COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Kelsey
LURIA NICOLE GREENE
MEMORANDUM OPINION * BY
v. Record No. 3012-06-1 JUDGE LARRY G. ELDER
APRIL 22, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Norman A. Thomas, Judge
(Luria Greene, pro se, on brief), for appellant. Appellant
submitting on brief.
(Robert F. McDonnell, Attorney General; Richard B. Smith,
Special Assistant Attorney General, on brief), for appellee.
Appellee submitting on brief.
Luria Nicole Greene (appellant) appeals her bench trial conviction for the misdemeanor
offense of failing to answer a subpoena issued by the Virginia Department of Charitable Gaming
(VDCG) in violation of Code §§ 18.2-340.18 and 18.2-340.37. She contends (a) no statute
criminalizes her failure to answer the subpoena, (b) the conviction violates her right against
self-incrimination, (c) the evidence is insufficient to support her conviction, and (d) the subpoena
was not properly served. To the extent these claims have been properly preserved and presented
to us for purposes of appeal, we hold the court committed no error, and we affirm appellant’s
conviction.
I. BACKGROUND
Under settled principles, we review the evidence in the light most favorable to the
Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
That principle requires us to “discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn therefrom.” Wright v. Commonwealth, 196 Va. 132, 137, 82
S.E.2d 603, 606 (1954).
So viewed, the evidence at trial showed that in 2005, appellant served as the treasurer of
the Phoebus Athletic League, an organization under investigation by the VDCG. Pursuant to
Code § 18.2-340.18, the VDCG issued a subpoena to appellant requiring that she “appear as a
witness, to give testimony and present [specified] records or documents on January 19, 2006,
10:00 a.m., to Bob Jasinowski, Special Agent with the Department of Charitable Gaming” at the
VDCG’s office in Norfolk. The subpoena specified various records of the Phoebus Athletic
League that appellant was required to produce.
At about 8:30 a.m. on December 20, 2005, Jasinowski and his partner, Special Agent
Gail Greenia, went to appellant’s home to serve the subpoena. Jasinowski identified himself,
displayed his credentials, told appellant he had a subpoena for her, showed her the subpoena, and
tried to put it in her hand. Appellant refused to grasp the subpoena and entered her home
through the front door. Jasinowski placed the subpoena at a conspicuous place between the front
door and the door frame of her residence. About twenty minutes later, Jasinowski and Greenia
returned to appellant’s home. At that time, appellant was exiting her home through the front
door and walking to a parked car. Greenia noticed that the subpoena was no longer on the front
door. Greenia said the subpoena also was not in appellant’s hand or on the ground beside the
door.
Appellant failed to appear at the VDCG’s Norfolk office on January 19, 2006, as the
subpoena commanded. At the Commonwealth’s request, a grand jury indicted appellant for
willfully failing to comply with the VDCG’s subpoena. At trial, appellant moved to strike the
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evidence on the ground that disobeying an investigatory subpoena issued by the VDCG did not
constitute a criminal offense. Appellant also claimed, both in argument and in her testimony,
that she had no contact with Agents Jasinowski and Greenia on the day of service and never saw
the subpoena left at her door. Finally, appellant contended that all of the subpoenaed documents
had earlier been obtained by the Hampton Police Department and forwarded to the VDCG prior
to the issuance of its subpoena. Appellant also averred that, after receiving the subpoena, she
met with VDCG agents and elected not to give any statements.
The trial court rejected appellant’s defenses and, sitting as fact finder, found her guilty of
willfully refusing to obey the VDCG’s investigatory subpoena. Commenting on the weight it
gave to appellant’s testimony, the trial court stated her credibility was “extraordinarily lacking.”
II. ANALYSIS
A. WILLFUL NONCOMPLIANCE WITH VDCG SUBPOENA
AS A CRIMINAL OFFENSE
Code § 18.2-340.18(4) authorizes the VDCG to “issue subpoenas for the attendance of
witnesses before it, administer oaths, and compel production of records or other documents and
testimony of such witnesses whenever, in the judgment of the Department, it is necessary to do
so for the effectual discharge of its duties.” Code § 18.2-340.37(A) makes clear that anyone
“who violates the provisions of this article . . . shall be guilty of a Class 1 misdemeanor.” Article
1.1:1, titled “Charitable Gaming,” includes both §§ 18.2-340.18 and 18.2-340.37(A).
“While penal statutes must be strictly construed against the Commonwealth, ‘the plain,
obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained
construction; a statute should never be construed so that it leads to absurd results.’” Newton v.
Commonwealth, 21 Va. App. 86, 89, 462 S.E.2d 117, 119 (1995) (quoting Branch v.
Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)). Plainly read, Code
§ 18.2-340.18(4)’s grant of power to the VDCG to issue investigatory subpoenas necessarily
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imposes a corresponding statutory duty to comply on the individual to whom a lawful subpoena
is directed. The individual complies by appearing as directed and, under oath, either answering
the questions asked and producing the documents requested or, if he objects to doing so, raising
viable evidentiary privileges justifying his refusal to respond. The individual may not, however,
simply refuse to appear. Such defiance violates the individual’s statutory duty under Article
1.1:1 to comply with the subpoena and, thus, constitutes a misdemeanor under Code
§ 18.2-340.37. The trial court, therefore, correctly rejected appellant’s assertion that she
committed no criminal offense by willfully refusing to comply with the VDCG investigatory
subpoenas.
B. ALLEGED VIOLATION OF APPELLANT’S
RIGHT AGAINST SELF-INCRIMINATION
Appellant claims she had the right to disobey the subpoena on the ground that, if she had
appeared as commanded by the subpoena and brought with her the requested documents, she
could then have elected to invoke her Fifth Amendment privilege against self-incrimination.
Appellant provides no citation to any legal authority in support of this position, and she also has
failed to preserve it for appeal. Therefore, we do not address it on the merits.
Where, as here, an assertion of law cannot be taken as a given on appeal, the failure to
cite “any authority in support of this argument” violates Rule 5A:20(e). E.g. Epps v.
Commonwealth, 47 Va. App. 687, 718, 626 S.E.2d 912, 926 (2006) (en banc), aff’d, 273 Va.
410, 641 S.E.2d 77 (2007). Further, under Rule 5A:18, appellant’s failure to object with
specificity at trial on the grounds she now alleges on appeal prevents us from considering the
merits of her argument that her right to invoke her privilege against self-incrimination insulates
her from punishment for failing to appear as commanded by the subpoena. E.g. Marlowe v.
Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986) (holding objection must be
“timely made and the grounds stated with specificity”). On brief, appellant relies on the
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following statements and events as supporting her claim of preservation: the admission into
evidence of the October 19, 2006 advice of rights form and the trial court’s review of same; the
trial court’s ruling that the VDCG was permitted to order her to appear to give testimony; and
appellant’s argument in closing that she met with Agent Jasinowski and elected to make no
statements, as the advisement of rights form stated she was permitted to do. Through these
statements and events, appellant may have preserved for appeal a challenge involving the
assertion of her privilege against self-incrimination when she finally met with Agent Jasinowski
on October 19, 2006, had she raised such a challenge in this appeal. However, these arguments
have no direct bearing on her failure to appear nine months earlier on January 19, 2006, as
ordered by the VDCG subpoena, the act upon which her conviction rests.
Because appellant failed on brief to cite authority supporting this argument and failed at
trial to make the court aware of this argument, we do not consider it.
C. SUFFICIENCY OF THE EVIDENCE
At trial, appellant testified she never met the VDCG special agents on December 20, did
not hear either of them say they had a subpoena for her, never saw the subpoena they attempted
to put in her hand, and never found a subpoena on her front door. Because none of these things
happened, appellant argued, she could not be convicted of willfully failing to comply with the
subpoena.
Sitting as fact finder, however, the trial court disbelieved appellant’s denials and accepted
the testimony of the VDCG special agents. The trial court acted within its proper role in doing
so. “The power to segregate a witness’s testimony into the believable, partly believable, or
wholly unbelievable is an exercise of decisional discretion intrinsic to the fact finding task and
essential to its proper performance.” Harper v. Commonwealth, 49 Va. App. 517, 523, 642
S.E.2d 779, 782 (2007). The trial court was entitled to conclude that appellant’s testimony was
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an unsuccessful effort at lying to conceal her guilt. See generally Haskins v. Commonwealth, 44
Va. App. 1, 10-11, 602 S.E.2d 402, 406 (2004). Unless such a conclusion rests on inherently
incredible proof, we may pass no judgment on it. “As an appellate court, we are not permitted to
reweigh the evidence.” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007). 1
D. PROPER SERVICE OF THE SUBPOENA
Appellant argues on brief that the VDCG subpoena was not “lawfully served” because
the VDCG special agents did not use “efforts that could reasonably be expected to reach the
intended party.” She also contends that leaving the subpoena between the front door and door
frame did not “fit with the scope of the usual meaning of personal service.” Appellant, at trial,
did not expressly state that the manner of service of the VDCG investigatory subpoena was
legally insufficient. Nevertheless, the record establishes that the parties and the trial court
addressed the issue in a manner sufficient to preserve it for appeal. See, e.g., Robinson v.
Commonwealth, 13 Va. App. 574, 576, 413 S.E.2d 885, 886 (1992) (“The purpose of Rule
5A:18 is to avoid unnecessary appeals, reversals, and mistrials by requiring litigants to inform
the trial judge of the action complained of so that the judge has the opportunity to consider the
issue intelligently and take timely corrective action.”).
In ruling on appellant’s motion to strike at the close of the Commonwealth’s evidence,
the trial court, sua sponte, expressly considered the legal sufficiency of the service, reasoning as
follows:
[Appellant] was notified by Investigator Jasinowski of what the
document was[, a subpoena]. [Appellant] simply refused [the
subpoena].
1
Appellant also argues on brief that, even if she knew of the VDCG subpoena, the
VDCG received the requested documents from the Hampton Police Department from its earlier
independent investigation of appellant’s role as treasurer of the Phoebus Athletic League.
Appellant concludes that “[t]his satisfied the subpoena’s command to produce documents.”
Once again, appellant cites no legal authority for this proposition, and we know of none.
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The fact that it was tucked into the door is an alternative
effort, but [appellant] is responsible for that subpoena that she
refused and there are actually two lawful methods of service here.
One, this is the equivalent of personal service. She just refused it
. . . . [Two,] the posted service. There is no evidence at this point
that it’s deficient in any way, [and] it was indeed an alternative
form.
Later, in closing argument, the Commonwealth contended, “There was service. There was
another attempted service.” In response, appellant argued in closing, “[T]here is no evidence
even in the light most favorable to the Commonwealth that the subpoena during the 20 minutes
between the time it was put on the front door and the time that the agents say they saw the person
leave, that it had been moved.” (Emphasis added). Implicit in this argument is appellant’s
position that, from a legal perspective, personal service did not occur in the manner the
Commonwealth argued because, if it had so occurred, it would have been unnecessary for
appellant to make the argument that the subpoena could have been moved in the 20 minutes
before the person the agents identified as appellant left the house. In rebuttal argument, the
Commonwealth again raised the issue, arguing appellant’s testimony that the agents never
attempted to serve her was not credible and that “service [of the subpoena] was complete” when
“[the agents] said, here is a subpoena, and [appellant] walked past them without accepting it,”
“mak[ing] the missing 20 minutes a mute [sic] point.” By convicting appellant of the charged
offense, the trial court implicitly held that the service of process was legally sufficient. Thus, the
issue was presented to the trial court and preserved for appeal.
On the merits, the law and evidence support the trial court’s ruling. “In order for a court
to obtain jurisdiction over [a] person . . . , process must be served in the manner provided by
statute.” Steed v. Commonwealth, 11 Va. App. 175, 178, 397 S.E.2d 281, 284 (1990).
Appellant concedes on brief that the statute at issue here, Code § 18.2-340.18, “do[e]s not
specify a particular manner of service required.” In the absence of any statutory requirement to
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the contrary, “it is generally held that if the process server and defendant are within speaking
distance of each other, and such action is taken as to convince a reasonable person that personal
service is being attempted, service cannot be avoided by physically refusing to accept the
summons.” Nielson v. Braland, 119 N.W.2d 737, 739 (Minn. 1963); see 62B Am Jur. 2d
Process § 190 (2007). Here, Agent Jasinowski identified himself to appellant, displayed his
credentials, told her he had a subpoena for her, showed her the subpoena, and tried to put it in her
hand. Appellant refused to take the subpoena and entered her home through the front door.
Jasinowski placed the subpoena between the front door and its frame so that it was readily visible
to a person opening the door from the inside or the outside. That evidence, viewed in the light
most favorable to the Commonwealth, supported the trial court’s ruling that appellant was
personally served with the subpoena in a manner that complied with the law.
III.
Because the trial court did not err in finding Greene guilty of willfully refusing to comply
with the VDCG subpoena, we affirm her conviction.
Affirmed.
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Kelsey, J., dissenting.
I respectfully dissent on the question whether Greene’s defiance of the VDCG subpoena
(which I accept as fully proven) constitutes a criminal offense. Unless the “basic law” provides
for some other penalty, Code § 2.2-4022, courts ordinarily enforce administrative subpoenas
upon a petition for enforcement filed by the agency. Here, the basic law makes “violations of the
provisions” of Article 1.1:1 a misdemeanor under Code § 18.2-340.37(A). Another provision in
Article 1.1:1, Code § 18.2-340.18(4), authorizes VDCG subpoenas but does not expressly make
it a statutory violation to disobey them. Given this ambiguity, I would hold the basic law did not
expressly criminalize Greene’s willful disobedience of the VDCG subpoena.
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