Micah Isaiah Ramirez v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 19, 2024
• Docket: 1783221
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Chief Judge Decker, Judges Fulton and Ortiz

MICAH ISAIAH RAMIREZ MEMORANDUM OPINION* v. Record No. 1783-22-1 PER CURIAM MARCH 19, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Rufus A. Banks, Jr., Judge

(Diallo K. Morris; Morris, Crawford & Currin, P.C., on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Ken J. Baldassari, Assistant Attorney General, on brief), for appellee.

A jury convicted Micah Isaiah Ramirez of second-degree murder, statutory burglary, two

counts of robbery, two counts of abduction, and six counts of use of a firearm in the commission of

a felony. On appeal, Ramirez challenges the sufficiency of the evidence to sustain 11 of his 12

convictions.1 Ramirez acknowledges that he did not preserve his arguments in the trial court but

asks this Court to consider them under the ends of justice exception to Rule 5A:18. Finding the

ends of justice exception inapplicable, we affirm the trial court’s judgment. 2

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Ramirez does not challenge the statutory burglary conviction. 2 Having examined the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.” See Code § 17.1-403(ii)(a); Rule 5A:27(a). In addition, “the dispositive issue or issues have been authoritatively decided,” and the appellant “has not argued that the case law should be overturned, extended, modified, or reversed.” See Code § 17.1-403(ii)(b); Rule 5A:27(b). BACKGROUND

“Consistent with the standard of review when a criminal appellant challenges the

sufficiency of the evidence, we recite the evidence below ‘in the “light most favorable” to the

Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74

Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This

standard “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 to be drawn therefrom.’” Cady, 300 Va. at 329 (quoting Commonwealth v.

Perkins, 295 Va. 323, 324 (2018)).

Around 6:00 p.m. on December 5, 2017, Shawn and Melissa Basnight had finished eating

dinner when someone knocked on their door. When Melissa opened the door, Ramirez asked

Shawn whether he had any marijuana. Shawn stated that he did not have any marijuana and

moved to close the door. Ramirez and two other men rushed into the home. The two other

intruders carried firearms and had not been visible when Melissa opened the door to Ramirez.

The three intruders demanded that Shawn and Melissa lay “on the ground” and put their “head[s]

down” or they would get “hurt.” At trial, Melissa identified one of the intruders as Bryan Mack

but did not know the third intruder.

Ramirez and Mack searched and ransacked the home while the unidentified intruder put

his knee on Shawn’s neck and held a firearm to his head. Ramirez instructed Melissa to walk to

the bedroom, where he asked her where “everything” was. Assuming Ramirez was referring to

marijuana and money, Melissa gave Ramirez over $100. The men also took about seven grams

of marijuana but thought Shawn had “a lot more,” so they repeatedly asked Melissa “where

everything was.” Eventually, Ramirez and Mack took Melissa and Shawn’s cell phones,

-2- prescription medication, and an electronic nail, which is used to smoke marijuana oil, then left

the home.

Shawn chased the intruders outside and toward a silver car, with Melissa following

shortly behind. Shawn did not own a firearm and did not have a weapon on his person. Ramirez

stood near the car’s driver’s door while Mack stood near the trunk with a firearm in his hand. As

Shawn approached the car, Mack told him to “get back, get back”; when Shawn ignored the

command and demanded that the men return his belongings, Mack “fired the gun several times.”

Shawn turned to Melissa and said that he had been shot. Ramirez then stated, “[l]et’s get the

fuck out of here,” and the assailants drove away in the car. Melissa memorized the car’s license

plate, ran to a neighbor’s house, and told him to call 911.

When Chesapeake Police Officer Gary Ables arrived at the scene, Shawn was on the

ground with multiple gunshot wounds to his arm, torso, back, and hip. Officer Ables rendered

aid until paramedics arrived; they transported Shawn to the hospital. Officer Ables collected

Shawn’s clothing and did not discover a firearm or anything resembling a weapon. Shawn died

at the hospital.

Around 7:00 p.m., Officer Zegelien and Detective Newton began searching for the silver

car. They found the car at a nearby school and detained Ramirez, the sole occupant. Marijuana

and a prescription pill bottle bearing a label with Melissa’s name were in Ramirez’s pockets.

Marijuana paraphernalia and personal items from Shawn’s home were in the car. Detective

Vernon Ryder subsequently interviewed Ramirez at the police station. Ramirez initially stated

that he had been “chillin’ with [his] friends” in his girlfriend’s car. Later in the interview,

however, he denied being in the car and said that he did not “know nothing about nobody getting

shot.” Ramirez acknowledged that Melissa’s prescription medicine was in his pockets but

-3- claimed that somebody “gave it to [him].” Ramirez repeatedly refused to identify either of his

two companions.

At 12:05 a.m., Brenda Pittman, a forensic technician, swabbed Ramirez’s left and right

hands for a primer residue test kit. Forensic analysis revealed that two particles characteristic of

primer residue were found on the sample from Ramirez’s left hand; one particle was found on

the sample from his right hand. The forensic report explained that primer residue can be

deposited on hands by “firing a weapon, handling a weapon, being in the proximity to the

discharge of a weapon, or coming into contact with an object that has primer residue on it.”

Dr. Wendy Gunther, an Assistant Chief Medical Examiner, performed Shawn’s autopsy.

Shawn suffered three gunshot wounds. One bullet entered his arm, severed his brachial artery,

exited his arm, entered his lower chest, struck his spleen, and “went in and out of his intestines”

before stopping in his lumbar spine. The second bullet went through his arm. The third bullet

entered his back and travelled over his hip bone and “through the place where his colon would

have been.” Shawn also had a “graze wound on his abdomen.” Dr. Gunther concluded that

Shawn died from the gunshot wounds in his arm and torso.

After the Commonwealth finished its case-in-chief, the trial court asked Ramirez whether

he had “a motion”; he responded that he did not “have any motions at [that] time.” After a

recess, Ramirez reiterated that he had “no other motions,” and the matter proceeded to closing

argument. After argument and deliberation, the jury convicted Ramirez of second-degree

murder,3 statutory burglary, two counts of robbery, two counts of abduction, and six counts of use

of a firearm in the commission of a felony.

3 The sentencing order contains a scrivener’s error reciting the murder conviction as first-degree murder. The jury’s verdict, however, reflects that it found him guilty of the lesser-included offense of second-degree murder. Accordingly, we remand the case to correct the scrivener’s error under Code § 8.01-428(B). -4- ANALYSIS

“The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’”

Melick v. Commonwealth, 69 Va. App. 122, 146 (2018) (quoting Pearce v. Commonwealth, 53

Va. App. 113, 123 (2008)). Whether to apply the ends of justice exception involves two

questions: “(1) whether there is error as contended by the appellant; and (2) whether the failure

to apply the ends of justice provision would result in a grave injustice.” Commonwealth v. Bass,

292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)). “The

burden of establishing a manifest injustice is a heavy one, and it rests with the appellant.” Holt

v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (quoting Brittle v. Commonwealth, 54

Va. App. 505, 514 (2009)).

“[T]o invoke the ends of justice exception when sufficiency of the evidence has been

raised for the first time on appeal, an appellant must do more than show that the Commonwealth

failed to prove an element or elements of the offense.” Redman v. Commonwealth, 25 Va. App.

215, 221 (1997). “Otherwise, we would be required under the ends of justice exception to

address the merits of every case where a defendant has failed to move to strike the

Commonwealth’s evidence as being insufficient to prove an element of the offense.” Id. To

demonstrate that a miscarriage of justice has occurred, an “appellant must demonstrate that he or

she was convicted for conduct that was not a criminal offense or the record must affirmatively

prove that an element of the offense did not occur.” Id. at 222.

Ramirez argues that the evidence was insufficient to convict him of second-degree murder

as an accomplice because it demonstrated only that he was present at the scene. He argues there is

no evidence that he encouraged or aided Mack before the murder. In fact, he asserts that he had fled

from Shawn’s home and was entering the car at the time of the shooting. Next, Ramirez argues that

the evidence was insufficient to convict him of the robbery and abduction offenses because it failed

-5- to prove that he intended to steal or deprive Shawn and Melissa of their liberty. He asserts that

Melissa “assumed” the men were talking about the marijuana and money when they asked “where

everything was” and that she could not remember whether Ramirez or Mack demanded their

phones. He also argues that the evidence was insufficient to convict him of the use of a firearm

offenses because he was unarmed and there is no evidence that he “directed or instructed others in

the brandishing or use of their firearms.”

By their express terms, the above arguments are attempts to demonstrate that “the

Commonwealth failed to prove an element . . . of the offense[s].” Redman, 25 Va. App. at 221.

Ramirez points to nothing in the record affirmatively proving that an element of the offense did

not occur or that he was convicted for non-criminal conduct. Thus, his arguments are legally

insufficient to invoke the ends of justice exception to permit us to consider the above sufficiency

arguments raised for the first time on appeal.

Ramirez further contends that the evidence was insufficient to convict him of the abduction

offenses as a matter of law because any detention was “incidental to and not separate and apart

from” the robbery. He argues that detention is inherent in a robbery, and in this case, the detention

entirely overlapped with the robbery and “added no more danger.”

“[W]hether an abduction is merely incidental to another crime is a question of law.

However, because no two crimes are exactly alike, determining whether an abduction is

incidental necessarily requires consideration of the historical facts of each case.” Vay v.

Commonwealth, 67 Va. App. 236, 253 (2017) (quoting Hoyt v. Commonwealth, 44 Va. App.

489, 496 n.4 (2004)). “We defer to the trial court’s findings of historical fact, but we review de

novo the trial court’s application of those facts to the law.” Id. (quoting Hoyt, 44 Va. App. at 496

n.4).

-6- Abduction is the unjustified “seiz[ing], tak[ing], transport[ing], detain[ing] or secret[ing]”

of another person by means of “force, intimidation or deception” with the intent “to deprive such

other person of [her] personal liberty.” Code § 18.2-47(A). “[T]he statutory offense is complete

upon ‘the physical detention of a person, with the intent to deprive [her] of [her] personal liberty

by force, intimidation, or deception.’” Lawlor v. Commonwealth, 285 Va. 187, 224 (2013)

(quoting Scott v. Commonwealth, 228 Va. 519, 526 (1984)). Statutory abduction, unlike

common law abduction, requires no proof of asportation. See Scott, 228 Va. at 526

(“[A]sportation of the victim from one place to another, is [not necessary].”). An abduction

conviction is consistent with double jeopardy principles when the restraint used “is separate and

apart from, and not merely incidental to,” the restraint inherent in crimes like rape, robbery, and

assault. Brown v. Commonwealth, 230 Va. 310, 314 (1985). Under the incidental detention

standard, “[t]he only issue when abduction is charged alongside an offense for which detention is

an intrinsic element is whether any detention exceeded the minimum necessary to complete the

required elements of the other offense.” Lawlor, 285 Va. at 225 (emphasis added) (citing Powell

v. Commonwealth, 261 Va. 512, 541 (2001) (stating that the question is whether “there is

sufficient evidence to support the finding of the jury that [the defendant] used greater restraint

than was necessary” to commit the other offense)). Thus, our task is to determine “whether

sufficient evidence exists to support the factfinder’s determination that a defendant used greater

restraint than that necessary to commit the simultaneously charged offense.” Epps v.

Commonwealth, 66 Va. App. 393, 403 (2016) (citing Powell, 261 Va. at 541).

Ramirez and his cohorts forced their way into the home and ordered Shawn and Melissa

onto the floor at gunpoint. The unidentified intruder forced his knee onto the back of Shawn’s

neck and held a firearm to his head. Then, Ramirez forced Melissa off of the floor and into the

bedroom. Thus, the record demonstrates that the intruders used greater and more dangerous

-7- restraint than was minimally necessary to effectuate the robbery. A manifest injustice will not

result by applying Rule 5A:18 under those circumstances. Accordingly, Ramirez’s incidental

detention argument is also barred by Rule 5A:18.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed.

-8-