Virginia Legal Trends and More

Wednesday, October 26, 2011

Woman cleared in pooper scooper trial

Waste not

October 26th, 2011 · No Comments · Fairfax Circuit Court

Here’s the scoop on the poop. The dog poop case in Fairfax, that is.

In Fairfax yesterday, a woman charged with violating a county pooper-scooper ordinance was found not guilty by a jury after a day-long trial.

Why did this case take a full day of court time and require the empanelling of a jury? The woman, Kimberly Zakrzewski, missed a court date in general district court in June. The charge is a misdemeanor; she was found guilty in her absence and fined $250. She appealed to circuit court, according to the Washington Post.

At the center of the case is a dog named Baxter, a small, white Westie-bichon frise mix. Zakrzewski is a stay-at-home mom who sometimes cares for the pooch.

Zakrzewski was the target of a complaint by two neighbors, the Cornell sisters, Virginia and Christine, The Cornells and Zakrzewski have feuded for some time, the Post reported. On the witness stand, Christine Cornell accused Zakrzewksi of routinely leaving Baxter’s piles behind at their condo complex near Route 50. She said one day she followed the dog and Zakwrezski, snapping pictures.

Zakrzewski denied the allegations, saying she always carries a baggie with her to clean up Baxter’s mess.

This isn’t the first time the Cornells and Zakrzewski have squared off in court: In 2008 the sisters filed a criminal complaint charging their neighbor with reckless driving through their condo complex. A jury found Zakrzewski not guilty.

In yesterday’s proceeding, a defense picture of what the Cornells said was Baxter’s waste product prompted an exchange between Kosa So, Zakrzewski’s lawyer and Michelle Berman, Baxter’s owner.

So asked, “Is this consistent with the stool Baxter creates?”

Berman said, “I’ve never seen anything that big come out of my little dog.” Baxter weighs 19 pounds.

Berman also told presiding Judge Jane Marum Roush that she had brought a baggie with Baxter’s waste as potential evidence, but she left it in the car.

“I don’t think you would have gotten through security,” Roush deadpanned.

After a day of testimony, the end of this tale was quick: The jury was out for less than 20 minutes: Not guilty.

- Paul Fletcher

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Monday, October 24, 2011

Virginia Beach puts arrest warrants online

Arrest warrants in Va. Beach now accessible on-line

To access the warrant search feature, go to www.vbgov.com/epro and click on “Active Warrant Search.”

By Kathy Adams
The Virginian-Pilot
© October 15, 2011

VIRGINIA BEACH

Residents can go online to find information about arrest warrants through a new Web application launched by the Police Department this week.

For several years, residents have been able to look at basic police reports online through the department's ePro system.

Starting Wednesday, the system began including information on active arrest warrants, according to a police news release.

The goal is to encourage people to report information about wanted people, such as their whereabouts, according to the release.

The city has more than 7,000 active warrants, police said.

The new application allows residents to search by a person's name, alias and warrant type, according to the release. It also includes photos when available, and a list of the city's most-wanted people.

On Friday, that list included 238 warrants for offenses ranging from robbery to arson.

To access the warrant-search feature, go to www.vbgov.com/epro and click on "Active Warrant Search."

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Friday, October 21, 2011

Nonpayment on Rental TV Not Fraud

By Deborah Elkins
Published: October 20, 2011

Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

The Court of Appeals reverses defendant’s bench trial conviction for fraudulent conversion of a leased plasma television set and dismisses the indictment; without the written statutory notice to return under Va. Code § 18.2-118(b), the commonwealth’s evidence was insufficient to prove intent to defraud based on defendant’s failure to make the agreed monthly rental payments.

On July 16, 2009, defendant entered a 104-week lease purchase agreement for a 50-inch plasma television set with a rent-to-own firm. The agreement required an initial payment of $10, followed by weekly payments of $37.99 or, at her option, monthly payments of $123.99. The set was valued at $2,370 with total payments due of $3,951.

The agreement allowed defendant to return the set if she was unable to make the payments. Defendant’s application provided her DMV identification and contact information for her landlord, employer and six references. A manager for the rental firm approved her application the same day and another employee delivered the set the next day. After defendant failed to make further payments or return the set, the manager had difficulty contacting her and her references; a cell phone was listed for the landlord and some numbers listed were no longer in service. The manager did not send defendant a written demand to return the set under Code § 18.2-118(b). The trial court denied defendant’s motions to strike, convicted her of fraudulent conversion and sentenced her to five years with three years suspended.

Defendant’s appeal renews her challenge to the sufficiency of evidence to prove the required intent to defraud. We agree her conviction must be reversed and her indictment dismissed. We review sufficiency of evidence under a deferential standard. However, the record here is insufficient as a matter of law to prove intent to defraud beyond a reasonable doubt. Defendant was not sent the written demand to return in 10 days authorized in §18.2-118(b) for prima facie evidence of intent to defraud. The record evidence proves only that defendant breached her written lease agreement. We held in Commonwealth v. Hensley, 7 Va. App. 468 (1988), that without fraud an accused cannot be imprisoned for mere failure to pay a contract debt.

Defendant’s conviction is reversed and her indictment dismissed.

Bert v. Commonwealth (Felton), No. 1499-10-1, Oct. 18, 2011, Portsmouth Cir. Ct. (Grissom) Brenda C. Spry for appellant, John W. Blanton AAG. VLW 011-7-318 (UP), 6 pp.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Wednesday, October 19, 2011

Spitwad school assault case hits the Virginia Supreme Court

Mark Holmberg Staff reporter

10:52 a.m. EDT, October 19, 2011

RICHMOND, VA (WTVR) - Is a pea-shooter a weapon?

Is it legal for a 14-year-old high school student who fired plastic spitballs in a hallway to be questioned by school officials and police without a parent or a lawyer present, and then charged with assault?

Is the school’s code of conduct consistent with the punishment, which included a half-year suspension?

On Tuesday, a three-judge panel at the Virginia Supreme Court in downtown Richmond heard arguments and will determine whether the entire court should decide the case.

Rita Dunaway, an attorney for the Rutherford Institute, argued that classifying the pea-shooter as a weapon was a stretch and the student shouldn’t have been accused of “violent criminal conduct” and punished under the school’s code of conduct.

The weapon: the casing from an ink pen and toy pellets made out of hollow plastic.

The crime scene: the hallways at Spotsylvania High School, early last December.

The shooter: Andrew Mikel II, an honor student and ROTC member who says he dreamed of being a Marine, like his father, his entire life. His plan to attend the Naval Academy has been jeopardised by the misdemeanor charges. Even though they were dropped after he did community service, the record remains.

He said he was bored and fired his homemade, low-velocity pea-shooter at fellow students. There were no documented injuries.

“I did something stupid,” Andrew said after court. But he doesn’t think it was a criminal act worthy of the charges and punishment. “I can’t get it through my head why they would do that.”

The Rutherford Institute, a civil and religious liberties watchdog group, has taken on zero-tolerance cases like this across the country, in which there have been extreme reactions to innocent pranks and mistakes – like bringing nail clippers to school - in the wake of Columbine and other school violence.

"It's absurd that Andrew Mikel was not only suspended for the school year but characterized as a criminal," said John W. Whitehead, president of The Rutherford Institute. "In addition to being arbitrary and capricious, the actions of school officials violate fundamental notions of fairness and established principles of due process. I hope the Virginia Supreme Court will bring justice to bear for Andrew Mikel."

Whitehead said heavy-handed zero-tolerance policies ruin children’s lives and rob them of their educations.

Andrew’s father, Andrew Mikel, said the school violated its own code of conduct by not having a parent present when the police questioned his son.

He finds it “insane” that what his son did had the same weight as bringing a shotgun to school in the county’s eyes.

“We’re criminalizing children,” Mikel said. “If the Supreme Court doesn’t stop this, they’re saying anything that can launch a projectile can be considered a weapon. Case in point, you launch a rubber band off your finger. We’re making criminals out of all these kids in school, for doing innocent pranks and other things. And yes, discipline is necessary, but not criminal punishment. You know, they take something simple, and now they’ve got four state agencies – they’ve got the Department of Justice, they’ve got the commonwealth’s attorney, they’ve got the sheriff’s department and the school board involved in someone shooting a spitwad. And they wonder why our country is broke.”

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Thursday, October 06, 2011

School bus beating lawsuit seeks $20M

Suit alleges abuse of autistic child on school bus

Video Photos

Alleged assault on Bedford school bus (no audio) (Added: October 05, 2011)

Surveillance video shows the bus driver and an assistant hit and kick 11-year-old Timothy Earl Kilpatrick, a severely autistic student who is strapped to his seat. (more)

By: Bill McKelway
Published: October 06, 2011

» 20 Comments | Post a Comment

A Bedford County school bus driver and her assistant repeatedly physically abused an 11-year-old autistic student, causing him lasting emotional harm and physical injuries, a suit seeking $20 million alleges.

In graphic videos taken by a surveillance camera on a Bedford County school bus, the driver or her assistant can be seen hitting the frightened student with a fly swatter as well as kicking, choking and beating him with their hands.

The student, whose autism left him barely able to speak, was strapped with double harnesses to his seat. He appears to be crying in anguish and at times flails out with his arms and legs trying to stop his assailants or strike them back.

The video footage was secured by attorneys representing single parent Thomas E. Kilpatrick of Bedford, whose son, Timothy, was the target of the attacks. The incidents occurred in September 2009 and were eventually documented in surveillance videos confiscated by police.

Kilpatrick, though, said he had brought concerns to school officials nearly a year earlier after his son started showing signs of injuries and fears about riding the bus. Tapes of incidents during that time could not be located, according to the suit.

The father said Wednesday during a phone interview that he was unable to get school personnel to respond to concerns that his son was being harmed when he first reported in November 2008 that Timothy was coming home with bruises and scratch marks on his arms and face.

"He ran inside the house and went to his room and wouldn't show me what was wrong," his father said. "He would just stare straight ahead. There was no talking," said Kilpatrick, a construction worker who now takes his son back and forth to a regional Lynchburg school that specializes in teaching disabled children.

"This case is about the expectations that every parent should have regarding the treatment and safety of their children in our schools," said Roanoke attorney P. Brent Brown, the lawyer representing Kilpatrick and his son. "That expectation is especially critical when it comes to how disabled children are treated outside the protection and care of their parents."

Kilpatrick, 47, said he was too angered by the video to watch it in its entirety, but even the portion that he watched confirmed his worst fears.

Timothy, who is less than 6 feet tall but weighs 270 pounds, has grown in the two years since the video was recorded, when he weighed less than 200 pounds. There are few people the father trusts with his son, he said, and over the years he has learned how to calm his son's behavior by quietly talking with him.

The suit, filed in Lynchburg Circuit Court on Tuesday, represents a rare instance in which direct, visual evidence of apparently unprovoked physical harm against a student can be seen. "Getting that video evidence was significant," Brown said, noting that Lynchburg police recovered the footage during a criminal investigation of the incidents.

Brown said he obtained the footage through a Freedom of Information Act request to police.

It was not clear Wednesday whether criminal charges were brought against the school bus driver, Alice Davis Holland, and an assistant, Mary Alice Evans, neither of whom has been employed by Bedford County Public Schools since Sept. 30, 2009, according to school system spokesman Ryan Edwards. D. Patrick Lacy Jr., who represents the school system, said Wednesday that the suit has not been served and that he could not comment on its allegations.

The case also has been joined by the Virginia Office for Protection and Advocacy, an independent state agency tasked with overseeing the rights of the disabled.

The school system and its agents, the suit alleges, "denied Timothy his liberty, by restraining him and subjecting him to grossly abusive injurious supervision" and violated the Virginians with Disabilities Act.

The suit does not seek remedies for educational lapses but addresses "grievous and permanent noneducational physical and psychological injuries that will incur medical and mental-health bills in an attempt to treat his injuries."

The 43-page suit was filed in Lynchburg because the allegations deal with conduct of the school system and other people at a point when Kilpatrick was aboard the bus and within the Lynchburg city limits on his way to Laurel Regional Special Education Center in the city.

In addition to the Bedford County School Board and the two adults on the bus, the suit names as a defendant Sara Staton, the school system's director of special services.

The suit alleges that the School Board and school employees had a legal duty under the Virginians with Disabilities Act to provide Timothy "with full and equal access to and enjoyment of" benefits of the transportation system "without fearing or facing threats to his physical or psychological safety or well-being."

Administrators failed to properly train bus personnel in how to deal with Timothy's disabilities and to reasonably ensure his safety, the suit alleges.

bmckelway@timesdispatch.com (804) 649-6601

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Monday, October 03, 2011

Abuse Victim’s Blog Entry Outside Record

By Deborah Elkins
Published: September 30, 2011

Tags: Domestic Relations, Per Curiam Opinion, Virginia Court of Appeals

Stepfather is not entitled to supplement the record with evidence of his 17-year-old stepdaughter’s blog entry; the Court of Appeals affirms a founded sexual abuse disposition initiated by a local department of social services and sustained by the Commissioner of Social Services and circuit court below.

The local department of social services investigated a complaint that stepdaughter, age 17, had been abused by stepfather when she was between four and ten years old. She detailed sexual contacts and her mother described her daughter’s physical and behavioral symptoms during this time. Her therapist confirmed that stepdaughter provided a consistent account of events while in therapy. The local department found Level 1 sexual abuse, a finding upheld in informal conference and on stepfather’s appeal to the Commissioner of Social Services and circuit court.

On appeal stepfather argues the circuit should have allowed him to present evidence of stepdaughter’s blog entry and should have discounted her testimony as inherently incredible. We disagree, applying our deferential standard of review to agency determinations under the Administrative Process Act applicable under § 63.2-1526 (B). Our interpanel accord doctrine requires that we follow our decisions in School Board v. Nicely, 12 Va.

App. 1051 (1991), and J.P. v. Carter, 24 Va. App. 707 (1997), interpreting §2.2-4027 to limit judicial review to the agency record. Stepfather failed to present his due process argument to the circuit court and Rule 5A:18 bars considering it. The hearing officer properly found stepdaughter’s testimony more credible; the record provides the requisite preponderance of evidence for a finding of child abuse under DSS regulations, 22 VAC 40-705-10.

Judgment affirmed.

Spurrier v. Conyers (per curiam), No. 0772-11-1, September 27, 2011, Virginia Beach Cir. Ct. (Padrick) Brian A. Thomas

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474