Posted on October 11, 2021 in Criminal Defense

Recently, a Virginia appellate court affirmed a conviction against a defendant who was found guilty of robbery. The court held that the conviction of robbery was appropriate given that there was a sufficient basis for finding that intimidation was involved in the robbery.

The Facts of the Case

According to the court’s opinion, the defendant entered a bank, passed the teller a note, and uttered that “this is a robbery.” When the teller asked her to repeat what she said, the defendant said, “Give me all the money; this is a robbery.” During her testimony, the teller stated that she was in shock and that the bank policy requires that if someone utters the word “robbery,” the teller must comply with their demands. The teller handed the defendant all the money and set off an alarm. The teller testified that at the time, she was not sure what the defendant’s intentions were, was not sure if the defendant would hurt her, and was thinking about a recent incident where four tellers at a bank were shot and killed during a robbery. After the robbery incident, the teller immediately began to cry and shake.

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 Posted on September 23, 2021 in Criminal Defense

Recently, a Virginia appellate court affirmed convictions against a defendant who had been found guilty of credit card fraud and embezzlement. The court found that the guilty verdict was appropriate, even though the defendant argued in her appeal that there was not sufficient evidence to support a finding of guilt. In the opinion, the court wrote that the evidence was not lacking and that it provided enough details to support convictions for seven counts of credit card fraud and four counts of embezzlement.

The Facts of the Case

According to the court’s opinion, the defendant worked as a caretaker for a woman who suffered from physical incapacities and memory loss. The defendant came to the woman’s home several times a week starting in 2015 and assisted with housecleaning, grocery shopping, and other errands. Eventually, it came to Adult Protective Service’s attention that the woman’s two credit cards were consistently showing much higher balances than they had shown before the defendant was hired. One credit card, for example, that had a balance of approximately $3,000 in 2014, had increased to a $46,000 balance by the end of 2017. The extra charges revolved around purchases that the woman herself had no memory of making: there were charges, for example, for car repairs, jewelry, children’s clothing, lingerie, alcohol, and tattoos. At trial, the woman insisted she had not made the extra purchases shown on her credit cards.

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 Posted on September 18, 2021 in Criminal Defense

In December 2018, President Trump signed the First Step Act into law with the goal of improving criminal justice outcomes, reducing the size of the prison population, and building mechanisms that would also make sure to maintain public safety. The Act represents the culmination of years of bi-partisan pressure for criminal justice reform. In practice, the Act allows certain inmates to be released from prison earlier than anticipated, depending on the nature of their offense and the Act’s published Sentencing Guidelines.

One result of the First Step Act is that it makes it easier for criminal defendants convicted of possession of crack cocaine to serve shorter sentences. In 2010, Congress passed the Fair Sentencing Act, which had major implications for defendants charged with possession of cocaine – that is, while it used to be the case that people faced much longer sentences for possessing crack cocaine than for possessing the same amount of powder cocaine, today, the difference in the sentences is much smaller.

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 Posted on September 16, 2021 in Criminal Defense

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.

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 Posted on September 09, 2021 in Criminal Defense

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.

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 Posted on August 31, 2021 in Criminal Defense

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.

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 Posted on August 18, 2021 in Criminal Defense

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.

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 Posted on August 10, 2021 in Criminal Defense

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.

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 Posted on August 01, 2021 in Criminal Defense

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.

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 Posted on July 30, 2021 in Criminal Defense

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.

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