Erick Dontae Porter v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 3, 2001
• Docket: 0637001
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Frank Argued at Chesapeake, Virginia

ERICK DONTAE PORTER MEMORANDUM OPINION * BY v. Record No. 0637-00-1 JUDGE RICHARD S. BRAY APRIL 3, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Von L. Piersall, Jr., Judge

J. Edgar Demps (James E. Short; Roy, Larsen, Romm & Lascara, on brief), for appellant.

Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

A jury convicted Erick Dontae Porter (defendant) of second

degree murder and abduction, violations of Code §§ 18.2-32 and

-48, respectively. On appeal, defendant challenges the

sufficiency of the evidence to prove both venue and the

convictions. Finding no error, we affirm the trial court.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

In reviewing the sufficiency of the evidence, we consider the

record "'in the light most favorable to the Commonwealth, giving

it all reasonable inferences fairly deducible therefrom. In so

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. doing, we must 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 . . . .'" Watkins v.

Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)

(citation omitted).

[T]he fact finder is not required to accept entirely either the Commonwealth's or the defendant's account of the facts. Similarly, the fact finder is not required to believe all aspects of a defendant's statement or testimony; the judge or jury may reject that which it finds implausible, but accept other parts which it finds to be believable.

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24

(1993) (citation omitted). Thus, the credibility of the

witnesses, the weight accorded the testimony, and the inferences

drawn from the proven facts are matters to be determined by the

fact finder. Long v. Commonwealth, 8 Va. App. 194, 199, 379

S.E.2d 473, 476 (1989). The judgment of the trial court will

not be disturbed unless plainly wrong or unsupported by the

evidence. See Code § 8.01-680.

I.

The instant prosecution and related investigation followed

the discovery of Steven Edwards' (Edwards) corpse in a Suffolk

drainage ditch on October 21, 1996. Lakisha Edwards had seen

Edwards alive on October 12, 1996, together with defendant,

Mikal Corbett, Greg Mabry and Deontrace Ward. Later that day,

Archie Bazemore and defendant were "hang[ing] in and smok[ing]

- 2 - weed" at defendant's residence, located in the City of

Portsmouth, when Bazemore witnessed Mabry and Ward escort

Edwards, bound and gagged with "duct tape on his hands and

mouth," into defendant's bedroom. Edwards appeared

"frightened," and Mabry and Ward "was [sic] talking about what

they was going to get and all this from Tiny Bop by taking

[Edwards] hostage." Shortly thereafter, Bazemore observed Mabry,

Ward and Corbett "taking [Edwards] to the shed" (garage) adjacent

to the residence.

Demarkus "Tiny Bop" Parker also saw Edwards, together with

Ward and Mabry, on the morning of October 12. Parker, an admitted

"drug dealer," "used to have [Edwards] with [him] all the time,"

and loaned him a van later in the day. When Edwards did not

return as expected and efforts to contact him were unsuccessful,

Parker, fearful that Edwards had been "arrested," "started

worrying." The following morning, Edwards telephoned Parker and

advised, "they want the money and the drugs and I'm scared,"

adding "[t]hey ain't playing, . . . [j]ust give it to them." When

Parker inquired, "whoever got you?," Edwards answered, "Little

Gary [Mabry] and them."

Parker, afraid of "trouble . . . behind the drugs," did not

report Edwards' call to police but, "maybe two or three days"

later, accompanied a "lot of family members" on a search of the

garage at defendant's residence. Apart from "burnt up paper and

stuff . . . like to keep warm or something," the group found no

- 3 - evidence of Edwards. Similarly, Portsmouth Police Officer Melvin

Hike searched the garage on October 15 and did not find Edwards on

the premises.

A "couple days" after initially observing Edwards captive at

defendant's home, Bazemore returned to the house, and defendant

"took him to the shed where [Edwards] was at and showed him" to

Bazemore. Edwards, his wrists bound, was on the floor, "taped up,

like he'd been beat up." In Bazemore's presence, defendant began

"tapping" Edwards, but he remained motionless. Defendant then

confided to Bazemore that "they were taking [Edwards] hostage to

get some money and drugs from Tiny Bop." Two days thereafter, on

or about October 16, Bazemore, again at defendant's residence,

observed Mabry and Corbett in the garage, with Corbett "on top of

[Edwards] poking and stabbing him and stuff." Edwards' mouth was

"tape[d]" but "he moved" in response to Corbett's abuse. Sometime

later, while in defendant's house and in his presence, Mabry

remarked "we're not going to get nothing now."

"About three days" thereafter, defendant came to Bazemore's

residence, and the two proceeded to Mabry's house in defendant's

car. En route, defendant "told [Bazemore] he had [Edwards'] body

in the trunk." Arriving at Mabry's home, defendant "went to talk

to" Mabry, and Bazemore opened the trunk and "seen a body . . .

wrapped up" in the sheet Edwards "were [sic] wrapped up in the

whole time." Defendant confessed to Bazemore that "they tortured"

- 4 - Edwards and warned "[s]omething would [happen] to [Bazemore] if

[he] said something."

On October 21, 1996, Suffolk Police Officer D.L. Ballard, in

response to a citizen report, found Edwards' corpse in a drainage

ditch, bound in duct tape, a sheet "wrapped around the upper

portion of [the] body." Forensic analysis definitively matched

the sheet with another found in defendant's residence. Similarly,

the duct tape on Edwards' body was matched to a roll of tape also

discovered at defendant's house.

An autopsy conducted by Dr. Leah Bush disclosed that Edwards

had died from "[a]sphyxia by [s]mothering." Dr. Bush opined that,

after "some time," the cloth sheet wrapped around Edwards' head

had become "sodden" with moisture from his breath, which prevented

"free air flow[] through the fabric" and resulted in suffocation.

Her examination revealed "no penetrating or blunt force trauma

[or] . . . any significant external injury . . . that would

produce death." She "estimate[d]" that Edwards had been dead for

"two to five days when . . . found" on October 21.

Convicted by the jury of second degree murder and abduction,

defendant appeals, challenging the sufficiency of the

Commonwealth's evidence to establish both venue and the

convictions.

II.

Generally, "the prosecution of a criminal case shall be had

in the county or city in which the offense was committed." Code

- 5 - § 19.2-244. "To prove venue, the Commonwealth must produce

evidence sufficient to give rise to a 'strong presumption' that

the offense was committed within the jurisdiction of the court,

and this may be accomplished by either direct or circumstantial

evidence." Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599,

604 (1990).

Here, Bazemore observed Edwards at the inception of the

abduction in defendant's home and on two subsequent occasions,

restrained and confined, in defendant's garage, all located in the

City of Portsmouth. During Bazemore's successive visits to the

garage, spanning several days, he watched as Edwards was

physically abused by his captors, including defendant.

Immediately following the final visit, Mabry remarked that Edwards

was no longer of value for ransom. Bazemore testified Edwards was

"wrapped up" in a sheet "the whole time" and noted the same sheet

covered his dead body when seen in the trunk of defendant's car on

or about October 19, two days before the discovery in Suffolk.

Clearly, such evidence establishes a strong presumption that

Edwards died by suffocation in the City of Portsmouth. 1

1 Moreover, Code § 19.2-248 provides that "[I]f a mortal wound, or other violence or injury, be inflicted . . . in one county or city, and death ensues therefrom in another county or city, the offense may be prosecuted in either." The instant record clearly establishes violence inflicted upon Edwards, in Portsmouth, beginning with abduction and followed by several days of "torture." Edwards' death inarguably "ensued" from such "violence." Thus, whether death occurred in Suffolk or "another county or city," Code § 19.2-248 permits prosecution for the offense in Portsmouth.

- 6 - III.

"Code § 18.2-18 provides that in the case of every felony, a

principal in the second degree shall be indicted, tried,

convicted, and punished in all respects as if a principal in the

first degree." Kearney v. Commonwealth, 32 Va. App. 790, 794, 531

S.E.2d 23, 25 (2000).

"To show an accused guilty of a crime as a principal in the second degree, the Commonwealth must show that the accused was present, aiding and abetting, and intended his or her words, gestures, signals, or actions to in some way encourage, advise, urge, or in some way help the person committing the crime to commit it."

Bass v. Commonwealth, 31 Va. App. 373, 389, 523 S.E.2d 534, 542

(2000) (citation ommitted).

The instant record establishes that, immediately prior to the

abduction, Edwards was in the company of defendant, Mabry, Corbett

and Ward. Later, Bazemore observed him, bound and gagged with

duct tape, at defendant's residence, again with defendant, Mabry

and Ward. Bazemore watched as Mabry, Ward and Corbett escorted

the captive Edwards to defendant's garage and subsequently

observed Edwards, restrained and otherwise abused by defendant,

Mabry and Corbett, in the garage over a period of several days.

Defendant admitted complicity in a scheme to abduct Edwards for

ransom from Parker. Edwards' dead body was subsequently

transported in defendant's car, and he threatened Bazemore to

maintain his silence or "something would . . . happen" to him.

- 7 - Such evidence, together with other proof, was sufficient to

establish beyond a reasonable doubt that defendant approved,

encouraged and assisted in the abduction and murder of Edwards as

a principal in the second degree.

Accordingly, we affirm the convictions.

Affirmed.

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