ANALYSIS OF NOVEMBER 29, 2011 CAV OPINIONS[Posted November 29, 2011] We get two new published panel opinions today from the Court of Appeals, one each in the fields of criminal law and unemployment compensation.
There’s an interesting temporal issue, and for our purposes an even more interesting lesson in the citation of unpublished opinions, in Baker v. Commonwealth, involving possession of a firearm by a convicted felon. All of the facts are settled, and the only issue on appeal is one of pure law: If a felon continually possesses a firearm over an extended span of time, how many separate possessory crimes has he committed? Baker unquestionably possessed a handgun (in fact, he unquestionably stole it), and on three separate occasions over the ensuing two weeks, someone saw him with it. The trial court agreed with the prosecution that this was three offenses, not one, despite the fact that it was the same gun.
The CAV today agrees and affirms the three convictions. Appellate lawyers will seize on the means by which the court gets to today’s conclusion. In a published opinion from 1999, the court held that the “gravamen of the offense” in a case of this nature is “the possession of a firearm by a felon.”
Let’s agree at this point that that holding, standing alone, isn’t terribly helpful. The court then turns to an unpub from a 2001 panel, where the court found that “the unit of prosecution for this offense becomes the number of occasions on which a defendant ‘possesses’ one or more weapons.” By that yardstick, Baker possessed the same weapon three times, yielding three prosecutable offenses. Today’s panel notes that the unpublished opinion is persuasive but not authoritative, but it accepts and adopts the reasoning for today’s ruling.
One practical effect of this ruling is that the “unit of prosecution” approach is now chiseled into Virginia common-law jurisprudence – unless, of course, the en banc Court of Appeals or the Supreme Court un-chisels it. The second key point for appellate advocates is a peek into how the CAV’s judges (at least these three: the chief judge, plus Judges Kelsey and Huff) view the practice of citing unpublished opinions.
I felt sorry for the appellant in Francis v. VEC; she turned herself in for a violation of company policy, and today she loses her unemployment-compensation appeal because she was honest about it. Francis worked at Wal-Mart at what I perceive was a low-level-supervisor position. She got arrested for welfare fraud, which is grounds for termination of her employment. Instead of keeping quiet, she did the honorable thing and reported her arrest to the company.
Committing a crime of moral turpitude is grounds for termination at Wal-Mart, but the company gave her the option of resigning, so as to improve her ability to find another job. When she decided to plead guilty to the charges, she took the company up on its offer, and tendered her resignation.
The first thing you need to know about the substantive law in this area is that when an employer gives an employee a quit-or-be-fired ultimatum like this, a subsequent resignation is regarded as involuntary, so she could still apply for unemployment comp. When she did, the company defended on the grounds that she was fired for misconduct connected with her work. The employee responded that welfare fraud was definitely misconduct, but it was wholly separate from her employment. A series of hearing officers and examiners at the Virginia Employment Commission sided with the employer, as did the circuit court to which she brought her appeal.
Today, a panel of the Court of Appeals unanimously affirms the denial of benefits. Even though welfare fraud isn’t committed against the employer and this instance didn’t even arguably occur at work, today’s panel concludes that her supervisory duties, and the fact that she would handle money for the store, placed her in a fiduciary position, so basically any crime of moral turpitude would impair her employability. In the words of today’s opinion, that conviction “placed her in a position of distrust,” and that, in turn, “manifested a willful disregard of Wal-Mart’s interests and the duties and obligations Francis owed her employer.” The final salt in the wound is the court’s observation that “[t]he fact that Francis herself found it necessary to report the pending charges to Wal-Mart suggests she knew her activities outside of employment had a bearing on Wal-Mart’s interests.”(Sigh.)