Busy day in court sees motions in Bragg, Woolman, Smoot cases

Court watchers in the county had a field day Monday, July 9, when several of the area’s biggest cases came before Judge Jeffrey W. Parker in Rappahannock Circuit Court.

First up was Tom Woolman v. John Lesinski. In a petition filed Oct. 2, 2017, Amissville resident Woolman accused Hampton district supervisor Lesinski of repeatedly violating Virginia’s Conflict of Interest Act (COIA) in his official capacities as Rappahannock County School Board chairman and supervisor, by either not disqualifying himself from certain transactions or failing to disclose his economic interests in the transactions, as required by law.

Parker heard arguments on the petition March 15, and on April 9 handed down his ruling that he found no evidence of wrongdoing on Lesinski’s part.

“It’s a solid win, a solid victory for our arguments,” Lesinski said at the time. “The judge didn’t see any merit in the pleadings and agreed with my counsel that charges didn’t rise to the level of meriting a trial.”

But in May, Woolman’s attorney, David Konick, filed a motion asking that Commonwealth’s Attorney Art Goff, who is also the county attorney for the Board of Supervisors, be named as a party to Woolman’s suit. Konick also filed an amended petition adding Goff to the suit, charging him with conflict of interest in

his representation of Lesinski.

In arguing before Parker on July 9, Lesinski’s attorney, Robert Mitchell, urged the court to “step back and look at the overall petition” and consider the issue of standing, which is the right to bring a case.

Mitchell argued, as he had in March, that because Woolman did not suffer particular harm from Lesinski’s alleged violations, Woolman did not have the standing to bring a suit.

“Just because [Woolman] is a taxpayer doesn’t rise to the level of standing,” said Mitchell. “What is this case really about? [Woolman] has failed to demonstrate [that he suffered] harm.”

Konick argued that Woolman has “the right to expect lawful government practices,” and that the Constitution prohibits the suspension of the law.

He stated that because Goff represents Lesinski in one of the lawsuits against the Board of Supervisors brought by Gid Brown Hollow resident Marian Bragg, that “he is conflicted out.”

After listening to both sides for 45 minutes, Parker said the court would take the case under advisement and review the arguments. “It’s a very complex case, and I hope to arrive at the correct decision,” he said.

Parker did not indicate when he would make a ruling.

MOTION TO COMBINE BRAGG 1 AND 2

Konick filed a motion in circuit court on June 16 to consolidate the two cases known locally as Bragg 1 and Bragg 2. County resident Marian Bragg filed both lawsuits alleging that the BOS had, on several occasions, violated Virginia’s Freedom of Information Act (FOIA).

Bragg 1 alleges violations of public notification before the supervisors go into closed session. Bragg 2 alleges that the board did not properly advertise and consider candidates for the county administrator in the fall of 2017.

On March 15, 2017, Alfred D. Swersky, a substitute judge in Rappahannock’s 20th Judicial Circuit, denied the petition in Bragg 1 for a declaratory judgment and enforcement of FOIA by the county’s Board of Supervisors, finding that certain procedural aspects of the complaint had not been met.

Bragg’s attorney, Konick, appealed to the Virginia Supreme Court, which heard the appeal in April and reversed Swersky’s ruling in an order issue in May.

July 9 was the first time Bragg 2 had been heard.

In defending his consolidation motion, Konick claimed that facts in the two cases are the same in that they are both violations of FOIA.

“It would be waste of judicial resources” if the cases are not consolidated, he said. “The information would be repetitive.”

Mitchell, representing the county in Bragg 2, pushed back.

“These are not the same cases,” he said. “They involve different parties and different counsel. They are two separate situations.”

Parker said he felt it was too early in the process to consolidate the cases. He also said he was not yet very familiar with the cases, as Swersky had been handling them and Swersky still needed to rule on some outstanding motions. Parker asked Konick and Mitchell to approach Swersky about ruling on the motions.

PRE-TRIAL MOTIONS IN SMOOT CASE

With his three-day trial on first-degree murder only weeks away, Flint Hill resident Randy Smoot appeared in Rappahannock County Circuit Court July 9 with his attorneys, Mark Williams and Joseph Pricone. The attorneys and Goff had both submitted pre-trial motions to the court to determine what evidence could — or could not — be presented at trial.

Smoot, 47, was charged Oct. 21, 2017, with aggravated malicious wounding after he allegedly assaulted Jonas “Jay” Alther on Oct. 19 with a heavy object, believed to be an industrial flashlight. Hours later, after Alther succumbed to his injuries, Smoot was also charged with first degree murder.

Goff told the court that he wanted to introduce Smoot’s record of alcohol use and fighting at the trial.

“Alcohol use will be an integral part of [Smoot’s] defense,” said Goff, who also indicated he would introduce evidence that Smoot has been drinking the day of the incident.

Pricone objected, saying that he wanted to suppress Smoot’s record prior to the day of the event. Parker sustained Pricones’s motion to suppress some of Smoot’s record of alcohol use.

Goff then argued his motion — to limit evidence regarding Alther’s “tendency toward violence.”

“We think the evidence will show that the incident was a simple assault,” said Goff.

Pricone, however, listed seven incidents between 2015 and 2017 in which Alther had threatened violence against someone, including neighbors, workers from Rappahannock Electric Coop on a service call on Alther’s road, and employees of the Virginia Department of Transportation.

Parker said he did not have enough information about the incidents to rule on the motion and agreed to leave the matter open until the first day of the trial, which is scheduled for August 15.

GRAND JURY INDICTMENTS

Also on July 9, Rappahannock’s Grand Jury indicted four individuals: Eduardo Daniel Hernandez, Brittany Michelle McCracken, Thomas Roy Berry and Marilyn Bailey.

Hernandez and McCracken were both charged with distribution of marijuana in amounts between one-half ounce to five pounds. The charges stemmed from a traffic stop on May 12 on Route 211.

In his two written complaints, Rappahannock County Sheriff’s Sgt W. C. Ubben said he stopped the vehicle, being driven by Hernandez, because of a defective tag light.

“I immediately detected the odor of marijuana,” says the complaint. A search of the vehicle turned up a bag of “plant material,” later confirmed to be marijuana stuffed under the center console. Loose marijuana was scattered in other places. McCracken, Hernandez’s girlfriend of three years, claimed that the marijuana and a digital scale were hers.

Ubben also discovered that Hernandez had been driving under a revoked license, for which he had a prior conviction.

Goff asked that the two cases be combined. The first hearing is scheduled for August 2.

Berry was indicted for “knowingly fail[ing] to register with the Sex Offender and Crimes Against Minors Registry,” according to the indictment document. Court records show that Berry, a Castleton resident, was charged in Rappahannock County 12 times in 2013 for offenses including indecent liberties with a child under the age of 15 and aggressive sexual battery against a victim less than 13 years old.

As part of agreements with the court, Berry pleaded guilty to three charges and was sentenced to a total of 25 years in the penitentiary, with 20 years and eight months suspended. He was also ordered to undergo 10 years of supervised probation upon his release. His current case is continued to August 28.

Marilyn Bailey, of Warrenton, was indicted on a charge of obtaining money by false pretense. The indictment reads that between April 15, 2017, and September 30, 2017, Bailey “did unlawfully and feloniously obtain, by any false pretense or token, from any person, with intent to defraud, money, a gift certificate or other property that may be the subject of larceny.” Her case comes before the court August 28.