Williams standard in Virginia

2019Commonwealth v. Robertson, 275 Va. 559, 563 (2008).

2019Commonwealth v. Robertson, 275 Va. 559, 563 (2008).

2005See McEntire, 217 Va. at 315-16 , 227 S.E.2d at 743 (father was not clothed with parental presumption after court of competent jurisdiction made a judicial determination reflected in valid order); Albert v. Ramirez, 45 Va.App. 799, 807-09 , 613 S.E.2d 865, 868-70 (2005) (natural mother was not entitled to Troxel and Williams presumption in her motion to modify custody and visitation where juvenile court entered valid consent decree providing stepfather with joint custody). 14 We conclude that the trial court properly applied the best interests test to determine the child’s custody in this case

2005See McEntire, 217 Va. at 315-16 , 227 S.E.2d at 743 (father was not clothed with parental presumption after court of competent jurisdiction made a judicial determination reflected in valid order); Albert v. Ramirez, 45 Va.App. 799, 807-09 , 613 S.E.2d 865, 868-70 (2005) (natural mother was not entitled to Troxel and Williams presumption in her motion to modify custody and visitation where juvenile court entered valid consent decree providing stepfather with joint custody). 14 We conclude that the trial court properly applied the best interests test to determine the child’s custody in this case

2005See McEntire, 217 Va. at 315-16 , 227 S.E.2d at 743 (father was not clothed with parental presumption after court of competent jurisdiction made a judicial determination reflected in valid order); Albert v. Ramirez, 45 Va.App. 799, 807-09 , 613 S.E.2d 865, 868-70 (2005) (natural mother was not entitled to Troxel and Williams presumption in her motion to modify custody and visitation where juvenile court entered valid consent decree providing stepfather with joint custody). 14 We conclude that the trial court properly applied the best interests test to determine the child’s custody in this case

2005See McEntire, 217 Va. at 315-16 , 227 S.E.2d at 743 (father was not clothed with parental presumption after court of competent jurisdiction made a judicial determination reflected in valid order); Albert v. Ramirez, 45 Va.App. 799, 807-09 , 613 S.E.2d 865, 868-70 (2005) (natural mother was not entitled to Troxel and Williams presumption in her motion to modify custody and visitation where juvenile court entered valid consent decree providing stepfather with joint custody). 14 We conclude that the trial court properly applied the best interests test to determine the child’s custody in this case

2026Therefore, I would have affirmed the trial court’s judgment granting Williams’s motion to suppress.9 9 While the majority does not address the issue, I also would hold that Officer Chaplain would not have inevitably discovered the firearm. “[T]he doctrine of inevitable discovery” provides that “evidence obtained by unlawful means is nonetheless admissible ‘[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.’” Commonwealth v. Jones, 267 Va. 532, 536 (2004) (second alteration in original)

2026Therefore, I would have affirmed the trial court’s judgment granting Williams’s motion to suppress.9 9 While the majority does not address the issue, I also would hold that Officer Chaplain would not have inevitably discovered the firearm. “[T]he doctrine of inevitable discovery” provides that “evidence obtained by unlawful means is nonetheless admissible ‘[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.’” Commonwealth v. Jones, 267 Va. 532, 536 (2004) (second alteration in original)

2026The Commonwealth must meet its burden with “demonstrated historical facts capable of ready verification or impeachment.” Nix, 467 U.S. at 444 n.5.

2025In doing so, Code § 20-124.2(B2) transgresses the basic principle that the “common law right of visitation extends only to parents.” Kogon v. Ulerick, 12 Va. App. 595, 597 (1991) (“As between a parent who has been awarded custody of a child, on the one hand, and, on the other, third persons, including grandparents, the rights of the custodial parent are paramount; the parent has the 11 To be sure, the facts of the present case highlight the shortcomings of Code § 20-124.2(B2) vis-à-vis its attempt to invoke the exception to the Williams standard announced in Dotson.

2025In doing so, Code § 20-124.2(B2) transgresses the basic principle that the “common law right of visitation extends only to parents.” Kogon v. Ulerick, 12 Va. App. 595, 597 (1991) (“As between a parent who has been awarded custody of a child, on the one hand, and, on the other, third persons, including grandparents, the rights of the custodial parent are paramount; the parent has the 11 To be sure, the facts of the present case highlight the shortcomings of Code § 20-124.2(B2) vis-à-vis its attempt to invoke the exception to the Williams standard announced in Dotson.

2025This is of particular significance since the record on appeal includes Williams’s medical records from October 11, 2018, at Fluvanna Correctional Center, which notes that Williams fell and had “superficial abrasions” when she “return[ed] from transportation.” When viewing both notices together, the Commonwealth could not reasonably be expected to know which location or date Williams’s claim referred to, depriving it of awareness of “the essential facts of [her] claim.”12 Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 245 (2004).

2022He also characterizes as “untenable” precedent that prevents appellate courts from “grant[ing] relief from unnecessarily harsh sentences,” arguing that a sentence which amounts to “cruel and unusual punishment . . . is a product of abuse of discretion.” We cannot consider Williams’s challenge to established binding precedent because “we are bound by decisions of the Supreme Court of Virginia[.]” Vay v. Commonwealth, 67 Va. App. 236 , 258 n.6 (2017) (quoting Roane v. Roane, 12 Va. App. 989, 993 (1991)).

2022Furthermore, under the doctrine of interpanel accord, “a decision of a panel of the Court of Appeals becomes a predicate for application of the doctrine of stare decisis until overruled by a decision of the Court of Appeals sitting en banc or by a decision of [the Supreme] Court.” Brown v. Commonwealth, 68 Va. App. 44 , 51 n.1 (2017) (quoting Johnson v. Commonwealth, 252 Va. 425, 430 (1996)).

2015As the majority recognizes, the trial court did not need to explicitly state it was taking judicial notice of the location of Fremont Street. “[A] trial court need not intone the words ‘judicial notice’ in order to notice a fact, [however] the evidence, the arguments of the parties and the statements of the trial court must demonstrate clearly that the trial court has taken judicial notice of the fact before a party may rely upon such notice on appeal.” 15 Edmonds v. Commonwealth, 43 Va. App. 197, 201 , 597 S.E.2d 210, 212 (2004) (emphasis omitted) (quoting Dillard v. Commonwealth, 28 Va. App.

2015As the majority recognizes, the trial court did not need to explicitly state it was taking judicial notice of the location of Fremont Street. “[A] trial court need not intone the words ‘judicial notice’ in order to notice a fact, [however] the evidence, the arguments of the parties and the statements of the trial court must demonstrate clearly that the trial court has taken judicial notice of the fact before a party may rely upon such notice on appeal.” 15 Edmonds v. Commonwealth, 43 Va. App. 197, 201 , 597 S.E.2d 210, 212 (2004) (emphasis omitted) (quoting Dillard v. Commonwealth, 28 Va. App.

2015As the majority recognizes, the trial court did not need to explicitly state it was taking judicial notice of the location of Fremont Street. “[A] trial court need not intone the words ‘judicial notice’ in order to notice a fact, [however] the evidence, the arguments of the parties and the statements of the trial court must demonstrate clearly that the trial court has taken judicial notice of the fact before a party may rely upon such notice on appeal.” 15 Edmonds v. Commonwealth, 43 Va. App. 197, 201 , 597 S.E.2d 210, 212 (2004) (emphasis omitted) (quoting Dillard v. Commonwealth, 28 Va. App.

2015As the majority recognizes, the trial court did not need to explicitly state it was taking judicial notice of the location of Fremont Street. “[A] trial court need not intone the words ‘judicial notice’ in order to notice a fact, [however] the evidence, the arguments of the parties and the statements of the trial court must demonstrate clearly that the trial court has taken judicial notice of the fact before a party may rely upon such notice on appeal.” 15 Edmonds v. Commonwealth, 43 Va. App. 197, 201 , 597 S.E.2d 210, 212 (2004) (emphasis omitted) (quoting Dillard v. Commonwealth, 28 Va. App.

2014See Nelson v. Commonwealth, 281 Va. 212, 219 , 707 S.E.2d 815, 818 (2011) (Koontz, J., dissenting) (quoting Williams, 216 Va. at 303 , 217 S.E.2d at 898 (Harrison, J., joined by Cochran and Poff, JJ., dissenting)).

2014See Nelson v. Commonwealth, 281 Va. 212, 219 , 707 S.E.2d 815, 818 (2011) (Koontz, J., dissenting) (quoting Williams, 216 Va. at 303 , 217 S.E.2d at 898 (Harrison, J., joined by Cochran and Poff, JJ., dissenting)).

2014See Nelson v. Commonwealth, 281 Va. 212, 219 , 707 S.E.2d 815, 818 (2011) (Koontz, J., dissenting) (quoting Williams, 216 Va. at 303 , 217 S.E.2d at 898 (Harrison, J., joined by Cochran and Poff, JJ., dissenting)).

2014See Nelson v. Commonwealth, 281 Va. 212, 219 , 707 S.E.2d 815, 818 (2011) (Koontz, J., dissenting) (quoting Williams, 216 Va. at 303 , 217 S.E.2d at 898 (Harrison, J., joined by Cochran and Poff, JJ., dissenting)).

2014Co. v. Martin, 198 Va. 370, 378 , 94 S.E.2d 202, 207-08 (1956); see also 2013 Acts chs. 128, 400 and 783; 2014 Acts chs. 53 and 256. 5 “‘Motor vehicle’ means every vehicle as defined in this section . . . .” Code § 46.2-100. “‘Vehicle’ means every device in, on or by which any person or property is or may be transported or drawn on a highway, except devices moved by human power or used exclusively on stationary rails or tracks.” Id. (emphasis added). 6 Similarly, under the Williams standard, a person “operate[s]” a motor vehicle for the purpose of Code § 18.2- 266 once the motor is running whe

2014Co. v. Martin, 198 Va. 370, 378 , 94 S.E.2d 202, 207-08 (1956); see also 2013 Acts chs. 128, 400 and 783; 2014 Acts chs. 53 and 256. 5 “‘Motor vehicle’ means every vehicle as defined in this section . . . .” Code § 46.2-100. “‘Vehicle’ means every device in, on or by which any person or property is or may be transported or drawn on a highway, except devices moved by human power or used exclusively on stationary rails or tracks.” Id. (emphasis added). 6 Similarly, under the Williams standard, a person “operate[s]” a motor vehicle for the purpose of Code § 18.2- 266 once the motor is running whe

2010“Whether there has been a double jeopardy violation presents a question of law requiring a de novo review.” Fullwood v. Commonwealth, 279 Va. 531, 539 , 689 S.E.2d 742, 747 (2010). “[The constitutional protection against double jeopardy] provides three distinct guarantees. ‘It protects against a second prosecution for the same offense after acquittal.

2010“Whether there has been a double jeopardy violation presents a question of law requiring a de novo review.” Fullwood v. Commonwealth, 279 Va. 531, 539 , 689 S.E.2d 742, 747 (2010). “[The constitutional protection against double jeopardy] provides three distinct guarantees. ‘It protects against a second prosecution for the same offense after acquittal.

2006STANDARD OF REVIEW In determining whether or not the trial court properly denied Williams’ motion to suppress, “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.” Jackson v. Commonwealth, 267 Va. 666, 672 , 594 S.E.2d 595, 598 (2004) (citing Bass v. Commonwealth, 259 Va. 470, 475 , 525 S.E.2d 921, 923-24 (2000)).

2006STANDARD OF REVIEW In determining whether or not the trial court properly denied Williams’ motion to suppress, “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.” Jackson v. Commonwealth, 267 Va. 666, 672 , 594 S.E.2d 595, 598 (2004) (citing Bass v. Commonwealth, 259 Va. 470, 475 , 525 S.E.2d 921, 923-24 (2000)).

2006STANDARD OF REVIEW In determining whether or not the trial court properly denied Williams’ motion to suppress, “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.” Jackson v. Commonwealth, 267 Va. 666, 672 , 594 S.E.2d 595, 598 (2004) (citing Bass v. Commonwealth, 259 Va. 470, 475 , 525 S.E.2d 921, 923-24 (2000)).

2006STANDARD OF REVIEW In determining whether or not the trial court properly denied Williams’ motion to suppress, “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.” Jackson v. Commonwealth, 267 Va. 666, 672 , 594 S.E.2d 595, 598 (2004) (citing Bass v. Commonwealth, 259 Va. 470, 475 , 525 S.E.2d 921, 923-24 (2000)).

2005Where father is no longer “clothed with the parental presumption generally accorded natural parents in a dispute with non-parents, ... it follows that the best interests test is *394 appropriately applied in resolving the custody dispute between father and grandparent.” McEntire, 217 Va. at 316 , 227 S.E.2d at 743 15 ; see also Watson, 217 Va. at 544 , 229 S.E.2d at 901 ; Dyer, 212 Va. at 456 , 184 S.E.2d at 792 .

2005Where father is no longer “clothed with the parental presumption generally accorded natural parents in a dispute with non-parents, ... it follows that the best interests test is *394 appropriately applied in resolving the custody dispute between father and grandparent.” McEntire, 217 Va. at 316 , 227 S.E.2d at 743 15 ; see also Watson, 217 Va. at 544 , 229 S.E.2d at 901 ; Dyer, 212 Va. at 456 , 184 S.E.2d at 792 .

2004King v. Commonwealth, 39 Va.App. 306, 307 , 572 S.E.2d 518, 518-19 (2002).

2004King v. Commonwealth, 39 Va.App. 306, 307 , 572 S.E.2d 518, 518-19 (2002).

2004We rejected mother’s argument that the trial court erroneously-failed to apply the Williams standard, holding that “[w]hen only one parent objects to a grandparent’s visitation and the other parent requests it, the trial court is not required to follow the standard enumerated in Williams.” Id. at 639, 513 S.E.2d at 903 ; see also Griffin v. Griffin, 41 Va.App. 77, 83-84 , 581 S.E.2d 899, 902 (2003).

2004We rejected mother’s argument that the trial court erroneously-failed to apply the Williams standard, holding that “[w]hen only one parent objects to a grandparent’s visitation and the other parent requests it, the trial court is not required to follow the standard enumerated in Williams.” Id. at 639, 513 S.E.2d at 903 ; see also Griffin v. Griffin, 41 Va.App. 77, 83-84 , 581 S.E.2d 899, 902 (2003).

2001See Sizemore v. Commonwealth, 11 Va. App. 208, 213 , 397 S.E.2d 408, 411 (1990) (noting that questions that "only inferentially address" a prospective juror's potentially disqualifying bias fail to disclose whether that bias is fixed or can be set aside); David v. Commonwealth, 26 Va. App. 77, 81 , 493 S.E.2d 379, 381 (1997) (holding that evidence used to rehabilitate prospective juror must come from juror himself and not consist solely of his mere assent to leading questions). - 5 - Because such a doubt must be resolved in favor of the accused, we hold that the trial court's refusal to grant

2001See Sizemore v. Commonwealth, 11 Va. App. 208, 213 , 397 S.E.2d 408, 411 (1990) (noting that questions that "only inferentially address" a prospective juror's potentially disqualifying bias fail to disclose whether that bias is fixed or can be set aside); David v. Commonwealth, 26 Va. App. 77, 81 , 493 S.E.2d 379, 381 (1997) (holding that evidence used to rehabilitate prospective juror must come from juror himself and not consist solely of his mere assent to leading questions). - 5 - Because such a doubt must be resolved in favor of the accused, we hold that the trial court's refusal to grant

2001See Sizemore v. Commonwealth, 11 Va. App. 208, 213 , 397 S.E.2d 408, 411 (1990) (noting that questions that "only inferentially address" a prospective juror's potentially disqualifying bias fail to disclose whether that bias is fixed or can be set aside); David v. Commonwealth, 26 Va. App. 77, 81 , 493 S.E.2d 379, 381 (1997) (holding that evidence used to rehabilitate prospective juror must come from juror himself and not consist solely of his mere assent to leading questions). - 5 - Because such a doubt must be resolved in favor of the accused, we hold that the trial court's refusal to grant

2001See Sizemore v. Commonwealth, 11 Va. App. 208, 213 , 397 S.E.2d 408, 411 (1990) (noting that questions that "only inferentially address" a prospective juror's potentially disqualifying bias fail to disclose whether that bias is fixed or can be set aside); David v. Commonwealth, 26 Va. App. 77, 81 , 493 S.E.2d 379, 381 (1997) (holding that evidence used to rehabilitate prospective juror must come from juror himself and not consist solely of his mere assent to leading questions). - 5 - Because such a doubt must be resolved in favor of the accused, we hold that the trial court's refusal to grant