[Posted May 10, 2011] Over the course of the last few weeks, I’ve fallen behind in my coverage of published opinions from the Court of Appeals of Virginia. It’s time to catch you up on what’s been decided lately. We’ll start with two criminal-law opinions that were handed down last week, while I was on vacation.

Criminal law

The court examines the lesser-included-offense doctrine in Simon v. Commonwealth, where the defendant was convicted of indecent liberties. While there’s a sufficiency challenge involving questions of intent, the real news here is the question of whether indecent exposure (a misdemeanor) is a lesser-included offense of indecent liberties (a Class 5 felony). The defendant argued that it was, and asked for a jury instruction on that charge. The trial court refused that request, and the jury convicted the defendant as charged.

The remarkable thing about this circumstance is that the Supreme Court has twice unambiguously stated that indecent exposure is a lesser-included offense of indecent liberties. Here; I’ll prove it to you:

“[T]hat misdemeanor [indecent exposure] is a lesser offense included in the offense of indecent exposure with lascivious intent . . . .” Ashby v. Cth., 208 Va. 443, 445 n.3 (1968) (deciding whether indecent exposure with lascivious intent is a lesser-included offense of sodomy).

“Indecent exposure . . . is a lesser offense included under the statutory felony of exposure to certain infants with lascivious intent . . . because only the intent differs.” Hewitt v. Cth., 213 Va. 605, 607 (1973) (deciding whether joyriding is a lesser-included offense of larceny; citing Ashby).

Against this backdrop, you’d think that the appellant has an easy road here. You’d be wrong. The CAV affirms the conviction by holding that the two sentences I quoted above are dicta, and then by determining that under standard lesser-included analysis, indecent exposure just doesn’t fit within indecent liberties. The court notes that each offense contains elements that the other doesn’t, and given the way this issue is analyzed, that means the doctrine doesn’t apply here.

A ruling like this begs for a prediction of whether the justices will take up this case. There’s certainly something to be said for the prospect of reconciling a couple of the court’s Vietnam-era pronouncements with what look to be unassailable conclusions under lesser-included-offense analysis. If the justices want to do that, they may grant a writ. But I sense that the decision here will ultimately be affirmed if the court does grant a writ.

Last week’s other criminal-law case is Marshall v. Commonwealth, which is an appeal of a conviction for failure to re-register as a sex offender. When I tell you that this conviction was a third offense, it might give you a preview of how this appeal is going to come down.

Marshall had an explanation for his failure to re-register. He had faithfully done so for several months, but he missed his April 2009 date. He called a state trooper and explained that he had gone to California on a job, and had been unexpectedly delayed while there. He asked if he could handle the registration over on the West Coast, and the trooper told him he could handle it upon his return.

Marshall was probably dismayed that when he returned to the commonwealth two weeks later, he was charged with failing to re-register. He defended on the grounds that the statute requires proof that his failure was intentional; the trial court disagreed, noting that the statute uses the word knowingly, not intentionally. In last week’s opinion, the CAV affirms, going to great lengths (more than were necessary, in my humble view; but I won’t quibble) to distinguish between these two words. All that was necessary to establish the offense was that Marshall knew about his obligation to register, and that he didn’t do it. This isn’t some extraordinary situation, as if he were in a coma on the due date, where he didn’t know about his obligation, especially where he had been convicted of this very offense twice before.

Traffic infractions

As you might expect, the court decides comparatively few true traffic-infraction appeals (as contrasted with traffic-misdemeanor cases, such as DUIs) by published opinions. A panel of the court did so on April 19 in Morris v. Virginia Beach. Morris is a commercial truck driver who transported a 12-foot-wide load along the Interstate and then onto the streets of my fair city here in the southeastern corner of the state. Ordinarily, the maximum width for trucks is 8½ feet; but you can get a permit for a wider load. Those permits usually carry requirements for escort vehicles, wide-load signage, and maybe a restricted route.

A Virginia Beach police officer spotted the large rig and pulled it over to investigate. This officer was certified to conduct inspections of these trucks, and he soon learned just how over-sized this load was. When asked for his permit, Morris presumably just shrugged. But his attorney moved to suppress, based on the premise that the officer didn’t have probable cause to initiate the stop.

The trial court didn’t bite for that; it denied the motion and convicted Morris. On appeal, the CAV addresses fully the reasons why this stop was permissible. Morris argues that the presence of all those precautions would lead a casual observer to conclude that he probably had a permit, and the officer’s stop was therefore based on an impermissible hunch. I can walk you through the appellate court’s lines of analysis in rejecting this argument and affirming the judgment, but in truth, it really comes down to this, from page 8 of the slip opinion:

A tractor-trailer load in excess of Code § 46.2-1109’s width maximum constitutes a prima facie statutory violation. The operator of the tractor-trailer may assert as an affirmative defense any special permit exempting him from the statute. Where, as here, incriminating conduct can be legally excused by an affirmative showing of a permit, an investigating officer has no legal duty to presume the excuse exists and thereby preclude any opportunity to determine whether it does or not.

The opinion concludes with a note that all the officer needed in order to make the stop was a reasonable suspicion; that suspicion doesn’t require him to presume that the driver has a special permit.