Dufresne v. Commonwealth

• Decision Date: 09 February 2016
• Docket Number: Record No. 0281-15-2
• Court: Virginia Court of Appeals
• Parties: VICTORIA ELIZABETH DUFRESNE v. COMMONWEALTH OF VIRGINIA

VICTORIA ELIZABETH DUFRESNE v. COMMONWEALTH OF VIRGINIA

Record No. 0281-15-2

COURT OF APPEALS OF VIRGINIA

FEBRUARY 9, 2016

VIRGINIA:

In the Court of Appeals of Virginia on Tuesday the 22nd day of March, 2016.

Circuit Court No. CR14-F-4184

Upon a Petition for Rehearing En Banc

Before the Full Court

On February 22, 2016 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on February 9, 2016, and grant a rehearing en banc on the issue(s) raised in the petition.

On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on February 9, 2016 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and served on opposing counsel. In addition, twelve printed copies of each brief shall be filed. It is further ordered that the appellee shall file an electronic version and twelve additional copies of the appendix previously filed in this case.¹

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By: original order signed by a deputy clerk of the Court of Appeals of Virginia at the direction of the Court

Deputy Clerk

UNPUBLISHED

Present: Judges Petty, Beales and Senior Judge Frank

Argued at Richmond, Virginia

MEMORANDUM OPINION^* JUDGE ROBERT P. FRANK

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Gregory L. Rupe, Judge

Dorian Dalton, Senior Assistant Public Defender, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Victoria Elizabeth Dufresne (appellant), after being indicted for robbery, in violation of Code § 18.2-58, was convicted in a bench trial of grand larceny, in violation of Code § 18.2-95. On appeal, she contends the trial court erred in denying her motion to set aside the verdict and in finding her guilty of grand larceny, which she contends is not a lesser-included offense of robbery. For the reasons stated, we reverse the trial court.

BACKGROUND

Since our decision is based on the procedural aspects of this case and not the actual facts of the offense, we limit our factual recitations to the procedural history of the case.

Appellant was indicted and tried for robbery. After the Commonwealth rested, appellant moved to strike the evidence, maintaining the evidence failed to prove the taking of the victim'sproperty was accomplished by violence, intimidation, or threat. After appellant argued her motion, the following exchange occurred:

The Court: What are you telling me she is guilty of?

[Defense Counsel]: Larceny.

The Court: Grand larceny?

[Defense Counsel]: They prove value with the cash. So yes. I would say that they have met the burden for grand larceny.

Appellant concluded her renewed motion to strike by saying, "For those reasons, I'd ask for the charge to be dropped down to grand larceny." The trial court overruled appellant's motion but ultimately convicted appellant of grand larceny. Appellant's sentencing hearing was set for February 5, 2015.

On January 26, 2015, appellant filed a motion to set aside the verdict, arguing that grand larceny is not a lesser-included offense of robbery, and contending that she should be convicted only of petit larceny. The Commonwealth filed a response to appellant's motion stating that "[t]he Commonwealth concedes that defense counsel's motion would have merit -- except for the principle that defense counsel may not approbate and reprobate by inviting error and then seek reversal of the conviction based upon such invited error. Rowe v. Commonwealth, 277 Va. 495, 502-503 (2009)."

On February 5, 2015, after hearing argument on appellant's motion, the trial court denied the motion and sentenced appellant on the grand larceny charge.

ANALYSIS

Appellant contends the trial court erred in reducing the robbery charge to grand larceny, instead of petit larceny, since grand larceny is not a lesser-included offense of robbery.² "Thisappeal presents a pure question of law to which we apply a de novo standard of review." Conley v. Commonwealth, 284 Va. 691, 693, 733 S.E.2d 927, 928 (2012).

Procedural Bar

We first address whether appellant is procedurally barred from asserting her argument.

It is uncontroverted that, at trial, appellant agreed that grand larceny was a proper offense for which she could be convicted. Nevertheless, while the trial court still had jurisdiction over the case,³ appellant filed a motion to set aside the verdict, arguing that grand larceny was not a proper offense for which she could be convicted because it is not a lesser-included offense of robbery. Appellant now challenges on appeal the trial court's decision to deny her motion to set aside the verdict and to convict her of grand larceny.

Analytically, the contemporaneous objection rule embodied in Rule 5A:18 is instructive.

The contemporaneous objection rule, embodied in Rule 5A:18 in the Court of Appeals and Rule 5:25 in this Court, is based on the principle that a litigant has the responsibility to afford a court the opportunity to consider and correct a perceived error before such error is brought to the appellate court for review. Reid v. Baumgardner, 217 Va. 769, 773, 232 S.E.2d 778, 781 (1977). The contemporaneous objection rules in each court exist "to protect the trial court from appeals based upon undisclosed grounds, to prevent the setting of traps on appeal, to enable the trial judge to rule intelligently, and to avoid unnecessary reversals and mistrials." Reid v. Boyle, 259 Va. 356, 372, 527 S.E.2d 137, 146 (2000) (quoting Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988)). These rules are not limited to evidentiary rulings and require objection while the tribunal is in a position to correct a claimed error. Id.; Reid v. Baumgardner, 217 Va. at 774, 232 S.E.2d at 781.

Williams v. Gloucester Sheriff's Dep't, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003).

Clearly, the motion to set aside in this case afforded the trial court an opportunity "to consider and correct a perceived error"—that the court had convicted appellant of a crime that was neither charged nor a lesser-included offense of a charged crime—"before such error [was] brought to the appellate court for review." Appellant's assignment of error and her argument on appeal is the identical one contained in her motion to set aside. Although appellant erred in requesting the court to convict her of grand larceny, something the court could not legally do, she nevertheless brought the error to the court's attention while the court still had jurisdiction over the case and still had the opportunity to correct its error. Therefore, we conclude appellant is not barred from contending grand larceny is not a lesser-included offense of robbery.

Nevertheless, the Commonwealth argues the doctrines of "invited error" and "approbate/reprobate" bar appellant's contentions on appeal. It is well-settled Virginia law that

[a] litigant is not allowed to "approbate and reprobate." Hurley v. Bennett, 163 Va. 241, 252, 176 S.E. 171, 175 (1934). This Court has stated that a party may not "in the course of the same litigation occupy inconsistent positions." Id.; see alsoRowe v. Commonwealth, 277 Va. 495, 502, (2009) (this day decided) (citing Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006) and Powell v. Commonwealth, 267 Va. 107, 144, 590 S.E.2d 537, 560 (2004)). It is improper for a litigant to invite error and take advantage of the situation created by her own wrong. Rowe, 277 Va. at 502, 675 S.E.2d at [164]; Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988).

The prohibition against approbation and reprobation forces a litigant to elect a particular position, and confines a litigant to the position that she first adopted.

Matthews v. Matthews, 277 Va. 522, 528, 675 S.E.2d 157, 160 (2009).

The Commonwealth relied at trial on the Supreme Court's decision in Rowe as the focal point of its argument. In Rowe, 277 Va. at 500, 675 S.E.2d at 163, Rowe was initially convicted of attempted capital murder, despite his argument that felony assault and battery on a policeofficer was a lesser-included offense of attempted capital murder. Upon conviction, Rowe filed a motion to reconsider, arguing inter alia that "if the trial court will consider the lesser-included offenses under the attempted capital murder of a police officer charge, [appellant] is not guilty of any lesser-included offenses . . . ." Rowe v. Commonwealth, 07 VAP UNP 3196061, Record No. 3196-06-1 (Aug. 14, 2007). Rowe filed a post-trial motion to reconsider, where he again urged the trial court to convict him of assault and battery on a police officer. The trial court vacated its finding of guilt on the attempted capital murder charge and convicted Rowe of assault and battery of a law enforcement officer, as he had requested. Rowe, 277 Va. at 500, 675 S.E.2d at 163. Rowe then petitioned this Court for appeal, arguing for the first time that he could not be convicted of assault and battery of a law enforcement officer because it was not a lesser-included offense of attempted capital murder. Rowe, 07 VAP UNP 3196061. This Court denied the petition for that assignment of error, concluding that "[b]ecause appellant never raised this issue at trial, Rule 5A:18 bars our consideration of this question on appeal." Id. The Supreme Court concluded it was "not necessary to specifically address the question of Rowe's compliance with Rules 5A:20(c) and 5A:18 because Rowe invited the very error of which he now complains. His approbation and reprobation is necessarily fatal to his...