlawful creation of images. He appealed based on insufficient evidence showing he was guilty, countering that his girlfriend at the time was voluntarily nude and exposed, therefore forfeiting her right to privacy. The appellate court denied the appeal because it found that the defendant’s girlfriend could, in fact, reasonably expect privacy from being recorded during sexual activity.

The Facts of the Case

According to the opinion, the defendant and his girlfriend were in a relationship between 2017 and the end of 2019. Throughout the relationship, the defendant often recorded himself and his girlfriend while they were having sex. The videos took place in the defendant’s bedroom and focused specifically on his girlfriend’s body. At trial, the defendant’s girlfriend testified that she did not know about the recordings and that she had not consented to being recorded. Part of her evidence at trial included a video of a Skype recording in which she and the defendant engaged in sexual conversations and activity. The defendant’s girlfriend repeatedly expressed concern that the conversation was being recorded. Even though the appellant was, in fact, recording the conversation at the time, he lied and told her he was not.

A Virginia man accused of driving under the influence (DUI) recently appealed his conviction in front of the Court of Appeals. The man argued that the lower court erred in finding that his appeal was not timely. He argued that although Virginia Code § 16.1-132 requires notice of appeals to be filed within ten days of the conviction, the Virginia Supreme Court’s ruling pertaining to the COVID-19 pandemic tolled this requirement. However, in response, the Commonwealth contended, among other things, that the defendant waived his argument because he did not raise the issue in the circuit court. This case exemplifies the importance of abiding by the strict procedural and statutory laws surrounding Virginia DUI cases.

In this case, the court convicted the defendant in March 2020 and sentenced him to 60 days in jail, a fine, probation, and an alcohol program. The same day, in response to the pandemic, the Supreme Court suspended all court proceedings. In June 2020, the defendant filed an appeal of his conviction; however, the court entered a notice denying the appeal, citing the ten-day notice deadline. On appeal, the defendant contends that the ruling was inappropriate because of the Supreme Court’s emergency order.

Under Virginia Rule 5A:18, trial court rulings will not be considered as a basis for reversal unless “the objection was stated with reasonable certainty at the time of the ruling.” Exceptions only exist if the party can show good cause to enable the court to rule on the issue. To satisfy this rule, the objection must occur when the trial court “is in a position, not only to consider” the error but also rectify the effect. However, Code § 8.01-384(A) holds that litigants who are not given an opportunity to object to a ruling when it was made shall not have the absence of an objection prejudice them.

Posted in:
Published on:

Police and prosecutors often cite and prosecute defendants for various crimes in response to conduct that they see as inappropriate or unlawful. Occasionally, prosecutors will seek convictions for a crime that contains elements not met by the defendant’s conduct. Juries are not perfect and prosecutors can be persuasive, sometimes obtaining convictions for crimes that are wholly unsupported by the evidence presented at trial. The Virginia Court of Appeals recently reversed the conviction of a woman who was found guilty of contributing to the delinquency of a minor, finding that the elements of the crime were not actually proven by prosecutors at her trial.

The defendant in the recently heard case is a woman whose daughter called 911 from the backseat of the defendant’s car while being driven home. The daughter reported that her mother was driving erratically and that she was scared. Police arrived at the defendant’s house after she had made it home without incident, and performed field sobriety tests. The defendant was found to have a small amount of an anti-anxiety medication in her system, which she was legally prescribed. Police arrested the woman and charged her with DUI and contributing to the delinquency of a minor. At trial, the defendant was convicted only of the charge of contributing to the delinquency of a minor.

The defendant appealed the verdict to the state court of appeals, arguing that the elements of the charge of contributing to the delinquency of a minor were not proven by the prosecution at trial. Specifically, the defendant claimed that the prosecution provided no evidence that the child was in need of any services that the government could provide, or that the child was in continuing danger without the court’s intervention. The high court agreed with the defendant, finding that the charge of contributing to the delinquency of a minor required that prosecutors prove that the minor was in danger without court intervention and that some type of services were necessary to protect the child from harm. Because the prosecution presented no evidence on these two elements of the crime, the conviction was reversed.

Prosecutors eagerly rely on the testimony of jailhouse informants, who are people who spent time in jail with a defendant and allegedly spoke with them about the crimes they are charged with. The testimony of an informant who was housed with a defendant while they were in jail can be persuasive to a jury, as defendants often confess to criminal conduct to others in jail shortly after they are arrested.

Persons who are charged with crimes are often reluctant to testify against others who they met in jail, and prosecutors sometimes offer incentives to jailhouse informants to get them to testify on the state’s behalf. These incentives, such as shortened sentences or dropped charges, can sometimes cause jailhouse informants to testify dishonestly and tell prosecutors “what they want to hear” in order to benefit the informant themself. Because of this, defendants and defense attorneys are likely to challenge the testimony of jailhouse informants however they can.

The Virginia Court of Appeals recently ruled that the testimony of a jailhouse informant in a defendant’s robbery case was permissible, even though the prosecutor didn’t tell the defense attorney that he would be testifying until the day of trial. The defendant in the recently decided case was charged with armed robbery after he allegedly robbed a convenience store. In addition to the workers at the convenience store during the robbery, the prosecution sought to call a witness who met the defendant in jail after his arrest. Although this jailhouse informant witness was listed as a possible witness in the state’s disclosures, the prosecutor told defense counsel that the informant would not testify unless the defendant himself testified in his own defense. The defendant chose not to testify, but the prosecutor reneged on his word and called the informant to testify about conversations he had with the defendant while they were housed together. The defendant was ultimately convicted of several charges at trial and was given a substantial sentence as a result.

Both the United States Constitution and the Virginia State Constitution contain provisions that prevent a criminal defendant from being charged or punished twice for the same offense. These protections from “double jeopardy” help form the backbone of the procedural due process rights that criminal defendants are entitled to under both the state and federal constitutions. The Virginia Court of Appeals recently decided to reverse a defendant’s convictions on these grounds, finding that he could not be convicted of two charges for the same conduct, and that the prosecution would have to choose one or the other charge upon a retrial.

The defendant in the recently decided case was charged with several crimes after an alleged burglary. Police were tipped off to the defendant after he was observed spending some old currency that appeared to be the same as that which was reported missing from the victim’s home. After serving a search warrant at the defendant’s house, police found allegedly stolen items in his possession, including jewelry, currency, firearms, and ammunition. Among other charges, the defendant was charged with possession of a firearm by a felon as well as possession of ammunition by a felon. At trial, the defendant was ultimately convicted of several crimes, including both the enhanced firearm and ammunition offenses.

The defendant appealed his conviction, arguing that the offenses of possession of a firearm by a felon and possession of ammunition by a felon cannot be charged together under the circumstances of the case without violating constitutional double jeopardy clauses. The defendant convinced the appellate court that because the two charges arose out of the same occurrence, by the same factual pattern, and were not two separate incidents of possession, that he could not be punished for both. The Virginia Court of Appeals reversed both of the defendant’s convictions and instructed the prosecution to choose one or the other charge and retry the defendant.

Federal and State criminal statutes commonly include offenses that are enhanced based on their relation to other criminal conduct. Many of these enhanced offenses are made more serious by a defendant’s use of a firearm while committing or attempting to commit another offense. One federal statute, commonly known as the Armed Career Criminal Act (ACCA), is used to make other criminal acts more serious if they are committed with a firearm. The United States Court of Appeals for the Fourth Circuit, which includes Virginia, recently decided an appeal by a defendant who was charged with a felony under the ACCA.

The defendant from the recently decided appeal was arrested after a home invasion robbery. According to the facts outlined in the judicial opinion, the armed defendant and others had broken into the home of a suspected drug dealer with the intention of stealing money and a large quantity of cocaine. The defendants did not find any drugs at the apartment, however, they did steal money and a firearm. In addition to being charged with robbery and attempted drug trafficking, the defendant was charged with another felony under the ACCA, for brandishing a firearm during a crime of violence and a drug trafficking offense. The defendant pleaded guilty to the robbery and the ACCA offense and the drug trafficking charge was dropped.

After the defendant was sentenced for his crimes, The U.S. Supreme Court ruled in a separate case that the definition for a “crime of violence” under the ACCA was unconstitutionally vague and reversed a conviction. As a result of the new precedent, the defendant appealed his conviction for the ACCA charge, arguing that there was no valid predicate offense to allow for the ACCA to be applied. On appeal the Fourth Circuit rejected the defendant’s arguments, finding that in his plea colloquy, the defendant admitted to brandishing a firearm while in the commission of a drug trafficking offense and that such an admission was sufficient to uphold his conviction under the ACCA.

In a recent opinion, a Virginia appellate court upheld a trial court’s decision to deny the defendant’s motion to strike and reconsider despite the defendant claiming that additional elements are required to prove marital rape. The decision provides valuable insight into marital rape law in Virginia.

According to the court’s opinion, the case involved a married couple who had a rocky relationship but shared a bed together. The wife alleged that while she was sleeping one night, she woke up to find her husband (the defendant) on top of her and that, despite her protests, he engaged in non-consensual intercourse with her. The next day after work, the wife reported the rape incident to the police and was examined at a hospital where the examiner took photos of the bruises on her leg. The defendant was questioned by police, and at first, denied having intercourse with her within the past month. However, the defendant’s DNA evidence was found. Additionally, the defendant had a scratch on his shoulder. The wife also had sent the defendant a text the day after the incident asking why he did that to her.

At trial, the defendant claimed that his wife initiated the sexual intercourse. Additionally, the defendant apologized to his wife through text for whatever it was that he did, testifying in court that he knew he did something to upset her. Despite this, the defendant argued that the evidence was not sufficient enough to prove rape. The trial court found the defendant guilty of rape based on the wife’s credible testimony. The defendant filed a motion to reconsider, arguing that this court had to follow the cases previously decided by the court, cases which had determined that there were additional elements required before one could be convicted of rape when the victim is a spouse.

Earlier this year, a state appellate court issued a written opinion in a Virginia case involving a woman convicted of driving on a suspended license. The appeal involves the lower court’s decision preventing the defendant from pursuing an appeal of her conviction. Ultimately, the court concluded that the defendant’s appeal was proper and that the lower court should not have precluded her from bringing her appeal.

The Facts of the Case

According to the court’s opinion, the defendant was issued a summons on July 15, 2016, indicating that she was charged with driving on a suspended license. It was her fifth offense. The woman was convicted and filed an appeal with the circuit court. Defendants convicted in the district court have an automatic right to a new trial in circuit court.

In her appeal, the defendant raised several challenges to her conviction. However, the circuit court rejected each of her claims, and she was again convicted. The defendant then filed another appeal, this time to the appellate court. She referenced the circuit court case in her filing, naming a county official as the “appellee,” which is the party who is supposed to respond to the appeal.

Continue Reading ›

Recently, a state appellate court issued a written opinion in a Virginia gun case discussing whether a detective’s warrantless search of a phone violated the defendant’s protection against unreasonable searches and seizures. Ultimately, the court concluded that the search was legal and that the motion to suppress was rightfully denied by the lower court. The case illustrates when evidence obtained from a detective’s warrantless search can still be used in the trial.

The Facts of the Case

According to the court’s opinion, while attempting to retrieve his phone from inside the restaurant, the defendant approached a waitress in a very hostile manner. A private security guard stepped in front of the defendant, and the defendant eventually urged his friend to grab a gun from the car. The security guard drew his own weapon and asked the individual to drop his firearm. The individual put down the gun. Defendant then picked up the firearm and began firing his gun. The security guard fired back and struck the vehicle, prompting the defendant and his friend to drive away. The defendant did not return.

A detective later recovered a cell phone at the restaurant and without a search warrant, the detective went into the phone settings to find the phone’s identification serial numbers. The detective did not search any other part of the phone. Using the serial number, the security guard was able to find the name and photograph of the defendant. The defendant had an additional cell phone, which the detective used to track the defendant’s location and arrest him.

Continue Reading ›

Traditionally, when a defendant seeks to challenge the legality of his arrest, he does so in a motion to suppress. In a motion to suppress, the court hears evidence about the recovery of the evidence in question and determines whether the state or federal constitution requires the suppression of the evidence.

However, in a recent case before the Supreme Court of Virginia, the court reversed the conviction of a defendant who was arrested for DUI. The facts of the case are straightforward: police attempted to stop a boater, who sped away and eventually ran ashore. The boater got out and ran. Law enforcement eventually caught him and ultimately charged him with operating a boat under the influence. The defendant refused a breath or blood test.

The defendant did not file a pre-trial motion to suppress. Instead, at trial, the defendant attempted to argue that his arrest was unlawful. However, the prosecution objected, claiming that the defendant waived his right to challenge the legality of his arrest by not filing a motion to suppress. The trial court agreed, prevented the defendant from challenging the lawfulness of his arrest, and then convicted him. The defendant appealed.

Contact Information