Melissa Nanette Diaz v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: February 27, 2024
• Docket: 0056231
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Fulton and Ortiz PUBLISHED

Argued at Norfolk, Virginia

MELISSA NANETTE DIAZ OPINION BY v. Record No. 0056-23-1 JUDGE JUNIUS P. FULTON, III FEBRUARY 27, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Kevin M. Duffan, Judge

Richard Alonzo Edgington, Assistant Public Defender, for appellant.

Victoria Johnson, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Melissa Nanette Diaz appeals her convictions following a jury trial for the second-degree

murder of Steven Wynn, use of a firearm in that murder, and concealing and defiling a dead body,

in violation of Code §§ 18.2-32, -53.1, -126, and -323.02. On appeal, Diaz argues that the trial court

erred by granting the Commonwealth’s pre-trial motion to redact certain portions of Diaz’s recorded

police interrogation wherein she referenced Wynn’s status as a probationer, as well as by restricting

Diaz from testifying about that status. Further, Diaz argues that the trial court also erred in

admitting printed screenshots of Facebook comments and messages from Wynn’s Facebook profile,

purportedly posted by Diaz. Finally, Diaz challenges the sufficiency of the evidence for both the

second-degree murder conviction, as well as the defiling a dead body conviction. For the following

reasons, we affirm. BACKGROUND

On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth,”

the prevailing party below. Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc)

(quoting Commonwealth v. Hudson, 265 Va. 505, 514 (2003)). That principle requires us to

“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 and all fair inferences that may be drawn

therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v.

Commonwealth, 26 Va. App. 335, 348 (1998)).

I. The Offense and Subsequent Police Investigation

Diaz and her boyfriend, Steven Wynn, checked into a Red Roof Inn in Virginia Beach,

Virginia, on February 1, 2020. They rented Room 118 for an entire week, until February 8, and

paid upfront in cash. Diaz displayed the “Do Not Disturb” sign on the hotel room door through the

entirety of the stay, and when housekeeping offered to clean the room, Diaz said that she would

clean the room herself. Housekeeping staff told Diaz she could use any supplies that were on the

housekeeping cart, and Diaz requested a broom and extra sheets.

On February 7, Diaz told a member of the housekeeping staff, Vivian Williams, that she had

bought a grandfather clock and that it had been delivered to the hotel. Later that same day, Diaz

asked for clean sheets and some bleach, which Williams provided. On the morning of February 8,

the day Diaz checked out of the hotel, Williams saw Diaz in the hotel parking lot. At the time, Diaz

appeared “jolly” and “happy.”

Later that same day, Diaz approached Cornelius Johnson—a truck driver who often

frequented the Red Roof Inn—in the hotel parking lot and asked if he could help her move a clock.

Diaz appeared to be “in a hurry.” Diaz’s vehicle—a gold Nissan Murano—was backed into a

parking space near the sidewalk, and “an older guy” with dreadlocks was with her. Johnson saw a

-2- large object that he estimated to be 5’6” or 5’7” tall, wrapped up in white sheets, standing on a

moving dolly. The object had an ironing board behind it. Williams, who saw the group moving the

item, came over to the Murano as well, to offer to help. The older gentleman, Durrell Short, was on

his knees in the front passenger seat, facing the back seat, and Johnson, who was outside the car,

picked the object up to place it in the back seat. The object bent when Johnson loaded it in the

Murano. Diaz stated, “I think we broke it; it’s okay.”

At trial, Williams testified that, when the object bent, “an odor hit [her] nose” and she said,

“What the fuck is that smell.” Diaz and Short looked at each other and did not respond. Williams

looked down at the shape of the “supposed grandfather clock” and walked away. Johnson backed

away and did not further assist but watched as Diaz and Short loaded various items including tools

into the vehicle. Williams testified at trial, without objection, that Johnson told her, “That wasn’t a

clock. That was a fucking body.”

After Diaz and Short left, Williams went to the front desk and asked the front desk agent to

call the police because “they have a body back there.” The front desk agent did not believe

Williams and did not call the police. Williams refused to clean Room 118, but two other members

of the housekeeping staff did so. They bagged up the belongings Diaz had left in the room and put

them in the hotel’s maintenance closet. Robert Kwade, the front desk clerk, went into the room and

did not smell any odors. Hotel staff called the hotel manager, Trina Thomas, and she told them to

call the police.

The next day, Sergeant Michael Marsolais of the Virginia Beach Police Department

responded to the hotel based on the police report. Through interviews of Johnson and Williams, as

well as his review of the room registration information, Marsolais developed Diaz as a suspect. He

and Lieutenant Pete Koepp then went to Diaz’s house to investigate further. Koepp arrived first and

observed Diaz come out of the house carrying a white spray bottle, which she sprayed inside a gold

-3- Nissan Murano that was parked outside of her home. She then went back inside. When Marsolais

arrived, the officers decided to do a “knock and talk,” and see if Diaz would speak to them. As they

approached the house, they walked by the Nissan Murano; the window was partially lowered, and

Koepp saw a large object wrapped in sheets with a moving dolly lying on top of it. The officers

obtained a search warrant for the home, and upon searching the home, the police found Diaz hiding

in a “void in the wall in the attic.”

The officers escorted Diaz outside to a patrol car. Marsolais testified that Diaz was read her

Miranda1 rights, and subsequently asked some initial questions by Koepp. Koepp asked Diaz if she

knew why the police were there. Diaz responded that she did, started crying, and said “that she was

tired of the beatings and she couldn’t take it anymore.” She told Koepp that her boyfriend was in

the car. The police recovered a trash bag containing pillows, latex gloves, and duct tape from the

back of Diaz’s Murano. They also recovered Wynn’s body. Wynn’s corpse was wrapped in several

layers of various materials including bedding, cardboard boxes, trash bags, a tarp, a mattress pad,

towels, plastic grocery bags, pillows, and miscellaneous articles of clothing. The wrappings were

secured by torn bedsheet strips, and at one point a belt. An ironing board was found inside the

wrappings. Wynn’s face was bloody and unrecognizable. There were trash bags packed around

Wynn’s head, he had visible tattoos, and he was clad in his underwear. Wynn died from a gunshot

wound to the right temple, which exited the left side of his head. Wynn’s body was too

decomposed to determine whether the gunshot wound had been inflicted at close range.

Diaz was then taken to the Virginia Beach Police Detective’s Bureau, where Marsolais

questioned her. The interrogation was recorded and ultimately admitted at trial as one of the

Commonwealth’s exhibits. Diaz told Marsolais that, during the time she and Wynn were staying in

the hotel, she would drive Wynn to another house where he would stay all day and that she would

1 Miranda v. Arizona, 384 U.S. 436 (1966). -4- pick him back up when he texted her. Diaz alleged that he was engaging in a sexual relationship

with a prostitute at this location. Wynn used cocaine and played video games in the evenings, and

the two of them frequently argued. Diaz said that on Wednesday, February 5, Wynn was sitting in a

chair in the hotel room trying to buy some cocaine. He “might have been unsuccessful.” He then

came over to the bed, where Diaz was sitting, and struck her once on each leg with the butt of a

firearm. Wynn then set the firearm down. Diaz said that she then picked the gun up and fired it

once, striking Wynn in the head.

At the time of her arrest, Diaz had visible bruising on her legs. According to Diaz, Wynn

did not make any verbal threats prior to hitting her legs with the butt of the firearm. Further,

Marsolais testified that Diaz told him while Wynn had hit Diaz in the past, in the days leading up to

the shooting he had not been physically abusive. Diaz told Marsolais that “she knew it was a bad

decision, but she was just tired. She didn’t deserve to be hit. And that was her reasoning for it.”

Diaz did not tell Marsolais that she was in fear of her life or that she feared serious injury at the time

she shot Wynn. Diaz also claimed that she had told someone named John Edwards and someone

named “J.B.” that Wynn had abused her in the past, but the police were not able to locate either.

Diaz told Marsolais that she went back to her home on Wednesday night and returned to the

hotel on Thursday. She claimed that she wrapped up Wynn’s body by herself, using sheets, garbage

bags, and blankets that were in the hotel room or that she obtained from housekeeping staff, as well

as some gloves and duct tape from her car. Diaz said she spent the entire day Thursday wrapping

up Wynn’s corpse and putting it in the corner of the hotel room. She then called Durrell Short, who

came over to the hotel room after Wynn’s corpse was wrapped up and on the floor. Another man

came with Short, but left shortly thereafter. Short and Diaz smoked marijuana and had sex on the

bed in the hotel room.

-5- Marsolais also asked Diaz about posts made to Wynn’s Facebook account starting on

February 7. Initially, Diaz said that someone else must have had Wynn’s phone, but she then

admitted that she had made posts on his Facebook account and then started responding from her

Facebook account to make it appear that they were having a conversation. Marsolais also asked

Diaz about the gun she used to shoot Wynn. She said it was a revolver with a pink handle. Diaz

initially said that she threw the gun off of the Chesapeake Bay Bridge Tunnel. However, she later

told Marsolais that that was a lie. She then told Marsolais that she had sold the gun to another

person for $100.

II. Pre-Trial Motion

Prior to trial, the Commonwealth filed a motion in limine to redact portions of Diaz’s police

interrogation. Specifically, the Commonwealth sought to expunge any reference to Wynn’s

probation status for his drug offenses, and further sought to restrict Diaz from testifying to as much.

Diaz opposed the motion on the ground that these redactions would violate the doctrine of

completeness and fundamental fairness. Diaz proffered that during the interrogation, she told

Marsolais that Wynn “jumped probation” three months before the shooting and that was when

things got “really bad.” Specifically, she noted that Wynn told her “he wasn’t going back to jail.”

At the hearing for the motion in limine, Diaz argued that her statements were necessary to provide

context as to when and why her relationship with Wynn began to become abusive, and also why she

was apprehensive about calling the police. The trial court found that the portions of the

interrogation identified by the Commonwealth were impermissible character evidence and granted

the motion. The trial court further held that Diaz would not be allowed to testify about Wynn’s

probation status.

-6- III. The Trial

At trial, the Commonwealth called numerous witnesses, including Williams, Johnson,

Kwade, and Marsolais. Williams, Johnson, and Kwade all affirmed the sequence of events that took

place during the week that Diaz and Wynn were checked into the hotel. Marsolais detailed the

extent of his investigation at the hotel, the subsequent investigation conducted at Diaz’s house, the

discovery of the body found in Diaz’s car, and the statements Diaz made to him during her

interrogation. Marsolais testified that Diaz admitted that she had shot Wynn and that she had

attempted to conceal the body because she did not know what to do. The recording of the

interrogation was played at trial and admitted into evidence. Further, Marsolais described

questioning Diaz about the Facebook posts made to Wynn’s Facebook account.

Marsolais testified that he had reviewed Wynn’s Facebook posts before questioning Diaz

and that he had shown her the posts in question. Marsolais “showed her some text strings [between

Wynn’s Facebook account and her Facebook account] that started on the 7th.” After pressing her,

Marsolais testified that she admitted to sending the messages from both accounts, so as to “make it

look like a conversation was happening between the two.” Marsolais testified that she positively

identified the account and posts he showed her on Wynn’s account. On cross-examination, he

admitted that it took him about five to ten minutes to read all of the messages at issue in their

entirety, but that he never read the messages aloud to Diaz during the interrogation, and he only

showed her the screen of his phone for “less than ten seconds.” He further admitted that “she stated

that she [made the] posts, but she never got to read the contents of the posts [herself].” The

Commonwealth attempted to introduce screenshots of the aforementioned posts purportedly made

from both Facebook accounts. Diaz objected on authenticity grounds, arguing specifically that

“[t]here’s nobody here from Facebook to authenticate that these messages were sent from where to

whom, so there’s nothing—there’s no foundation laid as far as authentication.” Diaz also objected

-7- on the ground that the screenshots violated the best evidence rule. The trial court overruled the

objection and allowed the screenshots of the Facebook posts into evidence.

After the Commonwealth rested, Diaz moved to strike the evidence against her on the

charges of second-degree murder and defiling a dead human body. The trial court denied those

motions. Subsequently, Diaz put on her own evidence in defense. Diaz testified on her own behalf,

and also called Gerald Livermore as a defense witness. Diaz reaffirmed much of the statements that

Marsolais attributed to her during her police interrogation. She testified that she and Wynn checked

into the Red Roof Inn in early February. She testified that Wynn immediately began using cocaine.

She testified that Wynn had been physically violent towards her in the past. She testified that Wynn

had a reputation for using cocaine and that he would become violent, abusive, and “aggressive”

when he used cocaine. And she testified that Wynn was a member of the Bloods gang.

Diaz described how the abuse in their relationship developed over time. She testified that

Wynn was not abusive “in the beginning,” but that after he moved in with her, the physical and

emotional abuse started. This included such behavior as Wynn “grab[bing her] hair” and “verbally

[abusing her] in front of [her] family.” Later, the abuse grew more intense; Wynn began hitting

Diaz on the legs, and once struck her in the face. Diaz testified that she did not report the abuse to

the police because she was scared that Wynn’s “gang affiliate[s]” would seek “retaliation” against

her, her father, and her daughter. She also testified that she did not leave the relationship because,

when she threatened to do so, in response Wynn threatened that he would “hurt” or “kill” her.

Diaz then went on to describe their stay at the Red Roof Inn. Diaz testified that Wynn was

using approximately $250 worth of cocaine each day. She described Wynn’s demeanor as

“aggressive and mad,” and stated that Wynn would “curse a lot” and that he “g[o]t physical” with

her. He would grab Diaz’s hair a lot, and hit her on the legs frequently. On the day in question,

Wynn attempted to buy cocaine from a local seller, but the seller did not bring him the cocaine he

-8- had purportedly purchased. Wynn became angry. Diaz testified that he began walking around with

his gun in his hand, just “grunting and walking around.” Wynn then physically assaulted her by

striking her legs with the butt of the gun. She did not “understand” why he hit her because she had

not “do[ne] anything.” Diaz then testified that Wynn placed the gun down and that she then picked

it up and shot him.

When asked “what was going through [her] mind when [she] shot him,” Diaz testified that

she “was scared.” She elaborated that “[i]t was me or him” and that “[b]ecause he was very

physical, [she] didn’t know if he was going to continue to hurt [her].” Diaz also testified that Wynn

had threatened to kill her “a few days prior” to the shooting.

Diaz testified that after she shot Wynn she was worried about retaliation, so she made the

Facebook posts so that Wynn’s “friends would think he was still alive and I wasn’t in any danger

for me and my kids.” Diaz testified that she did not call the police because she was fearful of

retaliation and that she had no plan of how to dispose of Wynn’s body at the time. She testified that

she did not “have a plan” as to what to do next and that she was not “thinking clearly.” She

wrapped the dead body in nearby items such as bed sheets, garbage bags, towels, and articles of

clothing in order to conceal it. She then reached out to Durrell Short to help her take care of the

body. Short came to her hotel room on either Friday or Saturday; the two of them smoked

marijuana and had sex in the bathroom. Short stayed with Diaz in the hotel room that night, and the

next day they moved the body into Diaz’s vehicle, with the help of Williams and Johnson. Diaz

told Williams and Johnson that they were moving a grandfather clock. Diaz then drove home. The

next day, the police arrived at her home.

On cross-examination, Diaz admitted that, during her interrogation with Marsolais she had

twice denied that Wynn had ever hit her in the face. The Commonwealth also confronted her with

two jail calls that Diaz made on February 27, 2020, during which she told her daughter and a friend

-9- that she shot Wynn because he had struck her in the mouth with the gun so hard that he shattered

her teeth. The Commonwealth proffered the contents of the call to the friend, asking Diaz on cross-

examination:

Didn’t you claim to her that specifically involving this incident from February 5th of 2020, that your face was swollen because he knocked my teeth out, and she asked, How many of them? And you said, “He knocked three out on my right side. He hit me so hard, Bitch, with that gun, he knocked my fucking teeth out. My shit was hella fucking swollen. I was losing weight because that n-i-g-g-a was stressing me, man.”

The Commonwealth also proffered the content of the call to the daughter: “He was hitting me so

bad and he knocked my teeth out in the hotel and he had hit me with the gun, and I picked it up and

I just shot him with it.” Both calls were played for the jury. Diaz ultimately confirmed the

statements that she made during the two calls; however, she claimed that when she referred to

Wynn striking her in the face, she was talking about a previous incident between the two, not the

leadup to the shooting in the hotel room.

Diaz also admitted on cross-examination that, although she had testified on direct that she

did not leave Wynn because he threatened to kill her, she had told Marsolais during her

interrogation that she did not leave Wynn because she did not “want to be alone.” Diaz also

admitted that she told Marsolais during the interrogation that she was “tired,” she “didn’t deserve to

get hit,” that she was “fed up because he had previously hit” her, and that she made a “bad

decision.”

Livermore testified on Diaz’s behalf. He testified that he became friends and neighbors with

Wynn in 2018. Both were affiliated with the Bloods gang. Specifically, Wynn was a member of

the Bounty Hunter sect of the Bloods before he became a member of the G-Shine Bloods sect.

Livermore testified that Wynn was “an aggressive person, somebody you didn’t really want to mess

with or piss off.” Wynn was respected and feared within the Bloods gang. Livermore testified that

- 10 - when Wynn said “he was going to do something, he normally [did] it.” Livermore also testified to

specific acts of violence that he witnessed Wynn commit. On one occasion Livermore witnessed

Wynn “pulverize[]” Livermore’s roommate over a dispute for money. He testified that Wynn was

the physical aggressor and Livermore had to stop the assault. On another occasion Livermore

witnessed Wynn physically and violently assault another roommate after Wynn took umbrage with

something that the roommate said. Livermore testified that Wynn called one of his Bloods-

affiliated friends to come over and “handle the business.” The roommate was “pulverized” by

Wynn and the gang-affiliated friend, and ultimately required hospitalization due to injuries suffered

from the assault.

The Commonwealth did not put on any rebuttal evidence, and Diaz moved to strike the

evidence against her once again. The trial court denied Diaz’s motion, and the case was submitted

to the jury. The jury found Diaz guilty on all charges. Diaz appeals.

ANALYSIS

I. Evidentiary Issues

A trial court’s decision on the admissibility of evidence is reviewed for abuse of

discretion. Jackson v. Jackson, 69 Va. App. 243, 247 (2018), aff’d, 298 Va. 132 (2019). An

abuse of discretion occurs “when a relevant factor that should have been given significant weight

is not considered” or “when an irrelevant or improper factor is considered and given significant

weight.” Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)

(quoting Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984)). The court also

abuses its discretion when it commits a clear error of judgment, even if considering “all proper

factors, and no improper ones.” Id. (quoting Kern, 738 F.2d at 970). “In evaluating whether a

trial court abused its discretion, . . . ‘[this Court does] not substitute [its] judgment for that of the

trial court. Rather, [this Court] consider[s] only whether the record fairly supports the trial

- 11 - court’s action.’” Carter v. Commonwealth, 293 Va. 537, 543 (2017) (alteration in original)

(quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).

“The abuse-of-discretion standard [also] includes review to determine that the discretion

was not guided by erroneous legal conclusions.” Id. at 543-44 (alteration in original) (quoting

Porter v. Commonwealth, 276 Va. 203, 260 (2008)). “Only when reasonable jurists could not

differ can we say an abuse of discretion has occurred.” Lambert v. Commonwealth, 70 Va. App.

740, 749 (2019) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g

en banc, 45 Va. App. 811 (2005)). “That standard means that the [trial] court judge’s ruling

‘will not be reversed simply because an appellate court disagrees.’” Fields v. Commonwealth, 73

Va. App. 652, 672 (2021) (quoting Thomas, 44 Va. App. at 753). In conducting this analysis,

this Court views “the evidence in the light ‘most favorable to the Commonwealth as the

prevailing party on this issue in the [trial] court.’” Id. (quoting Grattan, 278 Va. at 617).

- 12 - A. The Commonwealth’s Motion in Limine and Diaz’s Related Testimony2

In her first two assignments of error, Diaz makes three arguments challenging the trial

court’s decision to redact the recording of her interrogation and in restricting her from testifying

about Wynn’s probation status. First, she argues that the doctrine of completeness required that

the full recording be admitted into evidence. Second, she argues that fundamental fairness—as

applicable through the due process clause of the Fourteenth Amendment—required that the full

recording be admitted into evidence. And third, she argues that Wynn’s status as a probationer

and drug dealer was relevant and probative to her defense and was not impermissible character

evidence. Even assuming the trial court erred in excluding the evidence at issue, any such error

was harmless.

A non-constitutional error is harmless “[w]hen it plainly appears from the record and the

evidence given at the trial that the parties have had a fair trial on the merits and substantial

justice has been reached.” Salahuddin v. Commonwealth, 67 Va. App. 190, 212 (2017)

2 The Commonwealth claims on appeal that “Diaz’s proffer of the redacted portion of the [interrogation was] so unclear as to defeat meaningful appellate review.” This contention is belied by the record, as Diaz’s counsel sufficiently proffered the contents of the redacted portions of the recording at the pre-trial hearing, and the trial court expressed an understanding of what was at issue. After Diaz’s proffer, and accompanying argument regarding Wynn’s status as a probationer and his past as a drug dealer, the trial court, in speaking to the Commonwealth’s Attorney, stated:

I didn’t see anything from the defense indicating that what you were saying was untrue, meaning the parts that you cut out were the parts where she mentioned that he’s a drug dealer, he’s on probation. If you’ve cut out, to use your example, to push it to the absurd, everything except where she says, I shot him, then, obviously, you’re not on solid ground if that’s what you did. But I’m not gathering that that’s what you did.

Then, in speaking to counsel for Diaz, the trial court asked, “Would you concede that the parts that were cut out were references to the victim being on probation and being a drug dealer?” To which counsel for Diaz responded “Yeah.” Therefore, it is clear that the proffer made by Diaz was not vague or ambiguous, and the trial court fully understood the nature and extent of the evidence it ultimately excluded. - 13 - (alteration in original) (quoting Code § 8.01-678). “The proper inquiry for constitutional

harmless error is ‘whether the [factfinder] would have returned the same verdict absent the

error.’” Commonwealth v. White, 293 Va. 411, 421-22 (2017) (alteration in original) (quoting

Washington v. Recuenco, 548 U.S. 212, 221 (2006)). “[W]hether such an error is harmless in a

particular case depends upon a host of factors,” including the “importance of the [tainted

evidence] in the . . . case, whether [that evidence] was cumulative, the presence or absence of

evidence corroborating or contradicting the [tainted evidence] on material points . . . and . . . the

overall strength of the prosecution’s case.” Crawford v. Commonwealth, 281 Va. 84, 101 (2011)

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

First, we analyze the probative value of the evidence at issue. Here, Diaz proffered that

her statements during the interrogation would have been that Wynn was on probation for

criminal offenses related to the sale of illegal drugs, that he “jumped probation,” and that he

became more abusive, violent, and aggressive after doing so. Diaz argues on brief that this

evidence was relevant in two ways: (1) it provided context for why Diaz chose not to call the

police, and (2) it was another factor that added to Diaz’s “reasonable belief” that she was in

danger of imminent physical harm just before she shot and killed Wynn.

Diaz argues that the evidence of Wynn’s status as a probationer was not intended to

attack Wynn’s character, which would contravene Rule of Evidence 2:404.3 Instead, Diaz’s

theory of why the evidence is probative is something more. According to Diaz, the evidence was

3 “Evidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except . . . evidence of a pertinent character trait or acts of violence by the victim of the crime offered by an accused who has adduced evidence of self defense.” Va. R. Evid. 2:404(a)(2). This is because, “evidence of prior acts of violence by the victim is relevant” in cases where the defendant has adduced evidence of self-defense, “as bearing on the reasonable apprehension which the defendant may have experienced and on the likelihood of the victim’s aggressive behavior as claimed by the defendant.” Edwards v. Commonwealth, 10 Va. App. 140, 142 (1990) (citing Barnes v. Commonwealth, 214 Va. 24, 26 (1973)). - 14 - not offered to simply highlight Wynn’s status as a probationer and former convict. The evidence

that Wynn was on probation, and then “jumped” or violated his probation, was offered to explain

that thereafter, Wynn began acting more aggressive and said things like “I’m not going back to

jail,” making Diaz think that he was willing to take more drastic and violent action to avoid

going back to jail. Diaz describes this as Wynn’s “fatalistic” mindset.

According to Diaz, Wynn’s fatalistic statements and mindset contributed to Diaz’s belief

that she was unable to leave the relationship for fear that Wynn would take violent action against

her and her family. She offered this evidence to explain why she did not leave the hotel room

during the week leading up to the shooting. This fact was material, according to Diaz, because

the theory of the Commonwealth’s case was that Diaz chose to stay in the relationship, chose to

stay with Wynn in the hotel room during that week, and chose to pick up the gun and murder

Wynn in a moment of anger.

Even if we accept Diaz’s theory of why the evidence was relevant, it was only relevant to

explain her trepidation in contacting the police before she shot Wynn. After the fact, it goes

without saying that Wynn would not have presented any sort of a physical threat to her, and

therefore the fact that he had absconded from probation, and consequently may have been likely

to engage in more desperate and aggressive behavior would no longer be relevant.

In evaluating the proffered evidence, we note that Diaz was allowed to present evidence

that Wynn was a gang member, had threatened her multiple times, had been physically abusive

with her, that she believed she could not leave the relationship, and that she was scared to call the

police. Specifically, when asked why she never called the police to report the abuse, Diaz

responded: “I was scared because of his street ties. A lot of people would come over. They

knew where me and my family lived.” While the trial court may have erred by not allowing

Diaz to provide an additional reason for why she was scared to call the police, thus bolstering her

- 15 - evidence, the ultimate reason for introducing any such evidence was to make the point that she

was ultimately allowed to testify to. This, in the face of the overwhelming evidence that the

Commonwealth put on, leads us to conclude, beyond a reasonable doubt, that the verdict would

have been the same even should the evidence at issue have been introduced. See Schwartz v.

Schwartz, 46 Va. App. 145, 159 (2005) (“[I]f other evidence of guilt is so ‘overwhelming’ and

the error so insignificant by comparison . . . we can conclude that the error ‘failed to have any

“substantial influence” on the verdict[, and was therefore harmless].’” (quoting United States v.

Lane, 474 U.S. 438, 450 (1986))).

Therefore, taking into consideration all the evidence that Diaz was allowed to offer,

including (1) Wynn’s prior violent and abusive acts towards her; (2) his reputation for violence

in the community; (3) his membership in a gang and his status as an enforcer in that gang; (4) her

fear of Wynn; (5) her fear of Wynn’s gang affiliates; (6) the fact that the abuse from Wynn

escalated as the relationship progressed; (7) the fact that Wynn was using copious amounts of

cocaine during their stay at the hotel and that his demeanor was even more violent and

aggressive because of his drug use; (8) the fact that he struck her in the legs right before she shot

him; and (9) the fact that she was allowed to testify to her feeling that it “was either him or me”

in that moment, we cannot say that Diaz did not have a fair trial on the merits here. We conclude

that the result would not have been different had the trial court admitted the evidence at issue, as

it was inconsequential when contrasted with the evidence she was allowed to introduce, as well

as the overwhelming weight of the Commonwealth’s evidence.4 Therefore, any such error in

excluding the evidence at issue was harmless.

4 We come to this conclusion noting that the trial court also expressed doubt about the actual relevance or probative value of the evidence at issue here and that the evidence would likely have been unfairly prejudicial to the Commonwealth’s case. We agree with the trial court that “[t]he fact that [Wynn] was generally a bad guy and was a potential drug dealer or had been using drugs” is not probative of any sort of violent tendencies. This is the type of evidence that - 16 - B. The Facebook Posts

Diaz next challenges the trial court’s decision to allow the screenshots of the Facebook

posts from Wynn’s account. Diaz contends that the trial court abused its discretion in admitting

the screenshots because they were not properly authenticated and because they violated the best

evidence rule. However, as the Commonwealth points out, the screenshots are “duplicate

originals” for purposes of the best evidence rule, and both Diaz and Marsolais properly

authenticated the screenshots.

The “best evidence rule,” which made its appearance in the English law in the early part of the eighteenth century, was not originally a “rule,” but rather “a general observation to the effect that when one sets out to prove something, one ought to prove it by the most reliable evidence available.”

Dalton v. Commonwealth, 64 Va. App. 512, 521 (2015) (quoting Charles E. Friend, Kent

Sinclair, The Law of Evidence in Virginia § 18-1 (7th ed. 2012)). “[T]he best evidence rule

requires that where the contents of a writing are desired to be proved, the [original] writing itself

must be produced or its absence sufficiently accounted for before other evidence of its contents

can be admitted.” Id. at 522 (quoting Brown v. Commonwealth, 54 Va. App. 107, 115 (2009)).

This Court determined in Dalton that text messages on a cell phone constitute “writings” for

purposes of the best evidence rule. See id. at 523. Writings include words “set down by . . .

photographing . . . mechanical or electronic recording, or other form of data compilation or

preservation.” Id. at 522; Va. R. Evid. 2:1001(1). In coming to this conclusion, the Court in

Dalton acknowledged that “[t]he potentially limitless application of computer technology to

evidentiary questions will continually require legal adaptation.” 64 Va. App. at 522-23 (quoting

Luck v. Commonwealth, 30 Va. App. 36 (1999), establishes is inadmissible to prove violent tendencies or prior violent acts, under Rule 2:404. See id. at 43-46 (holding that evidence of a prior criminal conviction, alone, is not admissible if the “bare conviction order” does not evince the victim’s “prior violent or turbulent behavior”). - 17 - Penny v. Commonwealth, 6 Va. App. 494, 499 (1988)). We think the same rationale espoused in

Dalton applies here and that the best evidence rule applies to Facebook posts, as they are clearly

“writings” within the scope of the rule. However, that is not the end of our analysis.

Virginia appellate courts have applied the concept of “duplicate originals” to

mechanically reproduced copies of writings. See, e.g., Burton v. Frank A. Seifert Plastic Relief

Co., 108 Va. 338, 352-53 (1908) (applying the duplicate original principle to “letter-press

copies”); Chesapeake & Ohio Ry. Co. v. F.W. Stock & Sons, 104 Va. 97, 101 (1905)

(recognizing that a “carbon copy” may be regarded as a “duplicate original”). A duplicate

original is “‘made at the same time,’ ‘by the same [mechanical] impression,’ and each is an

‘exact counterpart of the other.’” Winston v. Commonwealth, 16 Va. App. 901, 904 (1993)

(alteration in original) (quoting F.W. Stock & Sons, 104 Va. at 101). It is “accorded the same

dignity as an original and, ‘if otherwise proper,’ similarly ‘admissible in evidence.’” Id. (quoting

Virginia-Carolina Chem. Co. v. Knight, 106 Va. 674, 679 (1907)). Under this view, “[m]any of

the documents that we commonly refer to as ‘copies’ are in fact ‘duplicate originals,’ and are

treated as ‘originals’ for purposes of the best evidence rule.” Kent Sinclair, The Law of Evidence

in Virginia § 18-4[a], at 1267-68 (8th ed. 2018). “[A]pplication of the best evidence rule is

unnecessary” when the admitted evidence qualifies as an original. Winston, 16 Va. App. at 904.

In a recent unpublished case, this Court applied the concept of duplicate originals to

screenshots of text messages, reasoning that the act of screenshotting a text message on the

screen of a cell phone “is no different than photocopying or ‘carbon copying’ the cell phone

screen.” Newberger v. Commonwealth, No. 0677-22-2, slip op. at 15, 2023 WL 4187885, at *8

(Va. Ct. App. June 27, 2023). “While Rule 5A:1(f) provides that unpublished opinions may be

cited as informative, ‘unpublished opinions are merely persuasive authority and not binding

precedent.’” Coffman v. Commonwealth, 67 Va. App. 163, 172 n.7 (2017) (quoting Baker v.

- 18 - Commonwealth, 59 Va. App. 146, 153 n.3 (2011)). With that being said, we endorse the

rationale contained in Newberger and apply it with equal force to the screenshots of the

Facebook posts at issue here. Therefore, the screenshots qualify as duplicate originals for

purposes of the best evidence rule.

Next, to the extent that Diaz argues that the screenshots were not properly authenticated,

we disagree. Rule of Evidence 2:901 provides that “[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the thing in question is what its proponent claims.” Marsolais testified that

Diaz recognized the posts and admitted that she had surreptitiously posted the messages, herself,

from Wynn’s account in an attempt to make it seem like he was still alive. This is sufficient to

satisfy the authentication requirements contained in Rule 2:901.5 Therefore, the evidence was

properly admitted.

II. Sufficiency of the Evidence

In challenging the trial court’s denial of her motions to strike the second-degree murder

charge and the physically defiling a dead body charge, Diaz necessarily asserts that the jury should

not have been allowed to even consider the charges because “[a] motion to strike challenges

whether the evidence is sufficient to submit the case to the jury.” Linnon v. Commonwealth, 287

Va. 92, 98 (2014) (quoting Lawlor v. Commonwealth, 285 Va. 187, 223 (2013)). As a result, her

challenge raises the question of whether the evidence adduced sufficiently presented “a prima facie

5 To the extent that Diaz argues she “only had a few seconds to generally view the posts” and that it may have been possible that the posts were not the same as those she admitted to making or were somehow altered in some way before being introduced as part of the Commonwealth’s case in chief, we reiterate that this “mere speculation” goes to the weight of the evidence, not its admissibility. See Reedy v. Commonwealth, 9 Va. App. 386, 391 (1990) (“Where there is mere speculation that contamination or tampering could have occurred, it is not an abuse of discretion to admit the evidence and let what doubt there may be go to the weight to be given the evidence.”). - 19 - case [of second-degree murder and of physically defiling a dead body] for consideration by the”

jury. Vay v. Commonwealth, 67 Va. App. 236, 249 (2017) (quoting Hawkins v. Commonwealth, 64

Va. App. 650, 657 (2015)).

As our Supreme Court reaffirmed in Linnon:

What the elements of the offense are is a question of law that we review de novo. Whether the evidence adduced is sufficient to prove each of those elements is a factual finding, which will not be set aside on appeal unless it is plainly wrong. In reviewing that factual finding, we consider the evidence in the light most favorable to the Commonwealth and give it the benefit of all reasonable inferences fairly deducible therefrom. After so viewing the evidence, the question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In sum, if there is evidence to support the conviction, the reviewing court is not permitted to substitute its judgment, even if its view of the evidence might differ from the conclusions reached by the finder of fact at the trial.

287 Va. at 98 (quoting Lawlor, 285 Va. at 223-24).

A. Second-Degree Murder

Diaz argues on appeal that the Commonwealth’s evidence was insufficient to prove that

she acted with malice. Diaz argues that “[a]ll of the evidence supports that [Diaz] acted in the

heat of passion.” We disagree.

“Second-degree murder, of which the jury convicted appellant, is defined as a malicious

killing.” Woods v. Commonwealth, 66 Va. App. 123, 131 (2016) (citing Turner v.

Commonwealth, 23 Va. App. 270, 274 (1996), aff’d, 255 Va. 1 (1997)). “In order for an act to

be done maliciously, the act must be done ‘wilfully or purposefully.’” Id. (quoting Essex v.

Commonwealth, 228 Va. 273, 280 (1984)). “Malice is evidenced either when the accused acted

with a sedate, deliberate mind, and formed design, or committed any purposeful and cruel act

without any or without great provocation.” Id. (quoting Branch v. Commonwealth, 14 Va. App.

836, 841 (1992)). “Voluntary manslaughter is the unlawful killing of another, ‘committed in the

- 20 - course of a sudden quarrel, or mutual combat, or upon a sudden provocation, and without any

previous grudge, and the killing is from the sudden heat of passion growing solely out of the

quarrel, or combat, or provocation.’” Id. (quoting Wilkins v. Commonwealth, 176 Va. 580, 583

(1940)). “‘Heat of passion refers to the furor brevis which renders a man deaf to the voice of

reason.’ ‘It excludes malice when provocation reasonably produces fear or anger that causes one

to act on impulse without conscious reflection.’” Id. (quoting Rhodes v. Commonwealth, 41

Va. App. 195, 200 (2003)). “Malice and heat of passion cannot coexist.” Id. (quoting Turner, 23

Va. App. at 275). “As a general rule, whether provocation, shown by credible evidence, is

sufficient to engender the furor brevis necessary to rebut the presumption of malice arising from

a homicide is a question of fact.” Id. at 131-32 (quoting McClung v. Commonwealth, 215 Va.

654, 656 (1975)).

Here, Diaz argues that, because she was “stuck” in the hotel room with Wynn, and

because Wynn “pistol whipped her with his gun,” the evidence “support[ed] the fact that [Diaz]

did not act with a deliberate mind.” Further, the fact that Diaz “had no plan to dispose of the

body and improvised by wrapping the body with nearby items in the hotel,” also supports this

contention, according to Diaz. Diaz argues that because the facts are uncontroverted and the

Commonwealth did not introduce any evidence to contradict Diaz’s testimony about what

happened, we must reverse.

The Commonwealth points out that whether malice exists is a question of fact, and “[i]n

convicting Diaz of second-degree murder, the jury expressly found that she acted with malice

and not under the heat of passion.” We agree with the Commonwealth that we are bound by this

factual finding, “unless it appears from the evidence that the judgment is plainly wrong or

without evidence to support it.” Wood v. Commonwealth, 57 Va. App. 286, 292 (2010) (quoting

- 21 - Martin v. Commonwealth, 4 Va. App. 438, 443 (1987)). And there was clearly ample evidence

to support the jury’s finding of malice, here.

The record demonstrates that Diaz had her car with her at the hotel, and could have left,

should she have wished to do so; however, Diaz stayed with Wynn at the hotel, and deliberately

picked up the gun and shot Wynn in the head. Further, Diaz’s testimony was unclear as to what

her state of mind was when she shot Wynn. The jury was not obligated to credit any indication

Diaz may have given of her feelings of fear or rage. See Commonwealth v. McNeal, 282 Va. 16,

22 (2011) (“[A] fact finder’s evaluations of credibility are not limited to choosing between

competing accounts offered by different witnesses, but often include . . . resolving conflicts in a

single witness’ testimony, accepting that part of the testimony it deems credible and rejecting the

portion it deems incredible.” (internal citations omitted)); see also Barrett v. Commonwealth,

231 Va. 102, 107 (1986) (recognizing that the finder of fact has “the right to reject that part of

the evidence believed . . . to be untrue and to accept that found . . . to be true” (quoting Belton v.

Commonwealth, 200 Va. 5, 9 (1958))). Instead, the jury “was at liberty to discount [the

defendant’s] self-serving statements as little more than lying to conceal [her] guilt.” Poole v.

Commonwealth, 73 Va. App. 357, 369 (2021) (quoting Becker v. Commonwealth, 64 Va. App.

481, 495 (2015)). Further, “[m]alice may be inferred ‘from the deliberate use of a deadly

weapon unless, from all the evidence,’ there is reasonable doubt as to whether malice existed.”

Washington v. Commonwealth, 75 Va. App. 606, 621 (2022) (quoting Avent v. Commonwealth,

279 Va. 175, 201-02 (2010)). Here, we cannot say that the trial court was plainly wrong in

determining that the Commonwealth had presented sufficient evidence of malice, and thereafter

submitting the case to the jury on that issue.

- 22 - B. Defiling a Dead Body

Code § 18.2-126(B) states that a person who “willfully and intentionally physically

defiles a dead human body” is guilty of a Class 6 felony. Diaz argues that there was insufficient

evidence to support her conviction of defiling a human body, under Code § 18.2-126(B), because

the evidence showed that Wynn’s body was not disfigured beyond ordinary decomposition.

Specifically, she notes that:

[T]he medical examined [sic] confirmed there was no evidence that Wynn’s body was disfigured at all after Wynn’s death beyond normal, expected body decomposition. The body was not left outside in the elements. It remained in the hotel room with Appellant until she moved it to her vehicle three days later where it remained secured until recovery by law enforcement.

Diaz contrasts this case with our Court’s previous unpublished opinion in Everett v.

Commonwealth, No. 1679-18-1, 2020 WL 1855837 (Va. Ct. App. Apr. 14, 2020). In Everett, the

defendant “dumped [the victim’s] body in a garbage-strewn and filthy park, leaving it at the

mercy of marauding animals that ultimately gnawed off part of her body.” Id., slip op. at 9, 2020

WL 1855837, at *5. The victim’s body in Everett was not found until more than a month later.

Id. at 2-3, 2020 WL 1855837, at *1. This Court specifically noted that the defendant “purposely

left her body in an area where harm to the sanctity of the body was foreseeable and, in fact,

ultimately caused such severe disfigurement to her body that dental records were needed to

identify it.” Id. at 9-10, 2020 WL 1855837, at *5. Inherent in Diaz’s argument is the contention

that Code § 18.2-126(B) does not contemplate conduct that does not result in some sort of

physical damage or disfigurement to the body.

The Commonwealth resists Diaz’s argument, arguing that Diaz’s interpretation of the

statute “adds limitations to the statute that the General Assembly did not see fit to include.”

Instead, the Commonwealth argues that the General Assembly chose to use a broader term—

“defile”—which this Court in Everett interpreted to include “dishonor or disrespect of a body.” - 23 - While the Commonwealth acknowledges that the term “physically” modifies the term “defile” in

the statute, the Commonwealth maintains that this does not require physical damage to the body.

Instead, the Commonwealth argues that there simply has to be some sort of physical nexus

between the defendant’s act of defilement and the body.

Here, the Commonwealth points to two facts which it believes are sufficient to support

the conviction: (1) the fact that Diaz engaged in sexual activity “just feet away from Wynn’s

dead body,” which, according to the Commonwealth, “indicated disdain and disrespect” for the

body; and (2) the fact that Diaz wrapped the body “in various refuse [including] trash bags, . . .

dumped the body in her car, [and threw] the moving dolly on top of it.”

Resolving this issue requires us to interpret the outer limits of Code § 18.2-126(B). This

is a question of statutory interpretation requiring de novo review. Sarafin v. Commonwealth, 288

Va. 320, 325 (2014). Where statutory construction is necessary, an appellate court construes a

statute to “‘ascertain and give effect to the intention’ of the General Assembly.” Farhoumand v.

Commonwealth, 288 Va. 338, 343 (2014) (quoting Rutter v. Oakwood Living Ctrs. of Va. Inc.,

282 Va. 4, 9 (2011)). Penal statutes must be “strictly construed against the Commonwealth,” but

“[a] defendant is not ‘entitled to a favorable result based upon an unreasonably restrictive

interpretation of [a] statute.’” Grimes v. Commonwealth, 288 Va. 314, 318 (2014) (quoting

Ansell v. Commonwealth, 219 Va. 759, 761 (1979)). In conducting this analysis, we are inclined

to agree with the Commonwealth, as the statute by its plain language does not require some sort

of physical “damage” or “disfigurement.”

As noted above, the statute expressly requires that a perpetrator “physically defile[] a

dead human body.” Code § 18.2-126(B) (emphasis added). This Court in Everett defined

“defile” as referring to “acts that disrespect, dishonor, or desecrate a dead body.” Everett, slip

- 24 - op. at 6-7, 2020 WL 1855837, at *3-4.6 The word “physical” modifies the verb “defile[]” in the

statute. “Physical” amongst various definitions, means: “of or relating to natural or material

things as opposed to things mental, moral, [or] spiritual,” and “of or relating to the body[,] . . .

often [as] opposed to mental.” Physical, Webster’s Third New International Dictionary (1993)

(emphasis omitted). “[W]e give the term [‘physical’] its ordinary and plain meaning,

considering the context in which it was used.” Grimes, 288 Va. at 318. We agree with Diaz that

the statute requires that the dishonor, disrespect, or desecration must manifest in some physical

way. However, the statute does not require that this physical manifestation cause any physical

“damage,” as argued by Diaz. Adopting such an interpretation would add language to the statute

that does not exist. See Baker v. Commonwealth, 278 Va. 656, 660 (2009) (“When the language

of a statute is unambiguous, courts are bound by the plain meaning of that language and may not

assign a construction that amounts to holding that the General Assembly did not mean what it

actually has stated.” (quoting Elliott v. Commonwealth, 277 Va. 457, 463 (2009))); see also

Washington v. Commonwealth, 272 Va. 449, 459 (2006) (“Courts cannot ‘add language to the

statute the General Assembly has not seen fit to include.’” (quoting Holsapple v. Commonwealth,

266 Va. 593, 599 (2003))). Instead, the plain language of the statute proscribes physical

interaction with a dead human body in a way that dishonors, disrespects, or desecrates it.

Here, after shooting Wynn, Diaz placed his dead body on an ironing board and wrapped

it in seven layers of various materials, including trash bags that were packed around the corpse’s

head. She then conscripted the unwitting aid of Williams and Johnson in attempting to secret the

body away from the hotel so that she could unlawfully dispose of it without alerting the

6 As noted earlier, “[w]hile Rule 5A:1(f) provides that unpublished opinions may be cited as informative, ‘unpublished opinions are merely persuasive authority and not binding precedent.’” Coffman, 67 Va. App. at 172 n.7 (quoting Baker, 59 Va. App. at 153 n.3). Nevertheless, we endorse the statutory analysis conducted by the Everett Court in defining the term “defile,” as used in Code § 18.2-126(B). - 25 - authorities.7 In doing so, she told Williams and Johnson that Wynn’s body was a grandfather

clock, whereafter both Williams and Johnson attempted to help move the body into the trunk of

Diaz’s car under the guise that the body was merely a piece of furniture and could be treated as

such. Then later when the police found the body, the moving dolly was lying on top of it in the

back of the car. Diaz’s physical actions with regard to Wynn’s corpse—including putting it on

an ironing board, wrapping it with miscellaneous items including trash bags, enlisting the aid of

people who believed they were moving a piece of furniture, packing it into the back of a crowded

car, and putting a dolly on top of it—did not comport with the typical respect and reverence with

which our society ordinarily treats dead bodies. As noted in Everett, “[t]he legislative intent of

Code § 18.2-126 is to protect the sanctity of both a burial place and a dead body, wherever

situated.” Everett, slip op. at 6, 2020 WL 1855837, at *3. Were we to adopt Diaz’s preferred

interpretation, we would frustrate this legislative aim. The jury was therefore entitled to find,

based on the facts presented, that the evidence proved Diaz physically treated the victim’s body

with disrespect and dishonor as prohibited by the statute.8 See generally, e.g., Gerald v.

Commonwealth, 295 Va. 469, 479 (2018) (providing that on review of a challenge to the

sufficiency of the evidence, the appellate court “does not ask itself whether it believes the

evidence establishes the essential elements of the crime beyond a reasonable doubt, but whether

7 The fact that Diaz may have acted with an intent to conceal the body and escape detection does not prevent a finding that she also had the necessary intent to physically defile Wynn’s body. See, e.g., Eberhardt v. Commonwealth, 74 Va. App. 23, 38-39 (2021) (recognizing that “a defendant may act with more than one intent” and “a specific criminal intent may coexist with a less culpable intent” (first citing Green v. Commonwealth, 72 Va. App. 111, 119-20 (2012); and then citing Moody v. Commonwealth, 28 Va. App. 702, 707-08 (1998))). 8 In coming to this conclusion, we acknowledge and agree with the dissent’s contention that the fact that Diaz had sexual relations near the dead body “involved no contact with Wynn’s body and [therefore] cannot be sufficient to demonstrate that she ‘physically defile[d]’ the body.” (second alteration in original). Our holding regarding the sufficiency of the evidence is based entirely on the facts surrounding Diaz’s physical treatment of the body. - 26 - any rational trier of fact could have so found”). The trial court therefore did not err in

submitting the defiling charge to the jury.

CONCLUSION

Neither of the two evidentiary issues raised by Diaz are meritorious. Further, the

evidence was sufficient to support Diaz’s convictions for second-degree murder, as well as

defiling a dead human body. Accordingly, we affirm the trial court’s decision.

Affirmed.

- 27 - Ortiz, J., concurring in part, and dissenting in part.

I join with the majority’s opinion as to all but Part II.B., which relates to the sufficiency

of the evidence for Diaz’s defilement conviction. As to the defilement conviction, I would hold

that the trial court erred in denying her motion to strike as the Commonwealth failed to produce

sufficient evidence of defilement as required by Code § 18.2-126(B).

As the majority correctly points out, while Diaz raises this as a sufficiency challenge, the

real issue is one of statutory interpretation, which we review de novo. See ante at 24; Sarafin v.

Commonwealth, 288 Va. 320, 325 (2014). Code § 18.2-126(B) penalizes the act of “willfully

and intentionally physically defil[ing] a dead human body.” The majority emphasizes that the

Code contains no requirement that the body suffer “physical damage or disfigurement,” and

declines to read such a requirement into the statute. Ante at 24. I agree. I respectfully disagree,

however, with the majority’s holding that Diaz’s physical actions here were sufficient to

constitute defilement. See ante at 25-26.

Code § 18.2-126(B) does not define defilement, noting only an exception for “lawful

purpose[s]” such as “autopsy or the recovery of organs or tissues for transplantation.” Though

“defile” is used elsewhere in the Code to mean sexual molestation, see Code § 18.2-48(ii);

Fitzgerald v. Commonwealth, 223 Va. 615, 632-33 (1982); the legislative history of Code

§ 18.2-126 shows that the General Assembly changed the statutory language from “physically

molests” to “physically defiles,” suggesting a different definition here, see H.B. 1865 (1995) (as

engrossed Feb. 7, 1995). Black’s Law Dictionary defines “defile” as

1. To make dirty; to physically soil. 2. To make less pure and good, esp. by showing disrespect; to dishonor. 3. To make ceremonially unclean; to desecrate. 4. To morally corrupt (someone). 5. Archaic. To debauch (a person); to deprive (a person) of chastity.

- 28 - Defile, Black’s Law Dictionary (11th ed. 2019). As noted by a panel of this Court in the

unpublished Everett opinion, the General Assembly likely intended to encompass “acts that

disrespect, dishonor, or desecrate a dead body” and also acts “to disrespect, dishonor, make dirty

or soil.” Everett v. Commonwealth, No. 1679-18-1, slip op. at 7, 2020 WL 1855837, at *4

(Va. Ct. App. Apr. 14, 2020). This definition aligns with the word “defile” in other code

sections. See Code § 18.2-488 (“No person shall publicly burn with contempt, mutilate, deface,

defile, trample upon, or wear with intent to defile any such flag, standard, color, ensign or

shield.”); Code § 3.2-901 (“The Commissioner [of Agriculture and Consumer Services] may

provide technical assistance to persons for the suppression of any nuisance birds when it has

been determined that they are defacing or defiling public or private property.”). In both Code

§§ 18.2-488 and 3.2-901, “defile” is used with other verbs that convey physical destruction,

defacement, and violation. See Loch Levan Land Ltd. P’ship v. Bd. of Supervisors, 297 Va. 674,

685 (2019) (“[T]he meaning of doubtful words in a statute may be determined by reference to

their association with related words and phrases.” (quoting Andrews v. Ring, 266 Va. 311, 319

(2003))). Similarly, the General Assembly included in Code § 18.2-126(B) the important

modifier that penalized acts of defilement be “physical.”

Among several possible definitions, “physical” here likely means either (1) “[o]f, relating

to, or involving material things; pertaining to real, tangible objects”; (2) “[o]f, relating to, or

involving someone’s body as opposed to mind”; or (3) “[o]f, relating to, or involving rough or

violent contact.” Physical, Black’s Law Dictionary, supra. The majority correctly notes that

“the statute requires that the dishonor, disrespect, or desecration must manifest in some physical

way.” Ante at 25. Yet their analysis proceeds to rely on Diaz’s state of mind in transporting the

body. See ante at 26 (noting Diaz’s ruse in informing onlookers that the body was a grandfather

clock and suggesting, without evidence, that this led the body to be treated with physical

- 29 - disrespect).9 These actions, disconnected from “real, tangible objects” and not involving any

form of “contact” with the body, cannot, as a matter of law, constitute “physical” defilement.10

The majority also points to the facts that Diaz placed the body on an ironing board,

wrapped it with unused trash bags and other materials she had on hand, placed it in the back of

her car next to other boxes, and placed a moving dolly on top of it. Ante at 25-26. While these

actions are “physical,” they do not signal disrespect or dishonor rising to the level of defilement.

Though, as the majority notes, the General Assembly intended “to protect the sanctity of both a

burial place and a dead body,” Diaz’s physical actions toward the body did not demean the

body’s sanctity. See ante at 26 (quoting Everett, slip op. at 6, 2020 WL 1855837, at *3). Rather,

Diaz used materials she had on hand to wrap the body. She also placed the body in the back of

her car, with other items she also needed to transport, when she returned to her home from the

hotel. There is no evidence that the body itself was treated with less than due care under the

circumstances. I do not believe the General Assembly intended the defilement statute to

criminalize such a broad swath of behavior. See Turner v. Commonwealth, 226 Va. 456, 459

(1983) (noting that penal statutes “must be strictly construed against the state and limited in

application to cases falling clearly within the language of the statute”).

9 The majority also points out the Commonwealth’s reliance on the fact that Diaz had sexual intercourse near the wrapped body. Ante at 24. While her sexual activity was clearly “physical,” relating to her “body as opposed to [her] mind,” it involved no contact with Wynn’s body and cannot be sufficient to demonstrate that she “physically defile[d]” the body. 10 Similarly, while I agree with much of the reasoning in this Court’s unpublished opinion in Everett, I would also reject that panel’s holding that the actions of the appellant in that case constituted “defilement.” See Everett, No. 1679-18-1, 2020 WL 1855837. While the resulting damage to the dead body in Everett was gruesome, the Court could only point to the appellant’s act in “dump[ing]” the corpse in a filthy public park, abandoning it to the elements. Slip op. at 9, 2020 WL 1855837, at *5. Such abandonment is more an omission than a “physical” act of defilement. See id. - 30 - Diaz’s actions in wrapping and moving the body allowed her to “conceal,” “secrete,” and

“transport” the body away. See Code § 18.2-323.02. The legislature surely intended “defile” to

mean something more than concealing and transporting a dead body, separately proscribed under

the separate charge of concealment. See id. The General Assembly created the crime of

concealment in 2007, 12 years after passage of the defilement statute. See 2007 Va. Acts ch. 436

(creating crime of concealment); 1995 Va. Acts ch. 306 (creating crime of defilement). If

“defile” had the broad meaning ascribed to it by the majority here, the General Assembly would

have had no need to pass the concealment statute, which is much narrower, proscribing more

precise acts toward the body and requiring “malicious intent.” See Code § 18.2-323.02. It is true

that the same actions may in some cases constitute more than one crime. See, e.g., Code

§ 18.2-32 (defining first- and second-degree murder); Code § 18.2-53.1 (defining use or display

of a firearm in the commission of enumerated felonies, including murder). Yet, by broadening

the definition of defilement to include every act of concealment, the majority interprets the

defilement statute “in a manner that . . . ascribe[s] to the General Assembly a futile gesture.”

Shaw v. Commonwealth, 9 Va. App. 331, 334 (1990).

“It is ‘our duty to interpret the several parts of a statute as a consistent and harmonious

whole so as to effectuate the legislative goal.’” Va. Electric & Power Co. v. State Corp.

Comm’n, 300 Va. 153, 161 (2021) (quoting REVI, LLC v. Chicago Title Ins. Co., 290 Va. 203,

208 (2015)). Accordingly, I would hold that defilement requires something more than the

actions Diaz took here.11 Because I believe that the evidence was insufficient as a matter of law

to find Diaz guilty of defilement and that the trial court erred in denying her motion to strike that

charge, I respectfully dissent from that portion of the majority opinion.

11 Similarly, the majority’s holding opens the door to permit prosecutors to charge defilement in any murder case in which a defendant took any physical actions toward the body after the murder occurred. I do not believe the legislature intended such a result. - 31 -