Ask the Arlington Fairfax Attorney: In a Violation of a Protective Order Case, What Does it Mean to Enter a Place “Furtively?”

Often, words used in Virginia criminal statutes are not colloquial.  In a recent case, an allegation of Violation of a Protective Order was elevated from a misdemeanor to a felony based on whether the defendant entered a home “furtively.”

In this case, the defendant and the victim formerly had a romantic relationship.  However, Romeo and Juliet they were not; the victim obtained a Protective Order against the defendant.  (Protective Orders bar a person from having contact with the subject of the Order.  Violations can have serious consequences — in this case felonious consequences).  One night, while the victim was home alone and sleeping on a couch, the defendant broke a window and entered her house.  The shattering glass woke the victim.  She saw the defendant coming at her from the kitchen.  She ran out of the house, but he grabbed her and was pulling her back to the house with a knife to her throat.  A neighbor called the police and the arriving squad cars caused the defendant to flee.

Under Virginia Code sec. 16.1-253.2, a first offense Violation of a Protective Order is elevated to a felony when a person violates the Order by “furtively entering the home” of a protected party while the party is present.

The defendant argued in court that his actions were not “furtive.”  He argued that he was very noisy — he broke glass!  The Court of Appeals disagreed and, while it defined this obscure term to mean “stealthily, surreptitiously, slyly, or sneakily,” it did not require a person to act with “ninja-like stealth.”  The Court found that, with all doors and windows locked, that the defendant chose the mode of entry most likely to allow him to get inside and overpower the victim before she could detect his presence and react.  In this case, the defendant acted furtively.  The conviction was affirmed.  The case is Calloway v. Commonwealth, 0387012-3 (August 6, 2013).

(While all this is certainly interesting, for lawyers the main point of this case is a procedural issue.  In Virginia, the Commonwealth’s Attorneys (“CA”) prosecute criminal cases at trial and the Attorneys General (“AG”) handles appeals.  What happens when a CA fails to object to a defendant’s Assignment of Error that AG believes is flawed?  Nothing.  The objection is waived.  The AG is bound by the CA’s waiver).

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