Lux v. Commonwealth, Record No. 1476-12-4

• Citation: Record No. 1476-12-4
• Case Date: November 12, 2013
• Court: Court of Appeals of Virginia

HERBERT W. LUX, S/K/A HERBERT W. LUX, JR.
v.
COMMONWEALTH OF VIRGINIA

Record No. 1476-12-4

COURT OF APPEALS OF VIRGINIA

NOVEMBER 12, 2013

UNPUBLISHED

Present: Chief Judge Felton, Judge Kelsey and Senior Judge Bumgardner
Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY CHIEF JUDGE WALTER S. FELTON, JR.
FROM THE CIRCUIT COURT OF STAFFORD COUNTY William H. Shaw, III, Judge Designate

G. Price Koch (Spencer Mayoras Koch Cornick & Meyer PLC, on brief), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Herbert W. Lux ("appellant") appeals his conviction of obstruction of justice, in violation of Code § 18.2-460(A), following a jury trial in the Circuit Court of Stafford County ("trial court"). Appellant contends the trial court erred by refusing to set aside the jury's verdict of guilty because the evidence was insufficient to show (i) that he intended to obstruct the general district court judge in the performance of his duties, and (ii) that he committed a direct act that prevented the court from conducting its judicial business. He further contends that the Honorable William H. Shaw, III, Judge Designate, erred by ruling that he was not required to retake the oath of office after being designated, pursuant to Code § 17.1-106(A), by the Chief Justice of the Virginia Supreme Court to preside over cases in the trial court.

Page 2

I. BACKGROUND

On appeal, "'we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.'" Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)).

On October 6, 2011, Belinda Yates ("Yates") was arrested for committing obstruction of justice by force, a Class 5 felony, in violation of Code § 18.2-460(C). At some point after her arrest, Yates signed a document granting her power of attorney to appellant.¹ On January 11, 2012, appellant accompanied Yates to the Stafford County General District Court for her preliminary hearing on the charge of felony obstruction of justice. Appellant was not licensed to practice law in Virginia or in any other state. Nevertheless, citing the signed power of attorney document, he planned to "act[] on [Yates'] behalf" during her preliminary hearing in the general district court.²

Immediately prior to Yates' preliminary hearing, the presiding district court judge called a fifteen-minute recess to enable the court reporter to prepare for the hearing.³ When there were only a few minutes remaining in the recess, appellant and Yates moved from their seats in the courtroom audience to a table in the front of the courtroom reserved for litigants and their licensed attorneys ("counsel table").

Page 3

On the day of Yates' preliminary hearing, Stafford County Sheriff's Office Deputy S.D. Epple was working in his capacity as bailiff for the general district court. Deputy Epple informed the district court judge, who was not in the courtroom during the recess, that appellant was seated at counsel table with Yates. The district court judge told Deputy Epple that only defendants and their licensed attorneys were permitted to sit at counsel table. The district court judge informed Deputy Epple that the court could not proceed with Yates' preliminary hearing until appellant removed himself from counsel table. Deputy Epple returned to the courtroom.

Deputy Epple and Deputy K. Steininger, both in uniform and displaying their badges of authority, approached counsel table, where appellant and Yates remained seated. Deputy Epple asked appellant if he was an attorney licensed to practice law in Virginia. Appellant replied that he was not. Deputy Epple told appellant that he must leave counsel table if he was not a licensed attorney. Appellant stood up, affirmatively asserted to the deputies that he had a right to sit at counsel table, and informed them that he was "acting under a power of attorney for Belinda Yates."⁴ Deputy Steininger informed appellant that the district court judge would not return to the courtroom or proceed with Yates' preliminary hearing until appellant moved from counsel table and took a seat in the audience.

When appellant persisted in remaining at counsel table, Deputy Epple "use[d] [] force, because [appellant was not] going on [his] own, to move [appellant] away from the table."

Page 4

Deputy Epple subsequently arrested appellant for obstruction of justice, in violation of Code § 18.2-460(A).⁵

At his trial de novo in the Stafford County Circuit Court,⁶ appellant asked the Honorable William H. Shaw, III, a retired judge, to disqualify himself from presiding over appellant's trial. Pursuant to Code § 17.1-106(A), the Chief Justice of the Supreme Court had previously designated Judge Shaw to assume judicial duties in the circuit for a period not exceeding ninety days. However, appellant contended that Judge Shaw lacked authority to preside over his trial because he had not retaken the required oath of office, pursuant to Code § 49-1, after being designated by the Chief Justice to assume judicial duties in the circuit.⁷ Judge Shaw denied appellant's motion. Judge Shaw held that the oath of office he had previously taken "stay[ed] in effect when [he] retired and stayed on the Supreme Court callback list."⁸

Page 5

At appellant's trial in the circuit court, Deputy Epple testified that his responsibilities in the general district court included ensuring that no unauthorized individuals sat at counsel table. He told the jury that the district court judge would not enter the courtroom while appellant remained at counsel table with Yates. He further testified that the district court judge was unable to hear cases on the docket on January 11, 2012 because appellant insisted on remaining at counsel table.

Appellant, who represented himself at trial, testified in his defense. He asserted that, pursuant to Yates' signed power of attorney, he had a right to "[c]ounsel" and remain with Yates at counsel table during her preliminary hearing in the district court. He contended that he did not immediately leave counsel table when instructed to do so by the deputies because he was gathering the papers he had previously arranged on the table.

The jury heard the evidence in the case and subsequently returned its verdict finding appellant guilty of obstruction of justice, in violation of Code § 18.2-460(A). The trial court thereafter accepted the jury's sentencing verdict requiring appellant to pay a fine of $2,500 as punishment for his offense.

...