[Posted October 25, 2011] Let’s dig into today’s batch of four published opinions from the Court of Appeals of Virginia. Three of today’s opinions are in the field of criminal law; the other is a domestic-relations appeal.

Criminal law

The full court – or most of it, anyway – today affirms murder and firearms convictions in Cortez-Hernandez v. Commonwealth, a case originally decided on April 5. From a philosophical standpoint, this presents a very promising appellate issue – whether a trial court can refuse to allow a criminal defendant to conduct re-cross examination when a prosecution witness goes into new material on redirect. The trial judge had refused to allow re-cross based apparently on a firm personal rule, not any rule of court or statute.

Based on my read of the authorities, the judge was probably quite wrong in so refusing. But Cortez-Hernandez lost at the panel stage, and he loses again today, because his trial lawyer never proffered the re-cross examination that would have ensued if the judge had allowed it. Since appellate courts in Virginia are required to conduct harmless-error analysis, those courts need to see what excluded material is before deciding whether to affirm or reverse.

By a vote of 6-3, with Judges Alston and McCullough not participating, the court affirms today based on the reasoning of the original panel majority. Judges Elder, Haley, and Beales dissent, also based on the explanation given in Judge Haley’s original panel dissent.

This opinion cannot be said to legitimize the practice of mechanically forbidding re-cross, especially in criminal cases. I believe that a solid majority of the court would vote to reverse such a ruling if the proffered examination proved to be material; indeed, that ruling might well prove unanimous. This case simply came to court equipped with an insufficient record, so this holding is not going to set the bar for future procedural decisions in the trial courts. The lesson for trial lawyers is pretty direct here: If the judge cuts you off, you must make a proffer of what you would have hoped to adduce. If you don’t, your client may be left with but one procedural remedy, and it’s one that lawyers won’t like.

The court decides two companion cases today, consolidated as Gonzin v. Commonwealth. Both appellants were convicted of aggravated sexual battery for forcing themselves on a 17-year-old victim. They didn’t rape her, but the description of what they did is enough to conjure up all sorts of criminal charges.

But for some reason, the local prosecutor held back before the grand jury, charging the two men with only aggravated sexual battery and abduction. In a footnote, today’s panel opinion presents a thinly veiled suggestion that charges of attempted rape, sodomy, and animate-object sexual penetration would have been fully justified, but since that was the prosecutor’s decision, this is all the court has to deal with today.

The CAV panel reverses the convictions, remanding the case for resentencing on the lesser-included offense of sexual battery. That’s a big deal, because sexual battery is a misdemeanor, while the aggravated version is a felony. The panel’s explanation is simple and, to my mind, inescapable: The prosecution utterly failed to prove the aggravating component of the offense.

The only aggravating circumstance available under these facts would be proof of “serious bodily or mental injury.” There was really no proof of bodily injury, and the prosecution essentially conceded as much on appeal. But it argued that there was proof of serious mental injury. Here’s the list:

i. As a result of the attack, J.M. [the victim] was “agitated” and “really upset.”

ii. Upon fleeing the scene, J.M. telephoned “B.” and spoke to her the entire trip home.

iii. J.M. was unable to sleep right after the attack, so she went to M.’s house to speak to M. and M.’s mother about what had happened because she did not know how to handle what had happened to her.

iv. J.M. was unable to speak with her own mother about what had happened.

v. J.M. left her mother a note and only spoke to her when she called from the emergency room and told her mother to come to the hospital.

vi. At trial, nearly two years after the attack, J.M. became emotionally upset and needed to stop her testimony to compose herself.

Without belittling what the victim endured, the court concludes that this injury isn’t “serious” enough to warrant a felony conviction. The court notes that “any victim of sexual battery, even in its misdemeanor form, might necessarily exhibit such symptoms and behaviors as those presented here.” (emphasis original) If you could get a felony conviction for that type of injury, then there really wouldn’t be a misdemeanor offense, because every sexual assault would constitute a felony.

This ruling is unquestionably a victory for the appellants, even though they’ll both report back to court for resentencing. As such, this case breaks the criminal appellants’ long losing streak in published CAV opinions, dating back at least to July. Somehow I doubt the floodgates are about to open for future reversals.

We get another reminder of the difference between criminal prosecutions and probation-revocation proceedings today, in Downey v. Commonwealth. A trial court bestowed upon Downey the boon of six felony convictions with all of the prison terms suspended, based on indefinite supervised probation. To get zero active time for six felonies is, you’ll have to admit, a boon.

But even that proved elusive, as the trial court revoked her suspended terms based on a probation violation. Still, the court again suspended all of the prison time, so while she still had to show up for probation reviews, she remained out of the Big House.

At one of those probation interviews, Downey admitted to her probation officer that she had consumed alcohol “on numerous occasions” during her probationary period. That might be fine for you and me, but remaining sober was one of the terms of her probation. A second revocation proceeding ensued, and the trial court again revoked her probation and – in a remarkable display of patience – again re-suspended all of her active prison time.

As I read today’s opinion, I thought of those fire-walkers who can walk in bare feet over live coals without getting their little footsies singed. Downey has now faced the might of the criminal-justice system three times; she’s got six felony convictions and two probation violations, but somehow has yet to see the inside of a state prison.

Nevertheless, since she got an adverse ruling, she appealed, contending that the second revocation wasn’t supported by sufficient evidence. She pointed to a line of caselaw holding that one cannot be convicted of an offense based merely on a confession; some sort of corroboration, however slight, is required to establish the corpus delicti. In a sense, she’s right; there was no evidence to establish her alcohol use other than the probation officer’s report of her own admission.

If you’ve kept in mind the clause with which I introduced this case above, you’re already holding the key to today’s unanimous affirmance. While extrinsic proof is necessary in a criminal prosecution, a probation-violation proceeding isn’t a prosecution at all; it’s an ancillary proceeding where the usual rules relating to prosecutions don’t apply. Probation violations don’t even have to be proved beyond a reasonable doubt, as today’s opinion notes. The statute empowers a judge to revoke a suspended sentence “for any cause deemed by it sufficient,” and the CAV panel today agrees that the trial judge had the discretion to find this cause sufficient.

Domestic relations

We venture into the world of change-of-circumstances petitions in Driscoll v. Hunter. Husband is a former dentist who, after getting divorced, gave up an apparently thriving practice due to medical issues. He and his wife had agreed pendente lite on a spousal-support award that seems modest in comparison with the parties’ assets — $2,100 a month. Years later, he asked the court to modify that due to the change in circumstances occasioned by his retirement.

There are several legal issues here, and the facts are more involved than the brief summary I’ve given you here. Instead of lengthening this essay with all those details (which are available at the click of a hyperlink anyway), I’ll summarize the court’s key holdings.

First, the court rules that the parties’ pendente lite agreement no longer governs support proceedings, since there’s been a final divorce decree that addresses support. This part of the opinion, in my view, is fairly case-specific, and if this were the only issue in the case, we’d have an unpublished order.

Second, the court rejects the husband’s suggestion that the trial court should have reduced his support obligation because of a shortfall in his current income, measured against his current expenses (he claimed a $2,300 deficit after his retirement). This one falls flat because, as the court notes, husband has assets of roughly $3.5 million. The important holding here is that a trial court won’t limit itself to current income/expense math in deciding whether a husband can still afford support. The court can consider the moving party’s ability to draw on assets, not merely his monthly net income.

The CAV panel also spurns the husband’s entreaty to zap the wife for her decision to leave a job in a law firm (of all places!) due to the stress of the job, among other things. This is a modification request, not an initial adjudication, and in such situations, the court isn’t required to consider the parties’ income-earning capacity.

Perhaps the best lesson here is that a change-of-circumstances request must allege and establish more than that the circumstances have changed. It must also show that the change warrants a change in support. You don’t get a modification merely because something has changed; it still has to justify a new support level, based on a host of circumstances.