23 March 2019

Restitution for Traffic Crimes in Virginia

Virginia's § 15.2-1716: Reimbursement of expenses incurred in responding to DUI and related incidents is broader than its title states in that it applies to more traffic violations than DUI, but the title does give a general sense as to its purpose. It allows localities to be reimbursed when there is an emergency or when a summons or warrant is given pursuant to certain listed statutes.

To understand all this this, you must first understand that Virginia is a strong Dillon Rule state. In other words, a locality (town, city, or county) cannot pass an ordinance unless it is specifically authorized to do so by the Virginia General Assembly. § 15.2-1716 is a statute authorizing localities to pass a specific ordinance with two potential parts. It started as authorizing only the first part. In 1994, the General Assembly passed into being the predecessor of the current statute, § 15.1-132.1. This statute was clearly meant to limit restitution to when a DUI (or watercraft equivalent) was "the proximate cause of any accident or incident resulting in an appropriate emergency response."

Since its enactment, this statute has been the subject of many minor adjustments, two major changes, and one attorney general opinion. In 2003, the first major change came in the form of a reorganization of the statute as well as the addition of a number of new convictions which were subject to it. However, it clearly remained only an authorization of the first part: "when providing an appropriate emergency response to any accident or incident."

Apparently, some localities started using this as a way to get restitution for normal incidents such as traffic stops for the listed offenses when they resulted in convictions. This was contrary to to, or at the very least a strained reading of, the requirement of an "emergency response." This led to Attorney General Opinion 04-054. Despite a problematic inability of whoever wrote this for the attorney general to know the difference between the stand alone noun "incident" (occurrence/happening) and "incident to" / "incident of" (accompanying concomitant event - most commonly seen as incidental), the opinion is correct when it states that (a) the statute as it then existed required an emergency not just a routine traffic stop/arrest, and (b) not all parts of it allowed restitution to law enforcement (as opposed to EMTs, fire, and rescue).

And yet, it appears that the problem remained. Localities kept trying to get restitution thru ordinances permitted by this statute and the claim that all law enforcement stops pursuant to the listed statutes are emergencies unto themselves without the additional requirement of a wreck or injuries. After all, an attorney general's opinion is just that - an opinion. He's neither an appellate judge nor a legislator and those are the people who are charged with making and defining law. People tend to assign great weight to AG opinions they agree with and discount the one's they disfavor. And it is at least arguable that every DUI is an emergency situation, because of the danger an incapacitated person behind the wheel of a two ton vehicle poses to us all.

In 2009, Delegate Iaquinto (now Judge Iaquinto, GDC Va. Beach) introduced a bill (HB2532) in an attempt to resolve this issue once and for all time. His specific purpose for introducing this bill was
Specifies that a locality that has passed an enabling ordinance is entitled to restitution from a person convicted of certain DUI offenses as compensation for law-enforcement response regardless of whether an accident occurs.
His amendments would have allowed law enforcement restitution through an entirely separate ordinance, but limited it to only violations of the statutes in the first enumerated provision of § 15.2-1716 (the various DUI statutes). His amendment was separated out to be easily understood, would have led to a separate easy to understand ordinance, and had commonsense constraints on its application. Then it went into the sausage mill that is the General Assembly.

By the time the sausage had been made (the bill passed), the amendment had been moved from its separate section to become the second sentence of subsection A where it was bound to cause confusion. The language was also changed so that it didn't authorize a separate ordinance but only allowed a new provision to be added to the same ordinance leaving room for more confusion. As well, it now no longer applied to only the DUI convictions of the first enumerated provision; it applied to all the enumerated provisions (1: DUI / 2: Reckless Driving / 3: Driving Unlicensed / 4: Hit and Run). Finally, in subsection B it added "arrest" as a third condition triggering no more than $1,000 in restitution (between accident and incident).

So now § 15.2-1716 looks like this. The first sentence in subsection A is still limited to emergencies. The only thing tying it to the second sentence is that they both relate to the enumerated provisions, both relate to subsection B, and the second sentence's requirement that although different provisions both must be included in the same ordinance: "The ordinance may further provide . . ."

What the ordinance may provide (as applicable to law enforcement) is that
a person convicted of violating any of the following provisions shall . . . be liable to the locality . . . for restitution of reasonable expenses incurred by the locality when issuing any related arrest warrant or summons
So, the plain language of the second sentence has it allowing restitution for issuing any warrants or summons related to the conviction (assuming the conviction is one in the enumerated section). When subsection B limits restitution to arrests, please remember that a summons is an arrest and release by the officer. So, the statute as it stands generally accomplishes what Judge né Delegate Iaquinto intended, except it's not as clear as his version and it doesn't have the limitations he proposed. 

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A brief moment on "incident." I tried to leave it alone. I really did. I generally think the AG opinion was correct as it stood in relation to the statute at that time. I also know that in writing things down it's almost impossible to get everything right (I might have made a couple errors in the 16 years this blawg has been going - maybe even three if you look hard enough). However, this one just got under my skin.

An incident is a happening or occurrence. A happening or occurrence is an incident. A=B. B=A. It's about the broadest term a statute could use to indicate activity. Claiming the word "incident denotes a subordinate occurrence" is incorrect without further modification added to "incident." For instance, if the statute said "accident or incident thereof" or "incidents or the accident they proceed from", or "accident and its incidents" we would all know that the incidents referred to were subsets of the set of the accident. This is not how the the statute is written. "Accident or incident" denotes two different things that are not subsets of the other and are not the same. We are not writing in the old legal language of England where the use of doublets was necessary because of the possibility that the reader might not understand either Anglo-Saxon or French.

In fact, we are told over and over again by our appellate courts that each and every word the General Assembly writes has a meaning. 
A court will not interpret a statute in such a way that it renders other statutory language superfluous. Rather, we must assume the legislature chose, with care, the words it used when it enacted the relevant statute. Because we assume the legislature carefully chose the words used in the statute, it is our duty to give reasonable effect to every word.   Coffman v. Commonwealth, 67 Va. App. 163 (2017).
When the General Assembly uses two different terms in the same act, those terms are presumed to have distinct and different meanings. I.D.A. v. Montgomery County, 263 Va. 349 (2002). 
 And, of course, I'm sure we've all had drilled into our heads that the only people who can add language to a statute are the members of the General Assembly.  See Holsapple v. Commonwealth, 266 Va. 593 (2003) (The appellant asks "this Court to add language to the statute the General Assembly has not seen fit to include, an exercise in which the Court is not free to engage.") & Burlile v. Commonwealth, 261 Va. 501 (2001) ("Courts are not permitted to add language to a statute nor are they permitted to accomplish the same result by judicial interpretation").

Incident is an extremely broad word indicating just about any action. Thus, contrary to the AG's opinion, YES a traffic stop pursuant reasonable articulable suspicion, which develops into probable cause, which leads to an arrest on a warrant or an arrest and release with a summons IS AN INCIDENT. The limiting part of the statute prior to the Iaquinto amendments was the language requiring an "appropriate emergency response", not the word incident.

Furthermore, this is the most commonsense reading of the word incident as it pertains to the statute. We know what an accident is. What else similar could happen on the road that qualifies as an incident? Presenting reasonable articulable suspicion leading to a traffic stop and interaction with an officer, leading to probable cause, and concluding with a warrant or a summons is the most likely thing other than an accident that would occur on a road involving the listed violations, the defendant, and a police officer. This is what you get when you actually do a noscitur a sociis analysis rather than merely quoting the phrase and saying it supports your conclusion.

~~~ fini ~~~~

21 March 2019

Sentencing the Virginia Way

Green v. Commonwealth, 69 Va.App. 99 (2018) is causing a bit of a stir around where I practice, so I thought I'd try to explain the actual nuts and bolts of a judicial sentence in Virginia.

Definitions:

Suspended Execution: This is the amount of time that a judge hangs over a defendant's head, but does not make her serve immediately. For example: "I sentence you to five years in prison, but I suspend two of those years." Only three years are actually set to be immediately served. The other two are suspended.

Period of Suspension: This is the amount of time during which the suspended time is held in abeyance and can be imposed. Typically, you would hear this said in a manner such as "I sentence you to five years in prison, but I suspend two of those years. Your suspended time is suspended for five years."

Probation: Supervision by the probation office of a person during some portion of her length of suspension. So, a complete sentence could be "I sentence you to five years in prison, but I suspend two of those years. Your suspended time is suspended for five years and I place you on probation for three years."

[NOTE]  It is unfortunate and confusing that Virginia law and courts use "suspend" to mean two different things. It would be far better if it was "suspended execution" and "period of abeyance." Unfortunately, it's not and this leads to an almost constant state of confusion for defendants and a lot of attorneys.
In Green, the primary ruling is that the period of suspension runs from the moment of sentencing and is not and cannot be tolled while the defendant is incarcerated (all interpreting Va Code 19.2-306). Thus, a situation like the one in the chart above occurred.

Per the example in the chart you can see the actual sentence in the top left corner. The judge sentenced the defendant to five years and suspended execution of two years. Then, on the right, the judge stated that the period of suspension was five years (yellow). This starts on the day of sentencing. 

The bar on the far right shows what actually happened to the defendant. The black part of the bar is the three year period in prison. What's above the black bar happened after the defendant got out of prison. For two years, the defendant has valid probation; you'll note that the yellow bar to the left goes to the same height as the orange part of the bar on the right. 

THEN, the yellow bar stops and the bar on the right is red. This is because probation cannot exist (at least not legally) after period of suspension has run out. The supervision itself is not allowed per the Green case and if a defendant does something which would trigger a probation violation there is no longer any time from the suspended execution in existence.

IMPORTANT LESSON OF THE CASE: If the judge has not stated there is a period of suspension and he states there is a period of probation then the probation does not legally exist. 

19 March 2019

Everybody Gets Killed in Oxford

Lately, I've been watching British crime dramas. I started watching Inspector Lewis. Then I watched Endeavor. Lately, I've been watching the series that gave birth to both of these spin-offs: Inspector Morse. In the watching, I've started to develop strange habits of speech and writing which leave 'Muricans bewildered at times. However, more importantly I have learned several interesting and potentially important things.

1) Most importantly, never, ever, ever, not on a bet, neither for money nor fortune, ever go to Oxford. As best I can extrapolate from the data provided by these shows, Oxford has a murder rate that would shock residents of Chicago. Professors kill professors, students kill students, professors kill students, students kill professors, and on the odd occasion a professor or student kills someone from the town because the guy was bringing down the local cricket side. It's a bloodbath. And the school must do an amazing job of covering it up, because every time the people involved act like they're shocked that a thing like this would ever happen in their academic community. So, if you go there you will get kilt and no one will ever find out about it.

2)  Caution: Of course, the British don't talk about "Miranda warnings." However, they have developed their own version which is somewhat like looking through a window to see how it could have turned out in these United States. The British call it "questioning under caution" and the statement given is: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." They also seem to have to inform the person they can have an attorney during questioning, but there doesn't seem to be a set format for that.

3) At the Station / taping: In the U.S. there is a strong preference under the case law to not bring a person to the police station because it is coercive. The British take the opposite approach. Questioning must take place at the station outside of extraordinary circumstances and the officer must put a tape in the recording machine which is present and start it all in the presence of the suspect. While they may have switched over to digital by now, I'd bet good money that institutional inertia probably made British police departments the last major customer for cassette tape manufacturers in the world.

4) Stopping the Interview: In the US, the interview stops with the magic words "I want an attorney" or if the attorney is already present with the attorney shutting down the questioning. Apparently, the presence of a lawyer doesn't give the attorney the right to shut down the interrogation - instead only giving him the power to advise. At least two shows I watched had the suspects sitting in the chair with their attorney at the table being recorded as the officer asked question father question while the hardened criminal types being questioned say time after time after time "no comment."

5) And finally (at least for today), ranks. In the U.S. while you might see wildly varying insignia and uniforms (every police and sheriff's department wants to be unique), but the ranks are almost always modeled on the military: officer, corporal, sergeant, lieutenant, captain, etc. The British have gone their own way.  They have constables, sergeants, inspectors, chief inspectors, superintendent, chief superintendent, assistant chief constable, and chief constable. Yes, before anyone points it out, I know there are variants depending on locality (there always are). Also, at least according to the Inspector Morse series, if you are a Detective Inspector you get assigned a sergeant whose main job appears to be relegation to peonage (or perhaps drudgery since debt does not seem to be involved or, as Webster is happy to tell me the British say "being a dogsbody"). Sergeant Lewis spends most of the series getting yelled at and abused by DI Morse and mainly just rolls his eyes and keeps doing what he's doing. Going back to the ranks - I actually wish we had adopted something more like the British system. I know we've professionalized police forces et al., but it would be nice to have more separating the guys out there patrolling our streets from the trappings of militarism.

Anyway, these are the biggest differences I've noticed. And since we all know that television shows are extremely accurate in their portrayal of policing I'm sure they're 100% correct. Just remember, DON'T EVER GO TO OXFORD.

12 March 2019

Succubustic? The Harrowing Affects of BigWorditis

"The ruling’s succubustic adoption of the defense position, and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners."

Per the ABA, that's a direct quote from a petition for appeal. The ABA article, and apparently the California appellate court, concentrate on this as gender bias. I'm not so sure. That looks a lot like someone who was angry and suffering from BigWorditis.

BigWorditis is a terrible disease that inflicts one in five attorneys, one in three politicians, one in one doctors, and three in one professors in                 Studies. It is the use of large words to make one's self and one's writing look more impressive. Symptoms include using the word "one" instead of "you" in a sentence such as "It is the use of large words to make one's self and one's writing look more impressive", using large aggregate words which do not make any sense in context, and using words you seem to not understand the meaning of because they sound good and approximately correct.

As I look at the sentence above, the author clearly has two of the three symptoms. "Pseudohermaphroditic misconduct" translates misconduct of a type that is related to a person apparently, but not really, possessing both male and female genitalia. Unless the author read a study I missed (always possible), I'm not sure there is a scientifically noted or even a biased stereotypical behavior particularly associated with hermaphrodites or their pseudos - much less a particularized misconduct. This sentence fragment probably falls under both of the last two symptoms.

"Succubistic adoption" leaves one to wonder if perhaps the term aimed for was "sycophantic adoption." The two words have the same amount of syllables and hit many of the same consonant notes above the vowel downbeats. And sycophantic makes sense in context. It ain't gonna make any judge happier with you, but it does make linguistic sense. I diagnose this sentence fragment as falling into symptom three.

What the cure for BigWorditis? First of all, instead of the sensitivity training the Bar is likely to require this attorney to sleep through er . . . I mean attend, make the attorney complete one year of eighth grade English. This is should allow his language to progress to the level of simple clarity. If you are writing anything that an eighth grader couldn't comprehend then there should be some very specific reason for it. Driving that lesson home is the only known cure for this disease. Unfortunately, this outbreak has spread so far that I fear that we shan't find medicaments correspondent to the necessity.

06 March 2019

Stopping the Withdrawal of a Guilty Plea

Over the last several years the Virginia Courts Appellate have been dealing with a phenomenon under Virginia law wherein the defendant can plead guilty and then later attempt to withdraw her plea. This is all possible because of Virginia Code § 19.2-296:
A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of a sentence is suspended; but to correct manifest injustice, the court within twenty-one days after entry of a final order may set aside the judgment of conviction and permit the defendant to withdraw his plea.
The problem is that the first sentence sets no standard for the withdrawal of a guilty plea before a sentence is imposed. As you might suppose, this has led to all sorts of gamesmanship. The day of trial arrives and the defendant sees that the two witnesses from Tucson have flown in and are ready to testify against him. Therefore, he pleads guilty. A month later, well before his sentencing hearing he files a motion to withdraw his guilty plea knowing that it will be nearly impossible for the witnesses to be able to make that trip again. Or he learns that a witness moved to Tampa Bay and files the motion. or . . . or . . . or . . . 

Actually, the thing that tends to trigger most of the motions to withdraw a guilty plea seems to be when they get their presentence report and realize how stiff a sentence they are facing. No matter how brutally honest their defense attorney was with them the defendants seem to have unrealistic hopes until they see the numbers actually printed on an official piece of paper. Then they want to go back and try their luck with a jury all of the sudden.

Lacking a standard from the statute, the appellate courts have had to develop their own and it looks a little something like this (portion of a brief I wrote recently):

The Virginian appellate courts have given extensive treatment to the withdrawal of guilty pleas in the last several years. Bottoms v. Commonwealth, 281 Va. 23 (2011), Williams v. Commonwealth, 59 Va.App. 238 (2011), Booker v. Commonwealth, 61 Va.App. 323 (2012), Pritchett v. Commonwealth, 61 Va. App. 777 (2013), Ramsey v. Commonwealth, 65 Va. App. 593 (2015), Small v. Commonwealth, 292 Va. 292 (2016), & Spencer v. Commonwealth, 68 Va. App. 183 (2017). From these cases, the appellate courts have given us thorough guidance regarding the withdrawal of guilty pleas:

(A) The probability of a greater sentence than the defendant anticipated is not an appropriate ground for a guilty plea to be withdrawn. Williams, Pritchett, & Ramsey.

(B) Prejudice to the Commonwealth must be considered in determining whether to grant a motion to withdraw a guilty plea. Small, Spencer, & Booker.

(C) The defendant must offer a defense that if presented to a jury would be substantive and reasonable not dilatory or formal or he must show duress, coercion, or undue influence. Williams.

(1) This defense must be shown by testimony or affidavit; a mere assertion is not adequate. Id. & Spencer.

(2) Any duress alleged must be greater than that in a normal criminal prosecution. Booker.

(3) Defenses which are not merely dilatory or formal include (a) self-defense, (b) alibi, (c) insanity, or a (d) defense based on a proffer of specific evidence that, if accepted by the fact finder, would defeat the prosecution’s case. Booker.

(4) Defenses which have been rejected:

(a) Challenge to victim or witness’ credibility. Williams & Ramsey.

(b) Claim that prosecution must prove its case. Booker.

(c) Evidence is circumstantial. Id.

(d) Duress normal to a criminal trial. Id.

(e) Fact that a juror might find for the defendant. Id.

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Most defendants want to argue the rejected defense in (C)(4) and I think the majority I have faced fall under (a) thru (c). I've only seen one of these motions succeed and that was because the prosecution was agreeable to the withdrawal ("Sure we'll let you withdraw your guilty plea on felony snipe hunting for which we have video of you in the act and a confession in your own handwriting. When do you want your jury trial and jury sentencing?").  Still, they continue to roll in.

Capital Punishment Led to Ethics?

It's always interesting to read non-theistic attempts to explain the presence of pervasive moral traits (natural law). They're always based on multiple assumptions and guesswork; after all, until we develop tardis level tech we can't personally observe any of this and the observation of higher order primates leads to different observable behavior leading to more assumptions and guesswork. The theories they develop are all over the board and can be quite interesting even when they are pretty clearly wrong. That leads us to this article in the New Yorker: Did Capital Punishment Create Morality?

Assumptions: Beta males married. Alpha males took whichever female they wanted.

Buried in an intriguing argument that despite the fact that there is no "domesticator" we humans self domesticated, is this gem:
Civilization is founded on capital punishment—or, to give it its anthropological name, “coalitionary proactive aggression.”

The executioners were adult males, usually married. (One of alpha males’ most salient offenses was commandeering other men’s wives.) Over time, as alpha individuals were regularly killed and the gene for reactive aggression became less frequent in a population, the coalition of executioners became more stable. 
Once the beta-males were triumphant the remaining humans were supposed to have started looking to them for other rules that would keep the beta-males from killing them too. Thus developed morality.

The book may tell us what the various transgressions of the alpha-males are other than the click-baity "commandeering" of wives but the article doesn't. The use of the word commandeering seems to make it a property issue rather than any assignment of damage to the female herself except as the male is damaged by the alpha-male imposing on his property rights.

There are a few flaws here. To begin with it puts the cart before the horse. Where did the concept of property rights as a good come from? For the beta-males to combine to exterminate the alpha-male there must have been some pre-existent, normative drive stating that the quiet enjoyment of property is a good. That pre-existent drive stands in direct opposition to the claim that morality developed as a reaction to the behavior of the beta-males.

I'm also not sold on the concept of marriage as a male institution. Way back in the stone age (when I was in college) I remember arguments that pair-bonding (marriage) is a female institution. The argument went as follows. In muscle driven societies without governments that provided social safety nets and police, a mate/husband provided an advantage in the provision of food and in the protection of the female and her children; rationally, a woman would seek to bond with and keep the best mate she could. To be fair, I never completely bought into the female impetus argument either. If we assume away some sort of pre-existent normative drive toward pair bonding and the protection of offspring, why do males in general do it? In a male dominated muscle driven society, why didn't humans organize as a herd with the alpha-male controlling all females, whether for personal congress or to allow favored betas congress, and the herd protecting all children? If your answer is because that's not how humans or other high level primates organize then you have a pre-existent norm. If your answer is because pair bonding gave a greater number of males access to sex then you're back at the quiet enjoyment of property argument supra. Under either theory, there's a pre-existent norm.

Finally, I think the assumption that the beta-males won fails. It's more likely that the beta-males settled into an uneasy truce with the alpha-males. At any given moment a particular alpha-male can be pulled down. However, it's a difficult prospect and therefore the alpha-male's behavior must fall below a certain threshold before a large enough group of betas reacts to bring him down. As time progressed alphas also became less easily identified because aggressive behavior might develop into becoming a politician, a senior bureaucrat, producing movies, or becoming a college professor. And, as part of the truce, their behavior became less open. Things like prima nocta may not exist anymore, but we've all seen recent evidence of aggressive, powerful men using that power against women they perceived as either vulnerable or at least willing to partake in congress to advance their careers. Mind you, I'm not stating that I think the truce exists only as to congress with a woman. In our non-muscle driven society alphas can be male or female and there are layers upon layers of behavioral norms which an alpha might transgress against leading to failure in business, politics, or their job.

--------------------

While I'm not sure there is a truly workable non-theistic theory of morality, this one seems to fail on several levels. A more workable theory of this sort might better proceed from the need to survive and near equality.

By this I mean that when living organisms are of such near levels of force that even if one of the two "wins" it will be seriously harmed and less likely to survive subsequent confrontations, those organisms which engage in such conflict are steadily weeded out of the equation leaving behind those organisms which evaluate comparative force and act in a manner that shies away from overly destructive conflict. This would seem to be a basic principal applicable to all life from protozoa all the way up to advanced societies such as the United States and the Soviet Union during the Cold War era. This shying away from overly destructive conflict is the core of what we call morality.

Under this theory morality would be well baked in far earlier than muscle driven tribal societies of humans developed. Beta-males wouldn't often have to combine to kill an alpha that kept taking their women because the alpha already knows that taking the betas' women is immoral (a contra-indicated survival strategy). That's not to say it never happened. It's just a statement that when it did everyone would already know the alpha was using his raw power to cross a line. If the alpha went too far across that line the betas combined their lesser powers to overcome the alpha and then beta-01 becomes alpha (after all, "All animals are equal, but some are more equal than others"). Thus we have now and have always had the uneasy truce between alphas and betas that I described above.

13 December 2018

Finding the 85%

Virginia law requires anyone convicted of a felony to serve 85% of the time he is sentenced to serve. We all know this. It was part of the Truth in Sentencing reforms that went into place in 1995 and we've all told officers, defendants, victims and judges that it's 85% ever since.

And then comes the day I have to prove it. I know where it's going to be in the code: Title 53.1. - Prisons and Other Methods of Correction, Chapter 6 - Commencement of Terms; Credits and Allowances. Or at least I think I do. 

Articles 2 and 3 of Title 53.1 are about the old parole systems, although each of them has been specifically limited to convictions prior to 1995. Article 1 is just comprised of general statutes. That means the 85% limitation must be somewhere in Article 4: Earned Sentence Credits for Persons Committed Upon Felony Offenses Committed on or After January 1, 1995.

Only I can't find 85% anywhere. I do a search of the entire Title for 85% - no luck. I do a search for 15% - no luck. Stymied, I go off to other less likely titles. I do the same searches in Title 19.2 (Criminal Procedure) - nope - and then go on to 18.2 (Criminal Law). Nope again. Getting a little desperate, I even go off to read the sentencing guidelines statutes, §§ 17.1-800 through 17.1-806, to no avail.

There being no other options, I read all of Article 53.1, including the parts no longer applied in modern courts, sure that 85% will be tucked in some nook or cranny. No. Then I read it again. No 85% anywhere.

Long before I got to this point, I became well and truly convinced that it was somewhere in something I'd read. And reread. And reread. So, I decided to alter the way I was examining the statutes. I started looking at every number laid out in them to see if that could lead me to what I was missing.

Et voilà! Eureka! Bingo! Gadzooks!

It was in § 53.1-202.3. In fact, it was the first sentence of § 53.1-202.3: "A maximum of four and one-half sentence credits may be earned for each 30 days served." (a sentence credit is a day)

That is an unnecessarily strained and just out-and-out weird way to say "only 15% of a sentence may be subtracted for good behavior." They could at least use a ten day example so the math would be easier: "A maximum of one and one-half sentence credits may be earned for each 10 days served."

AAAAaaaaaarrrggg!!!!!! 

An hour of searching down the drain because of awkward, strange wording. Oh well, if math were easy everybody could do it. At least everybody but me.

And lunch break is 5 minutes from ending so I've actually got to go do the stuff I get paid to.

18 July 2018

Mislaid / Lost Property: Stealing Something "Left Behind"

Every prosecutor has run across this situation: Lady goes to store. At checkout, she takes her pocket book out and lays it down on the counter whiles she writes a check or gets her cash or debit card out. Lady then walks away and leaves the pocket book behind. Person 2 then grabs the pocket book and walks out of the store.

Unfortunately, this scenario (with infinite minor variations) happens all too often and people get mightily confused as to whether a larceny has occurred. 

It has.

An analysis of this situation initially requires an answer to the question: is the property abandoned, lost, or mislaid? Abandoned property obviously cannot be stolen. By the very nature of abandonment, the prior owner has forsaken all claims to the property. However, if  (a) the property's owner is identifiable, and  (b) it is lost or mislaid, then under Virginia common law the person who takes it has committed a criminal act (larceny).

Just so we all know, lost property is the accidental placing of a property in a location where the owner does not know its location (wallet falls out of owner's pocket) while mislaid property is the purposeful placing of an item in a location and accidental leaving of it (wallet put down on store counter). At common law this seemed to have some determination as to whether an item was stolen because personalty mislaid was deemed to be recoverable by its owner. However, the distinction between lost and mislaid does not seem to be present in modern jurisprudence. See e.g. State v. Moore, 46 N.C.App. 259 (1980).

Virginia seems to have rejected this difference in Tanner v. Commonwealth, 55 Va. 635 (1857). In this case, the Virginia Supreme Court shifts the test from "mislaid or lost" to "is the owner identifiable?"

In Tanner, the Court sets out a general common law rule that "lost property may be the subject of larceny; and that if a taking and fraudulent intent coexist with a knowledge of the owner, the crime is complete." Tanner's counsel argues that this rule is wrong and only mislaid property can be stolen. However, the Court rejects this stating:
[W]here goods are actually lost by the owner, his property is not divested; and such property draws to it the constructive possession. If in such case the original taking was felonious, with intent to take entire dominion over them at the time, and the finder at the time of taking either know the owner, or from the place where the property is found, or evidence of his previous acquaintance with the ownership of it, or the nature of the marks on it, have the means of ascertaining the owner, or have reason to believe he can be found, the taking under such circumstances with such intent and knowledge is tortious. Such possession being tortious, the taking by which it was acquired is not a lawful taking, and therefore trespass may be maintained by the owner against the taker.
 "Trespass", for those of you not up on old legal speak, is what larceny is - trespass upon the property rights of another's personalty. Et voilà, taking lost property with an identifiable owner is larceny. The analysis of the case then turned upon whether the property found had an identifiable owner. The Court determines that it did not and overturns the conviction.

In most modern cases, lost wallets, purses, pocket books, etc. will have a driver's license and or other identification in them and therefore the taking of these items will clearly qualify as larceny. However, if you find that $500 bill blowing across a parking lot or a generic gold ring while out with your metal detector at the park you haven't committed any crime because there is no identification present.

Tanner v. Com., 55 Va. 635, 636 (1857)
lost property may be the subject of larceny; and that if a taking and fraudulent intent coexist with a knowledge of the owner, the crime is complete.

Tanner v. Com., 55 Va. 635, 636 (1857)

02 May 2018

Felony Petit Larceny Does Not Require Prior Conviction Events

Virginia Code sections 18.2-96 and 18.2-104 set out the punishments in Virginia for the crime of petit larceny. Under 18.2-96, s person convicted of stealing something under a certain value ($200 currently and $500 as of 01 July 2018) is subject to up to 12 months in jail. Under 18.2-104, a second conviction is punished by the same maximum, but requires a 30 day sentence (which the judge can still suspend). A third or subsequent offense is a felony carrying up to 5 years in prison. When the amount of money needed to trigger a grand larceny (felony carrying up to 20 years in prison) changes to $500 on 01 July 2018, the "felony petit larceny" provision is likely to come into more common use than it has been in the recent past.

In particular, there is an interesting question as to whether a defendant must have been convicted of two larcenies during a prior sentencing event (or events) before he can be charged and convicted of a felony 3rd offense petit larceny. Specifically, can an indictment charge in count one that on 01 March 2018 the defendant committed a petit larceny, in count two that the defendant committed a petit larceny on 01 April 2018, and then on counts three thru five charge the defendant with felonies for petit larcenies he committed on 01 May 2018, 01 June 2018, and 01 July 2018?

The answer? Yes, you can.

Attorneys all over Virginia who just read that called me rude names and threw fruit at their monitors in the vain hope that it will somehow go through the interwebs and hit me in the face. Why? Because they're all sure it doesn't work that way. Why do they make that assumption? Because they haven't read the statute closely. So, let's look at the statute:

§ 18.2-104. Punishment for conviction of misdemeanor larceny.

Subordinate Clause A When a person is convicted of an offense of larceny or any offense deemed to be or punished as larceny under any provision of the Code, and it is alleged in the warrant, indictment or information on which he is convicted, and admitted, or found by the jury or judge before whom he is tried, that he has been before convicted in the Commonwealth of Virginia or in another jurisdiction for any offense of larceny or any offense deemed or punishable as larceny, or of any substantially similar offense in any other jurisdiction, regardless of whether the prior convictions were misdemeanors, felonies or a combination thereof,
Independent Clause A he shall be confined in jail not less than thirty days nor more than twelve months
Bridge ; and
Subordinate Clause B for a third, or any subsequent offense,
Independent Clause B he shall be guilty of a class 6 felony.

Clearly, there are two independent clauses at work here (or coordinate clauses if you prefer the older nomenclature). Both Independent Clause A and Independent Clause B can stand alone as sentences. However, both require some elucidation and that is provided in both by the subordinate clauses which precede each. This parallel construction must be considered because it indicates that the ideas expressed on both sides of the bridge are equally important - neither is subordinate to the other.  This is further supported by the use of the semicolon in the bridge as a semicolon is by its very definition "a punctuation mark; used chiefly in a coordinating function between major sentence elements (such as independent clauses of a compound sentence)."

Grammatically, then, it becomes clear that the two parts of the statute separated by the bridge have little to do with each other beside both of them fulfilling the mandate of the statute's title: "Punishment for conviction of misdemeanor larceny."  Thus, the entirety of the requirement for a felony petit larceny conviction is:
for the third, or any subsequent offense, he shall be guilty of a class 6 felony
 The reason this is important is that the felony does not require prior convictions. It only requires two prior offenses. Therefore, our theoretical indictment above wherein the defendant was charged with misdemeanors for petit larcenies on 01 March 2018 and 01 April 2018, and thereafter charged with felony petit larcenies for 01 May 2018, 01 June 2018, and 01 July 2018 would be valid because the third, and subsequent, offenses occurred after the first two.

Another proof of this is to examine the two segments of the statute as conditional statements.  In order to accomplish this we must examine the opening words of each segment. The defining part of Subordinate Clause A is "When." Similarly, "for" is the defining part of Subordinate Clause B. "When" carries a meaning of "at a point in time at which."  "For" carries a meaning of "because of." Both words set up a conditional statement (more colloquially, an if then statement). 


(if) [Condition X] (then) [Result X]
"When"
at a time at which
a person is convicted of an offense of larceny or any offense deemed to be or punished as larceny under any provision of the Code, and it is alleged in the warrant, indictment or information on which he is convicted, and admitted, or found by the jury or judge before whom he is tried, that he has been before convicted in the Commonwealth of Virginia or in another jurisdiction for any offense of larceny or any offense deemed or punishable as larceny, or of any substantially similar offense in any other jurisdiction, regardless of whether the prior convictions were misdemeanors, felonies or a combination thereof, (then) he shall be confined in jail not less than thirty days nor more than twelve months



(if) [Condition Y] (then) [Result Y]
"for"
because of
a third, or any subsequent offense, (then) he shall be guilty of a class 6 felony.


Condition X and Condition Y are exclusive conditions leading to exclusive results. Condition X requires allegation and proof of a single prior larceny conviction. This triggers a specific misdemeanor punishment under Result X. Condition Y requires a third offense to trigger Result Y. As well, although not stated in the statute, constitutional due process would require an indictment under the second segment to state that two prior offenses had occurred because it is the aggravating factor which must be proven in order impose the greater, felony punishment. Basically, this means that the difference between Condition X and Condition Y is that X requires proof of a prior conviction while Y requires proof of two prior offenses whether previously convicted or not. Each distinct condition is then tied to its distinct result.

This promises to become a much hotter area of the law as the amount stolen to trigger a felony rises to $500 on 01 July 2018 in Virginia. At least it does for felony petit larceny. Misdemeanor aggravated petit larceny will continue to be basically ignored. And it should be. There's no reason to fight that battle because there is no significant change in punishment. Sure, the punishment rises from 0 days to 12 months in jail to 1 to 12 months in jail, but it's not a mandatory minimum sentence and thus a judge can suspend every single day of it and therefore it's just a false face on the same punishment.

However, misdemeanor larcenies will start showing up with significant levels of theft involved. There''ll be shopliftings at $400+ and lots of stuff that people steal back and forth from each other (X-boxes, Play Stations, lawn mowers, grills, portable computers) are now going to fall into the misdemeanor category while still representing a huge cost to the person from whom they were stolen. There is going to be a real incentive to start pursuing those third offense felony petit larcenies.

Let the games begin!

15 November 2017

Farm Use Abuse

If you live in Virginia, you've seen a truck roaring past you on a highway and looked over to see that it doesn't have real plates. Instead, it has a piece of cardboard attached to it that says "Farm Use." Of course, there ain't a farm anywhere in shouting distance. Personally, I see two types of trucks that do this: (1) Hunks of junk which are held together by lots of duct tape and a few prayers, and (2) Brand spanking new $60,000 behemoths. Shockingly, almost no one I know believes these vehicles are being actually used for farm purposes. Now, I know what you're thinking: Surely none of the good, honest, hard working citizens of the Commonwealth of Virginia would ever try to abuse a loophole in the system. But, just in case you run into the ever-so-rare Virginian rule breaker or a guy who moved here from some Yankee State, here are the rules as I understand them.

Registered Farm Use


§ 46.2-698 - First of all, if a vehicle has a 7,500 pound "gross vehicle weight rating" then it can be a registered farm use vehicle. There are cost advantages to this as opposed to regular registration and it comes with its own DMV issued plate. Gross vehicle weight rating is the amount of weight the vehicle is supposed to be able to carry including its own weight. Most commonly, these are large pickup trucks such as the Ford F-250 or Ram 2500 or work vans.

(A) When used for farm purposes, the registered farm vehicle can only be used by the person running the farm and it can transport (1) items to market, (2) materials, tools, or supplies for the farm, (3) things incidental to regular farm operation, (3) forest products, and (4) items to a farm that is in a coop with the farmer.  However, (B) a registered farm vehicle can be used by the farmer or his immediate family for other reasons: (1) to go to church, (2) to go to school, (3) to get medical supplies, (4) to get medical treatment, and (5) to get household or family necessities.

Non-Registered Farm Use

Of course, the problem isn't really with registered farm use vehicles. The problem is with people avoiding registration altogether by slapping a plastic sign they bought online on their truck and driving it everywhere. Here are the rules for them.

§ 46.2-665 - First, there is no limitation on whom the driver can be, although the owner must be a farmer. Second, it's limited to certain classes of vehicles: (1) pickup trucks, (2) panel trucks, (3) SUV's, (4) those with a gross vehicle weight rating of over 7,500 pounds, (5) trailers, and (6) semi-trailers. While that's pretty broad it does leave out the family car and Uncle Mike's motorcycle at least.

If a vehicle is being used for farm use it can (1) cross a highway, (2) go up to 75 miles to get to another farm tract, (3) go to a repair shop, (4) go to a trash dump, (5) drive up to 75 miles to get farm supplies, and (6) transport a fruit spray vehicle, harvest transport vehicle, or vehicle used to transport unginned cotton, peanuts, or fertilizer owned by the farmer, cotton ginner, peanut buyer, or fertilizer distributor to a repair shop.

There' an interesting addendum to this found in § 46.2-673 which specifies that if no registration is required to go somewhere none can be required for the drive back. Specifically, it states no registration is required while (1) returning from the marketplace, (2) transporting supplies to a farm, or (3) transporting "ordinary and essential" food and products to a farm for use at the farm or home.

Notable Differences

Number three in the last paragraph is interesting because the statute allowing unregistered farm use vehicles,§ 46.2-665, does not allow trips specifically to buy products for home and family. This is presumably a purposeful omission because we know the General Assembly specifically allowed it for registered farm use vehicles in § 46.2-698. What the exception in § 46.2-673 appears to be is a mixed use exception. If the farmer goes to his local Tractor Supply Store, buys farm supplies, and buys some boots or a shirt there he wouldn't need the truck to be registered to drive back to the farm. Stretching it a little, if after he buys farm supplies at the Tractor Supply Store he walks to the Sav-A-Lot grocery next to the Tractor Supply Store (they are side by side in my jurisdiction) and buys that weeks' groceries he shouldn't be in trouble because he's not taken the truck anywhere once it stopped at Tractor Supply. However, if he drives across the street to buy groceries at Food City he's outside allowed use - not because he'll be driving back with supplies for home, but because the drive from the Tractor Supply store across the street to the Food City required registration.

Note also that while the registered farm use vehicle is allowed to take things to a market or point of sale, there is no such allowance for the unregistered farm use vehicle. For example, a registered farm use vehicle could go to the local Farmer's Market while an unregistered one cannot.

Perhaps the biggest difference is one wrought by our General Assembly this year. As of 01 July 2017, if anyone is driving an unregistered farm use vehicle § 46.2-665(C) allows any officer to require the driver to give the address of his farm or, if the driver can't supply the address the real property parcel identification number of the farm (whatever the heck that is). Thus, an officer still needs reasonable suspicion to pull over a registered farm vehicle, but he can pull over an unregistered farm vehicle at any time. I'm pretty sure this change in the law came out of the frustration over the widespread abuse of this exception to registration laws and hopefully it will help to curtail them.

Punishment

Not too much. Under § 46.2-613(6) the punishment is up to $250 the first time caught and a flat $250 fine every time thereafter. 

Other Statutes that Apply

 46.2-664: OK if has equipment “securely attached” which is for spraying fruit
46.2-672: OK if transporting unginned cotton, peanuts, or fertilizer.
46.2-666: OK if transporting livestock within 75 miles to the nearest storage house, packing plant, or market
46.2-670: OK if transportating wood products farm to sawmill – 75 miles
46.2-671: Mine vehicle – 20 miles – from mine to mine or repair shop
46.2-668: Out of State vehicles for harvesting: $150 permit – on driver or displayed –
only 20 miles
46.2-684: Must have lights if used at night
46.2-684.1: If covered by other insurance does not need automobile insurance

10 November 2017

Suing Your Boss for Someone Else's Illegal Act

When you take a job doing criminal defense you will work with people who don't follow greater societal norms. Obviously, this can be a problem at times, but it can't be too much of a shock.

Unless you are a female public defender in the Chicago area.

Apparently, a group of prisoners have been making a game of masturbating in front of female PD's and touching them inappropriately (note that I said above they have problems following greater societal norms not those of their fellow inmates). The female PD's are understandably distressed by this. Their solution? They're suing their boss and the sheriff (third parties with collateral involvement instead of the second party bad actor).

Look, I know that a fat, old guy like me doesn't inspire this kind of behavior from inmates. Still, the article indicates that the sheriff has been trying different things trying to stop this. However, as anyone who has worked with inmates will tell you, they have a lot of time to figure out ways around any control you can put on them and some of them are really creative in finding ways to misbehave.

I'm not sure why the head PD is getting sued at all. She doesn't have any control over the inmates and the only thing the article says she did was to object when prisoners were kept in handcuffs as a public defender looking out for her clients ought to.

There's not enough information here to make any kind actual decision, but this seems like the kind of behavior that is extremely hard or impossible for anyone to control. There'll be some finger pointing and fussing, but little can really be accomplished. The PD office isn't going to stop advocating for the liberty interests of defendants just so life will improve for its employees - or at least it shouldn't. The Sheriff doesn't have infinite resources and is trying to handle things in a way that allows him to keep meeting payroll. Will the problem be solved or will this end up settling so that some cosmetic changes occur, the members of the class get 37 cents each, and the law firm filing the suit gets paid its legal fees? Only time will tell, but since the final settlement will most likely be held private there's very little chance we'll ever find out.

18 October 2017

Emotional Support Animals

We get calls from service industry owners and managers all the time about animals they believe are fake support animals. It has become common for people to put a little "Service Animal" vest on Fifi and take her into the store or hotel and screech at the poor employee who dares to say anything that he's not allowed to question her service animal. These managers have seen many animals which are clearly providing no service gotten past the rules - usually claimed as an "emotional support animal." As one hotel manager put it to me, "I don't see them providing any service unless you count retrieving the ball their owner throws."

I addressed Virginia's laws in reference to this last year and you'll remember that Virginia specifically disclaims emotional support animals. This year, I'm going to try to lay out the federal laws.1

Service Animals
Are Not
Emotional Support Animals

There's a difference and it makes a difference. Under the umbrella of the Americans with Disabilities Act, 28 CFR 35.136 (backed more generally by 42 USC 12182) allows service animals, and service miniature ponies, to go pretty much anywhere the person they are serving is allowed to go as long as the animal is (1) under control and (2) housebroken (and not too big for the locale for the miniature horse). 28 CFR 35.104 specifically defines a service animal as (1) a dog that is (2) trained to do work or tasks directly related to the disability. Mostly this applies to dogs meant to help with physical disabilities. However, there is provision for dogs meant to help in psychiatric situations if the dog is trained to prevent or interrupt impulsive or destructive behavior. The definition specifically excludes emotional support animals.

This is the general rule. However, there are two exceptions. The first is found in 49 USC 41705 which has been interpreted to allow emotional support animals on airplanes (because nothing could go wrong there). That's all under the Air Carrier Access Act and if you want further info on that you'll have to look it up yourself because shockingly as a prosecutor in the mountains of Virginia I don't have much reason to research that amazingly stupid idea in depth.

The second exception is government supported housing (e.g. HUD housing and college dorms). In 2013, HUD issued a Notice (FHEO-2013-01) in which it ruled that emotional support animals somehow were required under the Fair Housing Act (banning the consideration of "race, color, religion, sex, familial status, or national origin" in the sale or rental of realty - 42 USC 3604 et al.) and the Rehabilitation Act of 1973 (if money comes from a federal grant or program a person cannot be excluded because of her disability - 29 USC 794). It also noted the ADA, but this Notice was clearly meant to go farther than the ADA allows. As well, it is very clear that the FHA does not apply on its face although I'm sure there's a CFR or court case out there somewhere providing some sort of sophistry to support its use. Still, even without these two Acts, the Rehabilitation Act would seem to apply.

The Notice points out that neither the FHA or Rehab Act require assistance animals to be trained and that neither requires the animal to be a dog. Since neither addresses assistance animals at all, this is true. It then sets out a two part test as to whether the animal is allowed: (1) Does the person have a physical or mental impairment that substantially limits one or more major life activities? (2) Does the person making the request have a disability-related need for an assistance animal? If the answer to both is "yes" then the HUD housing or college dorm must allow the animal unless (3) the animal is a direct threat to health and safety, or (4) it cannot be stopped from causing substantial damage. As part of question 2 above, the Notice makes it clear that emotional support is included in that question.

PROOF

Obviously, all this is just begging for abuse. What steps can be taken to combat it?

For those facing a person claiming that Pepe, their skunk, is an emotional assistance animal and must live in their HUD housing or dorm room. Here, there is room for a significant requirement of proof. Per the Notice above, if the disability is not obvious and/or the need for the animal is not obvious, the person must provide "reliable" (1) proof of the disability and (2) the disability related need for the animal. The "reliable" part is important here because there is a cottage industry of "doctors" online who will give anybody a letter stating they need an animal for fee after they fill out a short online questionnaire. If it isn't from a local doctor who is continuing treatment for your renter then the letter probably isn't worth the paper it's printed on.

Outside of housing situations, there are two questions allowed per 28 CFR 35.136.  If it is not obvious what the dog (or miniature horse) is there for a hotel or shop employee can ask (1) if the animal is a service animal, and (2) what work or task has the animal been trained to perform. Unfortunately, if the person is dishonest and smart enough to give an answer that complies with the physical aid requirements of the CFR you cannot inquire any further. However, if they go for the "emotional support" answer which seems to be the go to answer for most of them you can refuse them entry. And, if you are a place that serves food you may be required to under health and safety laws.
 
CONCLUSION

Hopefully, this combined with the Virginia specific post will give everyone some guidance as to what the rules are for different support animals so that the next time a harried front desk clerk calls in from The Carlyle Hotel (Appalachian Division), you'll have the answer at the tip of your tongue - not that it will keep the customer from pitching a fit over the fact that the hotel is violating her rights by not letting her take her emotional support turkey vulture with her into her room.

---------------- 
1. Be advised that federal laws and regulations are Byzantine in the extreme and I am almost guaranteed to have missed something. 

06 October 2017

Why Does Anyone in Virginia Get Charged With False Pretenses?

I'm in the middle of a conference where we are discussing insurance fraud. Generally, it's a fairly useful conference discussing a subject which can be complex and hard to prosecute. However, the entire time we've been here they've been obsessive about the primary charge being Obtaining Money by False Pretenses (Va Code 18.2-178). Personally, I think this is an error that proceeds from the fact that people get blinders on them and ignore common law when there is a written statute.

I believe that a much easier prosecution proceeds from Larceny by Trick, a common law form of larceny punished, as most grand larcenies are by Va. Code 18.2-95 (I'm assuming that if an insurance company cares enough to get the ball rolling it will be over $200). Now, when your intrepid author brought this up and another experienced attorney asked me "What about venue?" This was a good question because the situation involved three co-conspirators at least one of which may not have even been at the scene of the claimed incident and therefore had a question as to where he should be charged.

Of course, I flat-footed it. Honestly, I haven't had a defense attorney argue venue for a long time and while the rule for its venue is in the statute for False Pretenses (it can be prosecuted where "(i) any act was performed in furtherance of the offense, or (ii) the person charged with the offense resided at the time of the offense"), I blanked on the general venue statute and made an argument that wasn't the strongest in the world. Consequently, the other prosecutors decided to go with False Pretenses and it probably didn't make much of a difference in the scenario we were working with.

However, as some people have discovered over the years, I have a stubborn streak a mile wide when it comes to arguing legal issues and I'm still convinced that Larceny by Trick should always be a favored charge over False Pretenses.

Larceny by Trick has the same elements of general larceny save one: "the element of trick substitutes for the wrongful taking element required by larceny."  Reid v. Commonwealth, 65 Va. App. 745, 753 (2016). So, larceny by trick would be caption accomplished by the voluntary giving of the money or property to the defendant through any sort of falsity known by the defendant to be false. Another way of thinking about this is that the trespass upon the victim's property is not realized by the victim initially because of a falsity knowingly put forth by the defendant. The remaining elements of asportation and the intent to permanently deprive the victim of the property remain the same as well as the monetary requirement for Grand Larceny ($200).

Obtaining by False Pretense is a species of fraud and therefore has two further limitations that larceny by trick does not. First is the transfer of title. This is a fraud statute instead of a larceny and therefore "an essential element of larceny by false pretenses is that both title to and possession of property must pass from the victim to the defendant." Shropshire v. Commonwealth, 40 Va. App. 34, 39 (2003). Second is the immediate misrepresentation requirement. For this statute to apply "the false representation [must be] of a past or existing fact." Hubbard v. Commonwealth, 201 Va. 61, 66 (1959). In fact, when monetary payouts are involved the title requirement is discounted and "cases tend to turn on whether the misrepresentation was one of existing fact which makes out false pretenses or some other fraud which makes out larceny by trick."  Reid at 750.  But See Owolabi v. Commonwealth, 16 Va. App. 78 (1993)(case about credit cards as choses in action which had dicta importing the fraud requirements into larceny by trick).

Combining the requirements of the statute and case law, False Pretenses requires that (1) defendant obtained, (2) by false pretense, (2.01) under an immediate misrepresentation (3) money/property, (3.01) that may be subject to larceny, and (3.02) the title thereto.

I'm hard pressed to think up an example that could be charged under False Pretenses that couldn't be charged instead under Larceny by Trick. And why wouldn't you if you could? Under Larceny by Trick you don't have an immediate misrepresentation requirement and no issues about whether title passed. It's cleaner, simpler prosecution.

Additionally, a prosecution under larceny gives at least one collateral advantage. False Pretenses is a fraud the proof of which causes a defendant to be "deemed guilty of larceny." Thus, it doesn't support a conviction of Conspiracy to Grand Larceny under Va Code 18.2-23 and a conspiracy would have to be prosecuted under Va Code 18.2-22 and carry less potential incarceration.

Venue:  And here's where I was a true idiot. Sure, the False Pretense statute sets out its own venue requirements, but the requirements for all other crimes aren't much different. If there's a crime in Virginia and the prosecution is uncertain where exactly it occurred then the default is where the defendant lives, or if not a Virginia resident where he was caught, or if he neither lives in Virginia nor is caught here any jurisdiction where a related crime occurred. Va Code 19.2-244. Consequently, if I know the crime occurred, but I have a hard time nailing down the exact locale of the criminal activity, I just try it where the defendant lives.

Simplest answer in the world and I just flat-footed it. Venue shouldn't provide any problems in prosecuting a Larceny by Trick.