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After the Weekend Snow, A Flurry of Opinions from the Court of Appeals

by | Jan 18, 2022 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

The Court of Appeals of Virginia issued ten case decisions this morning, five published and five unpublished.  You will notice that I said “case decisions,” not “opinions” because one of the opinions combined two cases with the same defendant/appellant from the jurisdictions of Waynesboro and Rockingham County.  Gregory Leon Hammer found himself on the wrong side of convictions for abduction, felony eluding, and driving after being declared a habitual offender in the former jurisdiction and this landed him in a revocation proceeding in the latter.  Because the basis for revocation was the convictions, the Court of Appeals quite reasonably issues a single opinion affirming the latter and then, naturally, finding that the revocation based thereon was proper as well.

The Rockingham convictions occurred in 2012 and resulted in Hammer serving three years less a month of a 21 ½ year sentence.  After his release, he appears to have been of good behavior until the evening of November 27, 2018 – well, perhaps not entirely of good behavior as the Court informs us that the police officer who detained Hammer that evening was “familiar with Hammer and his wife. He had seen Hammer ‘up close and personal’ while working on other matters” including at least one traffic stop.

On the evening in question, a BOLO was issued for Hammer based on the possible abduction by him of his wife.  Because Hammer was believed to be heading from Rockingham to Waynesboro, the officer placed his cruiser along the expected route of travel and, sure enough, Hammer soon drove past at a recklessly high rate of speed.  A high-speed chase ensued, which ended with Hammer first crashing his vehicle and then running out of gas.  Hammer then fled on foot into adjoining woods, eluding police.

Hammer’s wife, though “scared,” was otherwise unharmed.  She told the officer that she had been abducted and later gave a statement detailing the events that resulted in Hammer forcing her to accompany him.

The next morning, the same officer received a BOLO for a stolen vehicle from the same vicinity where Hammer had fled into the woods.  Driving to Hammer’s residence, the officer found the stolen vehicle on the street with Hammer’s jacket inside.  Hammer was found in the apartment where he was arrested.

Now, what followed is unfortunately quite common in cases of domestic abduction (and other domestic crimes).  Hammer’s wife failed to appear for trial at least twice, despite being subpoenaed.  After Hammer, who was representing himself, opined that although he hoped his wife would appear, presumably because she would testify that there had been no abduction, he predicted that she would not do so, presumably because she did not want to commit perjury.  We can make this presumption with confidence because Hammer was representing himself – you see, Hammer was apparently savvy enough to know (or more likely had been told by prior counsel) that if he had counsel, his attorney would not be able to cross-examine the wife if the attorney knew that she would perjure herself.  As we shall see, Hammer was savvy about this aspect of criminal procedure, but extraordinarily little else.

The Commonwealth made an oral motion to dismiss the abduction charge by nolle prosequi, with Hammer objecting that the charges should be dismissed with prejudice.  The circuit court ruled that the Commonwealth had made a reasonable effort to obtain the wife’s attendance and orally granted the motion to nolle pros.  Orally granted.

Then, perhaps to the chagrin of Hammer, his wife walked into the courtroom.  The Commonwealth was permitted to withdraw the motion for nolle pros and the trial proceeded.  Hammer said nothing at this time and neither the fact of the motion, it’s being orally grant, or being subsequently withdrawn, was ever memorialized in a written order.

The trial proceeded much as one might expect with the evidence from the Commonwealth recounting the incidents that led to the chase and the wife’s statement that she had been abducted.  The Commonwealth also offered testimony that the wife had been threatened by “associates of Mr. Hammer” regarding her testimony as well as communications sent from Hammer to his wife instructing her to perjure herself if she testified.  The wife was “evasive” in answering questions, and the court permitted the Commonwealth to introduce her statement as a prior recollection recorded.  Hammer did not object on hearsay grounds.

Hammer did not move to strike the Commonwealth’s evidence. But instead recalled his wife to the stand where she duly perjured herself.  He also testified on his own behalf, maintaining that he had not been the driver of the vehicle (and presumably of the stolen vehicle the next day).

The jury (oh, did I forget to mention that Hammer opted for a jury trial, and this was back in the day when a jury trial meant a jury sentence), convicted Hammer of all charges.  The court denied Hammer’s motion to set aside and, upon entry of the final order in this case Hammer found himself in Rockingham where the court revoked his suspended sentence.  The opinion doesn’t say whether the two court’s sentences were to run concurrently or consecutively but suffice to say that Hammer is facing somewhere between 18 and 30+ years active time.

Hammer wisely decided to let appointed counsel handle his appeal, and counsel managed to get a writ granted.  The reason the Court granted the writ was to clarify that the procedure of nolle prosequi is not binding on the Commonwealth until the dismissal of the indictment in memorialized in an order of the court.  This may seem to be a common-sense application of the standard rule that “trial courts speak only through their orders,” but a moment’s reflection will reveal that it’s not the court’s speaking that is at issue, but the prosecution’s.

In any case, because Hammer did not object to the charge being “reinstated” after the Commonwealth said it would not proceed, the issue in this case was not really whether the nolle pros was binding on the Commonwealth, but whether Hammer could raise the issue at all.  His appointed counsel makes a Herculean effort to find an excuse to the contemporaneous objection rule, but the Court makes short work of these.  Thus, while the discussion of when a nolle pros becomes irrevocable is really dictum, the Court was clear that the circuit court was well within its discretion to “change its mind only minutes later” when reversing the oral ruling.

The Court in fact, goes further, saying that even if the nolle pros has been memorialized in an order, that decision would have been subject to being vacated until 21-days after the entry of a final order.  That is quite a remarkable statement and may bear some additional thought.  The Court is saying that the Commonwealth could, for example, agree before trial to dismiss by nolle pros one or more of the charges against a defendant with the court entering an order to that effect and then, after a judgment is rendered on other charges, move the court to reinstate the dismissed charges.  While a nolle pros does not prohibit the Commonwealth from seeking a new indictment, it seems to be a novel concept that the court could reinstate charges dismissed following a trial.

Hammer also raises a very week challenge to the sufficiency of the evidence, asserting that the officer’s testimony identifying Hammer as the driver of the vehicle was not worthy of belief.  Having found that the evidence was credible, the Court affirms both the convictions and the revocation, noting also that it was refusing various motions filed pro se by Hammer.  In doing so, the Court thanked Hammer’s appointed counsel for his candor in stating that he was aware of these motions and had “incorporated into his argument whatever points counsel thought meritorious.”  Appointed and retained attorneys both should take not of this statement and remember that it is worth preserving your ethos with the Court by acknowledging that you have competing duties to your client and the tribunal and sometimes must walk a fine line between the two.

The Court decided two additional criminal cases in published opinions today, Dawan Anthony Glass v. Commonwealth of Virginia is notable for its discussion of whether the cost of repairing damaged property can include a reasonable profit for the contractor performing the repairs as part of the “fair market value” when determining whether a charge under Code § 18.2-137 is a misdemeanor or a felony.  Glass has the added twist that the victim whose property was damaged owned a contracting business and had his employees conduct the repairs.

The opinion does not tell us any of the background apart from the fact that Glass, ironically given his name, had a penchant for breaking windows.  Specifically, he broke a window belonging to Rodney Barnett and several windows and a storm door and internal doors belonging to Steven Decker.  Barnett and Decker lived on the same street in Danville with the equally ironic name of Willey Avenue, which was misspelled as “Wiley” in the transcript.

Now, why, dear reader, do I say that the same of the street is ironic?  Clearly, Mr. Glass breaking glass windows is ironic, but as he was easily caught, he was far from “wily,” but that it not the irony of the street name.  You see, we simply do not know why Glass was motivated to cause this mayhem – perhaps he had some personal animosity toward the two homeowner or possibly he may be Danville’s version of a latter-day Ernest T. Bass.  If you watch the video in the link, you will discover that Mayberry’s resident window-breaker had some “Willey” troubles of his own.

In any case, the issue at Glass’ trial was whether the cost of the repair of the windows and doors at Decker’s home pushed the level of the offence from a misdemeanor to a felony.  The threshold for elevating the offense under Code § 18.2-137 is $1,000 and Decker testified that he would have charged $1,165 to perform the work for a customer.  He also testified that he had to pull employees off another job to perform the work at his home.

Glass contended that the circuit court should strike the felony charge because Decker’s testimony gave a retail price that included profit, not a wholesale price, which he contended was the “fair market value” of the cost of the repair.  Glass also maintained that in testifying to the cost of the repair of the single window broken at his home, Barnett had not included any “profit” but merely testified as to the cost of replacing the window.  The circuit court disagreed and convicted Glass of both the felony, for the damage to Decker’s home, and the misdemeanor for that to Barnett’s.

Glass appealed only the latter conviction, asserting that the court erred in not reducing the cost of the repair to exclude the profit.  He asserted that this was the proper measure of damages in such cases generally, but even if not, it should be so in the case where the repair is made by the owner who would be “self-dealing” if he included profit in the cost of the repair.  He also argued that the court improperly considered two different standards of damages by accepting Barnett’s “wholesale” estimate and Decker’s “cost-plus” estimate.

The issue of how a court determine the “fair market value” of the cost of repairs under Code § 18.2-137 is an issue of first impression.  The Court notes that while there is no case on point with respect to that statute, “fair market value” is a term of art well defined in Virginia case law.  That term traditionally includes a fair profit, rather than the literal cost of repair or replacement of the property, and so the Court determines that it should likewise include profit under Code § 18.2-137.

In a footnote, the Court acknowledges that some other jurisdictions have expressed discomfort with the use of profit as part of the calculation in determining the level of an offense based on a monetary factor.  The Court does not say why it is making this observation – which is somewhat unusual, as the “concerns” of other jurisdictions are rarely factors in the Virginia appellate courts’ analysis – perhaps it is merely to acknowledge that the issue was not wholly without merit, or possibly it was a tacit request that the legislature address the issue in order to alleviate such concerns.  This could be accomplished quite easily by amending the statute to specify that fair market value shall (of shall not) include a fair profit.

With respect to the different measure of damages for the two charges, the Court notes that Code § 18.2-137 uses the cost of repair as a permissive basis for determining the monetary value of the damages.  Thus, the Commonwealth was not required to use the same method of determining the value of the damage for both charges.  This raises the interesting point of how damages would be determined where repair or replacement was not possible – for example the destruction of a nonfungible antique stained-glass window.  Insurance value, perhaps?

Glass does win one small victory with respect to his claim that Decker should not have been able to include the profit in his estimate where he had his own company perform the repair work.  The Commonwealth contended that even if Decker was not permitted to include the “profit” he testified that by redirecting his employees to perform the work, he lost profit for other work which was part of his damages, and also that there was lost rental income on the property, a duplex which was a partial rental, as a result of the damages (though the Court found that this was “far from clear” in the record).  The Court disagrees, stating that the statute specifies that the damages are the fair market value of the repair, not any consequential damages.  This is fair, as it avoids opening a Pandora’s box of issues, e.g., whether the homeowner could claim as part of the damages the increased cost of heating or cooling the home due to the broken window causing outside air to enter the home, etc.

So, Glass wins of this point, but loses the main issue of whether Decker’s testimony was therefor not sufficient to establish the felony-value of the damages.  Why?  Because Glass never objected to Decker being allowed to testify to the fair market value of the repairs based on his alleged “self-dealing” at trial.  Rather, for the first time on appeal he contended that Decker was not an expert (or at least did not qualify as one) and was biased in offering his estimate of the cost of the repair.  Because the evidence was not objected to at trial, the Court concludes that the circuit court was within its province to accept Decker’s testimony as credible and unbiased.

The final point of this appeal is in yet another footnote.  The Court recognizes that having the homeowners testify as to the quantum of their damages as lay witnesses goes against the usual practice, at least in civil cases, of establishing fair market value through expert testimony.  However, this issue was not raised by Glass in the trial court on appeal, so the Court “decline[s] to determine whether expert testimony must be given to prove fair market cost of repair in a criminal matter.”  Ahem . . . criminal defense attorney’s out there please take the hint.

The third criminal case is Todd Moses Sorrell, Sr v. Commonwealth of Virginia.  Sorrell applied for a concealed handgun permit and, as required, completed and signed that application under penalty of perjury, including asserting that he had not been convicted of any misdemeanors within the last five years.  Unfortunately for Sorrell, he had two prior misdemeanor convictions during that time frame. So, not only was his application denied, but he was also charged with perjury.

Now written perjury can come in several different forms.  In this case, it’s unsworn perjury, meaning that the defendant was not placed under oath before signing the document.  For an unsworn declaration to be the object of a perjury charge, the document must conform to Code § 8.01-4.3, which requires certain language to be included in the document, usually, though not necessarily, right above the signature line.

That language is “I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct.”  The statute says that the language must be “substantially” in the prescribed form.  The application for the CHP Sorrell signed had this language: I, the undersigned, affirm that the information contained in this application . . . is both correct and complete to the best of my knowledge. The willful making of a false statement in this application constitutes perjury and is punishable in accordance with [Code] § 18.2-434 of the Code of Virginia.”  At trial and on appeal, Sorrell contended that this language was not “substantially” similar to the language of Code § 8.01-4.3.

As he contended this both at trial and on appeal, we know that the circuit court did not agree.  Neither does the Court of Appeals.  The purpose of the language in an unsworn document is to “impress[] s upon the declarant that the person is making the encompassed statements under threat of penalty of perjury and that the information is accurate.”  The Court finds that the language of the application satisfies this requirement.

As usual, I have saved the best for last.  Just kidding.  The last case is C. Ray Davenport, Commissioner of Labor and Industry v. Utility Trailer Manufacturing Company, an administrative law case, and faith readers of this blawg will recall that my interest in administrative law ranks somewhere below watching “Keeping Up With the Kardashians,” which I would rather avoid by having my eyes burned out the carbolic acid and my ears wax sealed with fire ants inside.  Davenport is a 26-page opinion which deals with two rulings of the trial court which was reviewing the issuing of a citation to Utility Trailer by the Virginia’s version of OSHA, the Virginia Department of Labor and Industry Occupational Safety and Health Administration which is abbreviated VOSH (why it’s not VOSHA is anybody’s guess, and that’s about the most interesting thing in this opinion.

With all due respect to Judge Humphrey’s very thorough and diligent discussion of the facts and issues in this case, I will save you having to read all 26 pages by summarizing the result, which reverses in favor of the Commissioner and remand for a new trial, thusly: the particular procedure in this case is unusual in that it requires the Commissioner, not the party contesting a citation for a violation by VOSH, to bring the matter before the circuit court.  Thus, the matter is not a certiorari proceeding under the Virginia Administrative Process Act, but a de novo civil proceeding.

Now normally, rulings in a civil proceeding would be given great deference on appeal with a favorable review toward the appellee.  But in this case, the Court of Appeals finds that the circuit court’s judgment was based on an incorrect construction of the law pertaining to what the Commission was required to prove with respect to the alleged violation, thus the Court reviewed the matter de novo.  Furthermore, because the circuit court granted Utility Trailer’s motion to strike after excluding the evidence, the Commissioner has the added benefit of the Court reviewing the evidence that was received in a favorable light to him, an unusual position for an appellant.

So, with respect to what the Commissioner was required to prove, the Court concludes that the circuit court erred in interpreting the regulation alleged violated as requiring that an actual hazard occurred – that is that an employee was placed at actual risk of harm – rather than merely a potential risk of harm.  This makes good sense when you consider that the purpose of VOSH is limit workplace accidents by finding violations during regular inspections before an injury occurs.  While VOSH also investigates instances of workplace injuries, it’s obviously better for regulations to be enforced before an employee is actually put at risk, not after.

The other issue was whether the circuit court erred in excluding a post-accident report prepared by Utility Trailer because it included evidence of remedial measures taken to correct the issue.  Wait . . . what?  Didn’t the Court just rule that the circuit court misapplied the law by requiring to the Commissioner to show that there was an actual hazard, only that there was a potential one?  Surely if there was an actual accident, that issue was moot.  Well, no, because the circuit court excluded the accident report entirely, and then granted the motion to strike because the evidence did not prove an actual hazard or a potential one.

The Court concludes that the report, properly redacted, should have been admitted as a party admission.  Utility Trailer argued that the error was harmless, but the Court disagrees, noting that even in a redacted form, the report would have established that a dangerous, or at least potentially dangerous, condition existed and would have allowed for a line of questioning based on that foundation.