[Posted October 13, 2009] The Court of Appeals resumes full productivity today, churning out five published opinions.

Criminal law
Bifurcating trials is often an efficient use of legal and judicial resources. They’re used often in the civil field, but are rarer in the criminal context. Today we get a reminder of just how rare they are intended to be, in Elem v. Commonwealth, a larceny conviction. Elem was tried for stealing a wallet. It was petit larceny, as there was no suggestion that he stole more than $200. But given his frequent-flyer miles within the criminal justice system (nine prior larceny convictions), the offense became a felony.

At trial, his attorney asked the trial court to bifurcate the guilt phase. Given the obvious prejudicial effect of the nine priors, he moved the court to ask the jury to first determine whether he stole the wallet. If so, the next phase would be the introduction of (and wrestling over) the prior conviction certificates, to determine whether Elem was in fact a recidivist. The third phase would be for punishment.

There actually is a word for this; it’s trifurcation, which is basically a bifurcated trial that needs to go on a diet. The trial judge declined this helpful suggestion, and Elem got convicted. On appeal, the only issue is whether the court abused its discretion in not ordering the trifurcated trial.

Once upon a time in Virginia, bifurcation was available only in capital murder and certain traffic prosecutions. The legislature expanded that 15 years ago by permitting trial courts to conduct bifurcated trials, in which guilt would be determined before any evidence would be adduced for sentencing. But Elem wanted to bifurcate the guilt phase, and the Court of Appeals rules today that he has to have a bunch of legislators arrange that for him, because the trial judge isn’t empowered to give him that kind of trial. Trifurcation will have to wait.

There’s another case involving the boundary between grand and petit larceny today – Baylor v. Commonwealth involves the theft of several catalytic converters from cars in Henrico County. Police officers caught Baylor pretty-much red-handed with half a dozen hot converters, which had recently been surgically removed from some cars at a used-car lot and a body shop. At trial, the prosecution called the owners of those establishments to testify as to value.

The car dealer testified that the cost to replace the converter on one of the cars was $2,200, and “somewhere around $700 or $800” for another one. The body shop owner – now here’s a guy who’s bound to know this stuff – said that the replacement cost for each converter would “start at about $400 just for the part.” Based on that, the Commonwealth felt good about its proof that the amount stolen exceeded $200.

Not so fast. You will have noted that what the prosecution adduced was evidence of replacement cost; not of the value of the good stolen. The parties agreed that there was no market for used catalytic converters in Virginia, so proving market value was out, for all practical purposes. In some circumstances, replacement cost might be a fair estimate of the value, such as in situations where the thief steals brand-new property. But the record here was devoid of any such information. Where there’s no market, the prosecution has the burden to prove actual value, and the court holds today that it didn’t meet that burden.

If you handle criminal cases, on either side of the aisle, you need to read this short opinion and absorb the lesson it teaches. Calling the owners to testify seems like a perfectly safe approach, but in a criminal case, the evidence of each element of the crime – specifically including value in grand larceny cases – must be enough to establish that element beyond a reasonable doubt.

Delaney v. Commonwealth is a sufficiency challenge to yet another larceny conviction (the flavor of the day today), but we really never get to see any aspect of the sufficiency analysis, because this appeal gets demolished by that appellate Grim Reaper, Rule 5A:18. Delaney made the mistake of forgoing the court reporter, something I continue to advise strongly against. He used instead the written statement that is provided for in Rule 5A:8. But in preparing the statement, his lawyer made a classic mistake, regarding it as a statement of the testimony, instead of a statement of the proceedings. Proceedings in the case encompass much more than just testimony, most importantly objections and rulings upon them.

This written statement didn’t include a description of any objections or motions – not even a motion to strike. (My careful readers already know what’s coming next.) An appellant who doesn’t move to strike the evidence at trial cannot later ask the appellate court to find the evidence insufficient; that failure irrevocably consigns the question of sufficiency to the finder of fact. Accordingly, the entire sufficiency challenge has been waived, and the court explicitly refuses to apply the good-cause or ends-of-justice exceptions to enable it to consider the merits of the issue.

I wondered upon reading this why the court granted a writ in such a case, and beyond that, why this opinion is published. Rule 5A:18 cases are legion, as generations of lawyers have seen their appeals die premature deaths because of preservation problems. My best guess is that today’s opinion emphasizes the enormous danger of relying upon a written statement. It is, in my view, no substitute for a good, old-fashioned transcript; and if you don’t know how to prepare one, you’re probably scuttling the appeal. The easy-to-follow practice tip here is to always hire a court reporter.

The final criminal opinion of the day is one where the appellant outsmarted himself in crafting his question presented, the CAV’s functional equivalent of assignments of error. Both of these serve as conclusive statements of the scope of the appeal, just as a complaint and answer frame and delimit the issues that can be adjudicated in the trial court.

Lunsford v. Commonwealth involves – what else? – larceny. (Fortunately this one adds a B&E component, to give us at least a little variety.) Lunsford was accused in a break-in and the theft of a guitar and a high-def television set.

He picked the wrong victim. The owner had (1) kept the box in which the guitar came, showing its serial number, and (2) registered his TV’s serial number at the manufacturer’s web site for warranty purposes. (You know, all those things that you’re supposed to do when you buy stuff, but you’re too lazy?) Accordingly, even Inspector Lestrade, of Sherlock Holmes fame, could have put this case together; the investigating officer was easily able to match up the serial numbers of the goods with the records from the pawn shop where Lunsford sold the items, three days apart. They got ‘im.

Lunsford’s principal argument on appeal was that the serial numbers were hearsay and should have been excluded from evidence. He might have a point there, as no doubt the numbers were introduced to prove the truth of the matter asserted. But just as in the Delaney case, above, we never get to find out. That’s because Lunsford didn’t list hearsay as his question presented. Instead, he challenged the sufficiency of the evidence to convict him. Perhaps he intended to argue that without the hearsay, the evidence wasn’t sufficient; but that’s not what his QPs say.

The problem here is that, in evaluating sufficiency, a reviewing court considers all of the evidence, including that portion that was erroneously admitted. And when you consider everything that did come in, you have to admit that it’s sufficient. Thus Lunsford was done in by what might have been some hasty crafting of questions presented.

How do you avoid this problem? In this circumstance, it’s pretty easy. If your goal in an appeal is to challenge the admission of evidence at trial, you need to list that as a specific (and preferably separate) question presented (or assignment of error in the Supreme Court). “May a trial court admit into evidence a hearsay statement that is intended to establish an account number?” That QP, while it might not ultimately win the day, would at least have secured appellate review of the merits of Lunsford’s primary argument. As for sufficiency? Keep in mind the admonition above about the scope of the evidence reviewed. If all of the evidence, including the hearsay statement, was insufficient to establish guilt, then you can shoot for a dismissal. If the hearsay component made the case for the prosecution, then you’re probably looking at a remand as your best result.

Okay; no more larceny cases today. I promise.

Administrative law
DSS v. Fulton involves a founded disposition in an allegation of sexual abuse of a child. Evaluating conflicting evidence from the victim, the respondent, and others, a DSS investigator determined that the complaint was founded. The respondent noted a timely appeal, and the file was turned over to a hearing officer, who affirmed the ruling, and eventually to the DSS Commissioner. The Commissioner, after referring the case to yet another hearing officer (who took evidence and heard witnesses), sustained the disposition.

The next step in the administrative process is an appeal to circuit court. The respondent took that route, and the parties appeared in August 2004 to argue the matter. After an unexplained delay of four years, the court entered an order in December 2008, reversing the determination because “there were erroneous findings of fact and that reasonable minds, considering the actual facts, would necessarily have come to a different conclusion[.]” The court concluded that the agency’s record didn’t contain “substantial evidence” to support the founding of the complaint, so it ordered the records purged.

Given the extraordinarily-damaging effects of a founded sexual-abuse charge, this was a major victory for the respondent. But the DSS appealed, and today the Court of Appeals reverses. It notes that in reviewing the agency’s finding, the circuit court acts as an appellate court, and as my readers know well, appellate courts aren’t free to reevaluate credibility determinations that have been made by factfinders who have seen the witnesses live. Since there was detailed evidence from the victim of the respondent’s abuse, and since the factfinder could well have found that report to be credible, the circuit court didn’t have the right to cast that determination aside in favor of its own view of what happened.

This decision emphasizes the great deference the appellate courts pay to factual determinations in lower tribunals. If, as here, reasonable minds could differ on which party was telling the truth, a reviewing court must accept the factfinder’s determination instead of evaluating the evidence from square one.