Osman Osman v. Commonwealth of Virginia ( 2022 )

VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 22nd day of November, 2022.
Osman Osman, Appellant,
against Record No. 1416-21-4
Circuit Court No. FE-2019-0000407
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing
Before Judges Huff, Raphael and Lorish
On November 9, 2022 came appellee, by the Attorney General of Virginia, and filed a petition praying
that the Court set aside the judgment rendered herein on October 25, 2022, and grant a rehearing thereof.
On consideration whereof, the petition for rehearing is granted, the opinion rendered on October 25,
2022 is withdrawn, the mandate entered on that date is vacated, and this appeal will be reconsidered by the
panel of judges that originally considered the matter.
Pursuant to Rule 5A:35(a), the appellant may file an answering brief within 21 days of the date of
entry of this order. Should the appellee elect to do so, she may file a reply brief within 14 days of the date on
which the appellant’s brief is filed. An electronic version of the brief shall be filed with the Court and served
on opposing counsel.1
A Copy,
Teste:
A. John Vollino, Clerk
original order signed by a deputy clerk of the
By: Court of Appeals of Virginia at the direction
of the Court
Deputy Clerk
1
The guidelines for filing electronic briefs can be found at
www.courts.state.va.us/online/vaces/resources/guidelines.pdf.
COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Huff, Raphael and Lorish
Argued at Arlington, Virginia
OSMAN OSMAN
OPINION BY
v. Record No. 1416-21-4 JUDGE GLEN A. HUFF
OCTOBER 25, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Penney S. Azcarate, Judge
John W. Pickett (Pickett Law Group, PLLC, on brief), for
appellant. Appellant submitting on brief.
Katherine Quinlan Adelfio, Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Osman Osman (“appellant”) was convicted by a jury in Fairfax County Circuit Court (the
“trial court”) of four counts involving violations of a protective order, two counts of felony
abduction, and one count of misdemeanor domestic assault against a family member. Appellant
now appeals those convictions on the following grounds: First, appellant challenges the trial
court’s admission of his prior bad acts. Second, appellant argues that the Code § 18.2-47 charge
of abducting his child, J.O., should have proceeded as a misdemeanor rather than a felony.
Third, appellant alleges that the period of delay between his arrest and eventual trial violated
both his statutory and constitutional rights to a speedy trial. Fourth, and finally, appellant claims
that the evidence presented at trial was insufficient to sustain a felony conviction of abducting
his wife because the abduction was merely incidental to the assault of his wife.
For the following reasons, this Court affirms all of appellant’s convictions except for the
felony abduction of J.O. As to that single assignment of error, this Court agrees that the trial
court erred by permitting the Commonwealth to prosecute appellant’s abduction of J.O. as a
felony, rather than a misdemeanor, in direct contradiction to the provisions of Code
§ 18.2-47(D). Therefore, this Court reverses and vacates appellant’s felony abduction conviction
for J.O. and affirms appellant’s remaining convictions.
I. BACKGROUND
In accordance with well-settled principles of appellate review, this Court considers the
facts “in the light most favorable to the Commonwealth, the prevailing party at trial.” Poole v.
Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)). In doing so, this Court discards any evidence presented by appellant that conflicts
with the Commonwealth’s evidence and regards as true all credible evidence favorable to the
Commonwealth and all reasonable inferences drawn therefrom. Gerald, 295 Va. at 473; Parks v.
Commonwealth, 221 Va. 492, 498 (1980).
As of March 24, 2018, appellant was married to Ellina Letyvska and they had one child
together, named J.O. Due to ongoing physical and emotional abuse by appellant, Ms. Letyvska
left the marital home in February 2018 and sought a temporary preliminary protective order for
herself and J.O. The Fairfax County Juvenile and Domestic Relations District Court (the “JDR
court”) issued an ex parte preliminary protective order on February 22, 2018 (“February PPO”),
under Code § 16.1-253.1, based on Ms. Letyvska’s representations that she believed appellant
was a threat to her life and safety.
The February PPO prohibited appellant from having any contact with the protected
parties—Ms. Letyvska and J.O.—and from being within five hundred feet of them at all times.
A full hearing on the February PPO was scheduled for March 8, 2018, at which appellant
requested more time to retain and consult with counsel. In granting appellant’s request, the JDR
court issued an extended preliminary protective order (“March PPO”) and scheduled a full
-2-
hearing on that order for March 27, 2018. The terms of the March PPO remained the same as
those in the February PPO, including the provision prohibiting appellant from having any contact
with either Ms. Letyvska or J.O.
Appellant violated the March PPO on March 24, 2018, at approximately 12:00 p.m. in the
parking lot next to Gold’s Gym in Chantilly, Virginia (the “gym”). On that date, a Saturday,
Ms. Letyvska took J.O.—who was two and a half years old at that time—to the gym with her in
the morning and parked her car in the lot next to the gym. At approximately 12:00 p.m.,
Ms. Letyvska left the gym and walked towards her car while holding J.O. in her left arm. As she
opened the passenger side door to put down her bags, appellant appeared behind her and
demanded that she come with him. When Ms. Letyvska did not immediately comply, appellant
began dragging and pushing her towards the open back door of a Ford SUV (the “SUV”) parked
perpendicularly approximately five to six feet behind Ms. Letyvska’s car.
At trial, Ms. Letyvska testified that the SUV was not the vehicle appellant usually drove
and that she had in fact never seen that SUV before. She tried to resist appellant by falling to the
ground to make it harder for appellant to get her into the SUV. While Ms. Letyvska was sitting
on the ground under the open door with her back against the SUV’s rear tire, appellant began
hitting Ms. Letyvska on the back of her head and neck with a closed fist. Ms. Letyvska was still
holding J.O., who was screaming and crying in her arms. Appellant then began trying to pull
J.O. away from Ms. Letyvska.
This commotion drew the attention of David Sobeck, who was also a member of the gym
as well as an off-duty special agent with the Pentagon Force Protection Agency. After leaving
the gym and getting into his car in the parking lot, Mr. Sobeck saw Ms. Letyvska holding J.O.
and sitting next to the left rear tire of the SUV with her back pressed against the car while
-3-
appellant stood over her, gesticulating wildly with his arms. Concerned by what he saw,
Mr. Sobeck got out of his car and walked toward Ms. Letyvska and appellant.
When he was approximately twenty to thirty feet away, Mr. Sobeck saw that
Ms. Letyvska was “completely distraught,” and he heard her screaming to call 9-1-1 because she
needed help. Mr. Sobeck also heard the child in Ms. Letyvska’s arms crying. Mr. Sobeck
continued to approach, but when he was only approximately five to seven feet away, appellant
pulled a firearm out from under his sweatshirt and pointed it at Mr. Sobeck, saying, “Get the fuck
out of here or I’ll fucking shoot you.” At appellant’s trial, Ms. Letyvska testified to also seeing
appellant pointing the gun at Mr. Sobeck, although she didn’t see from where appellant had
retrieved it. Appellant claimed at trial that he only brandished a “BB gun” at Mr. Sobeck.
Regardless, Mr. Sobeck retreated to his car and called 9-1-1. Appellant then resumed
trying to force Ms. Letyvska into the SUV. Before appellant succeeded, another bystander drove
by and indicated that the police were on their way. In response, appellant got into the driver’s
seat of the SUV and drove away without Ms. Letyvska and J.O. Evidence later presented at trial,
including appellant’s own testimony, established that appellant had rented the SUV from Avis
Budget on March 23, 2018, with a return date of March 24, 2018, but that appellant instead
abandoned the vehicle on that date and fled to New York after his encounter with Ms. Letyvska
and J.O. in the gym parking lot.1 Shortly after appellant left the gym, the police arrived in the
parking lot and interviewed both Ms. Letyvska and Mr. Sobeck.
In response to the events of March 24, 2018, Detectives Susan Anderton and T.L. Hulse
executed a search warrant of appellant’s home on March 29, 2018. Although appellant’s parents
were in the home at that time, appellant was not present and did not return.
1
Avis Budget later reported the SUV as stolen.
-4-
Six months later, on September 20, 2018, police officer Leonardo Buenaventura received
a dispatch regarding an abandoned vehicle. Upon arrival, he saw the vehicle was a Ford SUV
with tags that had been reported stolen. He found a Green Card in the center console with
appellant’s name, which was linked to an “outstanding warrant for a criminal case.” Officer
Buenaventura immediately passed this information along to Detectives Anderton and Hulse who
then executed a search warrant on the SUV. The evidence presented at appellant’s trial proved
that this SUV was the same one into which appellant had tried to force Ms. Letyvska and J.O. on
March 24, 2018.
Detective Anderton testified at appellant’s trial that the back passenger seats of the SUV
were folded down and two black zip ties were secured around the child safety seat restraint bar in
the backseat area. She described the zip ties as being fashioned in a loop such that a person’s
wrist could fit through it and the zip tie could then be pulled tighter. Detective Anderton further
testified that the gym-size duffel bag found behind the driver’s seat contained diapers, men’s
clothing, and assorted papers, including a photocopy of appellant’s Bulgarian passport and
United States permanent resident card. Appellant admitted at trial that the items found in the
SUV, including the duffel bag with clothing and diapers as well as the Green Card and other
documents, belonged to him.
Through the ongoing police investigation, Sergeant Josh Moser, a detective from the
fugitive task force, discovered evidence that appellant was staying in New York City. He and
Detective Hulse traveled to New York where, with the assistance of United States Marshals, they
arrested appellant on November 27, 2018. Appellant was extradited to Virginia in December
2018 and held without bond on charges of abduction, assault, and violating a protective order.
The JDR court scheduled a preliminary hearing on appellant’s charges for January 14,
2019, which was continued until February 21, 2019, on the joint request of both parties.
-5-
Appellant then made two additional requests for adjournment on February 21, 2019, and March
28, 2019. The JDR court finally held the preliminary hearing on May 3, 2019, at which it found
probable cause to believe appellant had committed a felony and certified the case to the trial
court.
The parties first appeared before the trial court on May 23, 2019, and the case was
continued to May 31, 2019, for selection of a trial date and for appointment of new counsel at
appellant’s request. On May 31, 2019, the trial court set a trial date of September 23, 2019.
Appellant requested a continuance on September 9, 2019, due to the unavailability of two
defense witnesses. The trial was rescheduled for January 13, 2020, via a calendar control order
(“CCO”), in which defense counsel initialed and checked the box for a waiver of speedy trial.
On December 30, 2019, appellant again sought a continuance for additional time to
review discovery materials provided by the Commonwealth. The trial was rescheduled for
March 30, 2020, via a CCO issued on January 8, 2020, in which defense counsel again checked
the waiver of speedy trial box.
The Supreme Court of Virginia issued its first emergency order relating to the COVID-19
pandemic on March 16, 2020, in which it restricted nonemergency proceedings “including jury
trials, subject to a defendant’s right to a speedy trial.” Order Declaring a Judicial Emergency in
Response to COVID-19 Emergency, 1-2 (Va. Mar. 16, 2020).2 The Court subsequently issued a
series of additional orders extending the judicial emergency and tolling statutory speedy trial
2
Additional references in this opinion to the Supreme Court’s first order and subsequent
related orders are to “emergency order” or “EDO of [date].” See EDO of Apr. 22, 2020, at 1
(referring to the Supreme Court’s first three orders “collectively . . . as the ‘Emergency
Declaration Orders’”).
-6-
deadlines.3 See EDOs of Mar. 27, 2020, to May 27, 2022.4 In September 2020, the Court
explicitly clarified that the tolling provisions remained in effect despite approval of any circuit
court’s “plan to restart jury trials” and would continue to remain in effect “unless amended by
future order.” EDO of Sept. 11, 2020, at 1-2. The Court issued no such amendment prior to
appellant’s trial in July 2021. In fact, the Court’s fortieth emergency order extending the judicial
emergency and tolling statutory speedy trial deadlines was issued on May 27, 2022. See EDO of
May 27, 2022 (“While the Speedy Trial Act, Va. Code § 19.2-243, has its own tolling provisions,
speedy trial act deadlines continue to be tolled by this order during the ongoing Period of Judicial
Emergency, currently through June 22, 2022.”).
In response to the Court’s March 16, 2020 emergency order, the trial court issued a
memorandum on the same day in which it suspended all trials for thirty days and set all cases
within that period, including appellant’s case, for status on the criminal term day docket on May
21, 2020. Appellant filed a motion on March 25, 2020, objecting to this continuance and
asserting his right to a speedy trial. The trial court heard arguments as to this matter on March
30, 2020, and appellant agreed with the trial court’s determination that the five months allotted
for prosecution under Virginia’s Speedy Trial Act (codified in Code § 19.2-243) did not expire
until April 15, 2020. Accordingly, the trial court scheduled the case for a bench trial on April 6,
2020, and granted appellant’s request for substitution of counsel.
On April 1, 2020, trial was again rescheduled, via a CCO, to June 1, 2020, at the request
of appellant who waived speedy trial for that period. The Commonwealth requested an
3
The Court later clarified that its orders tolling speedy trial deadlines referred only to a
defendant’s statutory, rather than constitutional, right to a speedy trial. See EDO of May 1,
2020, at 2.
4
All of the Court’s judicial emergency orders for the COVID-19 pandemic can be found
on the Court’s website at the following link:
https://www.vacourts.gov/news/items/covid/scv_emergency_orders.pdf.
-7-
adjournment on May 27, 2020, and the case was continued to August 3, 2020, via a CCO. At the
pre-trial status hearing on July 30, 2020, appellant asked for new counsel and invoked his right to
a jury trial.5 The trial court advised appellant that his request for a jury trial meant that his case
would likely not be heard until February 2021 due to the backlog of trials caused by the
COVID-19 pandemic. Appellant acknowledged that he understood, and the trial court adjourned
the case to August 3, 2020, for selection of a trial date. In doing so, the court explicitly noted
that “speedy trial is tolled during this time until [the case is] set for a new date in February.”
Appellant did not object.
The parties appeared before the trial court on August 3, 2020, and selected a trial date of
February 1, 2021. Appellant explicitly waived speedy trial for the entirety of that adjournment.
On October 1, 2020, the trial court informed the parties that the February trial date needed to be
changed because pandemic-related court congestion had “wiped out February 1st already with
other long cases.” Due to the parties’ scheduling conflicts, the trial court set trial to begin on
May 5, 2021, and appellant did not object to that date.
On March 26, 2021, the trial court held a hearing on a number of pre-trial motions,
including the Commonwealth’s motion in limine to admit prior bad acts of appellant at trial.
Specifically, the Commonwealth sought to introduce evidence of appellant’s past physical and
verbal abuse of Ms. Letyvska. After hearing arguments from both parties, the trial court
determined that the evidence was admissible to prove motive and intent, as well as the prior
relationship between appellant and Ms. Letyvska, and that the probative value of such evidence
“outweighs any prejudicial effect.” The trial court also indicated that it would issue a limiting
instruction advising the jury to only consider such evidence for the purposes of “motive of intent
and relationship.”
5
The trial court denied appellant’s request for new counsel.
-8-
Based on a joint continuance request issued via a CCO on April 19, 2021, appellant’s
trial was rescheduled to June 28, 2021. Only a few days later, on April 23, 2021, the parties
appeared before the trial court at the Commonwealth’s request for another adjournment. The
Commonwealth informed the trial court that Ms. Letyvska and a “key detective” were
unavailable to testify on June 28, 2021. In response to the trial court’s questioning, the
Commonwealth explained that they had previously “reach[ed] out” to the witnesses to ascertain
availability but had not received confirmation in advance of agreeing to the June 28, 2021 trial
date. Over appellant’s objection, the trial court adjourned the case to July 28, 2021.
On July 27, 2021, appellant filed a motion to dismiss based on speedy trial grounds, and
the trial court heard arguments from the parties on July 28, 2021. The trial court ultimately held
that neither appellant’s statutory nor constitutional right to a speedy trial had been violated. With
regard to the statutory right, the trial court found that most of the continuance motions “were
either on the defendant’s request or a joint request” and that the emergency orders relating to the
COVID-19 pandemic tolled the speedy trial deadlines under Code § 19.2-243 from March 16,
2020, to the current date. The trial court then held that appellant’s constitutional right to a
speedy trial was not violated because:
[l]ooking at the factors, the length of delay is not unreasonable due
to the reasons for the delay, mainly that the defendant needed to
get counsel and be prepared for trial today. And also because of
COVID and the pandemic reasons for the delay. So based on those
reasons the Court does not find this case is prejudiced.
After the trial court denied appellant’s motion to dismiss, the case proceeded to trial by jury.
In accordance with the trial court’s March 26, 2021 decision regarding the admissibility
of appellant’s prior bad acts, the Commonwealth offered testimony at trial from Ms. Letyvska
about the abuse she experienced from appellant during their marriage. Specifically,
Ms. Letyvska testified that appellant came to her place of employment several times and “made a
-9-
huge scene” by screaming and cursing at her in public. She also testified that the first time
appellant physically assaulted her was in 2016 when he came home in the middle of the night
and Ms. Letyvska could not get J.O. to stop crying. In particular, appellant pulled
Ms. Letyvska’s hair and punched her in the face. Similar incidents occurred several times
throughout the first two years of J.O.’s life whenever Ms. Letyvska could not stop J.O. from
crying during the night. Ms. Letyvska further described one incident in February 2017 where
appellant blamed her for J.O. being sick and started punching her in the face and choking her
while she was holding J.O. in one arm.
After the Commonwealth finished presenting its case, appellant moved to strike all
charges based on a claim that the Commonwealth failed to prove appellant’s identity. Appellant
also challenged the sufficiency of the evidence regarding his abduction of Ms. Letyvska by
specifically alleging there was no “proof that he intended to deprive her of her liberty” and her
testimony was not credible. The trial court disagreed, finding that Ms. Letyvska’s testimony was
not “inherently unreliable or incredible as to not allow the credibility of the witness to be decided
by the Jury. . . . As to Count 1, abduction, there is evidence of asportation or the inability of her
to leave, therefore that goes to the jury.”
Next, appellant argued that the abduction of J.O. was improperly charged as a felony
rather than a misdemeanor under Code § 18.2-47(D) because appellant was J.O.’s parent and
subject to contempt for violating the March PPO. The trial court again disagreed, finding that
“based on Diehl v. Commonwealth[, 9 Va. App. 191 (1989)],” the felony abduction charge
regarding J.O. “can go forward.” Appellant then presented his own evidence at trial, after which
- 10 -
he renewed the motion to strike based on the same grounds as previously stated.6 For the same
reasons, the trial court denied the motion.
Consistent with its pre-trial ruling, the trial court issued a limiting instruction to the jury
on August 3, 2021, advising them that they could only consider the evidence of appellant’s prior
bad acts “as evidence of the defendant’s motive and/or conduct and feelings toward the victims
and relations between them for which he is on trial and for no other purpose.” Later that same
day, the jury returned a verdict of guilty for all charges, convicting appellant of two counts under
Code § 18.2-47 for felony abduction of Ms. Letyvska and J.O., one count of misdemeanor
domestic assault under Code § 18.2-57.2, and four counts under Code § 16.1-253.2 for violating
a protective order by stalking, by committing assault and battery, by violating the order’s
no-contact provision, and by violating the order while armed with a deadly weapon.
On November 19, 2021, the trial court sentenced appellant to an aggregate sentence of
twenty years’ incarceration.7 This appeal followed.
II. ANALYSIS
In challenging his convictions, appellant alleges four reversible errors by the trial court.
After considering the merits of appellant’s assignments of error, this Court affirms the trial
court’s judgments in part but reverses and vacates appellant’s felony conviction for abducting
6
On August 3, 2021, defense counsel renewed his “previous motion to strike for all the
grounds and reasons stated before, with the additional arguments regarding the violation of the
protective order while in possession of a deadly weapon.” Appellant does not raise that latter
argument in this appeal.
7
Appellant was sentenced to the following periods of incarceration: five years for
abducting Ms. Letyvska (Count I), ten years for abducting J.O. (Count V), two years for
violating the March PPO while armed with a deadly weapon (Count III), one year for violating
the March PPO by stalking (Count VII), one year for violating the March PPO by committing
assault and battery (Count VIII), six months for assault and battery (Count IV), and six months
for violating the March PPO’s no-contact provision (Count IX).
- 11 -
J.O. This Court declines to consider the merits of appellant’s final assignment of error because it
was not properly preserved for appellate review.
A. Appellant’s First Assignment of Error: The Trial Court Erred in Permitting the
Commonwealth to Admit Evidence of Appellant’s Prior Acts of Abuse at Trial
Appellant argues that the trial court should have prohibited the Commonwealth from
admitting evidence of appellant’s prior physical and verbal abuse of Ms. Letyvska because the
prejudicial effect of such evidence outweighed any probative value.
“Given the ‘broad discretion’ of a trial judge over evidentiary matters,” this Court
reviews a trial court’s decision regarding the admission or exclusion of evidence under a
“deferential abuse-of-discretion standard.” Thomas v. Commonwealth, 44 Va. App. 741, 753
(quoting Seaton v. Commonwealth, 42 Va. App. 739, 752 (2004)), adopted upon reh’g en banc,
45 Va. App. 811 (2005). This Court cannot substitute its own judgment for that of the trial court
and must instead determine “whether the record fairly supports the trial court’s action.” Clark v.
Commonwealth, 73 Va. App. 695, 705 (2021) (quoting Grattan v. Commonwealth, 278 Va. 602,
620 (2009)). This deference extends to the trial court’s “responsibility for balancing the
competing considerations of probative value and prejudice” when considering the admission of
evidence. Ortiz v. Commonwealth, 276 Va. 705, 715 (2008) (quoting Spencer v. Commonwealth,
240 Va. 78, 90 (1990)); see also Kenner v. Commonwealth, 299 Va. 414, 424 (2021).
As a general rule, evidence of a defendant’s prior bad acts or other crimes is inadmissible
“to prove the character trait of a person in order to show that the person acted in conformity
therewith.” Va. R. Evid. 2:404(b). However, such evidence may be admissible to prove motive
and intent, but only if the trial court determines that “the legitimate probative value of such proof
outweighs its incidental prejudice.” Id.; see Lambert v. Commonwealth, 70 Va. App. 740, 750
(2019).
- 12 -
Evidence of prior bad acts, including domestic violence, is also admissible “when it
‘shows the conduct or attitude of the accused toward his victim[,] establishes the relationship
between the parties,’” or “‘is connected with or leads up to the offense for which the accused is
on trial,”’ so long as the probative value outweighs any prejudicial effect. Conley v.
Commonwealth, 74 Va. App. 658, 670-71 (2022) (first quoting Kenner, 299 Va. at 424; and then
quoting Woodfin v. Commonwealth, 236 Va. 89, 95 (1988)). This Court has also found that even
abuse from a year prior to the charged offense “was probative to show the defendant’s motive
and intent in committing the alleged acts” and to “prove the relationship between the defendant
and his victims.” Callahan v. Commonwealth, 8 Va. App. 135, 141 (1989).
Under these prevailing standards, the trial court did not abuse its discretion in admitting
evidence of appellant’s prior bad acts. As the trial court explained, those “prior assaults against
the victim do have probative value to prove motive and intent and also a prior relationship in this
particular case and that outweighs any prejudicial effect.” The trial court also issued a limiting
instruction to the jury advising them that they could consider such testimony only for the
permitted purposes of motive, intent, and prior relationship. See Brooks v. Commonwealth, 73
Va. App. 133, 148 (2021) (“The danger of unfair prejudice can also be mitigated by an
instruction to the jury that limits their consideration of other crimes evidence to its proper
purposes and application to each offense charged.”).
Accordingly, this Court affirms the trial court’s judgment that evidence of appellant’s
prior bad acts and other crimes was admissible.
B. Appellant’s Second Assignment of Error: The Trial Court Erred in Denying
Appellant’s Motion to Strike the Felony Abduction Charge for J.O.
Next, appellant argues that the trial court should have granted his motion to strike the
felony abduction charge as to J.O., under Code § 18.2-47. Specifically, appellant argues that he
- 13 -
could only have been indicted pursuant to Code § 18.2-47(D), which makes a parent’s abduction
of their child punishable as a misdemeanor rather than a felony under certain circumstances.
An issue of statutory interpretation and application is a question of law reviewed de novo
on appeal. See Eley v. Commonwealth, 70 Va. App. 158, 162 (2019); Blake v. Commonwealth,
288 Va. 375, 381 (2014) (“We . . . review de novo the scope and application of the statute under
which the defendant was convicted.”). Under Code § 18.2-47(A), a person is guilty of abduction
when, “by force, intimidation or deception, and without legal justification or excuse,” he “seizes,
takes, transports, detains or secretes another person with the intent to deprive” them of their
personal liberty. Subsection (C) provides the default rule that an abduction “for which no
punishment is otherwise prescribed shall be punished as a Class 5 felony.”
In contrast, Code § 18.2-47(D) provides that “[i]f an offense under subsection A is
committed by the parent of the person abducted and punishable as contempt of court in any
proceeding then pending, the offense shall be a Class 1 misdemeanor in addition to being
punishable as contempt of court.” (Emphasis added). The key word here is “punishable,”
meaning conduct that by law could be punished as contempt of court, regardless of whether the
Commonwealth actually chose to bring such charges in addition to a prosecution for abduction.
Appellant argues that, given the March PPO prohibiting contact with J.O., his prosecution for
abduction under Code § 18.2-47 could only proceed as a misdemeanor, rather than a felony,
based on the provisions of subsection (D).
The March PPO, which was still in effect and pending a full hearing when appellant
abducted J.O. on March 24, 2018, was issued under Code § 16.1-253.1. Subsection (C) of that
statute states: “[e]xcept as otherwise provided in § 16.1-253.2,” a violation of a protective order
issued under this statute “shall constitute contempt of court.” (Emphasis added). Code
§ 16.1-253.2 addresses specific types of violations of Code § 16.1-253.1 protective orders,
- 14 -
including violations of protective order provisions prohibiting “further acts of family abuse,”
“criminal offenses,” or any contact “with the allegedly abused person” named as the protected
party. Code § 16.1-253.2(A). This section explicitly states that “[i]n addition to any other
penalty provided by law,” a person who commits such violations “is guilty of a Class 1
misdemeanor.” Id. (emphasis added).
The opening phrase “in addition to” clearly indicates that a person who violates a
protective order in a way specified by Code § 16.1-253.2(A) is both guilty of a Class 1
misdemeanor and subject to “any other penalty provided by law.” Id. Reading these statutes
together, the language “other penalty provided by law” in Code § 16.1-253.2(A) would include
“contempt of court” under Code § 16.1-253.1(C). See George v. Commonwealth, 51 Va. App.
137, 144-45 (2008) (interpreting the language “in addition to any other penalties provided by
law” in a statute to mean that the “criminal penalty provided therein was not exclusive” and that
the General Assembly did not intend for prosecution under that statute to “be the
Commonwealth’s exclusive option for punishing conduct such as appellant’s”).
In contrast to these interlocking statutes, subsections (C) and (D) of Code § 18.2-47 are
mutually exclusive. A person who commits an abduction, as defined in subsection (A) of Code
§ 18.2-47, can only be charged with and convicted of a Class 5 felony—the default penalty
provided by subsection (C) of Code § 18.2-47—if no other subsection providing a different
penalty applies. Thus, where a parent’s abduction of their child qualifies as a Class 1
misdemeanor under subsection (D) of Code § 18.2-47, the same conduct cannot also constitute a
Class 5 felony because the misdemeanor penalty replaces the statute’s default felony penalty.
Accordingly, because appellant’s abduction of J.O. meets the criteria of Code
§ 18.2-47(D)—appellant is a parent to J.O. and the abduction was punishable as contempt for
- 15 -
violating the March PPO—the trial court erred in denying appellant’s motion to strike the felony
abduction charge under Code § 18.2-47.8
C. Appellant’s Third Assignment of Error: The Trial Court Erred in Denying
Appellant’s Motion to Dismiss for Violating His Rights to a Speedy Trial
Appellant also argues that the trial court should have granted his motion to dismiss all the
charges against him because the Commonwealth violated both his statutory and constitutional
rights to a speedy trial. This Court rejects that claim and affirms the trial court’s judgment that
neither appellant’s statutory nor constitutional speedy trial rights were violated.
As explained further below, “the statutory right to a speedy trial and the constitutional
right to a speedy trial are separate, though related, rights that utilize different frameworks and
focus on different elements.” Brown v. Commonwealth, 75 Va. App. 388, 406 (2022). However,
because both statutory and constitutional speedy trial challenges present “a mixed question of
law and fact,” this Court gives deference to the trial court’s factual findings but reviews statutory
interpretations and legal conclusions de novo. Young v. Commonwealth, 297 Va. 443, 450
(2019); see Ali v. Commonwealth, 75 Va. App. 16, 33 (2022) (“[Factual] findings may not be
disturbed unless ‘plainly wrong’ or ‘without evidence to support them.’” (quoting Wilkins v.
Commonwealth, 292 Va. 2, 7 (2016))).
8
In denying appellant’s motion to strike, the trial court based its decision on the
Commonwealth’s reference to Diehl, 9 Va. App. at 191. In that case, this Court found Code
§ 18.2-47(D) inapplicable because, prior to Diehl’s act of abduction, there was no proceeding
pending against him for which he could have been punished for contempt. For example, Diehl
was not subject to any protective order or other court mandate at the time he abducted his child.
Those facts are inapposite to the case at hand where appellant was in fact subject to the March
PPO—a pending proceeding scheduled for full hearing in the JDR court on March 27, 2018, any
violation of which could have been punished as contempt of court under Code § 16.1-253.1(C)—
at the time he abducted J.O. It is immaterial that the Commonwealth did not charge appellant
with contempt of court in addition to abduction.
- 16 -
Appellant’s Statutory Right to a Speedy Trial Not Violated
Code § 19.2-243 provides specific time limits “within which an accused must be tried,
absent tolling or other statutory exceptions.” Brown, 75 Va. App. at 406. As applicable here, the
statute requires trial to commence for an incarcerated individual within five months from the
preliminary hearing at which the district court found probable cause to believe he committed a
felony.9 Code § 19.2-243. That five-month requirement equates to “152 and a fraction days.”
Balance v. Commonwealth, 21 Va. App. 1, 6 (1995).
However, the statute also enumerates several exceptions to this time limit, including a
“failure to try the accused . . . caused . . . [b]y a natural disaster, civil disorder, or act of God.”
Code § 19.2-243. This Court has recently concluded that the COVID-19 pandemic qualifies as a
“natural disaster” and thus justifies the tolling of statutory speedy trial deadlines provided in the
emergency orders executed between March 16, 2020, and May 27, 2022. See Ali, 75 Va. App. at
31-33; Brown, 75 Va. App. at 402-03. Accordingly, the statutory speedy trial clock did not run
between the initial emergency order issued on March 16, 2020, and the commencement of
appellant’s trial on July 28, 2021.
The remaining period of time for this Court to consider then is that between appellant’s
preliminary hearing on May 3, 2019, and the start of the pandemic-related tolling on March 16,
2020.10 For the reasons stated below, only 121 days during that time are chargeable to the
9
The period of time between the arrest of the accused and the preliminary hearing has no
bearing on the accused’s statutory speedy trial rights under Code § 19.2-243, although it is
considered as part of a constitutional speedy trial claim.
10
As mentioned previously, “appellant’s statutory speedy trial deadline was tolled due to
the COVID-19 emergency, [but] his constitutional speedy trial rights remained in effect and were
not suspended.” Brown, 75 Va. App. at 404. This Court reviews separately the effect of those
orders in the context of appellant’s constitutional speedy trial claim.
- 17 -
Commonwealth for statutory speedy trial purposes; the remainder is tolled under the provisions
of Code § 19.2-243.
Generally, the time between the preliminary hearing and initial trial date “counts against
the Commonwealth for speedy trial purposes.” Palmer v. Commonwealth, No. 0885-21-1, slip
op. at 11 (Va. Ct. App. Aug. 9, 2022) (citing Turner v. Commonwealth, 68 Va. App. 72, 79
(2017)).11 However, a “continuance granted on the motion of the accused or his counsel” tolls
the statutory speedy trial clock. Code § 19.2-243. Here, the Commonwealth acknowledges that
the twenty days from appellant’s preliminary hearing in the JDR court on May 3, 2019, to the
first appearance in the trial court on May 23, 2019, count toward the speedy trial deadline.
Conversely, the adjournment from May 23 to May 31, 2019, made for purposes of setting a trial
date and appointing new counsel at appellant’s request, does not count towards the speedy trial
deadline. See Code 19.2-243; see also Palmer, slip op. at 12 (“[T]his Court has charged to a
defendant the delay between appointing new counsel for the defendant and the new trial date.”
(citing Balance, 21 Va. App. at 6)).
On May 31, 2019, the trial court set a trial date of September 23, 2019. Only 101 days of
this period are chargeable to the Commonwealth because appellant requested a continuance on
September 9, 2019, which the trial court granted, thus stopping the speedy trial clock. See
Palmer, slip op. at 12 (“Code § 19.2-243’s restrictions do not apply to speedy trial deadline
calculations when a defendant or his counsel requests the continuance, concurs to the
Commonwealth’s continuance motion, or fails to timely object to that motion.”).
11
Unpublished opinions, although not binding, may be cited as “informative.” Rule
5A:1(f).
- 18 -
Based on appellant’s September 9, 2019 continuance request, the trial court set a new
trial date of January 13, 2020, to which appellant did not object.12 Appellant requested another
continuance in December 2019, which the trial court granted on January 8, 2020, and the case
was adjourned for trial on March 30, 2020. That period of time is also tolled under Code
§ 19.2-243 because appellant made the adjournment request.13 As already discussed above, the
Supreme Court issued its first emergency order on March 16, 2020, and the statutory speedy trial
deadlines were tolled from that date through the start of appellant’s trial in July 2021.
Because only 121 days of Code § 19.2-243’s allotted 152-and-a-fraction days ran, the
trial court did not err in concluding that appellant’s statutory right to a speedy trial was not
violated.
Appellant’s Constitutional Right to a Speedy Trial Not Violated
In contrast to the statutory right to a speedy trial, the constitutional right to a speedy trial
under the Sixth Amendment of the United States Constitution “is governed by a balancing test
that is not tied inextricably to calendar dates.” Brown, 75 Va. App. at 406-07 (citing Barker v.
Wingo, 407 U.S. 514, 521 (1972)). The four factors of that test are: (1) the length of delay,
(2) the reasons for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the
defendant. Barker, 407 U.S. at 530. An appellant must establish that those factors, when
considered together, “weigh in his favor.” Ali, 75 Va. App. at 35 (quoting United States v.
Thomas, 55 F.3d 144, 148 (4th Cir. 1995)).
12
Indeed, the CCO from September 9, 2019, clearly shows that appellant requested a
continuance due to witness unavailability and waived speedy trial for that adjournment.
13
The CCO from January 8, 2020, reveals that appellant requested a continuance in order
to prepare for trial and that speedy trial was waived for that adjournment.
- 19 -
1. Speedy Trial Factors Under Barker
a. Length of Delay
This Court first considers the length of delay, measured from the time of arrest to
commencement of trial. See Fowlkes v. Commonwealth, 218 Va. 763, 766 (1978). In the
absence of delay that is presumptively prejudicial, “there is no necessity for inquiry into the other
factors.” Kelley v. Commonwealth, 17 Va. App. 540, 544 (1994) (quoting Barker, 407 U.S. at
530). Whether a delay qualifies as presumptively prejudicial “necessarily depend[s] upon the
peculiar circumstances of the case.” Barker, 407 U.S. at 530-31. However, this Court has
previously found that delays of one year or more are presumptively prejudicial. See Ali, 75
Va. App. at 35-36; Miller v. Commonwealth, 29 Va. App. 625, 633 (1999); see also Doggett v.
United States, 505 U.S. 647 (1992) (finding that a delay approaching one year is presumptively
prejudicial).
Here, where the time between appellant’s arrest and trial exceeds two years, the length of
delay is presumptively prejudicial and triggers consideration of the other Barker factors.
b. Reasons for Delay
Under the next factor—the reasons for delay—a court must make two separate
determinations: first, what portions of the delays are attributable to the Commonwealth, and
second, what portion of the delays attributable to the Commonwealth are justifiable. See Ali, 75
Va. App. at 36; Fowlkes, 218 Va. at 767. Appellant claims that his case was delayed by 383
days from his arrest to trial and that nearly 300 of those days are attributable to the
Commonwealth.
A delay is not attributable to the Commonwealth if “it was requested by the defendant,” if
the defendant “concurred” in the delay, or if “one of the purposes of the delay was to enable the
defendant to prepare” for trial. Minitee v. Commonwealth, No. 1054-19-2, slip op. at 8
- 20 -
(Va. Ct. App. July 12, 2022) (first quoting Price v. Commonwealth, 24 Va. App. 785, 790-91
(1997); then quoting Arnold v. Commonwealth, 18 Va. App. 218, 223 (1994); and then quoting
Heath v. Commonwealth, 32 Va. App. 176, 182 (2000)); see also Vermont v. Brillon, 556 U.S.
81, 90-91 (2009) (holding that delays caused by defense counsel are charged against the
defendant).
“Although any delay not attributable to the defendant is the responsibility of the
Commonwealth for speedy trial purposes, ‘different weights should be assigned to different
reasons’ for delay.” Ali, 75 Va. App. at 42 (quoting Barker, 407 U.S. at 531). The three
categories of fault for delay attributable to the Commonwealth are: (1) “deliberately improper”
delay, (2) “merely negligent” delay, and (3) “valid and unavoidable” delay. Id.; see also Minitee,
slip op. at 7 (“Whether a delay is justified depends in part on whether the Commonwealth acted
in bad faith or negligently.”). Deliberate delay14 “should be weighed heavily” against the
Commonwealth, whereas negligence15 should receive less weight. Ali, 75 Va. App. at 42
(quoting Barker, 407 U.S. at 531). “[A] reason deemed ‘valid’ fully ‘justif[ies] appropriate
delay’” and thus does not weigh in appellant’s favor. Id. (quoting Barker, 407 U.S. at 531).
Many routine periods of delay in a criminal case, such as the time between a defendant’s
arrest and the preliminary hearing, can be attributed to the Commonwealth “in the ordinary
course of the administration of justice.” See id. at 37. When “no evidence indicates that the
prosecution caused the delay either intentionally or negligently,” such delay “in the ordinary
course” is deemed “valid and unavoidable,” thus making it fully justified. Id. at 45. Similarly,
14
Includes delay “caused with an intent to ‘hamper the defense’ or harass the defendant.”
Ali, 75 Va. App. at 42 (quoting Barker, 407 U.S. at 531).
15
Includes “negligence in scheduling, understaffing of a prosecutor’s office, or
‘overcrowd[ing of the] courts.’” Ali, 75 Va. App. at 42 (quoting Barker, 407 U.S. at 531).
- 21 -
this Court has recently held that pandemic-related delays16 attributed to the Commonwealth are
“valid, unavoidable, and outside the Commonwealth’s control.” Id. Accordingly, such delays
are deemed fully justified. See id. at 44 (finding that the COVID-19 pandemic “made it unsafe
for all witnesses and other trial participants to come to court for a period of time, rendering them
justifiably absent”).
Apportionment of Delay
This Court’s review of the record in the light most favorable to the Commonwealth
reveals that a large portion of delay between appellant’s arrest on November 28, 2018, and his
trial on July 27, 2021, is attributable to appellant based on his stand-alone and joint requests for
continuances.
The forty-eight days between appellant’s arrest on November 28, 2018, and the first
scheduled date for a preliminary hearing on January 14, 2019, are attributable to the
Commonwealth. The following 109 days—between January 14, 2019, and the preliminary
hearing finally occurring on May 3, 2019—are not attributable to the Commonwealth because
the parties made a joint request for a continuance on January 14, 2019, and appellant then made
two additional requests for a continuance on February 21, 2019, and March 28, 2019.
Between appellant’s preliminary hearing on May 3, 2019, and his first scheduled trial
date on September 23, 2019, only 121 days are attributable to the Commonwealth for
constitutional speedy trial purposes.17 None of the 203 days between appellant’s request for a
continuance on September 9, 2020, and the trial date set for March 30, 2020, are attributable to
16
These include the deliberate efforts of Virginia’s judicial system “to balance public
health with the administration of justice.” Ali, 75 Va. App. at 45.
17
The eight days of delay from May 23, 2019, to May 31, 2019, resulted from appellant’s
request for new counsel; the fourteen days between September 9, 2019, and September 23, 2019,
are not attributed to the Commonwealth because appellant requested a continuance on September
9, 2019.
- 22 -
the Commonwealth.18 Because appellant requested a continuance on April 1, 2020, only two
days of the total sixty-three days between March 30, 2020, and June 1, 2020, are attributable to
the Commonwealth.19
On May 27, 2020, the case was again continued, at the Commonwealth’s request, to
August 3, 2020. The sixty-three days from June 1, 2020, to the new trial date in August are
attributable to the Commonwealth because appellant’s April 1, 2020 continuance only waived
speedy trial until June 1, 2020. The subsequent adjournment from August 3, 2020, to February
1, 2021, is not attributable to the Commonwealth because appellant requested new counsel,
asserted his right to a jury trial, and explicitly waived speedy trial for those 181 days. On
October 1, 2020, the trial court informed the parties that it could no longer hold a jury trial on
February 1, 2021, due to court congestion caused by the COVID-19 pandemic. As a result, the
trial was rescheduled to May 5, 2021.
However, on April 19, 2021, both parties requested a joint continuance until June 28,
2021. Thus, only the seventy-seven days between February 1, 2021 (the date appellant’s explicit
speedy trial waiver expired) and April 19, 2021 (the date the parties jointly agreed to
adjournment) are attributable to the Commonwealth. The remaining seventy days—from April
19, 2021, to June 28, 2021—are deemed waived by the April 19, 2021 joint continuance.
Accordingly, the final period of delay attributable to the Commonwealth is the thirty days
18
The case was adjourned on September 9, 2019, at appellant’s request, to January 13,
2020. Appellant then made another adjournment request on December 30, 2019, and the case
was continued until March 30, 2020. See Minitee, slip op. at 8 (finding that if “one of the
purposes of the delay was to enable the defendant to prepare,” such delay is not attributable to
the Commonwealth).
19
In the April 1, 2020 CCO granting a joint continuance to June 1, 2020, appellant’s
counsel checked the box indicating a waiver of speedy trial time for that adjournment.
- 23 -
between June 28, 2021, and the start of appellant’s trial on July 28, 2021, which resulted from
the Commonwealth’s April 23, 2021 motion to continue.
Justification for Delay Attributed to Commonwealth
In accordance with the determinations made above, 171 days of the total 341 days
attributed to the Commonwealth fall squarely within the ordinary administration of justice.
Those periods of delay, listed below, are deemed valid and fully justified because no evidence
shows that the Commonwealth acted improperly:
• Forty-eight days from November 28, 2018, to January 14, 2019;20
• 121 days from May 3, 2019, to September 9, 2019;21
• Two days from March 30, 2020, to April 1, 2020.
The next two periods of delay attributed to the Commonwealth amount to 140 days and
are justified as pandemic-related delays based on this Court’s viewing of the record in the light
most favorable to the Commonwealth and a lack of evidence that the Commonwealth behaved
inappropriately. Specifically, this Court determines that (1) the sixty-three days of delay
between June 1, 2020, and August 3, 2020, resulted from then-present health and safety concerns
relating to COVID-19, and (2) the seventy-seven days of delay between February 1, 2021, and
April 19, 2021, resulted from court congestion caused by the COVID-19 pandemic.22
20
The delay between appellant’s arrest and the first scheduled date for his preliminary
hearing.
21
The delay between appellant’s preliminary hearing and his scheduled trial date.
Appellant’s motion for a continuance on September 9, 2019, cut off the Commonwealth’s
responsibility early.
22
Although the trial court sua sponte vacated the February 1, 2021 trial date in October
2020 and rescheduled the trial for May 5, 2021, appellant’s August 3, 2020 waiver of speedy
trial time extended until February 1, 2021.
- 24 -
As a result of the foregoing calculations, only the final thirty days leading up to
appellant’s trial—from June 28, 2021, to July 28, 2021—are not justified because the
Commonwealth acted negligently in selecting the June 28, 2021 trial date before confirming the
availability of all necessary witnesses for that date.23 Therefore, only those thirty days of delays
count in favor of appellant.
c. Assertion of Right
The third factor in the constitutional speedy trial calculus requires this Court to consider
whether, and how, appellant asserted his right to a speedy trial. Despite having been incarcerated
for over one year, appellant did not assert his right to a speedy trial until March 25, 2020, after
the trial court issued a memorandum on March 16, 2020, suspending trials for thirty days and
setting this case for status update on May 21, 2020.24
The trial court heard argument from both parties on March 30, 2020, regarding the
speedy trial issues, after which it set the case for a bench trial to begin on April 6, 2020. Only
four days after that decision—and four days before trial—appellant agreed to a joint continuance
until June 1, 2020, even though that date went beyond the statutory speedy trial cut-off date of
23
Although the Commonwealth requested a continuance on April 23, 2021, based on
witness unavailability, the parties’ prior joint continuance on April 19, 2021, tolled speedy trial
until June 28, 2021, regardless of when the Commonwealth made its stand-alone request for
adjournment.
24
These facts are extremely similar to those in Ali where appellant did not assert his right
“until after the Supreme Court had already begun entering judicial emergency orders restricting
the ability of circuit courts to conduct jury trials.” 75 Va. App. at 46. This Court ultimately
concluded in Ali that appellant’s constitutional right to a speedy trial was not violated.
- 25 -
April 15, 2020.25 Appellant also agreed to further continuances from August 3, 2020,26 to
February 1, 2021, and from April 19, 2021,27 to June 28, 2021.
Although the trial court granted the Commonwealth’s April 23, 2021 continuance request
over appellant’s objection, appellant did not assert his rights again until July 27, 2021—the day
before trial commenced—when he filed a motion to dismiss for a violation of his constitutional
right to a speedy trial.
d. Prejudice
As to the final factor—prejudice—the constitutional speedy trial right aims to protect
three separate interests: “(1) preventing oppressive pretrial incarceration; (2) minimizing the
accused’s anxiety; and (3) limiting the possibility that the defense will be impaired.” Kelley, 17
Va. App. at 546 (citing Barker, 407 U.S. at 532). “The most important of these interests is the
third one.” Ali, 75 Va. App. at 47.
When “the Commonwealth bears no fault in the delay and proceeds ‘with reasonable
diligence,’” appellant’s speedy trial claim will fail “as a matter of course however great the
delay” unless appellant can show “specific prejudice” to his defense (the third interest) or “some
degree of prejudice for one of the first two interests.” Ali, 75 Va. App. at 47-48 (quoting
Doggett, 505 U.S. at 656). On the other hand, “[a] delay caused by governmental negligence
‘occupies the middle ground.’” Id. at 47 (quoting Doggett, 505 U.S. at 656-57). However, “[t]o
prove even generalized prejudice based on one of the first two interests . . . a defendant must
25
At the March 30, 2020 hearing, defendant agreed with the trial court’s determination
that April 15, 2020, was the “expiration of the five months” permitted for statutory trial purposes
under Code § 19.2-243.
26
When appellant asserted his right to a jury trial and acknowledged before the trial court
that such request would delay his trial until February 2021.
27
When appellant agreed to another joint continuance.
- 26 -
establish a particularly prolonged or restrictive period of incarceration or a level of anxiety
exceeding that faced by others awaiting trial.” Id. at 48.
With regard to the first two interests, appellant only mentions in passing that the 383
“days of incarceration he served . . . are not attributable to any delay or continuance on his
part.”28 Appellant’s allegation of prejudice, however, rests more heavily on the third interest:
that he was “greatly inhibited in presenting a defense” because his parents “were unable to come
back to the United States from Bulgaria due to age and travel restrictions.”
“To prove specific prejudice under the third interest . . . a defendant must show ‘in what
specific manner’ factors such as missing witnesses . . . ‘would have [impaired or] aided the
defense.’” Ali, 75 Va. App. at 49 (quoting United States v. Medina, 918 F.3d 774, 782 (10th Cir.
2019)); see Kelley, 17 Va. App. at 547 (requiring “at least . . . a factual basis for believing” that
the loss of a witness’s testimony might have “adversely affected the defense”); Beachem v.
Commonwealth, 10 Va. App. 124, 134 (1990) (holding that appellant’s claim that his defense
was impaired due to missing alibi witnesses was “sheer speculation” in part because he provided
“no details” about when they moved or how he attempted to locate them).
Here, appellant merely claims that his parents “were set to testify in his defense to refute
Ms. Letyvska’s allegations” without offering any proof as to the details of that testimony and
how it would have impacted his defense. This bare assertion is not sufficient on its own to
establish that appellant actually suffered any prejudice to his defense.
28
As explained previously, this Court determines that 341 days of appellant’s
incarceration are attributable to the Commonwealth, only thirty days of which resulted from the
Commonwealth’s negligence, whereas 624 days resulted from speedy trial waivers caused by
appellant’s actions.
- 27 -
2. Overall Assessment of Barker Factors
This Court first determined that the delay of 965 days from appellant’s November 2018
arrest to his July 2021 trial was presumptively prejudicial under the first Barker factor, thus
warranting consideration of the other three factors. Now, in weighing and balancing all the
factors together, this Court finds their sum total rebuts the presumption and the evidence as a
whole does not support appellant’s claim that his constitutional right to a speedy trial was
violated. See Brown, 75 Va. App. at 410 (explaining all four Barker factors are “related” and
“must be considered together with such other circumstances as may be relevant” (quoting
Barker, 407 U.S. at 533)).
Here, the majority of the delay—624 days—resulted from defendant’s waivers of speedy
trial, both explicitly and by operation of law.29 Conversely, only 341 days of delay are
attributable to the Commonwealth, the vast majority of which is justified based on
pandemic-related reasons or the ordinary administration of justice. Such delays caused by “valid
and unavoidable” reasons are not weighed against the Commonwealth when balancing the
Barker factors. See Ali, 75 Va. App. at 42, 45, 51-52; Barker, 407 U.S. at 531.
Moreover, there is no evidence in the record that the Commonwealth should be faulted
for any period of delay other than the thirty days between June 28, 2021, and July 28, 2021,
which were the result of the Commonwealth’s negligence in determining witness availability.
“[T]he extent to which the government caused a portion of the delay intentionally or negligently
is an important part of the balancing,” but mere negligence should be weighed less heavily than
deliberate delay. Minitee, slip op. at 9-10 (citing Jefferson v. Commonwealth, 23 Va. App. 652,
659 (1996)); see also Ali, 75 Va. App. at 42. Here, the Commonwealth’s negligence only
29
For example, joint continuance requests are treated the same as adjournment requests
made solely by appellant for the purposes of speedy trial calculations. See Minitee, slip op. at 8.
- 28 -
delayed appellant’s trial for thirty extra days. This fact does weigh against the Commonwealth
to a degree, but not enough for this Court to find a violation of appellant’s rights where the total
period of time attributable to appellant is nearly double the amount attributable to the
Commonwealth as a whole.30
Similarly, the third Barker factor—assertion of the right to a speedy trial—weighs only
moderately in appellant’s favor due to the timing and frequency of his assertions. Despite having
already spent sixteen months in jail, appellant did not assert his right to a speedy trial until March
25, 2020, only after the Supreme Court issued its first emergency order and the trial court
administratively adjourned this case to a status date on May 21, 2020, in connection with the
COVID-19 pandemic. See Ali, 75 Va. App. at 46 (finding that appellant’s “delay in asserting the
right weighs against finding a violation” because this factor “deserves less weight than that to
which it would have been entitled if [appellant] had raised it earlier, at a time before the
pandemic severely limited the possibility that [appellant] could be tried promptly”).
After hearing argument on the speedy trial issue on March 30, 2020, the trial court
adjourned the case to April 6, 2020, for a bench trial, and appellant agreed with the trial court’s
determination that April 15, 2020, marked the “expiration of the five months” permitted for
statutory trial purposes under Code § 19.2-243. Yet, only four days after that decision, appellant
agreed to a joint continuance until June 1, 2020.31 Appellant also made subsequent agreements
30
As noted above, periods of delay attributed to the Commonwealth but deemed justified
do not weigh in favor of appellant.
31
See Palmer, slip op. at 11-12 (“[A] defendant’s agreement with or failure to object to a
court setting a trial date outside the statutory speedy trial period ‘constitutes a continuance of the
trial date under Code § 19.2-243(4).’” (quoting Heath v. Commonwealth, 261 Va. 389, 394
(2001))). Compare Baker v. Commonwealth, 25 Va. App. 19, 20-25 (reasoning that supplying
the trial court with available trial dates was not the defendant concurring to the requested
continuance), aff’d on reh’g en banc, 26 Va. App. 175 (1997).
- 29 -
to additional adjournments totaling 312 days.32 And despite objecting to the Commonwealth’s
continuance request on April 23, 2021, appellant did not file another motion to dismiss on
speedy trial grounds until July 27, 2021, the day before trial.
Although waivers of speedy trial time resulting from appellant’s decisions do not entirely
excuse the Commonwealth from its constitutional obligations, they do assist this Court in
weighing the Barker factors to assess whether appellant’s constitutional right to a speedy trial
was violated. See Ali, 75 Va. App. at 46 (permitting a court to “weigh the frequency and force”
of appellant’s objections to delay (quoting Rogers v. Commonwealth, 5 Va. App. 337, 347
(1987))); see also Commonwealth v. Jerman, 263 Va. 88, 94 (2002) (holding that the “perceived
futility” of objecting “does not excuse” a defendant from doing so because of their duty to create
a record for appeal). In doing so, this Court finds that appellant’s continued acquiescence to
adjournments since April 1, 2020, limits the weight given to appellant’s assertion of his right.
Finally, appellant did not demonstrate that he suffered prejudice attributable to the
above-described delays. Appellant’s primary argument regarding prejudice is the alleged
impairment of his defense due to the missing testimony from his parents. Appellant failed,
however, to show the requisite “specific prejudice” because he did not proffer what testimony his
parents would have given nor how such testimony would have assisted in his defense. See Tynes
v. Commonwealth, 49 Va. App. 17, 21-22 (2006) (holding that appellate court cannot determine
prejudicial effect of excluded testimony without proffer of expected testimony). Specifically,
appellant did not allege that the testimony of his parents or any other witness would corroborate
his version of events or contradict the testimony of Ms. Letyvska—which was corroborated by
32
Sixty-one days from April 1, 2020, to June 1, 2020; 181 days from August 3, 2020, to
February 1, 2021; and seventy days from April 19, 2021, to June 28, 2021. These periods of
delay are roughly equal to the total amount of time attributed to the Commonwealth throughout
the entire case for justifiable reasons (not including the thirty days due to negligence).
- 30 -
Mr. Sobeck’s testimony—regarding March 24, 2018, the date of the incident underlying
appellant’s convictions.
Appellant’s claim of prejudice due to his incarceration is also unpersuasive where he
simply claims that a long portion of that incarceration resulted from periods of delay attributable
to the Commonwealth. As already determined above, only thirty days of the total 341 days
attributed to the Commonwealth between defendant’s arrest and trial are not justified due to the
Commonwealth’s negligent scheduling. Therefore, even assuming without deciding that
appellant’s claim constitutes proof of generalized prejudice for a “particularly prolonged or
restrictive period of incarceration,” it is nevertheless insufficient to support a finding that
appellant’s constitutional right to a speedy trial was violated when the collective weight of the
Barker factors indicates otherwise. See Ali, 75 Va. App. at 51-52 (finding that appellant did not
prove the requisite prejudice to establish a constitutional speedy trial violation where the period
of delay chargeable to the Commonwealth was valid under Barker); Doggett, 505 U.S. at 656-57.
For the foregoing reasons, this Court finds that appellant has not established a violation
of his constitutional right to a speedy trial under the Barker four-factor balancing test. See
Brown, 75 Va. App. at 407 (“On appeal, a defendant must establish that on balance, the factors
weigh in his favor.” (quoting Ali, 75 Va. App. at 35)).
D. Appellant’s Fourth Assignment of Error: The Trial Court Erred in Denying
Appellant’s Motion to Strike the Charge of Abducting His Wife
In his fourth, and final, assignment of error, appellant argues that the trial court erred in
finding the evidence sufficient as to the charge of abducting Ms. Letyvska where the act of
abduction was merely incidental to appellant’s assault of her. This Court declines to consider the
merits of this argument because appellant did not preserve it for appellate review.
Rule 5A:18 precludes appellate review of an objection not “stated with reasonable
certainty at the time of the ruling” by the trial court. This procedural default principle
- 31 -
specifically requires “that the argument asserted on appeal be the same as the contemporaneous
argument at trial.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019); see Clark v.
Commonwealth, 30 Va. App. 406, 411-12 (1999) (preserving one specific argument as to the
sufficiency of the evidence does not allow argument on appeal regarding other sufficiency issues
not raised at trial).
Appellant challenged at trial the sufficiency of the evidence regarding the charge of
abducting Ms. Letyvska in his motion to strike and renewed motion to strike. However, he did
so only on the grounds that Ms. Letyvska’s testimony was not credible and that the evidence did
not prove appellant’s identity or his intent to deprive Ms. Letyvska of her liberty. Appellant did
not argue before the trial court, as he does now on appeal, that the evidence was insufficient
because it was merely incidental to the separate crime of assault against Ms. Letyvska.
Therefore, because appellant deprived the trial court of an opportunity to consider the
specific grounds of the objection he now presents on appeal, this issue is not preserved for
review by this Court. Accordingly, this Court affirms appellant’s conviction for abducting
Ms. Letyvska.
III. CONCLUSION
For the foregoing reasons, this Court reverses and vacates appellant’s conviction for
felony abduction of J.O. and affirms appellant’s remaining convictions.33
Affirmed in part, reversed and vacated in part.
33
Because the parties have not briefed the matter of appropriate remedy with regard to
appellant’s second assignment of error, this Court need not decide whether the provisions of
Code § 18.2-47(D) set out a lesser-included offense or a separate offense. Therefore, this Court
offers no opinion as to whether, and by what means, the Commonwealth may initiate further
proceedings against appellant for the abduction of J.O. if so inclined.
- 32 -