Unger v. Commonwealth
| Docket Number | 0003-22-2 |
| Decision Date | 10 January 2023 |
| Parties | ASHLEY MICHELLE UNGER v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
From the Circuit Court of Hanover County J. Overton Harris, Judge
Elliott B. Bender (David C. Reinhardt; Bender Law Group PLLC; Reinhardt Law Firm, PLLC, on briefs), for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges AtLee and Malveaux Argued at Richmond, Virginia
Following a bench trial, the circuit court convicted appellant Ashley Michelle Unger of contributing to the delinquency of a minor, in violation of Code § 18.2-371. On appeal, she argues that: (1) the circuit court did not have jurisdiction over this matter pursuant to Code § 16.1-241, (2) the evidence was insufficient to prove a violation of Code § 18.2-371, and (3) the circuit court erred in admitting the "irrelevant and speculative" testimony of Department of Social Services ("DSS") worker Shannon Hill regarding closed investigations and "as to whether the behavior at issue would have been a violation of a child protective services safety plan."[1] For the following reasons, we reverse.
"On appeal of criminal convictions, we view the facts in the light most favorable to the Commonwealth, and [we] draw all reasonable inferences from those facts." Johnson v. Commonwealth, 73 Va.App. 393, 396 (2021) (alteration in original) (quoting Payne v. Commonwealth, 65 Va.App. 194, 198 (2015)). So viewed, the facts reflect the following.
Unger has a minor son, T.W., who was four years old at the time of the incident. T.W. is on the autism spectrum. They live in a suburban neighborhood. One morning, Unger's neighbor, Amber Martin, woke up to her dog barking at 7:00 a.m. Martin saw T.W. on her back porch shortly thereafter. She took a picture of him through the glass door and sent it to her mother-in-law at 7:06 a.m. She asked T.W. what he was doing, and he said he was playing. Martin took T.W. back next door to his and Unger's house. She asked him to go back inside using the door he had left from; T.W. went in through the "side porch," and Martin followed. Martin did not see Unger downstairs and did not feel comfortable going upstairs to find her. She told T.W. to go "find mommy" but that she would wait outside for him if he could not find her or needed something. T.W. came back outside in "less than three minutes" and said Unger was sleeping. Martin and T.W. went back to her house so she could get her phone. She and T.W. went back to Unger's. Martin knocked on the door "fairly loud[ly]," and waited outside with T.W. and her dog. Unger answered the door around three minutes later. Martin said Unger appeared "mad" at her when she came to the door. Martin estimated that from when she found T.W. to when he was returned to Unger was "at least" 20 minutes. Later that afternoon or evening, "[a]fter [Unger] yelled at [her] for returning her son," Martin called the police.
Shannon Hill of the Hanover County DSS testified for the Commonwealth. Over defense objection, she testified that she had a previous case involving T.W. that was "no longer pending." Again over defense objection, Hill testified that a safety plan had been put into place for T.W. to address his "leaving the home unauthorized." As part of the plan, Unger had since put multiple locks on the doors and installed an alarm system. She also built a six-foot-tall fence around the property. Nevertheless, because "[t]he plan required th[at] mom would . . . ensure safety at all times," and Unger acknowledged that she may have left a deadbolt unsecured, Hill opined that Unger had failed to follow the safety plan.
Unger testified in her own defense. She said that on the day of the incident, she "got up at about seven o'clock." She said that she was with T.W., helping them both get ready for an 8:00 a.m. speech therapy appointment. She left him in the bathroom and went back upstairs to get clothes for them and to pack T.W.'s school bag and assorted things for a visit to his grandparents. When she heard Martin knock on the door, she said she was in the "middle of getting ready." She believed that T.W. had been in the bathroom and had not realized he had left the house, nor did she know how he had gotten out.[2]
Prior to trial, Unger filed a motion to quash or dismiss indictment, arguing that, because this is a misdemeanor case with a minor victim, it could not be brought by direct indictment to the circuit court because Code § 16.1-241 vests "exclusive original jurisdiction" in juvenile and domestic relations district ("J&DR") courts over matters involving "[a]ny parent . . . of a child . . . [w]ho has been abused or neglected." Code § 16.1-241(F).[3] The circuit court heard argument and denied the motion. Following a bench trial, the circuit court convicted Unger and sentenced her to 30 days in jail, with all 30 days suspended. This appeal follows.
Because Unger's jurisdictional challenge is fundamental to the circuit court's power to preside over this matter, and thus our jurisdiction on appeal, we address that argument first before turning to the sufficiency of the evidence.
To the extent our analysis of either the jurisdictional challenge or the sufficiency of the evidence requires us to examine the statutory language, "we review issues of statutory construction de novo on appeal." Miller v. Commonwealth, 64 Va.App. 527, 537 (2015). "When ruling upon the sufficiency of the evidence, we grant the judgment of a trial court sitting without a jury the same weight as a jury verdict and will not disturb that judgment on appeal unless it is plainly wrong or without evidence to support it." Ellis v. Commonwealth, 29 Va.App. 548, 554 (1999).
Unger first argues that the circuit court lacked jurisdiction over this matter. She reasons that, because this is a criminal case with a minor victim, it could not be brought by direct indictment to the circuit court because Code § 16.1-241 vests "exclusive original jurisdiction" in J&DR courts over matters involving "[a]ny parent . . . of a child . . . [w]ho has been abused or neglected." Code § 16.1-241(F).[4] Accordingly, Unger reasons, the matter needed to be brought on appeal from a conviction in the district court under Code § 16.1-136 or certified as an ancillary misdemeanor under Code § 19.2-190.1.
The Supreme Court of Virginia has previously addressed the function of Code § 16.1-241 in the context of a direct indictment in Payne v. Warden of Powhatan Correctional Center, 223 Va. 180 (1982). There we held that, although Code § 16.1-241 "vests in [J&DR] courts exclusive original jurisdiction to conduct preliminary hearings in [certain] cases," id. at 182 (addressing "adult defendants charged with felonious offenses, except murder and manslaughter, committed against juvenile victims" (quoting Jones v. Commonwealth, 220 Va. 666, 669-70 (1980))), this jurisdiction does not extend to when a grand jury directly indicts a defendant. Instead, "where an adult accused is directly indicted by a grand jury, without having been previously arrested and charged, the jurisdiction of the circuit court is thereby invoked, and no preliminary hearing is required, even though the victim of the crime involved may be a juvenile." Id. at 184. That is because the "legislative purpose of Code § 16.1-241 is to afford juvenile defendants and juvenile victims the protection and expertise of the juvenile court during the preliminary, or certification, hearing stage of a criminal prosecution." Id. But where there is a direct indictment, those preliminary stages are not at issue, and there are "no protections or considerations that can be given a juvenile victim in a [J&DR] court that cannot be afforded in or commanded by a court of record following a grand jury's direct indictment of a defendant." Id.
Although Payne addressed direct indictments in the context of felony charges (there, rape, sodomy, and abduction), there is no logical reason to conclude that the reasoning articulated in Payne does not apply with equal force to misdemeanor charges-the question is what forum is best suited to provide "protection and expertise," and thus has jurisdiction, over "the preliminary, or certification, hearing stage of a criminal prosecution," Payne, 223 Va. at 184, which are not at issue when a defendant is direct ly indicted. The answer to that question does not meaningfully change based upon the range of punishment that the court may impose.[5]
Unger instead relies on Jones, 220 Va. at 666, and Pope v. Commonwealth, 19 Va.App. 130 (1994) superseded by statute, 1996 Va. Laws ch. 914, as recognized in Burke v. Commonwealth, 29 Va.App. 183 (1999). Yet neither of these cases involved a direct indictment. In Jones, the defendant received a preliminary hearing in the general district court and was subsequently tried in the circuit court. Jones, 220 Va. at 666. However, it became clear during trial that the victim was 17 at the time of the offenses, so the indictments were dismissed, Jones was recharged, appeared for a preliminary hearing in the J&DR court, and reindicted. Id. at 667-68. Jones appealed on the grounds of double jeopardy. We affirmed his convictions, concluding that jeopardy did not attach at the general district or initial circuit court proceeding, because "'exclusive original jurisdiction' in Code § 16.1-241 must be given its plain meaning," id. at 669-70, and the general district court, and subsequently the circuit court, did not have jurisdiction over that initial proceeding. In Pope, the defendant waived his right to a preliminary hearing...
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