ANALYSIS OF MAY 17, 2011 CAV OPINIONS[Posted May 17, 2011] Two new published opinions arrive today from the Court of Appeals, and we get word of an en-banc grant in a ruling issued six weeks ago.
After the employee in Hampton Inn v. King was injured, the parties reached an agreement to settle her claim for a lump sum plus “Six months of any and all causally related medical expenses.” This employee was seriously overweight and had undergone gastric bypass surgery before the injury; her forced idleness after the injury caused her weight to shoot back up. Within the six-month period, she asked for coverage of an intensive weight-loss program at a place fur hours from her home. The employer essentially responded, “Okay; but how ‘bout a slightly cheaper program?” (The employer suggested Weight Watchers.)
The matter was set for a hearing six months after the employee’s application (and seven months after the commission’s order confirming the settlement). The commission rued in favor of the employee, and utilizing something called the doctrine of imposition, it extended the medical-benefits provision of the agreement. The employer appealed.
Today, a panel of the Court of Appeals reverses that decision, holding that the imposition doctrine can’t be used in a situation like this. Imposition is where one party overbears the other by unfair means in “a series of acts,” and here, all the employer did was suggest an alternative approach that was less costly. The opinion notes that, “If anything, the delay should have resulted in payment of a weight loss program through the application of the doctrine of imposition, not a five-month extension of payment for all causally related medical benefits.”
Burton v. Commonwealth might qualify for my informal “Stupid Criminal Tricks” file. (People tell me I look like David Letterman, so I suppose it won’t hurt to encourage that belief.) It begins with the sad tale of a man’s death in his home, apparently from natural causes. His brother found his body after knocking out a glass front door, and later that day secured the door with some plywood. He came back two days later to find that the house had been broken into, and he noticed that several items had been removed.
The items that are the subject of this appeal are several containers full of coins. The brother testified that there was more than the magic figure (for grand-larceny purposes) of $200. The burglar took other items that aren’t involved here.
Now, on to the Stupid Criminal Tricks. The very same day that the break-in was discovered, Burton showed up at a grocery store (presumably nearby; but the opinion sadly doesn’t give us this detail) with a boatload of coins, and tried to pour them into one of those coin-sorting machines. He had so many, he jammed the machine, requiring a store clerk to clear it. (Way to keep a low profile, there, Mac.) He redeemed $385.80 in this way.
Of course, one of the issues in the appeal was whether the evidence was sufficient to show that the value of the coins was more than $200.
The Court of Appeals cites caselaw that the owner of property is permitted to testify as to his opinion of its value. And since money isn’t subject to a lot of guesswork as to value (unless it’s a set of rare coins, for example), the court has no problem affirming this aspect of the trial court’s ruling. As for the $385, theoretically the suspect could have combined his own vast coin accumulation with this illicit haul to reach that amount; but the CAV cites caselaw to the effect that strict identification of the specific goods isn’t required in these circumstances.
This last holding may come as a surprise to some of you. Theoretically, this doctrine could lead to anomalous circumstances, such as where a white BMW convertible is stolen. Can the government then prosecute anyone driving a white BMW convertible, or does it have to prove that a defendant stole that particular one? We can all agree that that wouldn’t be such a hot idea, but here’s the caselaw to back it up: “When an accused is found in possession of goods of a type recently stolen, strict proof of identity of the goods is not required.”
No matter; the police discovered the other stolen items in Burton’s home just two days later, so the court concludes that the evidence as a whole conclusively establishes his guilt.
There’s one other arrow in Burton’s quiver: He assails the lack of any proof that he took the coins “without permission of the owner.” The record isn’t clear on which brother owned the coins, but one of them was dead by the time of the theft. As for the other one, here’s the court’s analysis: “The trial court could determine from Jesse’s decision to file a police report that he did not give anyone permission to disturb the coins.”
Fundamentally, I agree with the ultimate conclusion here (the conviction is affirmed), but there’s something about this approach that gives me pause. Apparently the prosecution forgot to adduce evidence from the surviving brother that no one had his permission to take the coins. The Court of Appeals has elected to substitute the existence of a criminal complaint for that formal testimony. Does that mean that the court may infer from the fact that a rape complaint was filed that the defendant and the victim didn’t engage in consensual sex, where the victim never testifies to a lack of consent?
This analysis quickly gets us into the realm of burdens of proof in criminal cases, and the prosecution’s obligation to “exclude every reasonable hypothesis of innocence.” I would have been content if the opinion had merely recited the clear evidence of a break-in (pry-bar markings on a door and the apparent theft of other items at the same time) to support the conclusion that the trier of fact could have inferred that the thief didn’t have anyone’s permission to take the coins.
Finally, we get Hernandez v. Commonwealth redux. No, not that Hernandez; the court grants rehearing en banc in Cortez-Hernandez v. Commonwealth, which was decided April 5. That’s the case in which a CAV panel ruled that the trial court’s refusal to permit re-cross examination, when the prosecution clearly introduced new material on redirect, was immune from appellate review because of the contemporaneous-objection rule. I found that ruling last month to be particularly harsh, given the constitutional protection afforded to cross-examination (and by extension, re-cross), and I would have liked to see a full analysis of that issue. We still aren’t guaranteed to see that – the full court might just as well decide that this assignment has been waived by the failure to make a proffer of the proposed questions – but the issue is still alive for now. I hope the full court decides to reach the merits of this interesting legal question.