OUTCOME: Not Guilty of DWI, Despite .11 BAC, Based on Video
This case was appealed after a conviction in General District Court. Upon appeal, my client was found not guilty. The Circuit Judge was able to be convinced based on my clients clear and coherent in...teraction on the video. In spite of a .11 Breath Test, the Video helped to establish that there was no probable cause for arrest. This case has been posted with permission from the client, with his name removed.
A transcript of the 2nd trial can be found on my web site at this link: http://www.mcglonelaw.com/library/TrialWin4.17.2008.pdf
Criminal defense
Powell v. Commonwealth, 96 Vap UNP 0540954 (1996)
N/A
OUTCOME: Appealed
Powell v. Commonwealth, 96 Vap UNP 0540954 (1996)
UNPUBLISHED
IN THE COURT OF APPEALS OF VIRGINIA
ARGUED AT ALEXANDRIA, VIRGINIA
JAMIL POWELL
v.
COMMONWEALTH OF VIRGINIA
Record No. 0540-95...-4
Decided: January 11, 1996
Present: Judges Baker, Willis, and Overton
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Thomas S. Kenny, Judge
Affirmed.
COUNSEL
Paul McGlone (Howard R. Porter; McGlone & Porter, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
MEMORANDUM OPINION* BY JUDGE NELSON T. OVERTON:
Jamil Powell was convicted in a jury trial of distribution of a controlled substance under Code § 18.2-248. He appeals his conviction, contending that the trial court erred in denying jury instructions on both an entrapment defense and an accommodation defense. We disagree and affirm the conviction.
If credible evidence in the record supports the defendant's theory of defense, the trial judge may not refuse to grant a proper, proffered instruction. Delacruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 105 (1990). “‘An instruction, however, must be supported by more than a mere scintilla of evidence.’†Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563, 564 (1993) (quoting Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992)).
Powell requested both entrapment and accommodation instructions. The evidence in this case warrants neither.
“‘Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.’†McCoy v. Commonwealth, 9 Va. App. 227, 231, 385 S.E.2d 628, 630 (1989) (quoting Stamper v. Commonwealth, 228 Va. 707, 715, 324 S.E.2d 682, 687 (1985)). “If the criminal design originated in the mind of the defendant and the police did no more than ‘afford an opportunity for the commission of a crime’ by a willing participant, then no entrapment occurred.†McCoy, 9 Va. App. at 231, 385 S.E.2d at 630 (quoting Huffman v. Commonwealth, 222 Va. 823, 828, 284 S.E.2d 837, 840 (1981)). Powell claims that he gave the cocaine to someone other than the police officer and that the money he received at that time was for an unrelated debt. The Commonwealth argued, and the jury found, that Powell independently negotiated a deal with the police officer. When the jury was instructed to find Powell guilty only of a sale to the police officer, neither theory of evidence justifies an entrapment instruction.
Code §§ 18.2-248 and 18.2-263 create a presumption against an accommodation distribution. Stilwell v. Commonwealth, 219 Va. 214, 225, 247 S.E.2d 360, 367 (1978). An accommodation defense is viable where the distributor acted “not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance . . . .†Code § 18.2-248(D). The intent to profit includes any consideration received or expected. Heacock v. Commonwealth, 228 Va. 397, 407, 323 S.E.2d 90, 95 (1984). In both the Commonwealth's and Powell's versions of events, money was exchanged at the same time the cocaine was exchanged.
Based on the evidence at trial, the trial court properly refused to grant the requested jury instructions.
Affirmed.
FOOTNOTES
* Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Sexual harassment
Smith v. S. W. Rodgers Co., Inc., 99 Vap UNP 0003994 (1999)
N/A
OUTCOME: Appealed
IN THE COURT OF APPEALS OF VIRGINIA
HEATHER R. SMITH
v.
S. W. RODGERS COMPANY, INC.
AND
VIRGINIA EMPLOYMENT COMMISSION
Record No. 0003-99-4
Decided: July 20, 1999
Present: Judges Benton, ...Coleman and Willis
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, F. Bruce Bach, Judge
Affirmed.
COUNSEL
(Paul McGlone, on brief), for appellant.
No brief for appellee S. W. Rodgers Company, Inc.
MEMORANDUM OPINION* PER CURIAM:
The Special Examiner found as follows:
In 1996, one of [Smith's] supervisors grabbed her rear end and pinched her and [Smith] responded by punching him in the stomach. The supervisor did not repeat that conduct. [Smith] complained to one supervisor about the other, but she did not take her complaints to higher management.
On or about September 16, 1997, one of the supervisors grabbed [Smith's] breast and she pushed him away. A short time later, the other supervisor pulled up in his vehicle and made a comment about [Smith's] rear end.
Following the September 16th incident, Smith went to the owner's office to report this incident to the owner. The owner was unavailable.When Smith met with the personnel director and explained what had happened, the personnel director told her that she should have sought redress from him sooner. The Special Examiner found the following:
The personnel director assured [Smith] that he would speak to the supervisors involved. He also told [Smith] that he would arrange to assign her to a job where she would not have contact with the supervisors.
The personnel director and Smith then spoke to the dispatcher, who advised Smith to report to work on September 19, 1997. The dispatcher agreed to allow Smith to report on September 22, 1997.
The commission denied Smith's application for unemployment benefits. On this appeal, Smith contends the trial court erred in affirming the ruling of the commission. She argues that the work environment was so hostile that she could not reasonably be expected to return to work.
Code § 60.2-618(1) states that: “An individual shall be disqualified for benefits upon separation from the last employing unit . . . if the Commission finds such individual is unemployed because he left work voluntarily without good cause.†Determining whether an employee voluntarily quit without good cause is a mixed question of law and fact reviewable on appeal.
[W]e [have previously] considered the requirement of “good cause†in the context of an employee who voluntarily leaves employment and stated: “[B]efore relinquishing . . . employment . . . the claimant must have made every effort to eliminate or adjust with [the] employer the differences or conditions of which [the claimant] complains. In other words, a claimant must take all reasonable steps to resolve . . . conflicts with [the] employer and retain [that] employment before voluntarily leaving that employment.
The record establishes that Smith had a legitimate complaint regarding her employment. The conduct of her supervisors was deplorable and unacceptable. Nevertheless, When Smith sought to register her complaint, the personnel director met with her and responded with action. Despite the personnel director's assurance that he would speak to the supervisors and that he would transfer her to another job site where she would no longer come into contact with the two supervisors, Smith quit.
The record supports the commission's finding that Smith voluntarily quit her position without good cause. There was no evidence that the transfer offered to Smith was to a less advantageous assignment. The personnel director stated he would speak to the supervisors about their conduct. We cannot say that the commission improperly concluded that Smith's need for assurance was not “a reasonable expectation under the circumstances.†Accordingly, the commission did not err in disqualifying her from receiving unemployment benefits.
Affirmed
