ANALYSIS OF MAY 11, 2010 CAV OPINIONS[Posted May 12, 2010] I noted incorrectly in a brief post yesterday that the Court of Appeals handed down three-plus published opinions, since one defendant actually got two separate opinions, one of which was a scant two pages. My hasty review of that last one (necessitated by my impending departure for Richmond yesterday) led me to conclude that there were two opinions in Settle v. Commonwealth, originally decided on November 24, 2009. Upon reviewing the opinions today, I see that the longer one is simply the original November opinion, to which the court has appended today’s very brief opinion affirming a dog-forfeiture order that had been transferred (erroneously, it turns out) to the Supreme Court. My earlier coverage of the decision is here, so I won’t repeat the analysis today.
Hodnett v. Commonwealth is the latest in a string of cases that illustrate why I am not about to trade jobs with jailers or corrections officers in prisons.
We don’t know what Hodnett was in jail for, but during his tenure, he evidently developed a dislike for one of the supervising officers. Summoning the officer to his cell, Hodnett turned and scooped a cupful of the contents of his toilet bowl and flung it at the officer, hitting him in the chest with the goo. (The toilet, alas, had not been recently flushed.) Concluding that once was not enough, Hodnett then dipped the cup again and flung yet another cupful at the officer, this time striking him on the side of the head.
Permit me to interject here – Bleah! The practice of law may not always be glamorous or carefree, but I don’t have to deal with things like that. Prosecutors figured that the officer shouldn’t have to deal with it, either, even from an inmate; so they charged Hodnett with two counts of assault on a law-enforcement officer.
Believe it or not, Hodnett doesn’t challenge on appeal whether he was guilty; the only issue in this case is whether he was doubly guilty. That is, was this one assault, or two? The trial court found two separate acts, and in yesterday’s opinion, the CAV affirms. It examines previous decisions where courts had found one, or more than one, assault in similar circumstances, and despite the temporal proximity, it concludes that the trial court got it right: These were two separate acts, not a continued single motion.
The appellant in Kovalaske v. Commonwealth got one of the dreaded inconsistent verdicts in a trial involving several credit-card offenses. He worked for a contractor, and his boss unwisely allowed him to use a hardware-store corporate credit card in order to make purchases of supplies on two occasions. But instead of returning the card after the second (legitimate) shopping trip, Kovalaske kept the card and started making purchases that, shall we say, were not devoted to his boss’s interest.
The boss eventually found out about it, canceled the card, and spoke with the hardware store’s loss-prevention unit. Heads-up note to crooks: Home Depot must keep its surveillance tapes for quite a while, because the loss-prevention guys were able to retrieve the tapes and watch as Kovalaske made the purchases.
He was charged with credit-card fraud, credit-card theft, and credit-card forgery. The jury somehow shook him loose on the latter two counts, but got him on the fraud count; the court sentenced him to five years.
The primary issue on appeal is whether the prosecution proved that Kovalaske got the card without the owner’s permission. He argued, plausibly, that the boss had specifically entrusted him with the card to make purchases. But the CAV finds that that permission extended only to the two specific instances where he was deputized to do the boss’s shopping for him. His retention of the card thereafter meant that he wrongfully possessed it, so the conviction holds up.
There is an interesting preservation issue in this opinion, one that might well have gone the other way. Remember that Kovalaske faced three possible charges, including theft and fraud. Here’s what his lawyer said during the motion to strike:
[I]n regard[ ] to credit card theft. Even at this juncture when the Court’s heard from the victim and [heard] the statement made by the defendant, even taking it in the light most favorable to the Commonwealth, the defendant’s charged with credit card theft, and the evidence at this point has been that the defendant had permission on at least two occasions to have possession of the credit card, to use the credit card[,] and to make purchases through the use and the signing of his name on behalf of Mr. Sullivan. So Judge, I don’t know if the Commonwealth’s met the burden for the credit card theft to show that he took the card without permission, or that they have shown that the defendant committed credit card fraud.
Note that the lawyer, throughout the course of that argument, is clearly talking about the theft charge. It’s only at the very last clause where he throws in a perfunctory (and conclusory) assertion that the prosecution hadn’t proved fraud. When I read that in the factual recitation, I thought to myself, Uh-oh. This probably isn’t going to be enough to preserve a sufficiency challenge on fraud. The Commonwealth agreed with my initial impression, and it pressed the waiver issue hard; but the CAV panel finds the issue to have been sufficiently preserved, citing this year’s SCV ruling in Brown v. Commonwealth.
If you’re defending a criminal charge, I strongly urge you not to follow this lead, although Kovalaske got away with it this time. State your objection carefully “with the grounds therefor,” because the next CAV panel might not be quite so lenient with Rule 5A:18.