TOP TWENTY
Virginia CrimLaw
HB-326 / § 18.2-386.2
Unlawful dissemination or sale of images of another
intent to coerce, harass, or
intimidate
maliciously disseminates or
sells
created by any means
whatsoever
knows or has reason to
know that he is not licensed
or authorized
Class 1 Misdemeanor
Sarafin v. Commonwealth,
OCT13, VaApp No. 1753-12-2
In Tension With:
Enriquez v. Commonwealth,
283 Va 511 (2012)
We establish the rule that
when an intoxicated person is
seated behind the steering
wheel of a motor vehicle on a
public highway and the key is
in the ignition switch, he is in
actual physical control of the
vehicle and, therefore, is guilty
of operating the vehicle while
under the influence of alcohol
within the meaning of Code §
18.2-266.
Contrary to appellant's
assertions, the Supreme
Court did not add the
requirement that a vehicle
be on a public roadway to
the elements of the offense
in Code § 18.2-266 in
Enriquez. Rather, the
references to being "on a
public roadway" and Code
§ 46.2-100 were merely
dictum as the issue in
Enriquez was "the proper
considerations in
determining whether a
person is operating a
motor vehicle.
Snowden v. Commonwealth,
OCT13, VaApp No. 1570-12-1
A document is certified
by the court where it is
preserved, not where it
originated
Prieto v. Warden Sussex I,
SEP13, VaSC No. 122054
Juror From Another State
"He shall enjoy the right
to a speedy and
public trial, by an
impartial jury of his
vicinage"
Va. Const Art I Sec. 8
• The seating of a juror not
residing in Virginia is not a
structural error.
• Once an out of state juror is
sworn, a claim of
disqualification can only be
brought with leave of the
court after showing
disability such as to
probably cause injustice in
a criminal case to the
Commonwealth or to the
accused.
Henry v. Commonwealth,
FEB14, VaApp No. 0631-13-2
• 18.2-168: Forging a Public
Record
• The Commonwealth is
required to prove conduct with
respect to the document that
alters the genuineness and
authenticity of those
documents
• False Identity Information
• 19.2-161: Perjury Applying
for Court Appointed
Attorney
• 19.2-159(B)(2) "Real estate
owned by the accused shall be
considered in terms of the
amounts which could be raised
by a loan on the property
• Personal Property "convertible
into cash within a reasonable
period of time"
Linnon v. Commonwealth,
JAN14, VaSC No. 130179
Objection by Co-Defendant
“Although we have never
before considered whether an
objection raised by one party
may be attributed to another
party who does not expressly
join it . . . We adopt the
general . . . and hold that one
party may not rely on the
objection of another party to
preserve an argument for
appeal without expressly
joining in the objection.”
Grimes v. Commonwealth,
OCT13, VaApp No. 0293-13-1
Value of Stolen Pipes
Replacement value of
copper pipes cut out of a
house does not establish
actual or fair market
value of the pipe
Does not tell us how to
determine the value
Carew v. Commonwealth,
NOV13, VaApp No. 0153-13-4
§ 46.2-300 – Notice of Suspension
When the predicate for invalidity under Code §
46.2-300 is a suspended license, the
Commonwealth must prove the defendant
received notice of the suspension
Bonner v. Commonwealth,
JUL13, VaApp en banc No. 0565-11-2
18.2-311.1 – Venue / Altering Serial Number
Altering the serial
number of a firearm is a
discrete offense.
Venue is at the place
where the alteration was
done.
D’Amico v. Commonwealth,
FEB14, VaSC No. 130549
18.2-268.3 – Refusal / Breath Certificate
The refusal form is not an
element of the offense
Failure to properly
execute a refusal form is
not dispositive of guilt or
innocence
Case v. Commonwealth,
FEB14, VaApp No. 2188-12-4
18.2-266 – No Intent Required
“As long as the
Commonwealth proves
beyond a reasonable
doubt that an
intoxicated individual
'operated' his vehicle,
regardless of intent, he
is guilty of driving while
under the influence.”
Murry v. Commonwealth,
JUN13, VaApp No. 0522-12-2
Lifetime 4th Amendment Revocation
Pattern of concealed
sexual abuse of a minor
Papol v. Commonwealth,
MAR14, VaApp No. 1765-12-1
§ 18.2-374.1:1 – Multiple Possessions Child Porn
Second or Subsequent
Violation - NOT
CONVICTION
Whether the pictures
arrive at the same or
different times is not
relevant
Saunders v. Commonwealth,
FEB14, VaApp No. 1630-12-2
Which Precedent Binds
McDonald v. Moose, 710
F.3d 154 (4th Cir. 2013).
§ 18.2-361(A) – AntiSodomy Law
Unconstitutional
The 4th Circuit opinion is
not binding while the
Virginia Supreme Court
opinion is.
Therefore, the statute is
constitutional, particularly
as it applies to minors
and adults.
§ 8.01-384(A)- Contemporaneous Objection
• Commonwealth v. Amos, FEB14, VaSC No. 130757
– Held in Contempt / Not Allowed
• Maxwell v. Commonwealth, FEB14, VaSC No. 130810
– Gone to Lunch
• Rowe v. Commonwealth, FEB14, VaSC No. 130881
– Judge Delay / Motion
Allen v. Commonwealth,
JAN14, VaSC No. 130304
Corpus Delicti Rule / Sex Offenses Against Minors
“Slight corroboration of
the confession is
required”
Establishing opportunity
does not provide
corroboration
Alleyne v. US,
JUN13, USSC No. 11–9335
Overrules
“The core crime and the
fact triggering the
mandatory minimum
sentence together
constitute a new,
aggravated crime, each
element of which must be
submitted to the jury.”
Harris v. United States, 536
U. S. 545 (2002)
Starrs v. Commonwealth,
JAN14, VaSC No. 122028
The circuit court, upon
accepting and entering a
guilty plea in a written
order, still retains the
inherent authority to
withhold a finding of guilt,
to defer the disposition,
and to consider an
outcome other than a
felony conviction.