[Posted July 13, 2010] After a week’s hiatus, the Court of Appeals gets back into the published-opinion game today, issuing four such rulings.

Domestic relations

In Johnson v. Johnson, the husband evidently engaged in some expensive philandering. The trial court awarded his wife a divorce based on adultery, and directed that he pay his wife $1.2 million in equitable distribution. (Okay; so that’s not a lot of money compared with the most expensive philandering in world history, which will unfold in Florida in Woods v. Woods. But still, that’s a lot of cash.) Sensitive to the fact that even rich people may not have that kind of liquidity, the court directed husband to make ten equal annual payments of $120K.

Domestic-relations practitioners will have seen this next development coming: Husband missed the first payment, so wife sought a show-cause order. That sent husband hurrying off to his broker to arrange to transfer $120,000 from his retirement account to wife to satisfy the first year’s payment.

Yes, he can do that; both the statutes and this particular divorce decree permitted the transfers to be made in-kind. But wife wasn’t satisfied with this deal, and it’s easy to see why: Because she’s getting proceeds from a retirement account, she will have to pay a hefty penalty (not to mention a whole lot of taxes) in order to liquidate the transferred account. She produced a tax expert who opined that she would net less than $61,000 this way, far from the amount she was due.

After considering the arguments of counsel, the trial court decided that the transfer complied with the divorce decree, so wife headed for Richmond. Today, the Court of Appeals affirms, noting that this is really a matter of interpretation of the original equitable-distribution order. Trial courts are allowed to interpret their own orders, and the appellate court was not about to say that the trial court didn’t mean what it said it meant. (I hope you followed that.)

Criminal law

It was a gazillion years ago, but I remember it well. I had been appointed in US District Court to represent a defendant in a drug case that wound up going to trial. During cross-examination of the government’s key witnesses against my client, I was able to establish that almost all of them had prior felony convictions. I mentally rubbed my hands together as I contemplated the closing argument I would make, impeaching those ne’er-do-wells just as the model jury instruction said I could. I was a really naïve baby lawyer back in those days.

Imagine my chagrin when the learned district judge, upon reading the prior-conviction instruction, leaned over to the jury and offered his additional take on things, being careful to tell them that they were free to disregard whatever he said (this, I later realized, was a dose of reversal-prevention): “When you’re looking for witnesses in a drug-distribution case, you won’t find them by looking in a church choir.” I’m now going to give you two guesses how well my impeachment-by-conviction closing argument went over with the thus-instructed jury.

In state court (far more civilized place that it is), judges aren’t allowed to comment on the evidence, and that sensible doctrine is at the heart of Keefer v. Commonwealth, involving a conviction for construction fraud. The trial court, seizing upon a 2003 CAV opinion in a similar case, gave a detailed instruction that listed several factors the jury could consider in determining whether Keefer acted with fraudulent intent. The judge told them that they could consider things like his failure to obtain a timely building permit, or his request for an advance on the agreed price when he got into financial trouble.

The problem with this language, correct as it may be, is that it really is just commentary upon the evidence – the judge telling the jurors what particular items of evidence they should weigh in making a necessary factual finding. The CAV accordingly reverses the conviction, pointing out once again that just because certain language is suitable for an appellate opinion doesn’t make it a proper jury instruction.

Virginia has a set of statutes that criminalize certain gang-related activities, but as one paragraph in today’s ruling in Phillips v. Commonwealth notes, “there is a dearth of case law” interpreting those statutes. Today’s opinion will help to fill in some of the gaps that are inevitably left in crafting legislation.

Technically, this is a split panel decision. Judge Powell writes a majority opinion, which the chief judge joins; Judge Alston writes a separate concurrence, in which he agrees with the judgment but finds the majority’s reasoning to be too narrow. Phillips was convicted of recruiting a juvenile for membership in a street gang, and of participating in a criminal act for such a gang that had at least one juvenile member. The court unanimously reverses the former conviction, finding that the only juvenile member of the gang was the one being recruited; the statute requires that there be a minor in the gang before the recruiting activity. That count is remanded for retrial on a lesser offense.

The disagreement today arises over the evidence that the court can consider in deciding whether a criminal street gang exists. Again, the issue is a temporal one: Can the defendant’s activities in themselves provide the predicate criminal actions necessary to constitute a street gang? (The law defines such a gang as one that engages in criminal activity, so the question is whether there has to be a previously-classified gang or not.) According to the majority, the trial court improperly considered the defendant’s direct acts as being both the predicate for a finding of a street gang, and the direct criminal acts themselves. But the court finds that there’s plenty of other evidence in the record of previous criminal activity in this case, so I affirms.

Judge Alston agrees with the affirmance, but he sees nothing wrong with “double dipping” (to use the Hilton hotels’ phrase) by using the defendant’s criminal acts both to establish the existence of the gang and to support the felony conviction of the defendant. The difference may not be a major one, and candidly, I don’t know enough about gang activity to know whether this will be a recurring issue in future prosecutions. But the dissent touches a raw nerve for many of the Commonwealth’s urban areas when it cites “the unfortunately pervasive presence of gangs in Virginia,” which was the basis for the statutes in the first place. Inner-city mayors are still reeling from the US Supreme Court’s recent decision in McDonald v. Chicago (holding that the Second Amendment bars many state or local restrictions on gun ownership and possession), and they will applaud Judge Alston’s more expansive view of the use of these gang statutes.

Nicholson v. Commonwealth involves the question of whether actual force is required for a conviction of aggravated sexual battery, where the victim has a diminished mental capacity. The Supreme Court decided a case very much like this in 2006, involving a 14-year-old child who was statutorily incapable of giving consent. In that case, the Supreme Court found that the requirement of force was satisfied by the age of the victim. Today’s decision applies that reasoning to find that where a victim is incapable of consenting (the victim had Down’s syndrome and had the mental capacity of a 5- to 10-year-old), it was unnecessary for the prosecution to show the use of actual force.