(Posted July 8, 2021) A peek at the National Hurricane Center’s website tells me that I have just enough time to sneak in analysis of this morning’s two published opinions from the SCV before we get an unwelcome visit from an intruder named Elsa.


Criminal law

The claim-of-right defense to a robbery charge is at the heart of Pena Pinedo v. Commonwealth, from Rockingham County by way of the Court of Appeals. The defendant here was a partner in crime, literally, with another man; the two went into “business” selling drugs and guns. The partner’s paramour stole over $5,000 of the proceeds of this enterprise, and the two businessmen decided to get it back.

The two used an intermediary to set up a charade drug deal with the paramour. She, her current boyfriend, and a third person showed up at the appointed location, at which point the two businessmen pointed a gun at the paramour’s boyfriend, demanding money. Pena Pinedo took “a wad” of money from the boyfriend, and then shot him. The boyfriend died a few months later of his wounds.

A grand jury indicted Pena Pinedo for murder and robbery, among other things. The defense asked the circuit court for an instruction on claim of right: “If you believe the defendant took the property he is charged with stealing under a belief that he had a good faith claim of right to take it, then, even though his belief was mistaken, you shall find the defendant not guilty of robbery.”

The trial judge refused the instruction, finding that there was no meaningful evidence that any claimed belief was in good faith, and expressing doubt “whether an individual could have a good faith claim of right to recover stolen contraband.”

The jury convicted Pena Pinedo of all charges. He appealed, but the CAV affirmed in a published opinion. The justices decided to take a look, but today they, too, unanimously affirm. Justice Chafin’s opinion notes that a claim of right can’t be a dishonest pretense. She also writes that the money was “a form of derivative contraband. Therefore, Pena Pinedo could not have possessed the money in good faith.”


In Dill v. Kroger LP I, the justices take up malicious-prosecution and false-imprisonment claims filed by a shopper who was abortively prosecuted for shoplifting. A store manager saw a woman place an unscanned package of fruit into a shopping bag. She walked over and notified the shopper that the package hadn’t been scanned; the shopper took it out, scanned, it, and replaced it in her bag before paying and leaving.

This inspires a slight digression. You’ve probably noticed that grocery stores are increasingly steering customers toward self-service checkout lanes. This cuts down on the number of cashiers on the payroll, passing onto the customer the work of checking out. Accordingly, you’ll frequently see stores with a dozen or more cash registers, only about two of which are manned (usually with a queue of shoppers waiting in them, thus leading some of them to give up and head for the self-serve lane). I’ve wondered how stores control shoplifting in such situations; they likely perceive that the payroll savings will outweigh the losses from theft. I guess that’s business.

Back to our tale: The manager believed the shopper to be one Shirley Dill. She consulted an “asset-protection specialist” with a report of what she thought was an attempted theft. The specialist looked into the transaction and learned that the shopper used a loyalty card registered to another person; not to Dill. (Side note: Who uses a loyalty card when shoplifting? Isn’t that like handing a bank teller a stickup note written on the back of your own deposit slip?) This discovery led to further evidence: Video recordings of the same shopper stealing about $40 worth of stuff.

The specialist went to the police, relating – based on the manager’s report – that the shopper was Dill. A police investigator went to a magistrate and obtained warrants charging Dill with petty larceny. He then called Dill and invited her to come in to be booked. She professed her innocence, but did as she was asked the next day.

Here’s where the lawyers ride in and save the day. Dill borrowed money to hire a defense lawyer. He looked at the video and called the prosecutor, saying, “you would have to be blind to think that that was Shirley Dill.” The prosecutor agreed and dropped the charges.

The next step in our saga is a civil suit against Kroger and the store manager, claiming malicious prosecution and false imprisonment. The circuit court overruled the defendants’ demurrers and the case proceeded to a jury trial.

That process stopped short after Dill presented her evidence and rested. The circuit court granted a motion to strike, concluding that “this is a mistake case.” The court found that neither the manager nor the store acted with malice; they were just trying to prevent crime. The court also ruled that the defendants weren’t liable for false imprisonment because they didn’t participate in the arrest. The proceedings ended there; the court dismissed the case.

Today the Supreme Court begs to differ with the judge on malicious prosecution. It rules that the questions of probable cause and malice should have gone to the jury. In ruling that the whole thing was just a mistake, the trial judge had weighed the evidence and decided the case instead of allowing the jury to do its job. The court also failed to view the evidence in a light mot favorable to Dill, the nonmoving party.

The Supreme Court affirms the dismissal of the false-imprisonment claim, because regardless of probable cause, Dill was arrested pursuant to a valid warrant. But the court sends the case back to Staunton Circuit Court for retrial on malicious prosecution.