29 September 2006

Question About Court of Appeals Contradictions

A question I was recently emailed:

"As part of a project, I've been asked to try and find some examples of criminal cases where the Va Court of Appeals has sent "conflicting signals." This is part of an effort to give the appellate court constructive criticism. So . . . I wonder if you have a useful gem or two you could think of - either cases or subject areas in general, or even vague hairbrained ideas?"

Personally, off the top of my head I can only think of two things. First is the restriction of the single larceny doctrine to only larcenies. The second is the rule of lenity in Virginia: "all criminal law statutes are to be construed strictly against the Commonwealth." Recited in a large number of cases and then ignored it is given incredibly strict interpretation and application when applied to 19.2-187 (now neutered by the General Assembly because of that strict interpretation).

I'm sure there are better examples out there. Anyone? Anyone? Bueller?


Tom McKenna said...

Actually Ken, sorry to say, the Court recently extended the single larceny doctrine to firearm possession cases. Acey v. Commonwealth, 29 Va. App. 240, 511 S.E.2d 429 (1999).

Tom McKenna said...

Well, 1999 is not recent, but it seems like just yesterday. Geez, I must be getting old!

Ken Lammers said...

I remember the case, but that just makes it seem more inconsistent to me. The single larceny doctrine makes all sorts of sense - it keeps people from being charged for every key on the key chain when there really is only one theft event. The same argument can be made for possession of the firearms: only one possession event.

However, the nature of the charge is different. Stealing the key ring is one act. Possessing the various keys is several possessions. It seems to me that the very core of the single larceny doctrine was, before the case you mention, a statement that larceny was more about the act of taking instead of the act of possessing.

In fact, you've probably pointed out a a perfect example. The court had held the line for years on what was covered by this doctrine and then it flipped around and allowed possessing 3 guns at the same time become the equivilent of stealing 3 guns at the same time. Of course, after that case the court went back to its original hard line approach.