Phillip C. BAY, S/K/A Philip C. Bay v. COMMONWEALTH of Virginia

729 S.E.2d 768, 60 Va. App. 520, 2012 WL 3165070, 2012 Va. App. LEXIS 254
CourtCourt of Appeals of Virginia
DecidedAugust 7, 2012
Docket0585111
StatusPublished
Cited by136 cases

This text of 729 S.E.2d 768 (Phillip C. BAY, S/K/A Philip C. Bay v. COMMONWEALTH of Virginia) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillip C. BAY, S/K/A Philip C. Bay v. COMMONWEALTH of Virginia, 729 S.E.2d 768, 60 Va. App. 520, 2012 WL 3165070, 2012 Va. App. LEXIS 254 (Va. Ct. App. 2012).

Opinion

FRANK, Judge.

Phillip C. Bay, appellant, was convicted of eleven counts of manufacturing or possession of a fire bomb or explosive device with intent to manufacture, in violation of Code § 18.2-85, possession of a weapon of terrorism with intent to terrorize, in violation of Code § 18.2-46.6, two counts of acts of terrorism, in violation of Code § 18.2-46.5, two counts of soliciting or recruiting another for acts of terrorism, in violation of Code § 18.2-46.5, and two counts of possession or use of a sawed-off shotgun or rifle, in violation of Code § 18.2-300. On appeal, he contends the trial court erred in denying his motion for a change of venue, because all the citizens of Virginia Beach, as the victims of the alleged crimes, were presumptively prejudiced and incapable of serving as impartial jurors. He also alleged the trial court erred in denying his motion to suppress, because police lacked valid consent to search his residence, and because the affidavit was insufficient to justify a second, more expansive search of the residence. For the reasons stated, we affirm the judgment of the trial court.

*526 BACKGROUND

On April 5, 2009, Investigator Donald Moss of the Virginia Beach Fire Department received information that appellant was making pipe bombs at his home and was planning a Columbine-type attack on a local high school. 2 Based on that information, Moss went to appellant’s home in Virginia Beach, joining several police officers already at the scene. Moss met appellant’s mother and told her why he was at the home. Moss asked Mrs. Bay if officers could interview her son, who was seventeen at the time. She gave permission, and the officers went inside the home with her.

Moss, Mrs. Bay, and appellant went into the kitchen/dining room area. Moss questioned appellant about the alleged pipe bombs, and appellant admitted that he had made some pipe bombs. Appellant also said he had been doing some experimentation and blew up some pipe bombs in the woods near his home. Later in the interview, Moss asked if there were “any other things” in the house. Appellant stated that he had a container of sulphur and possibly red cannon fuse in his room.

After this discussion, Moss asked Mrs. Bay if he could search appellant’s room for these items and retrieve these items, and to determine if there was anything else that would be dangerous. Appellant interjected, “Mom, just say no.” When Mrs. Bay asked why, appellant responded that he would tell her later. The two continued in a loud and heated exchange. Moss told Mrs. Bay that he at least wanted to retrieve the two items appellant mentioned. Mrs. Bay told Moss to do what he had to do, as long as the areas he searched were agreeable to appellant.

Appellant then agreed and said to Moss, “come on up to my room and I will give you the sulphur and fuse.” For safety reasons, Moss accompanied appellant to his room, along with *527 Officers Martinez and Binder. The officers recovered the red cannon fuse from appellant’s closet. The sulphur container was on top of a piano in appellant’s room. As Moss recovered the sulphur, he looked down and saw a plastic case under appellant’s bed. Moss was not sure if it was a gun case. He asked appellant what was in the case. Appellant then quickly flipped up his mattress, revealing a six-inch pipe. Appellant said he forgot it was there. Moss retrieved the pipe. As Moss turned to leave the room, he saw three or four clear plastic, stackable drawers. In one of the drawers, Moss could see two nipples and a container marked Pyrodex. 3 Moss asked appellant about it, and appellant said it was his “stuff’ with which he experimented. Moss observed other containers labeled shot shrapnel, shredded glass, and BBs. There was also a bag containing a white substance. Appellant said it was soap, which Moss knew could be used to make napalm.

The officers and appellant took the drawer downstairs. Moss asked Mrs. Bay if he could take the drawer outside for safety reasons. Mrs. Bay consented but said she wanted her drawer back. Moss took the drawer to his car, put the contents in his trunk, and returned the drawer to Mrs. Bay. 4 Moss told Mrs. Bay he would get back to her later. At that point, Moss wanted to get a second opinion on the items he had taken from the house.

Moss called Investigator Newton to review the items recovered from appellant’s house. Newton is highly trained in the subject of pipe bombs and other explosives. Moss and Newton met the next morning, and Newton determined that there was enough to charge appellant with manufacturing and possession of explosive devices.

Also that morning, Newton learned from Virginia Beach Police Detective Frederick that an informant reported appel *528 lant had eighteen additional pipe bombs hidden in his attic. Newton executed an affidavit and received a search warrant for appellant’s house. Newton executed the search warrant that day and found more fire bombs and explosive devices. When questioned, appellant admitted that he had constructed the devices. Appellant also stated that he and another juvenile were planning an attack on Landstown High School and that they were going to use the devices to kill large numbers of people.

This appeal follows.

ANALYSIS

Change of Venue

Appellant contends the trial court erred in denying his motion for a change of venue. The Commonwealth initially alleges that appellant has failed to provide an adequate record. We disagree with the Commonwealth.

On appeal, we presume the judgment of the trial court is correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the trial court has erred in the respect alleged by appellant. Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256 (1961). If appellant fails to do so, the judgment will be affirmed. Id.

Rule 5A:8 provides that the transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the trial court within 60 days after entry of the final judgment. In lieu of or to supplement a transcript, a party may submit a written statement of facts that has been presented to and signed by the trial judge and filed by the clerk of the trial court in accordance with Rule 5A:8(c).

If ... the transcript [or statement of facts] is indispensable to the determination of the case, then the requirements for making the transcript [or statement of facts] a part of the record on appeal must be strictly adhered to. This Court has no authority to make exceptions to the filing requirements set out in the Rules.

*529 Turner v. Commonwealth, 2 Va.App. 96, 99, 341 S.E.2d 400, 402 (1986); see Anderson v. Commonwealth, 13 Va.App. 506, 508-09, 413 S.E.2d 75, 77 (1992) (addressing statements of facts in lieu of a transcript).

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729 S.E.2d 768, 60 Va. App. 520, 2012 WL 3165070, 2012 Va. App. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillip-c-bay-ska-philip-c-bay-v-commonwealth-of-virginia-vactapp-2012.