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Three Criminal Appeals From the Court of Appeals: One defendant wins her appeal for a second time, two others are not so lucky

by | Nov 9, 2021 | Firm News, The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

Following your humble correspondent’s first appearance as an advocate before the Supreme Court of Virginia this morning, his schedule has become sufficiently flexible to allow him to play catch-up and report on the three most recent published opinion of the Court of Appeals of Virginia, two of which were released last week and the third this morning, all three from criminal cases.

Kimberly Paul Barney v. Commonwealth of Virginia is an appeal following remand after the Court reversed Barney’s convictions back in January of 2019.  The fact that there is an appeal following that remand tells you that the Commonwealth was “so advised” as to retry Barney.  While in the original trial the Commonwealth obtained two convictions against Barney for use of a firearm in the commission of a felony, in the second go round the prosecution secure only one such conviction.  The Court of Appeals now takes away even that small victory, reversing and dismissing with prejudice.

The issue in the original appeal and in this trial was whether the jury had been properly instructed on the necessity of finding that Barney used an actual fire arm in the commission of the predicate felony – and this raises a very important distinction between statutes that permit the jury to consider the subjective view of a victim or witness and those that require the jury to make an objective determination that an actual firearm was possessed or use by the defendant.

Simply put, if the nature of the offense is one that is directed at the person of the victim, the victim’s subjective belief that the defendant is armed can be sufficient to sustain an offense in which use of a firearm is an element.  Where, however, the offense is one that is directed at the active possession or use of a firearm, then the Commonwealth must show that an actual firearm was present (though the term “firearm” has a broader definition than one might assume).

In Barney’s case, she successfully robed a pharmacy by presenting a note which told the clerk that robbery was afoot and the clerk to not “make a sound if you want to live.”  Barney also had a visible “bulge” under her clothing which the clerk “assumed” was a gun.  In the original trial, the jury was instructed that Barney need not possess an actual gun to be guilty of the offense of use of a firearm in the commission of a robbery – which is an incorrect statement of the law.

In the trial on remand, the jury was correctly instructed . . . sort of.  The instructions approved by the trial court permitted the jury to find that Barney had used a firearm based on the subjective belief of the clerk.  Barney’s counsel had proffered at least one (out of ten) alternate instruction that would have correctly instructed the jury that it to find that the evidence objectively proved that Barney possessed a firearm.

So why isn’t the case remanded for a third trial with a properly instructed jury?  Because the panel goes on to find that the evidence presented in the second trial was not sufficient to meet that objective standard.  Barney never claimed to have a gun and never gestured toward the bulge under her clothing, which was not described in any manner as being in the outline of a gun.  The only reference to a firearm was the clerk’s subjective statement that she “assumed” Barney was armed, and that, the Court concludes, is not enough to prove the possession and use of an actual firearm.

This result may surprise more than a few readers – indeed, given that the possession of a firearm can be proven by circumstantial evidence alone, it seems likely that the Commonwealth will seek a rehearing en banc or an appeal to the Supreme Court.

The other two criminal appellants did not fair so well as Barney.  In Gilbert R. Nelson v. Commonwealth of Virginia, the issue is whether the sexual assault of a sleeping victim involves the use of force to overcome the victim’s will.  The details are recounted in the opinion and can be summarized succinctly by saying that Nelson on several occasions paid less then proper attention to a teenage girl and was eventually charged with sexual assault, which occurred after the girl fell asleep while watching TV.  She awoke to find Nelson’s hand down inside her pants.  Nelson gave a less than convincing explanation that he was merely looking for the TV remote control.

Nelson conceded on appeal that the evidence was sufficient to prove the sexual assault, but he contended that the specific statute under which he was charged required proof of an active use of a threat, force or intimidation.  The Court of Appeals agrees that this is the case, but notes that “force” is not the same as proving “resistance” by the victim.  Moreover, force can be constructive as well as actual and constructive force is shown, primarily, by a lack of consent by the victim.

Interestingly, there is a case with some dictum more or less on point, though it required the Court to look back to 1886.  In Bailey v. Commonwealth, 82 Va. 107 (1886), the court opined that “when the woman is awake, of mature years, of sound mind, and not in fear, a failure to oppose the carnal act is consent.”  While this may be a bot patriarchal in tone, it does specify that the woman be both “awake” and of an age capable of consent – neither of which apply to the victim here.  The Court thus takes this much of the dictum of Bailey and makes it the law of the Commonwealth.

Finally, in Brandon Alan McCarthy v. Commonwealth of Virginia we have an example of that primary rule of comedy and criminal law and procedure – Timing is everything.  Mr. McCarthy was convicted of possessing heroin in violation of Code § 18.2-250.  McCarthy was found unconscious and the apparently suffering from an overdose by law enforcement officers who had been dispatched there for a welfare check in response to an anonymous call.  While medical personnel worked to revive McCarthy, officers searched the room for evidence of what drugs may have caused his condition and discovered the heroin inside a nightstand drawer.  While the trial court mistakenly ruled that this search was valid under a community caretaker exception to warrantless searches, the Court of Appeals nonetheless finds that it was subject to the emergency aid exception.

McCarthy sought to suppress the heroin, and as relevant to this appeal, contended that subsequent amendments to Code § 18.2-251.03 protected him from prosecution and should have been applied retroactively by the trial court.  McCarthy’s overdoes and arrest occurred prior to two significant changes in the statute, which at the time provided that it would be an affirmative defense to a prosecution for possession of a controlled substance if the defendant was seeking medical aid for an overdose.  McCarthy didn’t qualify, as there was no evidence he self-reported the overdose.

However, the statute now provides that under such circumstances, it is no longer merely an affirmative defense, but rather a bar to prosecution and, crucially for those like McCarthy who are incapable of self-reporting their overdoses, the call for medical assistance can be made by another person.

The lede of this section telegraphs the result.  The Court of Appeals held that the amendments were at least partially substantive changes to the law, not limited to procedural or remedial changes, and therefore were not retroactive in application.