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Lux v. Commonwealth

Court of Appeals of Virginia

December 10, 2013

HERBERT W. LUX, JR.
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY Thomas S. Shadrick, Judge Designate

Herbert W. Lux, Jr., pro se (Price Koch; Spencer Mayoras Koch Cornick & Meyer, PLC, on brief). [1]

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

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

MEMORANDUM OPINION [*]

WALTER S. FELTON, JR. CHIEF JUDGE

Herbert W. Lux, Jr. ("appellant") appeals from his convictions of obstruction of justice, in violation of Code § 18.2-460(A), and entering property for purposes of damaging it or interfering with the owner's use thereof, in violation of Code § 18.2-121, following a jury trial in the Spotsylvania County Circuit Court ("trial court").[2] He contends the trial court erred by denying his motions to strike the evidence and to set aside the jury's verdict. He asserts the evidence presented at trial was insufficient to support his convictions. He further contends that Thomas S. Shadrick, Judge Designate, erred by ruling that he was not required to retake the oath of office after being designated, pursuant to Code § 17.1-106(A), by the Chief Justice of the Virginia Supreme Court to preside over cases in the trial court.

I. BACKGROUND

On January 31, 2011, appellant's son, Matthew T. Lux ("Matthew") was convicted of reckless handling of a firearm, in violation of Code § 18.2-56.1, following a jury trial in the Circuit Court of Spotsylvania County.

After Matthew's conviction and sentencing, appellant attempted to contact members of the jury from that trial. Several of the jurors notified the clerk of the Spotsylvania County Circuit Court to complain that appellant had visited them at their homes. These individuals also informed the clerk that they did not want to have any further contact with appellant.

The clerk reported the substance of the jurors' phone calls to Judge David H. Beck, who presided over Matthew's trial and sentencing. On March 3, 2011, Judge Beck entered an order, sua sponte, directing that all copies of the jury list from Matthew's trial be returned to the clerk of the court and placed under seal.[3] The order also prohibited further unauthorized use of any of the jurors' personal contact information. On March 3, 2011, Spotsylvania County Sheriff's Office Deputy K.M. Shanahan personally served appellant with a copy of the court order.[4]

On March 12, 2011, Sergeant B. Harvey of the Spotsylvania County Sheriff's Office was dispatched to a neighborhood in the county, following a complaint from a jury member from Matthew's trial, that appellant had appeared, uninvited, at the juror's home. Sergeant Harvey located appellant in a grocery store parking lot near the juror's house, and asked him if he had visited the juror's home. Appellant admitted that he had visited the juror's home. Sergeant Harvey "advised [appellant] that he was no longer able to go to any juror's homes, and that if he did go to another juror's home that was on the [jury] list . . . he would be arrested for trespassing." When Sergeant Harvey asked appellant if he understood her warning, he responded affirmatively.

The next day, March 13, 2011, appellant appeared, uninvited, at the home of A.B.[5] He backed his car into A.B.'s driveway and parked.[6] He traversed the walkway leading to her front door and rang the doorbell. A.B., aware that appellant was at her front door, refused to answer.[7]The sight of appellant "literally stopped [her] in [her] tracks . . . [because she] did not have any intention of making that meeting . . . in [her] home at that time." A.B. knew her husband was in the yard. She left the vicinity of the front door and momentarily saw him through a window, speaking with appellant. A.B. immediately telephoned the sheriff's office to report appellant's presence at her home.

Sergeant Harvey and Deputy M. Buccola arrived at A.B.'s home approximately ten minutes after A.B. placed her call. Sergeant Harvey asked appellant if he remembered speaking with her the previous day. He responded affirmatively. He admitted to Sergeant Harvey that he remembered her warning that she would arrest him if he visited another juror's property. Sergeant Harvey thereafter arrested appellant for trespassing.

At appellant's trial, B.B. testified that he was outside, working on his fence, when he saw appellant standing on his front sidewalk. Appellant approached B.B., introduced himself, and began to discuss Matthew's trial and the circumstances of Matthew's arrest. Appellant gave B.B. a flier that detailed appellant's assertions of police and prosecutorial misconduct ...


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