COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata Argued at Richmond, Virginia
JOHN JOSEPH WARMOUTH MEMORANDUM OPINION * BY v. Record No. 2281-00-2 JUDGE ROSEMARIE ANNUNZIATA DECEMBER 11, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY Thomas V. Warren, Judge
D. Gregory Carr (Douglas A. Ramseur; Bowen, Bryant, Champlin & Carr, on briefs), for appellant.
Michael T. Judge, Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellee.
John Joseph Warmouth appeals his August 24, 2000 conviction
by a jury for aggravated malicious wounding on the ground that
the evidence was insufficient to prove his guilt beyond a
reasonable doubt. For the reasons that follow, we affirm.
I.
Background
On July 23, 1996, Mary Ann Worsham arrived home from work
around 11:10 p.m. She locked the front door, made sure the back
door was locked, and checked on her two sons before she got
ready for bed. From her bedroom, she telephoned Richard
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Worsham, her future husband. She ended the call at 11:45 p.m.
and went to sleep.
Later that night, Mary Ann awakened startled from a sound.
She vaguely recalls that "something was happening and [she] was
trying to stop it." Although she could not clearly remember
what happened that night, she remembered feeling nauseated,
going to the bathroom and "leaning over the toilet and throwing
up blood." She also recalled being taken from her home by the
rescue squad, but remembered nothing else until she awoke from a
coma at the Medical College of Virginia (MCV) nine days later.
Mary Ann suffered ten wounds to the right side of her head
and all the bones on that side of her head "were crushed to
about the size of corn flakes." As a result of the attack, she
lost forty percent of the hearing in her right ear, sustained
permanent paralysis of her right eyebrow, permanent brain
damage, short term memory problems, dizziness and a "head full
of pins and plates."
Dr. Malcolm Bullock, a professor of neurosurgery at MCV,
treated Mary Ann as an emergency patient on July 24, 1996.
Bullock noted that she was "in a coma, active, moving around,
unable to obey commands [and] bleeding heavily from a number of
head wounds" on the right side of her head. Dr. Bullock
believed many of the wounds were "most likely" inflicted by an
instrument "like a hammer." The results of a CAT scan showed
several blood clots pushing on Mary Ann's brain. Dr. Bullock
- 2 - observed that "brain material was actually oozing out of some of
the wounds in the temporal region." Her injuries resulted in
substantial scarring of the temporal lobe, which put her at
permanent risk for seizures and infection in her cranial cavity.
Mary Ann was married to John, the appellant, for almost
fourteen years. At the time of the offense, Mary Ann and John
had been separated for almost ten months and had two sons, who
were nine and eleven years old. Their divorce became final
later that year.
In the spring of 1995, Mary Ann and John were experiencing
marital difficulties. John declined Mary Ann's suggestion to
attend marriage counseling. At the same time, Mary Ann's
employer at the funeral home, Matt Bennett, began making
advances toward her. She entered into an affair with him, which
ended quickly.
Mary Ann told John of the affair, hoping he would accede to
her request to work on their marriage. John, whom Mary Ann
described as "very cold and unfeeling," refused. After three or
four months of failure to convince John to work on their
marriage, Mary Ann and he discussed separating and eventually
signed a separation agreement at the end of September 1995.
John moved from the marital residence on October 1, 1995.
On November 21, 1995, Mary Ann found John waiting for her
at the house when she returned from grocery shopping. John
explained that he wanted to ask her "some questions," and she
- 3 - agreed. He specifically wanted to know about "this Richard
Worsham" whom the boys had mentioned to him. She explained that
she met Worsham after they had separated and that Worsham had
taken her and the boys fishing. John asked her if she planned
on dating Worsham. When she answered, "its possible," John
"jumped up in a fit of rage and slammed his fists into the
sliding glass door" with such force that he broke one of his
hands. Mary Ann took him to the hospital for treatment and then
drove him home.
On December 29, 1995, Mary Ann received a telephone call
from Bennett. Bennett said that John had called Bennett's wife
and "told her what was happening." In response, Mary Ann went
to see John at his home that evening. As she pulled into his
driveway, she noticed all of the lights in the house were on and
that he was standing in his kitchen with a .45 caliber pistol in
his hand. She told him he was "getting out of control" and that
he was only hurting others. With the pistol still in his hand,
John walked over to a couch, sat down and then put the pistol
behind a cushion. In response to Mary Ann's pleas to work
things out "civilly," John looked at her "square in the eye" and
said, "if I don't like what's happening with you and the boys in
the future, I'll kill you and whoever you're with."
A few months later, in April 1996, John drove up to the
marital residence and parked next to the garage, which was down
the slope of the hill from the house. The couple's youngest son
- 4 - went down to the garage and asked his father for his baseball
glove, which was in John's truck. John refused. When the boy
returned to Mary Ann crying, she went down to the garage and
asked John "to please" give her the glove. John again refused,
telling Mary Ann "he was in control of what goes on" and that
"[h]e was going to call the shots." Mary Ann went back to the
house and John shouted vulgarities after her. He refused Mary
Ann's pleas to stop so their sons would not hear him, and he
refused her request to leave. When she told him she would call
the police, John told her to "go right ahead . . . [a]nd he
handed [her] the phone." She called the police and they arrived
about ten minutes later. After the police talked with John for
a few minutes, he left.
In early July 1996, Mary Ann met with John's attorney,
Barbara Picard. In response to an inquiry by Picard, Mary Ann
stated that a future marriage to Worsham was a possibility.
On July 24, 1996, Mary Ann was attacked in her home. No one
else in the house was harmed. 1 She was not sexually assaulted,
and nothing was stolen from the house. The police found that
neither the windows nor the doors to the home showed signs of
forced entry. Mary Ann testified that only she, her mother and
John had keys to the house. A spare key was kept in a "fake
rock" near the front door; only Mary Ann, her mother, the
1 Mary Ann's disabled mother and the couple's sons were also living in the home at the time of the offense.
- 5 - babysitter and John knew the location of the spare key. On the
morning of July 24, 1996, the spare key was missing from the
fake rock; it was later found in nearby shrubs.
Also that morning, John spoke with his sister, Kathleen
Higgins, while he was at work. At trial, Higgins testified that
during that call she informed her brother of the attack, which
she learned about from a neighbor. In cross-examination,
however, she admitted that when she had spoken with her brother
that morning she had not known that Mary Ann had been
"attacked." Rather, she knew only that "something had happened
to [Mary Ann] and she was being taken to the hospital." After
he hung up the phone, John told his supervisor that someone had
assaulted his wife. John's supervisor and a co-worker overhead
him ask repeatedly "are my boys okay?" throughout the telephone
conversation, but did not hear him inquire about Mary Ann.
When John returned to his house from work that July 24,
Detective Vernon Poe of the Powhatan Sheriff's Office was
waiting to talk with him. John agreed to speak with Poe. He
told the detective that he had received a call at work informing
him that his wife had been assaulted. Poe told him that his
wife was in critical condition, but that she could give a
statement. When Poe mentioned the possibility of obtaining a
statement from Mary Ann, John's demeanor changed. His hands
began to shake, his breathing became shallower, he lost eye
contact with Poe and generally "appeared to be nervous."
- 6 - John told Poe that his friend, Gordon Batterson, had come
over to his home the prior evening. The two had a couple of
mixed drinks each, consuming about a half-pint of whiskey
between them. Batterson left at around 10:30 p.m. John, who
lives alone, told Poe that he went to bed shortly thereafter.
Greg Neal, undersheriff with the Powhatan Sheriff's Office,
processed the crime scene. Neal observed sheets and pillows
saturated with blood, "chunks of hair" on the floor, and blood
on the wall, window and in the bedroom's bathroom. He also
discovered a bloody palm impression on the bed sheets. Standing
at the foot of the bed, the palm print was located on the
left-hand side of the bed, towards the headboard. While the
impression left clear markings, no ridge detail was discernable.
Robert Hallett, a retired forensic impression examiner
employed by the Virginia Division of Forensic Science at the
time of the investigation, and qualified by the court as an
expert in anatomical impressions, examined the bloody palm
impression. He testified that although anatomical impressions
do not produce a "positive identification" of the creator of the
impression, they do permit an analysis that excludes
individuals. Based upon his examination of the impression in
comparison with the palm prints of Mary Ann and John, Hallett
excluded Mary Ann, but not John, as the source of the
impression. Specifically, Hallett found seventeen points of
similarity and no points of dissimilarity between the
- 7 - characteristics of John's known print and that of the impression
on the bed sheet. Based upon his examination, Hallett could not
eliminate John as the source of the palm impression.
Undersheriff Neal also discovered that the telephones were
inoperative and that the telephone line had been cut from the
exterior of the home. To see the wire, Neal had to move a
garden tool and bend down to within 12-18 inches from the deck
itself. John had installed the telephone line wiring when the
family moved to the residence in 1991.
Gene Bradbury, a cable splicer with 34 years of experience
in telephone repair work, examined the phone lines at the
residence and verified that both of the home's phone lines were
dead. He discovered that one line had a fresh cut at the bottom
of the telephone box that was located approximately two inches
off the deck of the house. The cut wire was the bottom wire,
the only live wire. Two uncut lines were covering it such that
the cut wire could not be seen from a standing position.
Bradbury testified that despite his experience in telephone line
repair, he would not be able to determine by looking at the
wires in the box which were "live" and which were not. He noted
that without prior knowledge of how the phone lines had been set
up, one would have to look at the wires in the pedestal on the
side of the road or open the telephone company side of the phone
box with a 2/16 or 3/8 ratchet to determine that only the bottom
wire was live. Further, Bradbury testified that if he wanted to
- 8 - disable all the phone service in the house, he would have cut
all the wires.
On July 26, 1996, two days after the attack, Mary Ann's
brother found a screwdriver on her lawn. The name of John's
employer, "McLean Rentals," was imprinted on the screwdriver.
At trial, Mary Ann testified that John always carried a similar
screwdriver in his pocket and that she did not keep such objects
around the house for the children's safety. She also noted that
she had mowed the lawn three days before the attack and had not
come across the screwdriver.
II.
Analysis
John contends the evidence is insufficient to support his
conviction for aggravated malicious wounding. Specifically, he
argues that the evidence did not support a finding that he was
the individual who committed the assault. We disagree.
In reviewing the sufficiency of the evidence, "[t]he
appellate court has the duty to examine the evidence that tends
to support the conviction and to uphold the conviction unless it
is plainly wrong or without evidence to support it." Tarpley v.
Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001)
(citations omitted); Code § 8.01-680. "[W]e consider the record
'in the light most favorable to the Commonwealth, giving it all
reasonable inferences deducible therefrom.'" Watkins v.
Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)
- 9 - (citation omitted). Furthermore, the credibility of witnesses
and the weight assigned their testimony are matters exclusively
for the jury. Yarbrough v. Commonwealth, 258 Va. 347, 364, 519
S.E.2d 602, 610 (1999). Therefore, we do not substitute our
judgment for that of the jury. Hunley v. Commonwealth, 30 Va.
App. 556, 559, 518 S.E.2d 347, 349 (1999) (citing Cable v.
Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992)).
When the evidence is wholly circumstantial . . . all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence. The chain of necessary circumstances must be unbroken. Nevertheless, it is within the province of the jury to determine what inferences are to be drawn from proved facts, provided the inferences are reasonable related to those facts. The burden is upon the Commonwealth to prove beyond a reasonable doubt that motive, time, place, means, and conduct concur in pointing out the accused as the perpetrator of the crime.
Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68
(1976) (citation omitted); see also Stamper v. Commonwealth, 220
Va. 260, 272, 257 S.E.2d 808, 817 (1979). "'[E]ach of the five
circumstances of time, place, motive, means and conduct' need
not be proved beyond a reasonable doubt." Fordham v.
Commonwealth, 13 Va. App. 235, 238, 409 S.E.2d 829, 831 (1991)
(quoting Cantrell v. Commonwealth, 229 Va. 387, 397, 329 S.E.2d
22, 29 (1985)). However, "those circumstances which are proved
must each be consistent with guilt and inconsistent with
- 10 - innocence, and . . . consistent with each other." Id. We find
the circumstances proved exclude the possibility of John's
innocence and support his conviction beyond a reasonable doubt.
In this case, the evidence that each of the five
circumstances of time, place, motive, means and conduct point to
John is ample. First, the Commonwealth presented credible
evidence from which the jury could reasonably conclude that John
had a motive to harm Mary Ann. John behaved violently towards
Mary Ann on at least three occasions. On one occasion, when
Mary Ann told John she might date another man, he flew into a
rage and slammed his hand against a glass door with such force
that he broke his hand. See Hill v. Commonwealth, 159 Va. 993,
1001, 167 S.E. 264, 267 (1933) ("Of all the human passions which
supply a motive for the commission of crime, history records
that jealousy is paramount."). On another, just seven months
prior to the crime, John had threatened, "if I don't like what's
happening with you and the boys in the future, I'll kill you and
whoever you're with." See Clay v. Commonwealth, 262 Va. 253,
258, 546 S.E.2d 728, 730 (2001) (noting that threats to kill
victim were probative of defendant's intent to commit murder).
On yet a third occasion, John verbally assaulted Mary Ann and
would not leave her home until the police spoke with him.
Second, the jury could infer that John claimed he was
asleep at the time of the crime in order to conceal his guilt.
See Price v. Commonwealth, 18 Va. App. 760, 768, 446 S.E.2d 642,
- 11 - 647 (1994) (finding that jury may conclude appellant lied during
his testimony to conceal his guilt). The appellant offered no
evidence to support his explanation of his whereabouts at the
time of the assault. Thus, the circumstance of "time" points to
John.
Third, the Commonwealth's proof amply established John's
access to the "place" of the crime and the "means" he employed
as the perpetrator. His familiarity with the house, possession
of a key, knowledge of a spare key, access to a screwdriver
found on Mary Ann's lawn, and unique knowledge of the phone
lines, coupled with the fact that the perpetrator cut the one
and only wire out of three that was necessary to disable the
phones, established John's opportunity to commit the crime and
the means he used.
Fourth, John's conduct and statements following the attack
concur in signaling him as the criminal agent. John told his
supervisor and Detective Poe that his wife had been assaulted,
even though no one had informed him of any such attack. See
Bramblett v. Commonwealth, 257 Va. 263, 277, 513 S.E.2d 400, 409
(1999) (finding that defendant's statements evidencing knowledge
of the circumstances of the murders supported his conviction for
murder). In addition, when he allegedly learned of Mary Ann's
injury, he did not inquire into her condition or appear
concerned. See Bowie v. Commonwealth, 184 Va. 381, 392, 35
S.E.2d 345, 350 (1945) (holding that lack of sympathy for victim
- 12 - is probative of guilt). Furthermore, John became nervous when
Detective Poe told him that he thought Mary Ann would be able to
provide a statement. His hands began to shake, his breathing
became shallow, and he lost eye contact with the officer.
In addition, the Commonwealth's expert found a hand
impression at the scene of the crime, which could not eliminate
John as the criminal agent. See Epperly v. Commonwealth, 224
Va. 214, 228, 294 S.E.2d 882, 890 (1982) (noting that
circumstantial evidence comes in infinite variety and it is
unnecessary to create artificial rules as to the species of
circumstantial evidence which the jury may consider); see also
Calhoun v. Commonwealth, 35 Va. App. 506, 509, 546 S.E.2d 239,
241 (2001) (noting that evidence is relevant if it has any
logical tendency, however slight, to establish a fact at issue
in the case). In sum, the Commonwealth provided sufficient
evidence from which the jury could find that the five
circumstances of motive, time, place, means, and conduct
"'concur in pointing to [John] as the perpetrator beyond a
reasonable doubt.'" Fordham, 13 Va. App. at 238, 409 S.E.2d at
831 (quoting Cantrell, 229 Va. at 398, 329 S.E.2d at 29
(emphasis in original).
Appellant acknowledges the Commonwealth's evidence, but
argues that the circumstances, absent physical evidence, were
insufficient to prove he was the perpetrator. He also alleges
that certain evidence is inconsistent with his guilt and that
- 13 - the evidence does not exclude the possibility that Mark Bennett
or his wife was the criminal agent.
Appellant's analysis is flawed in three respects. First,
he fails to consider our standard of review which requires this
Court to consider the evidence and all reasonable inferences
that may be inferred from it, in the light most favorable to the
Commonwealth. DeAmicis v. Commonwealth, 31 Va. App. 437, 440,
524 S.E.2d 151, 152 (2000) (citation omitted). Second, John's
claimed hypothesis of innocence is predicated on a motive to
harm his wife by Mark Bennett or Bennett's wife, that someone
other than John could have used the spare key, and that "any
intruder" was capable of figuring out how to cut the only live
wire. Assuming without deciding that John's hypotheses of
innocence are reasonable and "flow from the evidence," Hamilton
v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993),
the Commonwealth's evidence, taken as a whole, excludes them.
Harrell v. Commonwealth, 11 Va. App. 1, 9-10, 396 S.E.2d 680,
684 (1990) (citations omitted). "[I]t frequently happens that
the combined force of many concurrent and related circumstances,
each insufficient in itself, may lead a reasonable mind
irresistibly to a conclusion." Peoples v. Commonwealth, 147 Va.
692, 704, 137 S.E. 603, 606 (1927) (internal quotation omitted).
Finally, contrary to John's contention, we have no requirement
that the Commonwealth produce physical or scientific evidence to
support a conviction. See, e.g., Carter v. Commonwealth, 223
- 14 - Va. 528, 531, 533, 290 S.E.2d 865, 866, 867 (1982) (holding
evidence of possession of tools with intent to commit larceny
sufficient despite absence of physical evidence); Verlander v.
Commonwealth, 5 Va. App. 482, 483, 487, 364 S.E.2d 531, 531, 534
(1988) (holding evidence of robbery and felony murder sufficient
despite absence of physical evidence); Yates v. Commonwealth, 4
Va. App. 140, 143, 145, 355 S.E.2d 14, 15, 16 (1987) (holding
evidence sufficient to support conviction for robbery and use of
firearm in commission of felony despite absence of physical
evidence).
For these reasons, we find that the Commonwealth has met
its burden of proving the charge beyond a reasonable doubt and
affirm the conviction.
Affirmed.
- 15 -