COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata Argued at Alexandria, Virginia
RALPH FOWLER, A/K/A RALPH MANN, A/K/A "KILLA" MEMORANDUM OPINION * BY v. Record No. 0629-97-4 JUDGE RICHARD S. BRAY MARCH 24, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Herman A. Whisenant, Jr., Judge Anne T. Godson for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
A jury convicted Ralph Fowler (defendant) for attempted
murder and related use of a firearm. On appeal, defendant
complains (1) that the trial court erroneously permitted the
Commonwealth to amend the indictments to include an alias,
"Killa," for defendant, and (2) that the evidence is insufficient
to support the convictions. We disagree and affirm the trial
court.
The parties are fully conversant with the record and this
memorandum opinion recites only those facts essential for
disposition of the appeal.
In accordance with well established principles, we view the
evidence in the "light most favorable to the Commonwealth,
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. granting to it all reasonable inferences fairly deducible
therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The credibility of a witness, the weight
accorded the testimony, and the inferences to be drawn from
proven facts are matters to be determined by the fact finder.
See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473,
476 (1989). "[A] jury is not required to accept in toto an
accused's [testimony], but may rely on it in whole, in part, or
reject it completely." Rollston v. Commonwealth, 11 Va. App.
535, 547, 399 S.E.2d 823, 830 (1991) (citations omitted).
Here, the evidence established that Jimmy Medina, Latisha
Brown, and their infant daughter were at their residence when
Medina learned from an acquaintance that someone was "out front
ask[ing] for [him]." Medina proceeded to the front door and
observed defendant and Javon Saunders "standing against the car."
"They" asked if Medina was Jimmy Hale, a friend of Medina's
brother, Joseph. Medina replied, "no," closed the door, and
returned to his family.
Shortly thereafter, Medina responded to a knock at the back
door and again encountered defendant and Saunders. Saunders
pointed a handgun at Medina's chest and commanded, "You know what
time it is. Get the f--- on the ground." Presuming that he was
"getting robbed," Medina struggled with defendant while Saunders
entered the home, confronted Brown and angrily demanded, "Where
the f--- is he, bitch?" Brown answered, "I don't know," and
- 2 - Saunders struck her in the face and head with the weapon, stated,
"F--- this s---, I'm going to cap your ass, bitch," and placed
the "gun to the back of [her] head." Brown "ducked" and
immediately heard a gunshot. Also hearing the shot, Medina ran
from the back door to the front of the residence and was again
confronted by Saunders pointing the gun at him. Medina then fled
and escaped, despite pursuit by defendant and Saunders.
Subsequent investigation revealed that the bullet passed
within "four or five inches" of the infant resting on the sofa.
Forensic tests matched it to a gun discovered during the
execution of a search warrant at the defendant's residence.
Handsets from two telephones were missing, and police later
recovered one near the rear door bearing Saunders' fingerprints. Defendant testified that he and Saunders had traveled to
Medina's home intending to purchase marijuana, armed with the gun
as customary during their "drug deals." The three men argued
over the quantity of drug sold to them by Medina, and Saunders
threatened Medina with the weapon in an effort to recoup purchase
money. When Medina fled from the back door, Saunders pointed the
weapon at Brown, and defendant, not "want[ing] nobody to get
shot," "snatched the gun" from Saunders and "it went off."
Defendant denied chasing Medina, but admitted striking Brown "one
time in the head" "[b]ecause she was . . . raising her voice at
me and pushing us."
Prior to the commencement of trial, the Commonwealth moved
- 3 - to amend the indictments to include the alias, "Killa," for
defendant. Defendant objected, arguing that no evidence
supported the proposed amendment. In response, the Commonwealth
proffered, unchallenged by defendant, that defendant had written
a letter "signed with that nickname . . . [and bearing] his
fingerprints," and the court granted the motion.
The Amendment
On brief, defendant relied both upon his original argument
that the Commonwealth failed to provide a proper foundation for
the amendment, and the additional contention that the "damaging
nature of this name was highly prejudicial" to defendant, while
"provid[ing] no probative evidence." However, during oral
argument, defendant correctly conceded that the unchallenged
unilateral avowal by the Commonwealth properly established a
foundation for the amendment, see Stewart v. Commonwealth, 10 Va. App. 563, 568, 394 S.E.2d 509, 512 (1990), and we are
procedurally barred from considering defendant's remaining
argument.
It is well established that we will not consider an argument
on appeal which was not presented to the trial court. See
Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630,
631 (1991) (citing Rule 5A:18). "[E]rror will be sustained to a
ruling of the trial court only when the objection was stated,
together with the grounds therefor, at the time of the ruling,
except for good cause . . . or . . . to attain the ends of
- 4 - justice." Snurkowski v. Commonwealth, 2 Va. App. 532, 536, 348
S.E.2d 1, 3 (1986); Rule 5A:18. Defendant in this instance
failed to argue the prejudice issue before the trial court and,
finding no circumstances justifying the ends of justice
exception, thereby precluded appellate review. See Redman v.
Commonwealth, 25 Va. App. 215, 218, 487 S.E.2d 269, 271 (1997).
Sufficiency of the Evidence
First degree murder includes "any willful, deliberate, and
premeditated killing." Code § 18.2-32. "'To sustain a
conviction for attempted murder, the evidence must establish both
a specific intent to kill the victim and an overt but ineffectual
act committed in furtherance of the criminal purpose.'" Bottoms
v. Commonwealth, 22 Va. App. 378, 382, 470 S.E.2d 153, 155 (1996)
(quoting Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d
193, 198 (1987)). The jury may find premeditation based on "all
the facts and circumstances[, and t]he intention to kill need not
exist for any specified length of time prior to the [attempted]
killing." Mundy v. Commonwealth, 11 Va. App.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata Argued at Alexandria, Virginia
RALPH FOWLER, A/K/A RALPH MANN, A/K/A "KILLA" MEMORANDUM OPINION * BY v. Record No. 0629-97-4 JUDGE RICHARD S. BRAY MARCH 24, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Herman A. Whisenant, Jr., Judge Anne T. Godson for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
A jury convicted Ralph Fowler (defendant) for attempted
murder and related use of a firearm. On appeal, defendant
complains (1) that the trial court erroneously permitted the
Commonwealth to amend the indictments to include an alias,
"Killa," for defendant, and (2) that the evidence is insufficient
to support the convictions. We disagree and affirm the trial
court.
The parties are fully conversant with the record and this
memorandum opinion recites only those facts essential for
disposition of the appeal.
In accordance with well established principles, we view the
evidence in the "light most favorable to the Commonwealth,
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. granting to it all reasonable inferences fairly deducible
therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The credibility of a witness, the weight
accorded the testimony, and the inferences to be drawn from
proven facts are matters to be determined by the fact finder.
See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473,
476 (1989). "[A] jury is not required to accept in toto an
accused's [testimony], but may rely on it in whole, in part, or
reject it completely." Rollston v. Commonwealth, 11 Va. App.
535, 547, 399 S.E.2d 823, 830 (1991) (citations omitted).
Here, the evidence established that Jimmy Medina, Latisha
Brown, and their infant daughter were at their residence when
Medina learned from an acquaintance that someone was "out front
ask[ing] for [him]." Medina proceeded to the front door and
observed defendant and Javon Saunders "standing against the car."
"They" asked if Medina was Jimmy Hale, a friend of Medina's
brother, Joseph. Medina replied, "no," closed the door, and
returned to his family.
Shortly thereafter, Medina responded to a knock at the back
door and again encountered defendant and Saunders. Saunders
pointed a handgun at Medina's chest and commanded, "You know what
time it is. Get the f--- on the ground." Presuming that he was
"getting robbed," Medina struggled with defendant while Saunders
entered the home, confronted Brown and angrily demanded, "Where
the f--- is he, bitch?" Brown answered, "I don't know," and
- 2 - Saunders struck her in the face and head with the weapon, stated,
"F--- this s---, I'm going to cap your ass, bitch," and placed
the "gun to the back of [her] head." Brown "ducked" and
immediately heard a gunshot. Also hearing the shot, Medina ran
from the back door to the front of the residence and was again
confronted by Saunders pointing the gun at him. Medina then fled
and escaped, despite pursuit by defendant and Saunders.
Subsequent investigation revealed that the bullet passed
within "four or five inches" of the infant resting on the sofa.
Forensic tests matched it to a gun discovered during the
execution of a search warrant at the defendant's residence.
Handsets from two telephones were missing, and police later
recovered one near the rear door bearing Saunders' fingerprints. Defendant testified that he and Saunders had traveled to
Medina's home intending to purchase marijuana, armed with the gun
as customary during their "drug deals." The three men argued
over the quantity of drug sold to them by Medina, and Saunders
threatened Medina with the weapon in an effort to recoup purchase
money. When Medina fled from the back door, Saunders pointed the
weapon at Brown, and defendant, not "want[ing] nobody to get
shot," "snatched the gun" from Saunders and "it went off."
Defendant denied chasing Medina, but admitted striking Brown "one
time in the head" "[b]ecause she was . . . raising her voice at
me and pushing us."
Prior to the commencement of trial, the Commonwealth moved
- 3 - to amend the indictments to include the alias, "Killa," for
defendant. Defendant objected, arguing that no evidence
supported the proposed amendment. In response, the Commonwealth
proffered, unchallenged by defendant, that defendant had written
a letter "signed with that nickname . . . [and bearing] his
fingerprints," and the court granted the motion.
The Amendment
On brief, defendant relied both upon his original argument
that the Commonwealth failed to provide a proper foundation for
the amendment, and the additional contention that the "damaging
nature of this name was highly prejudicial" to defendant, while
"provid[ing] no probative evidence." However, during oral
argument, defendant correctly conceded that the unchallenged
unilateral avowal by the Commonwealth properly established a
foundation for the amendment, see Stewart v. Commonwealth, 10 Va. App. 563, 568, 394 S.E.2d 509, 512 (1990), and we are
procedurally barred from considering defendant's remaining
argument.
It is well established that we will not consider an argument
on appeal which was not presented to the trial court. See
Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630,
631 (1991) (citing Rule 5A:18). "[E]rror will be sustained to a
ruling of the trial court only when the objection was stated,
together with the grounds therefor, at the time of the ruling,
except for good cause . . . or . . . to attain the ends of
- 4 - justice." Snurkowski v. Commonwealth, 2 Va. App. 532, 536, 348
S.E.2d 1, 3 (1986); Rule 5A:18. Defendant in this instance
failed to argue the prejudice issue before the trial court and,
finding no circumstances justifying the ends of justice
exception, thereby precluded appellate review. See Redman v.
Commonwealth, 25 Va. App. 215, 218, 487 S.E.2d 269, 271 (1997).
Sufficiency of the Evidence
First degree murder includes "any willful, deliberate, and
premeditated killing." Code § 18.2-32. "'To sustain a
conviction for attempted murder, the evidence must establish both
a specific intent to kill the victim and an overt but ineffectual
act committed in furtherance of the criminal purpose.'" Bottoms
v. Commonwealth, 22 Va. App. 378, 382, 470 S.E.2d 153, 155 (1996)
(quoting Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d
193, 198 (1987)). The jury may find premeditation based on "all
the facts and circumstances[, and t]he intention to kill need not
exist for any specified length of time prior to the [attempted]
killing." Mundy v. Commonwealth, 11 Va. App. 461, 479, 390
S.E.2d 525, 535, aff'd en banc, 11 Va. App. 461, 399 S.E.2d 29
(1990). "'A design to kill may be formed only a moment before
the [attempted] act is committed provided the accused had time to
think and did intend to kill.'" Clozza v. Commonwealth, 228 Va.
124, 134, 321 S.E.2d 273, 279 (1984) (citation omitted).
"Concert of action" constitutes "'action that has been
planned, arranged, adjusted, agreed on and settled between the
- 5 - parties acting together pursuant to some [wrongful] design or
scheme.'" Berkeley v. Commonwealth, 19 Va. App. 279, 283, 451
S.E.2d 41, 43 (1994) (citation omitted). "All participants in
such planned enterprises may be held accountable for incidental
crimes committed by another participant during the enterprise
even though not originally or specifically designed." Id.
"Hence, it is not necessary that the crime should be a part of
the original design; it is enough if it be one of the incidental
probable consequences of the execution of that design, and should
appear at the moment to one of the participants to be expedient
for the common purpose." Carter v. Commonwealth, 232 Va. 122,
127, 348 S.E.2d 265, 268 (1986) (citations omitted).
Defendant's own evidence clearly established that he and
Saunders, acting in concert, had gone to Medina's home armed and
with the intent to purchase illegal drugs. Saunders' subsequent
conduct and attendant statements to Brown supplied the requisite
elements of attempted murder as an incidental, likely consequence
of the joint criminal enterprise. Thus, defendant was equally
culpable for Saunders' crimes.
Accordingly, we affirm the convictions. Affirmed.
- 6 -