COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata Argued at Alexandria, Virginia
JAMES MAYNARD PRO MEMORANDUM OPINION * BY v. Record No. 1799-99-4 JUDGE ROSEMARIE ANNUNZIATA JUNE 20, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Kathleen H. MacKay, Judge
S. Jane Chittom, Appellate Counsel (Elwood Earl Sanders, Jr.; Public Defender Commission, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
James Maynard Pro appeals from his conviction of making a
threat to burn a building in violation of Code § 18.2-83. He
contends the trial court erred 1) in admitting into evidence two
protective orders with an accompanying affidavit; 2) in finding
the Commonwealth's evidence sufficient to convict him of the
charged offense; and 3) in relying upon the personal experience
of the court in evaluating evidence in the case. For the
reasons that follow, we find no error and affirm the conviction.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. BACKGROUND
"On appeal, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Hunley v. Commonwealth,
30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). On October
17, 1998, Pro argued with his mother, Florence Pro ("Mrs. Pro"),
concerning money Pro wished Mrs. Pro to give him to redeem his
tools from pawn. When Mrs. Pro refused to give him the money,
Pro became angry and knocked some Lenox ornaments off a table in
Mrs. Pro's home, causing them to break. Pro "said that he was
going to burn the house down before [Mrs. Pro] gave the house to
the girls," the "girls" being Mrs. Pro's adult granddaughters,
Geri Ann and Andrea. 1 Mrs. Pro called the police, and thereafter
sought and obtained an emergency protective order from the
juvenile and domestic relations district court. On November 2,
1998, that order was made permanent.
At Pro's trial on April 6, 1999, Mrs. Pro testified for the
Commonwealth. She testified that when Pro destroyed the
ornaments, she was "scared to a certain point." However, she
denied that Pro's threat to burn her house frightened her, and
claimed that she only sought the protective order "to get him
[to] move out of my house and go [out] on his own." Mrs. Pro
acknowledged, however, that "she signed off on the [temporary]
1 Geri Ann and Andrea are Pro's estranged daughters.
- 2 - protective order," and subsequently "went back and got a
permanent one."
The Commonwealth offered the temporary and permanent
protective orders, with the attached affidavit signed by Mrs.
Pro, as substantive evidence to show "why she went and got" the
protective order. The court admitted the protective orders and
affidavit over Pro's objection.
In finding Pro guilty, the court noted that "there has to
be an appropriate mens rea in order for this crime to be
committed, which is a threat to burn . . . ." The court viewed
"threat" as "a communication avowing an intent to injure
another's person or property" which "taken in its particular
context must reasonably cause the receiver to believe that the
speaker will act according to his expression of intent." The
court found as a matter of fact that Pro's statement that he
"was going to burn the house down" was a "malicious threat" that
"made apparent an intent to injure [Mrs. Pro's] person or
property" and that "Mrs. Pro thought that it was a legitimate
threat." Discounting the possibility the words were spoken in
jest, the court found "[t]hese people were serious."
Pro was sentenced to one year of incarceration, which the
court suspended for a period of two years. This appeal
followed.
- 3 - ADMISSIBILITY OF THE PROTECTIVE ORDERS AND AFFIDAVIT
Pro contends the protective orders and supporting affidavit
were inadmissible, arguing the orders are rendered inadmissible
by statutory proscription, and the affidavit is inadmissible
both as an adjunct of the inadmissible protective orders and as
hearsay. Pro has failed to preserve this claim for appeal,
however.
When the protective order was offered into evidence, Pro
objected only that the order was not relevant. Defense counsel
argued that the Commonwealth's attorney offered the order only
"to impeach his own witness because he doesn't like her
responses" and that the order was not relevant to any material
fact in the case. Pro made no other objection. On appeal,
however, Pro contends the affidavit in support of the protective
order was inadmissible under Code § 16.2-253.4(G), and as
hearsay. These arguments were not presented to the trial court,
and are therefore barred by Rule 5A:18, which provides that
"[n]o ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling, except for good
cause shown or to . . . attain the ends of justice." We find no
basis to apply the good cause or ends of justice exceptions in
this case, and we therefore address this contention no further.
- 4 - SUFFICIENCY OF THE EVIDENCE
Pro further contends the evidence admitted at trial was
insufficient as a matter of law to convict him. This claim is
without merit.
As noted, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible. See Hunley, 30 Va. App. at 559, 518 S.E.2d at
349. We do not substitute our judgment for that of the trier of
fact, whose judgment will not be set aside unless plainly wrong
or without evidence to support it. See id. So viewed, the
evidence on the record supported the trial court's judgment. In
support of his argument, Pro contends that Mrs. Pro's testimony
constituted positive proof that she did not believe Pro intended
to burn her house and that because the affidavit contradicting
her testimony stated various reasons for Mrs. Pro's fear of Pro,
the trial court could not properly infer, based on the
affidavit, that Mrs. Pro's fear derived from a belief that Pro
intended to carry out his threat. We disagree.
Where extrinsic evidence is properly admitted to
"contradict" prior testimony, "such evidence has a dual
character . . . and . . . unlike other forms of impeaching
evidence . . . is also admissible as substantive evidence."
Charles E. Friend, The Law of Evidence in Virginia § 4-7, at 140
(4th ed. 1993). "Out of court statements offered to show the
- 5 - state of mind of the declarant are admissible in Virginia when
relevant and material." Johnson v. Commonwealth, 2 Va. App.
598, 602, 347 S.E.2d 163, 165 (1986); see also Pavlick v.
Commonwealth, 27 Va. App. 219, 231, 497 S.E.2d 920, 926 (1998)
(en banc) ("If shown to be relevant to the case, out-of-court
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata Argued at Alexandria, Virginia
JAMES MAYNARD PRO MEMORANDUM OPINION * BY v. Record No. 1799-99-4 JUDGE ROSEMARIE ANNUNZIATA JUNE 20, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Kathleen H. MacKay, Judge
S. Jane Chittom, Appellate Counsel (Elwood Earl Sanders, Jr.; Public Defender Commission, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
James Maynard Pro appeals from his conviction of making a
threat to burn a building in violation of Code § 18.2-83. He
contends the trial court erred 1) in admitting into evidence two
protective orders with an accompanying affidavit; 2) in finding
the Commonwealth's evidence sufficient to convict him of the
charged offense; and 3) in relying upon the personal experience
of the court in evaluating evidence in the case. For the
reasons that follow, we find no error and affirm the conviction.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. BACKGROUND
"On appeal, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Hunley v. Commonwealth,
30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). On October
17, 1998, Pro argued with his mother, Florence Pro ("Mrs. Pro"),
concerning money Pro wished Mrs. Pro to give him to redeem his
tools from pawn. When Mrs. Pro refused to give him the money,
Pro became angry and knocked some Lenox ornaments off a table in
Mrs. Pro's home, causing them to break. Pro "said that he was
going to burn the house down before [Mrs. Pro] gave the house to
the girls," the "girls" being Mrs. Pro's adult granddaughters,
Geri Ann and Andrea. 1 Mrs. Pro called the police, and thereafter
sought and obtained an emergency protective order from the
juvenile and domestic relations district court. On November 2,
1998, that order was made permanent.
At Pro's trial on April 6, 1999, Mrs. Pro testified for the
Commonwealth. She testified that when Pro destroyed the
ornaments, she was "scared to a certain point." However, she
denied that Pro's threat to burn her house frightened her, and
claimed that she only sought the protective order "to get him
[to] move out of my house and go [out] on his own." Mrs. Pro
acknowledged, however, that "she signed off on the [temporary]
1 Geri Ann and Andrea are Pro's estranged daughters.
- 2 - protective order," and subsequently "went back and got a
permanent one."
The Commonwealth offered the temporary and permanent
protective orders, with the attached affidavit signed by Mrs.
Pro, as substantive evidence to show "why she went and got" the
protective order. The court admitted the protective orders and
affidavit over Pro's objection.
In finding Pro guilty, the court noted that "there has to
be an appropriate mens rea in order for this crime to be
committed, which is a threat to burn . . . ." The court viewed
"threat" as "a communication avowing an intent to injure
another's person or property" which "taken in its particular
context must reasonably cause the receiver to believe that the
speaker will act according to his expression of intent." The
court found as a matter of fact that Pro's statement that he
"was going to burn the house down" was a "malicious threat" that
"made apparent an intent to injure [Mrs. Pro's] person or
property" and that "Mrs. Pro thought that it was a legitimate
threat." Discounting the possibility the words were spoken in
jest, the court found "[t]hese people were serious."
Pro was sentenced to one year of incarceration, which the
court suspended for a period of two years. This appeal
followed.
- 3 - ADMISSIBILITY OF THE PROTECTIVE ORDERS AND AFFIDAVIT
Pro contends the protective orders and supporting affidavit
were inadmissible, arguing the orders are rendered inadmissible
by statutory proscription, and the affidavit is inadmissible
both as an adjunct of the inadmissible protective orders and as
hearsay. Pro has failed to preserve this claim for appeal,
however.
When the protective order was offered into evidence, Pro
objected only that the order was not relevant. Defense counsel
argued that the Commonwealth's attorney offered the order only
"to impeach his own witness because he doesn't like her
responses" and that the order was not relevant to any material
fact in the case. Pro made no other objection. On appeal,
however, Pro contends the affidavit in support of the protective
order was inadmissible under Code § 16.2-253.4(G), and as
hearsay. These arguments were not presented to the trial court,
and are therefore barred by Rule 5A:18, which provides that
"[n]o ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling, except for good
cause shown or to . . . attain the ends of justice." We find no
basis to apply the good cause or ends of justice exceptions in
this case, and we therefore address this contention no further.
- 4 - SUFFICIENCY OF THE EVIDENCE
Pro further contends the evidence admitted at trial was
insufficient as a matter of law to convict him. This claim is
without merit.
As noted, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible. See Hunley, 30 Va. App. at 559, 518 S.E.2d at
349. We do not substitute our judgment for that of the trier of
fact, whose judgment will not be set aside unless plainly wrong
or without evidence to support it. See id. So viewed, the
evidence on the record supported the trial court's judgment. In
support of his argument, Pro contends that Mrs. Pro's testimony
constituted positive proof that she did not believe Pro intended
to burn her house and that because the affidavit contradicting
her testimony stated various reasons for Mrs. Pro's fear of Pro,
the trial court could not properly infer, based on the
affidavit, that Mrs. Pro's fear derived from a belief that Pro
intended to carry out his threat. We disagree.
Where extrinsic evidence is properly admitted to
"contradict" prior testimony, "such evidence has a dual
character . . . and . . . unlike other forms of impeaching
evidence . . . is also admissible as substantive evidence."
Charles E. Friend, The Law of Evidence in Virginia § 4-7, at 140
(4th ed. 1993). "Out of court statements offered to show the
- 5 - state of mind of the declarant are admissible in Virginia when
relevant and material." Johnson v. Commonwealth, 2 Va. App.
598, 602, 347 S.E.2d 163, 165 (1986); see also Pavlick v.
Commonwealth, 27 Va. App. 219, 231, 497 S.E.2d 920, 926 (1998)
(en banc) ("If shown to be relevant to the case, out-of-court
utterances are admissible to show the state of mind of the
declarant."). Thus, if Mrs. Pro's statements in the affidavit
supporting the protective order are relevant and material to
this case, the affidavit was properly admitted as substantive
evidence.
The affidavit served both as impeachment evidence and as
affirmative evidence of Mrs. Pro's state of mind at the time Pro
threatened to burn her house. Despite Mrs. Pro's assertions in
her ore tenus testimony, the affidavit gave the court grounds to
doubt the credibility of that testimony. Furthermore, as
substantive evidence, it served to show her fearful state of
mind immediately after Pro made his threat, supporting, by
inference, her belief that Pro intended to carry out the
threatened act. The fact that the affidavit stated additional
grounds for her fear of Pro is irrelevant, as the weight
accorded the evidence lies within the discretion of the trier of
fact. See Commonwealth v. Holloway, 9 Va. App. 11, 17, 384
S.E.2d 99, 102 (1989). "The inferences to be drawn from proven
facts, so long as they are reasonable, are within the province
- 6 - of the trier of fact." Hancock v. Commonwealth, 12 Va. App.
774, 782, 407 S.E.2d 301, 306 (1991) (citation omitted). In
sum, the court had sufficient evidence before it to support its
conclusion that Mrs. Pro reasonably believed Pro's threat: Mrs.
Pro's testimony established that Pro communicated an intent to
burn her house, the immediate context of Pro's statement
established its malicious nature, and Mrs. Pro's signed
affidavit established her fearful state of mind resulting from
Pro's statement, proving that she believed his threat to be
sincere.
TRIAL COURT'S RELIANCE ON PERSONAL EXPERIENCE
Finally, Pro contends the trial court erred by taking
judicial notice that, in intra-family disputes, frequently a
complainant will file criminal charges against a defendant, only
to recant at a later time irrespective of the merits of the
initial accusation. However, Pro made no objection at the time
the judge made this observation, and no effort was made to alert
the court that such an observation might be exceptionable. Rule
5A:18 therefore bars our further consideration of this claim.
For the reasons stated, we affirm the decision of the trial
court.
Affirmed.
- 7 -