Docket – December 4, 2018

NOTE: With Virginia federal court administration closed in honor of Pres. George H.W. Bush on December 5, 2018, there will be no Docket on December 5, 2018.

Court of Appeals of Virginia

Phillips v. Commonwealth (P), CAV (panel).

The court dismissed a petition of actual innocence as to the petitioner’s convictions for the malicious wounding, abduction with intent to defile, forcible sodomy, and rape of a 10-year-old in 1990.

The victim’s 2017 declaration, stating that she could have identified the wrong man as her rapist, is not a recantation and must be considered in light of the fact that it comes more than a quarter-century after the attack. Further, DNA testing results do not exonerate the petitioner. There remains a confession by petitioner which a factfinder could certainly believe, despite the petitioner’s subsequent challenges. The victim still adamantly maintains that her attacker was an African-American male who was wearing a Chicago Bulls cap, which the petitioner was seen carrying in his hand within two hours of the attack and approximately half a mile from the park where the rape occurred. The petitioner admitted that he was in the park around the time of the attack. Finally, the petitioner had a gold tooth on the left side of his mouth, matching the victim’s description of her assailant shortly after the attack. The court cannot conclude that no rational factfinder would have found proof of guilt beyond a reasonable doubt.

Watson-Scott v. Commonwealth (U), CAV (Malveaux) from City of Richmond (Cavedo).

In the defendant’s trial for second-degree murder, evidence was sufficient to support findings of malice and transferred intent. A rational juror could have found that when the defendant fired a deadly weapon multiple times up St. James Street he was attempting to shoot a specific person — here, a man who had been walking and talking with him just a minute before. Although the victim was not that person, she was a bystander who suffered direct and immediate harm that was within the scope of the defendant’s effort to shoot his intended target.

Affirmed.

Taylor v. Commonwealth (U), CAV (Huff) from Hampton (Jones).

Sufficient evidence supports the defendant’s conviction for attempted identity theft after she tried to cash a stolen check. The check bore the victim’s name, bank account number, and forged signature. Although the defendant didn’t affirmatively misrepresent her identity to the bank teller, the check wouldn’t have been useful without the victim’s account number, name, and forged signature. When the defendant presented the check to be cashed, she attempted to “use” these pieces of the victim’s identifying information to obtain money.

Affirmed; remanded to correct a clerical error.

McInnis v. Commonwealth (U), CAV (Petty) from Va. Beach (Shockley).

The defendant’s Facebook posts, in which he referenced selling drugs illegally, were admissible during his sentencing for use of a firearm in the commission of a murder, use of a firearm in the commission of a robbery, robbery, and conspiracy to commit a robbery.

The Facebook posts allowed the jury to infer that the victim was killed and robbed merely for pecuniary gain. Additionally, evidence that McInnis was selling drugs stolen from the victim was relevant and probative of him being a danger to society. The posts would not inflame the passions of the jurors,  particularly when compared with the brutality of the offense.

Affirmed.



Categories: Daily Dockets

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