Richard Wiley Griffin v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 11, 2000
• Docket: 0949992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Frank Argued by teleconference

RICHARD WILEY GRIFFIN MEMORANDUM OPINION * BY v. Record No. 0949-99-2 JUDGE LARRY G. ELDER APRIL 11, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge

(Derek E. Leake; Robert N. Johnson & Anne M. Johnson, Inc.; Taylor, Taylor & Taylor, Inc., on briefs), for appellant. Appellant submitting on briefs.

Robert H. Anderson, III, Assistant Attorney General (Mark L. Earley, Attorney General; Amy L. Marshall, Assistant Attorney General, on brief), for appellee.

Richard Wiley Griffin (appellant) appeals from his jury

trial convictions for two counts of abduction for pecuniary

benefit, two counts of using a firearm in the commission of an

abduction, and one count of statutory burglary. On appeal,

appellant contends the trial court erroneously (1) admitted

evidence of a subsequent robbery committed by Willie Townsend,

an acquaintance of appellant's, and a carbon copy of a check

written by Townsend to appellant and (2) concluded the evidence

was sufficient to prove statutory burglary and abduction with

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. intent to obtain a pecuniary benefit. We hold that the trial

court did not abuse its discretion in admitting the challenged

evidence and that the evidence was sufficient to support

appellant's convictions.

I.

ADMISSIBILITY OF EVIDENCE

"The admissibility of evidence is within the broad discretion

of the trial court, and a ruling will not be disturbed on appeal

in the absence of an abuse of discretion." Blain v. Commonwealth,

7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). "Evidence is

relevant if it has any logical tendency, however slight, to

establish a fact at issue in the case." Ragland v. Commonwealth,

16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993).

A. EVIDENCE OF SUBSEQUENT BANK ROBBERY

Appellant contends the trial court erroneously admitted

testimony about the subsequent robbery of the bank at which

victim Lisa Stewart worked. At trial, however, appellant

objected only to the testimony of Stewart. He posed no

objection to the testimony of Carol Bain, the bank manager on

duty at the time of the robbery and the person whose shoe,

briefcase and car were taken. He also posed no objection to the

testimony of Investigator Roger Brooks, who responded to the

scene of the bank robbery and subsequently found, during a

search of Willie Townsend's home, many items taken in the bank

robbery.

- 2 - Under Rule 5A:18, "[n]o ruling of the trial court . . . will

be considered as a basis for reversal unless the objection was

stated together with the grounds therefor at the time of the

ruling, except for good cause shown or to enable the Court of

Appeals to attain the ends of justice." Appellant failed to

object to the testimony of Bain and Brooks regarding the bank

robbery, and he does not allege that the good cause or ends of

justice exceptions to Rule 5A:18 should be applied here.

Therefore, we hold appellant waived his objections to Bain's or

Brooks's testimony about the bank robbery on grounds of relevancy

or prejudice.

We assume without deciding that appellant's relevancy

objection to Stewart's testimony about the bank robbery was

sufficient to preserve his contention on appeal that Stewart's

testimony was more prejudicial than probative. See Irving v.

Commonwealth, 15 Va. App. 178, 179, 180-83, 422 S.E.2d 471,

472-73, 473-75 (1992) (en banc) (in which Court split evenly on

issue of whether a relevancy objection preserves for appeal the

argument that evidence is more prejudicial than probative).

Nevertheless, we conclude the trial court did not abuse its

discretion in admitting the evidence.

[W]hen relevant evidence is offered which may be inflammatory and which may have a tendency to prejudice jurors against the defendant, its relevancy "must be weighed against the tendency of the offered evidence to produce passion and prejudice out of proportion to its probative value." The responsibility for

- 3 - balancing these competing considerations is largely within the sound discretion of the trial judge. And a trial court's discretionary ruling will not be disturbed on appeal absent a clear abuse of discretion.

Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)

(citations omitted).

Evidence of other bad acts or crimes is not admissible merely

to show a defendant's predisposition to commit such acts or

crimes. See, e.g., Kirkpatrick v. Commonwealth, 211 Va. 269, 272,

176 S.E.2d 802, 805 (1970). However, "'if such evidence tends to

prove any other relevant fact of the offense charged, and is

otherwise admissible, it will not be excluded merely because it

also shows him to have been guilty of another crime.'" Williams

v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426 (1962).

Where a course of criminal conduct is continuous and interwoven, consisting of a series of related crimes, the perpetrator has no right to have the evidence "sanitized" so as to deny the jury knowledge of all but the immediate crime for which he is on trial. The fact-finder is entitled to all of the relevant and connected facts, including those which followed the commission of the crime on trial, as well as those which preceded it; even though they may show the defendant guilty of other offenses. Evidence of such connected criminal conduct is often relevant to show motive, method, and intent.

Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577

(1984) (citations omitted) (emphasis added).

Here, the evidence of the bank robbery was relevant to the

issue of appellant's motive and intent in abducting Stewart and

- 4 - her roommate, Pamela Wingfield, on January 12, 1993. Although

no direct evidence linked appellant to the bank robbery,

appellant and Townsend were neighbors and business associates,

and circumstantial evidence permitted the inference that

appellant entered the victims' apartment to obtain the bank key

in order to facilitate the bank robbery. Therefore, the

evidence was admissible unless its probative value was

outweighed by its prejudicial effect. Here, in order to prove

appellant's guilt under Code § 18.2-48, the Commonwealth was

required to prove that appellant's abduction of Stewart and

Wingfield was with the intent to obtain a pecuniary benefit.

Because the probative value of the bank robbery evidence in

reference to appellant's intent in committing the abduction was

so high, we hold the trial court did not abuse its discretion in

holding its probative value outweighed any prejudicial effect.

B. CARBON COPY OF CHECK

Appellant also contends the trial court erroneously

admitted the carbon copy of a check for $125 allegedly written

by Townsend to appellant because it was irrelevant, immaterial

and prejudicial. Under the standards set out above, we

disagree. At a minimum, the carbon copy, which was found in

Townsend's apartment along with a box of business cards bearing

appellant's name, was both relevant and material to corroborate

appellant's earlier statement that he and Townsend knew each

other and had a business relationship. Appellant's contentions

- 5 - that the check was more prejudicial than probative because the

Commonwealth did not prove that the check was delivered to

appellant or that it was for appellant's alleged assistance

regarding the bank robbery were not dispositive of its

admissibility. These were matters appropriate for argument to

the jury regarding the weight to be given the check and were not

dispositive of its admissibility. Therefore, we hold the trial

court did not abuse its discretion in admitting the carbon copy

into evidence.

II.

SUFFICIENCY OF EVIDENCE

When considering the sufficiency of the evidence on appeal

in a criminal case, we view the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The

judgment will not be set aside unless it is plainly wrong or

without supporting evidence. See Martin v. Commonwealth, 4 Va.

App. 438, 443, 358 S.E.2d 415, 418 (1987).

Any element of a crime, including intent, may be proved

with circumstantial evidence, see Servis v. Commonwealth, 6 Va.

App. 507, 524, 371 S.E.2d 156, 165 (1988), such as a person's

conduct and statements, see Long v. Commonwealth, 8 Va. App.

194, 198, 379 S.E.2d 473, 476 (1989). "Circumstantial evidence

is as competent and is entitled to as much weight as direct

- 6 - evidence, provided it is sufficiently convincing to exclude

every reasonable hypothesis except that of guilt." Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

"[T]he Commonwealth need only exclude reasonable hypotheses of

innocence that flow from the evidence, not those that spring

from the imagination of the defendant." Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

A. ABDUCTION

Appellant contends the evidence was insufficient to support

his conviction for abduction under Code § 18.2-48 because it

failed to prove he used coercion or that he acted with the

intent to gain pecuniary benefit. We hold appellant failed to

preserve his objection to the sufficiency of the evidence to

prove coercion but that, in any event, the circumstantial

evidence was sufficient to establish both of these elements.

1. Use of force, intimidation or deception

Appellant's conviction for abduction required proof that he

"seize[d], [took], transport[ed], detain[ed] or secrete[d]"

Stewart and Wingfield "by force, intimidation or deception."

Code §§ 18.2-47, 18.2-48. As cited by appellant on brief, his

objection at trial was based only on the insufficiency of the

evidence to prove the victims were "sufficiently detained or

transported or taken or seized." Appellant did not contend at

trial that the evidence of force or intimidation was

insufficient. Because appellant failed to object with

- 7 - specificity to the evidence of force or intimidation, we hold

that he failed to preserve this objection for appeal. See Rule

5A:18.

Even if appellant had properly preserved this issue for

appeal, the evidence, viewed in the light most favorable to the

Commonwealth, supported the jury's finding that appellant used

force or intimidation to abduct the women. Immediately upon

entering the women's apartment, appellant locked the door's

deadbolt. A few minutes later, appellant ripped the telephone

out of the wall to prevent Wingfield from calling for help, and

he pulled out a gun while standing only three or four feet away

from them. While displaying the weapon, appellant said he

"didn't want to hurt [them]," "made [them] go in the bathroom,"

and told them to stay there without making any noise until he

said they could come out. The women did as he said, and while

in the bathroom, they were "very" scared. The only reasonable

hypothesis flowing from this evidence is that the women entered

the bathroom and remained there for over two hours based on

appellant's intimidation and threat to use force if they did not

cooperate.

2. Intent to gain pecuniary benefit

The term "pecuniary benefit" means "not only money, but

everything that can be valued in money." Krummert v.

Commonwealth, 186 Va. 581, 584-85, 43 S.E.2d 831, 832 (1947)

(decided under predecessor to current abduction statute).

- 8 - Further, "[t]he statutory element is the intent to extort money

or obtain a pecuniary benefit. It is not necessary that the

criminal actually succeed in realizing his desired gain."

Barnes v. Commonwealth, 234 Va. 130, 137, 360 S.E.2d 196, 201

(1987).

Here, the only reasonable hypothesis flowing from the

evidence, viewed in the light most favorable to the

Commonwealth, is that appellant abducted Stewart and Wingfield

with the intent to obtain a pecuniary benefit. He confined them

to their bathroom for over two hours, during which time he moved

about their apartment, opening and closing closet doors and

cabinets. Appellant told them he was waiting for a friend, and

Stewart heard appellant and another person moving through the

apartment to the victims' bedrooms. Stewart and Wingfield heard

appellant pick up their sets of keys, which included a key to

the front door of the bank where Stewart worked and a key to

Stewart's boyfriend's car. Appellant carried the keys to the

front door of the apartment, which the women heard "opening and

closing." When the women inspected their keys shortly after

appellant's departure, they discovered that someone had removed

from Stewart's key chain and duplicated at least one key, the

key to the car owned by Stewart's boyfriend. Finally, the

evidence permitted the inference that less than two weeks after

the abduction, appellant's "business partner," Willie Townsend,

- 9 - robbed the bank at which Stewart worked, entering through the

locked front door without having to pry it open.

Thus, although the evidence supported multiple hypotheses

regarding appellant's intent at the time of the abduction, all

involved the intent to obtain a pecuniary benefit--by intending

to steal something he found while looking through the closets

and cabinets, by taking the car operated by the key he

duplicated, or by duplicating the key to the bank where Stewart

worked in order to rob or facilitate the subsequent bank

robbery. Cf. Ridley v. Commonwealth, 219 Va. 834, 837, 252

S.E.2d 313, 314 (1979) (holding that in the absence of evidence

of a contrary intent, the trier of fact may infer that a

defendant's unauthorized presence in a house or building of

another in the nighttime was with intent to commit larceny). In

light of the above evidence and the absence of any evidence of a

prior relationship between appellant and the women or any other

motive for their abduction, the trier of fact was entitled to

conclude that appellant did not act merely to deprive the

victims of their personal liberty in violation only of Code

§ 18.2-47. For these reasons, we hold the evidence was

sufficient to prove appellant acted with the requisite intent.

B. STATUTORY BURGLARY

A conviction for statutory burglary requires proof of an

actual or constructive breaking. See Johnson v. Commonwealth,

221 Va. 872, 876, 275 S.E.2d 592, 594-95 (1981). "Where entry

- 10 - is gained by threats, fraud or conspiracy, a constructive

breaking is deemed to have occurred." Jones v. Commonwealth, 3

Va. App. 295, 299, 349 S.E.2d 414, 416-17 (1986).

Appellant contends the evidence was insufficient to

establish a constructive breaking through fraud because it did

not exclude the hypothesis that he was a plumber with a

legitimate reason for entering the apartment and that he formed

the intent to abduct the women only after entering. The

Commonwealth, does not support this hypothesis. Appellant said

he was a plumber but entered the apartment without tools and

locked the deadbolt immediately after gaining entry. Although

he ran water in the bathroom after entering, he immediately

began to look around the apartment and pulled a gun on the

victims when they asked him to wait outside. The only

reasonable hypothesis flowing from the evidence under the facts

of this case is that appellant brought the gun, rather than any

plumbing tools, with him into the apartment because he intended

to abduct its occupants and that he had no legitimate reason for

entering.

III.

CONCLUSION

For these reasons, we hold the trial court did not abuse

its discretion in admitting evidence of the bank robbery

committed by Willie Townsend and a carbon copy of a check

- 11 - purportedly written by Townsend to appellant. We also conclude

the evidence was sufficient to prove the contested elements of

abduction and statutory burglary. Therefore, we affirm

Affirmed.

- 12 -