ANALYSIS OF DECEMBER 13, 2011 CAV OPINIONS[Posted December 13, 2011] In the spirit of the season, where gifts of gold, frankincense, and published opinions (myrrh is the ancient Greek word for a published opinion) are freely distributed to one’s loved ones, the Court of Appeals presents us with five such gifts today.
Our first gift recipient is the appellant in Purvy v. Commonwealth, who receives no less a boon than the reversal of three criminal convictions for failing to register as a sex offender. This gift, alas, comes with an unfortunate catch.
The appellant was convicted of a sex offense in 1997, as a result of which he was required to register from time to time with the State Police. He did so – there is no suggestion that he blew off his responsibility – but starting in 2009, he used a previous address, from which he had been evicted by the landlord.
His explanation for continuing to use that address was that he was essentially homeless afterward, so he figured it would be okay to keep reporting the old address until he got a new one. A Southampton County grand jury disagreed and indicted him for “unlawfully, feloniously and knowingly fail[ing] to register or reregister” with the State Police. He was convicted in a bench trial.
Careful readers will have noticed the problem here: Purvy did register, faithfully (though not accurately). His lawyer argued in vain in the trial court that the evidence was uncontroverted: Purvy did not “fail to register or reregister” as proscribed by the statute. The proof of a criminal act didn’t comport with what he was indicted for, and that variance was, or should have been, fatal.
Today, the Court of Appeals agrees and reverses the convictions. It notes that there is an analytical difference between registering with a fake address and not registering at all. True, the same statute proscribes (in separate subsections) both sins, and the Commonwealth argued that that made the proof compliant. But where the indictment specifies the conduct that constitutes the offense, a bare reference to a more general code section can’t cure that.
Lest you think this report is all silver lining and no dark cloud, Purvy fails in his attempt to get a final dismissal of all charges. In order to do that, he would have to assert that the evidence as presented would be insufficient to convict him of registering with a fake address. Today’s panel has little trouble brushing that contention aside, helped by several incriminating statements that the defendant made at trial. That means that while the convictions are reversed, the case is remanded where, presumably, the local prosecutor will be free to pursue an indictment with slightly modified language, and Purvy may find himself in hot water again.
Because the Court of Appeals’ jurisdiction is so limited, I wonder sometimes whether the judges on that court get bored with the same old cases and wish they could tackle some new issues. Today, a boon arrives for the court; a panel gets to decide an appeal involving the interpretation of a trust agreement dealing with the ol’ family farm. The case is Stevens v. Stevens.
In case you think the court is viewing its jurisdiction expansively, you can relax. (That would indeed constitute major news here at VANA.) This case arises in the context of a divorce proceeding. Husband’s parents owned the family farm, and a few years back, they decided to create an inter vivos trust to hold it, presumably in order to avoid probate. They reserved a life estate unto themselves, and directed that upon their deaths, the farm would be sold and the proceeds divided equally among their four sons.
The brothers later talked, and apparently decided that it would be best to keep the family farm in the family, so husband agreed (after getting permission from his wife, something every sensible husband knows to obtain in advance) to buy out his brothers’ interests. They agreed on a purchase price of $100,000, and the trust conveyed the farm to husband on those terms.
Trouble started when, years later, “husband grew unhappy with wife.” That led to a divorce suit, and that, in turn, led to the question of how to classify the farm for equitable distribution purposes. Husband argued that a quarter of the value of the farm was effectively part of his inheritance, so that portion of the value was traceable as separate property. The trial court ruled that it was marital property, since the farm was conveyed by deed of bargain and sale.
The CAV panel today agrees with the trial court, and affirms the judgment in favor of wife on this point. The farm “became transmuted, untraced marital property following the sale, and once it was sold, it was no longer subject to the provisions of the trust. Accordingly, there was no inheritance; this was a straight purchase.