Calloway v. Commonwealth.

August 6, 2013:

              On appeal, the Virginia Court of Appeals upheld a conviction by the Circuit Court of Pittsylvania County of a felony violation of a protective order, holding the evidence sufficient to find appellant “furtively entered” the victim’s home.  Under the VA Rules 16.1-253.1(C), a first time violation of a protective order is normally charged as a misdemeanor.  However, under Rule 16.1-253.2, the violation is elevated to a felony when a perpetrator “furtively enters” the home of the protected party while the protected party is present.

            In the instant case, appellant went to the home of the victim between the hours of midnight and 1:00 am.  All the lights were off, the doors and windows were locked, and the victim was asleep on the couch.  The victim was the only one present in the home.  Appellant then proceeded to enter the home by breaking through a bedroom window on the side of the house.  The victim was woken by the noise and she attempted to get away, running out of the front door.  However, she was intercepted in her front yard by the appellant and dragged back inside at knife-point.  A neighbor saw the incident and called the police.  Upon hearing sirens the appellant fled, but was subsequently discovered and arrested in the nearby woods.

            The Virginia Court of Appeals rejected the appellant’s argument that the noise he made in breaking the window and the brazenness of the subsequent attack negated the “furtive” requirement to convict him of a felony violation of a protective order.  The Virginia Court of Appeals examined the statute and the legislative history, finding that the purpose of the law is to allow more severe punishment for violations of protective orders, where perpetrators “surprise[e] victims in [their] homes”.  Indeed, as the Virginia Court of Appeals noted, this appellant chose a method of entry that was the most likely to allow him to enter the home and take the victim by surprise.  The fact that appellant made some noise upon entry, enough to wake the victim, does not entitle him to a lesser charge.  The Virginia Court of Appeals explained that the violation need not be accomplished with “ninja-like stealth,” but rather with an aim to surprise the victim.  This is precisely what occurred in the case at bar.  As such, the ruling of the trial court was affirmed and the conviction of felony violation of a protective order upheld.

By: Law Offices Of Jezic & Moyse, LLC.

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