COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis Argued at Richmond, Virginia
HERMAN OPENZO COOK MEMORANDUM OPINION * BY v. Record No. 1968-02-2 JUDGE JERE M. H. WILLIS JULY 1, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CITY OF RICHMOND Robert W. Duling, Judge Designate
Matthew T. Paulk (Blackburn, Conte, Schilling & Click, P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Herman Openzo Cook appeals his convictions of attempted
first-degree murder, use of a firearm in the commission of
attempted murder, robbery, and use of a firearm in the commission
of robbery. He contends: (1) that the trial court lacked
jurisdiction to try him as an adult because he was not afforded a
preliminary or transfer hearing in the juvenile and domestic
relations district court as required by Code § 16.1-269.1; and
(2) that the evidence was insufficient to support his convictions
of attempted first-degree murder and use of a firearm in the
commission thereof. Because the trial court had jurisdiction to
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. try Cook as an adult and the evidence supports his convictions, we
affirm the judgment of the trial court.
BACKGROUND
In October, 2000, the Commonwealth filed in the juvenile
and domestic district court three petitions charging Cook, a
juvenile, with robbery and aggravated malicious wounding. The
juvenile court certified the charges to the grand jury pursuant
to Code § 16.1-269.1(C). Cook was indicted by the grand jury.
However, on April 13, 2001, the circuit court entered a nolle
prosequi on the indictments. Although the Commonwealth could
have reinstated the charges by subsequent indictment, Code
§ 16.1-269(E), it did not do so.
On September 20, 2001, petitions were filed in the juvenile
and domestic relations district court charging Cook with the
instant offenses, alleged to have been committed on September
11, 2001, while he was seventeen years of age. Noting Cook's
previous certification and indictment for prosecution as an
adult, the juvenile court transferred the charges to the general
district court pursuant to Code § 16.1-271. The general
district court certified the charges to the grand jury, which
indicted Cook. The circuit court convicted him on each
indictment. Those convictions are the subject of this appeal.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
- 2 - Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). "The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995).
So viewed, the evidence disclosed that on September 11,
2001, Quinton Montague was walking with Beverly Pinkney and
another friend toward his truck when he noticed that one of the
windows of the truck had been broken. He ran ahead of his
friends to investigate. While standing next to his truck, he
heard gunshots and dropped to the ground. Pinkney ran to the
other side of the parking lot. She saw Cook, whom she
recognized from the neighborhood, climb on top of the truck and
fire his weapon downward at Montague.
When the shooting stopped, Montague and Pinkney ran to a
nearby apartment building and began knocking at a friend's door.
While they were in the apartment building corridor, Cook, with
his gun drawn, confronted Montague and demanded everything in
his pocket. Montague gave Cook $3,000. Montague also
recognized Cook from the neighborhood.
ANALYSIS
Circuit Court Jurisdiction
Cook contends that because the previously certified charges
against him ended with a nolle prosequi, he should have been
- 3 - proceeded against as a juvenile and was entitled to another
proceeding pursuant to Code § 16.1-269.1(C) in the juvenile and
domestic relations district court. Because he was denied this,
he asserts, the trial court did not acquire jurisdiction to try
him as an adult.
Code § 16.1-271 provides, in pertinent part:
The trial or treatment of a juvenile as an adult pursuant to the provisions of this chapter shall preclude the juvenile court from taking jurisdiction of such juvenile for subsequent offenses committed by that juvenile.
Any juvenile who is tried and convicted in a circuit court as an adult under the provisions of this article shall be considered and treated as an adult in any criminal proceeding resulting from any alleged future criminal acts and any pending allegations of delinquency which have not been disposed of by the juvenile court at the time of the criminal conviction.
Cook argues, first, that the second paragraph of the
statute sets forth the circumstances under which a circuit court
disposition commits a juvenile to adult status and treatment
with respect to future misconduct. He argues, second, that even
if the first paragraph of the statute controls, the nolle
prosequi entered in his earlier case rendered that proceeding a
nullity, which did not constitute his "treatment" as an adult.
The first paragraph of Code § 16.1-271 operates only with
respect to offenses subsequent to the trial or treatment of the
juvenile as an adult. The second paragraph addresses not only
- 4 - alleged future criminal acts, but also unconcluded "pending
allegations of delinquency." Id. (Emphasis added.) This case
involves only the first paragraph. Thus, we are concerned only
with whether Cook's earlier prosecution constituted trial or
treatment as an adult. He was not tried, so our inquiry focuses
on whether he was "treated" as an adult. We conclude that he
was.
"'Generally, the words and phrases used in a statute should
be given their ordinary and usually accepted meaning unless a
different intention is fairly manifest.' 'The plain, obvious,
and rational meaning of a statute is always preferred to any
curious, narrow or strained construction . . . .'" Broadnax v.
Commonwealth, 24 Va. App. 808, 814, 485 S.E.2d 666, 668 (1997)
(citations omitted).
"Prior to July 1, 1994, the first paragraph of Code
§ 16.1-271 provided that '[t]he trial or treatment of a juvenile
as an adult . . . shall not preclude the [juvenile] court from
taking jurisdiction of such juvenile for subsequent offenses
committed by that juvenile.'" Id. at 813, 485 S.E.2d at 668
(footnote omitted). "A presumption normally arises that the
legislature intended a substantive change in the law when it
adds a new provision to an existing statute by amendatory act."
Id. at 814, 485 S.E.2d at 669 (citation omitted).
The intent and effect of the legislature's deletion of the word "not" in the first paragraph of Code § 16.1-271 by the 1994
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COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis Argued at Richmond, Virginia
HERMAN OPENZO COOK MEMORANDUM OPINION * BY v. Record No. 1968-02-2 JUDGE JERE M. H. WILLIS JULY 1, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CITY OF RICHMOND Robert W. Duling, Judge Designate
Matthew T. Paulk (Blackburn, Conte, Schilling & Click, P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Herman Openzo Cook appeals his convictions of attempted
first-degree murder, use of a firearm in the commission of
attempted murder, robbery, and use of a firearm in the commission
of robbery. He contends: (1) that the trial court lacked
jurisdiction to try him as an adult because he was not afforded a
preliminary or transfer hearing in the juvenile and domestic
relations district court as required by Code § 16.1-269.1; and
(2) that the evidence was insufficient to support his convictions
of attempted first-degree murder and use of a firearm in the
commission thereof. Because the trial court had jurisdiction to
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. try Cook as an adult and the evidence supports his convictions, we
affirm the judgment of the trial court.
BACKGROUND
In October, 2000, the Commonwealth filed in the juvenile
and domestic district court three petitions charging Cook, a
juvenile, with robbery and aggravated malicious wounding. The
juvenile court certified the charges to the grand jury pursuant
to Code § 16.1-269.1(C). Cook was indicted by the grand jury.
However, on April 13, 2001, the circuit court entered a nolle
prosequi on the indictments. Although the Commonwealth could
have reinstated the charges by subsequent indictment, Code
§ 16.1-269(E), it did not do so.
On September 20, 2001, petitions were filed in the juvenile
and domestic relations district court charging Cook with the
instant offenses, alleged to have been committed on September
11, 2001, while he was seventeen years of age. Noting Cook's
previous certification and indictment for prosecution as an
adult, the juvenile court transferred the charges to the general
district court pursuant to Code § 16.1-271. The general
district court certified the charges to the grand jury, which
indicted Cook. The circuit court convicted him on each
indictment. Those convictions are the subject of this appeal.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
- 2 - Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). "The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995).
So viewed, the evidence disclosed that on September 11,
2001, Quinton Montague was walking with Beverly Pinkney and
another friend toward his truck when he noticed that one of the
windows of the truck had been broken. He ran ahead of his
friends to investigate. While standing next to his truck, he
heard gunshots and dropped to the ground. Pinkney ran to the
other side of the parking lot. She saw Cook, whom she
recognized from the neighborhood, climb on top of the truck and
fire his weapon downward at Montague.
When the shooting stopped, Montague and Pinkney ran to a
nearby apartment building and began knocking at a friend's door.
While they were in the apartment building corridor, Cook, with
his gun drawn, confronted Montague and demanded everything in
his pocket. Montague gave Cook $3,000. Montague also
recognized Cook from the neighborhood.
ANALYSIS
Circuit Court Jurisdiction
Cook contends that because the previously certified charges
against him ended with a nolle prosequi, he should have been
- 3 - proceeded against as a juvenile and was entitled to another
proceeding pursuant to Code § 16.1-269.1(C) in the juvenile and
domestic relations district court. Because he was denied this,
he asserts, the trial court did not acquire jurisdiction to try
him as an adult.
Code § 16.1-271 provides, in pertinent part:
The trial or treatment of a juvenile as an adult pursuant to the provisions of this chapter shall preclude the juvenile court from taking jurisdiction of such juvenile for subsequent offenses committed by that juvenile.
Any juvenile who is tried and convicted in a circuit court as an adult under the provisions of this article shall be considered and treated as an adult in any criminal proceeding resulting from any alleged future criminal acts and any pending allegations of delinquency which have not been disposed of by the juvenile court at the time of the criminal conviction.
Cook argues, first, that the second paragraph of the
statute sets forth the circumstances under which a circuit court
disposition commits a juvenile to adult status and treatment
with respect to future misconduct. He argues, second, that even
if the first paragraph of the statute controls, the nolle
prosequi entered in his earlier case rendered that proceeding a
nullity, which did not constitute his "treatment" as an adult.
The first paragraph of Code § 16.1-271 operates only with
respect to offenses subsequent to the trial or treatment of the
juvenile as an adult. The second paragraph addresses not only
- 4 - alleged future criminal acts, but also unconcluded "pending
allegations of delinquency." Id. (Emphasis added.) This case
involves only the first paragraph. Thus, we are concerned only
with whether Cook's earlier prosecution constituted trial or
treatment as an adult. He was not tried, so our inquiry focuses
on whether he was "treated" as an adult. We conclude that he
was.
"'Generally, the words and phrases used in a statute should
be given their ordinary and usually accepted meaning unless a
different intention is fairly manifest.' 'The plain, obvious,
and rational meaning of a statute is always preferred to any
curious, narrow or strained construction . . . .'" Broadnax v.
Commonwealth, 24 Va. App. 808, 814, 485 S.E.2d 666, 668 (1997)
(citations omitted).
"Prior to July 1, 1994, the first paragraph of Code
§ 16.1-271 provided that '[t]he trial or treatment of a juvenile
as an adult . . . shall not preclude the [juvenile] court from
taking jurisdiction of such juvenile for subsequent offenses
committed by that juvenile.'" Id. at 813, 485 S.E.2d at 668
(footnote omitted). "A presumption normally arises that the
legislature intended a substantive change in the law when it
adds a new provision to an existing statute by amendatory act."
Id. at 814, 485 S.E.2d at 669 (citation omitted).
The intent and effect of the legislature's deletion of the word "not" in the first paragraph of Code § 16.1-271 by the 1994
- 5 - amendment could not be clearer. The language indicates, without question, that the legislature intended this amendment to divest the juvenile court of jurisdiction over a juvenile once the juvenile has been previously tried or treated as an adult under this chapter. Further, the language is mandatory . . . . These provisions are not ambiguous, and must be given their plain, obvious, and rational meaning.
Id. at 815, 485 S.E.2d at 669 (citation omitted)(emphasis
deleted in part).
[T]he statute[] clearly reveal[s] the legislature's intent that the event that requires all future actions involving the certified juvenile to commence as an adult is triggered by the probable cause finding and certification on the . . . felonies, not the ultimate finding at trial. Any juvenile "tried or treated" in the circuit court is removed from the juvenile justice system and must be considered and treated as an adult in any future criminal proceedings, irrespective of that trial's outcome.
Hughes v. Commonwealth, 39 Va. App. 448, 461, 573 S.E.2d 324,
330 (2002) (citation omitted).
We have held that when "'the trial court enters a nolle
prosequi of [an] indictment, it lays "to rest that indictment
and the underlying warrant without disposition, as though they
had never existed."'" Kenyon v. Commonwealth, 37 Va. App. 668,
675, 561 S.E.2d 17, 20 (2002)(citation omitted). "As though"
means "just as if." This concept has meaning only when
considered in recognition that the proceeding did, in fact,
occur. The bare fact that a nol prossed indictment has no
- 6 - ongoing validity or effect does not alter the fact that the
indictment and its underlying process occurred.
Cook's certification in 2000 pursuant to Code
§ 16.1-269.1(C) established his status as an adult for
jurisdictional purposes. He was then treated as an adult by the
circuit court, where he was indicted and arraigned. Although
those charges were terminated by nolle prosequi, he was
nonetheless during the pendency of those proceedings treated as
an adult, which status continued pursuant to Code § 16.1-271.
The juvenile court was precluded from exercising jurisdiction
over him with respect to the charges embraced in this appeal,
and the trial court properly acquired jurisdiction.
SUFFICIENCY OF THE EVIDENCE
Cook argues that the evidence was insufficient to prove he
intended to kill Montague.
To prove the crime of attempted murder two essential elements must be established. The specific intent to kill the victim must be shown and this must be coupled with evidence of some overt but ineffectual act in furtherance of this purpose. The use of a deadly weapon, standing alone, is not sufficient to prove the specific intent required to establish attempted murder.
Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598
(1974) (citation omitted) (emphasis added). "The necessary
intent is the intent in fact, as distinguished from an intent in
law. Intent in fact is the purpose formed in a person's mind
- 7 - which may be shown by his conduct." Epps v. Commonwealth,
216 Va. 150, 156, 216 S.E.2d 64, 69 (1975) (citations omitted).
Pinkney testified she saw Cook climb atop Montague's truck
and repeatedly fire his weapon toward Montague, who was on the
ground trying to shield himself with the truck. This conduct
was sufficient to prove Cook's requisite intent to kill
Montague. Therefore, the evidence was sufficient to support the
convictions of attempted murder and use of a firearm in the
commission of attempted murder.
The judgment of the trial court is affirmed.
Affirmed.
- 8 -