COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner Argued at Richmond, Virginia
ROJAI LAVAR FENTRESS MEMORANDUM OPINION * BY v. Record No. 2056-97-2 JUDGE SAM W. COLEMAN III SEPTEMBER 15, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Maureen L. White (Theodore N.I. Tondrowski, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Rojai Fentress appeals his jury trial convictions for first
degree murder, Code § 18.2-32, and use of a firearm in the
commission of murder, Code § 18.2-53.1. He contends: (1) the
trial court erred in refusing to grant his motion for a mistrial,
and (2) the evidence is insufficient to identify him as the
killer. We hold that the record does not demonstrate a manifest
probability that the court's denial of a mistrial was
prejudicial, and the evidence is sufficient to prove that
appellant committed the murder. Accordingly, we affirm the
convictions.
BACKGROUND The evidence established that the victim, Thomas Foley, and
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. his companion, Julie Howard, drove to the Midlothian Village
Apartments to purchase cocaine. Howard parked the car near a
streetlight in a well-lit area in front of the breezeway to one
of the apartment buildings. The victim rolled down the passenger
side window and peered out at a group of six to eight young men
standing approximately fifty yards away from the vehicle. One of
the men, whom Howard identified in court as the appellant,
approached the victim and asked what he wanted. When the victim
told appellant that he only "dealt with" another individual,
appellant said the victim would have to "deal with me" and walked
away from the car and rejoined the group. A couple of minutes later, appellant returned to the car and
showed the victim two "zip bags" of crack cocaine. The victim
removed $57 from his pocket, examined the bags of cocaine, told
appellant that the bags did not appear to contain enough cocaine,
and asked if appellant "could do better than that." Appellant
walked away momentarily and then returned to the car for a third
time. Howard testified that appellant looked "very nervous" and
that he held his hand in his pants pocket with his shirt "hanging
over his hand." Appellant told the victim, "If you want to deal
with me, you have to get out of the car." The victim exited the
car and followed the appellant into an apartment building
breezeway. Howard saw no other persons enter the breezeway, but
she testified that it was too dark for her to see inside the
breezeway. "[W]ithin five, ten seconds, tops" after seeing
- 2 - appellant and the victim enter the breezeway, Howard heard a
single gunshot. The victim ran from the breezeway, reentered the
car, and said, "I have been shot in the heart, and I'm going to
die. [T]he son of a bitch shot me." The victim later died.
REFUSAL TO GRANT A MISTRIAL
At trial, City of Richmond Police Detective Darryl Street
testified that he performed off-duty security work for the
Midlothian Village Apartments. Testifying for the Commonwealth,
he stated that appellant and appellant's mother had previously
been residents of the apartment complex. When the Commonwealth's
attorney asked Detective Street "how often would you see
[appellant] around 4024 Midlothian Village Apartments" after he
had moved out, the detective replied: "He frequented that area.
. . . [T]here were several subjects . . . that frequented the
area that I believed . . . were involved in some kind of criminal
activity." Appellant immediately made a motion for a mistrial. The
trial court denied the motion and admonished the jury: "I am
going to instruct you to totally disregard that [last answer],
take no account whatsoever. . . . Totally disregard that last
statement." Before giving the case to the jury, the trial court
further instructed the jury: "You may not consider any matter
that was rejected or stricken by the court. It is not evidence
and should be disregarded."
On appeal, the trial court's denial of a mistrial motion
- 3 - will not be reversed unless a manifest probability exists that
such denial was prejudicial. See Bottoms v. Commonwealth, 22 Va.
App. 378, 385, 470 S.E.2d 153, 157 (1996). In the present case,
we find no manifest probability that the jury could not or did
not follow the instruction to disregard the inadmissible evidence
or that the denial of a mistrial was prejudicial to appellant.
Cf. Mills v. Commonwealth, 24 Va. App. 415, 482 S.E.2d 860
(1997). That portion of the officer's statement that appellant
was seen associating with a group of people that the officer
suspected of criminal activity was irrelevant and prejudicial in
that it tended to characterize appellant as a person who
associated with persons suspected of unspecified criminal
activity. Although improper, the nature of the evidence is not
so prejudicial that a manifest probability exists that the jury
could not disregard the evidence. The statement did not state
the nature of the criminal activity of which the group was
"suspected" and did not indicate that appellant was "suspected"
of being engaged in criminal activity. At most, the detective's
evidence suggests that the appellant had been known to associate
with persons "suspected" of some unspecified criminal activity.
The record discloses that the trial court promptly and
effectively instructed the jury to disregard Detective Street's
inadmissible statement. The court reiterated a similar
admonition when instructing the jury. In the absence of record
evidence to the contrary, "we presume that the jury followed the
- 4 - trial court's instruction to disregard the testimony in
question." Howard v. Commonwealth, 6 Va. App. 132, 144, 367
S.E.2d 527, 534 (1988). Accordingly, the trial court did not err
in denying a mistrial.
SUFFICIENCY OF THE EVIDENCE
Appellant next contends the evidence is insufficient to
identify him as the perpetrator of the murder. We disagree.
When the sufficiency of the evidence is challenged on
appeal, we must determine whether the evidence, viewed in the
light most favorable to the Commonwealth, and the reasonable
inferences fairly deducible from the evidence support each and
every element of the charged offense. See Moore v. Commonwealth,
254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr v.
Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991). When
the Commonwealth relies upon circumstantial evidence to prove
guilt, the circumstances proved must be consistent with guilt and
must exclude all reasonable hypotheses of innocence. See Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983).
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner Argued at Richmond, Virginia
ROJAI LAVAR FENTRESS MEMORANDUM OPINION * BY v. Record No. 2056-97-2 JUDGE SAM W. COLEMAN III SEPTEMBER 15, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Maureen L. White (Theodore N.I. Tondrowski, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Rojai Fentress appeals his jury trial convictions for first
degree murder, Code § 18.2-32, and use of a firearm in the
commission of murder, Code § 18.2-53.1. He contends: (1) the
trial court erred in refusing to grant his motion for a mistrial,
and (2) the evidence is insufficient to identify him as the
killer. We hold that the record does not demonstrate a manifest
probability that the court's denial of a mistrial was
prejudicial, and the evidence is sufficient to prove that
appellant committed the murder. Accordingly, we affirm the
convictions.
BACKGROUND The evidence established that the victim, Thomas Foley, and
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. his companion, Julie Howard, drove to the Midlothian Village
Apartments to purchase cocaine. Howard parked the car near a
streetlight in a well-lit area in front of the breezeway to one
of the apartment buildings. The victim rolled down the passenger
side window and peered out at a group of six to eight young men
standing approximately fifty yards away from the vehicle. One of
the men, whom Howard identified in court as the appellant,
approached the victim and asked what he wanted. When the victim
told appellant that he only "dealt with" another individual,
appellant said the victim would have to "deal with me" and walked
away from the car and rejoined the group. A couple of minutes later, appellant returned to the car and
showed the victim two "zip bags" of crack cocaine. The victim
removed $57 from his pocket, examined the bags of cocaine, told
appellant that the bags did not appear to contain enough cocaine,
and asked if appellant "could do better than that." Appellant
walked away momentarily and then returned to the car for a third
time. Howard testified that appellant looked "very nervous" and
that he held his hand in his pants pocket with his shirt "hanging
over his hand." Appellant told the victim, "If you want to deal
with me, you have to get out of the car." The victim exited the
car and followed the appellant into an apartment building
breezeway. Howard saw no other persons enter the breezeway, but
she testified that it was too dark for her to see inside the
breezeway. "[W]ithin five, ten seconds, tops" after seeing
- 2 - appellant and the victim enter the breezeway, Howard heard a
single gunshot. The victim ran from the breezeway, reentered the
car, and said, "I have been shot in the heart, and I'm going to
die. [T]he son of a bitch shot me." The victim later died.
REFUSAL TO GRANT A MISTRIAL
At trial, City of Richmond Police Detective Darryl Street
testified that he performed off-duty security work for the
Midlothian Village Apartments. Testifying for the Commonwealth,
he stated that appellant and appellant's mother had previously
been residents of the apartment complex. When the Commonwealth's
attorney asked Detective Street "how often would you see
[appellant] around 4024 Midlothian Village Apartments" after he
had moved out, the detective replied: "He frequented that area.
. . . [T]here were several subjects . . . that frequented the
area that I believed . . . were involved in some kind of criminal
activity." Appellant immediately made a motion for a mistrial. The
trial court denied the motion and admonished the jury: "I am
going to instruct you to totally disregard that [last answer],
take no account whatsoever. . . . Totally disregard that last
statement." Before giving the case to the jury, the trial court
further instructed the jury: "You may not consider any matter
that was rejected or stricken by the court. It is not evidence
and should be disregarded."
On appeal, the trial court's denial of a mistrial motion
- 3 - will not be reversed unless a manifest probability exists that
such denial was prejudicial. See Bottoms v. Commonwealth, 22 Va.
App. 378, 385, 470 S.E.2d 153, 157 (1996). In the present case,
we find no manifest probability that the jury could not or did
not follow the instruction to disregard the inadmissible evidence
or that the denial of a mistrial was prejudicial to appellant.
Cf. Mills v. Commonwealth, 24 Va. App. 415, 482 S.E.2d 860
(1997). That portion of the officer's statement that appellant
was seen associating with a group of people that the officer
suspected of criminal activity was irrelevant and prejudicial in
that it tended to characterize appellant as a person who
associated with persons suspected of unspecified criminal
activity. Although improper, the nature of the evidence is not
so prejudicial that a manifest probability exists that the jury
could not disregard the evidence. The statement did not state
the nature of the criminal activity of which the group was
"suspected" and did not indicate that appellant was "suspected"
of being engaged in criminal activity. At most, the detective's
evidence suggests that the appellant had been known to associate
with persons "suspected" of some unspecified criminal activity.
The record discloses that the trial court promptly and
effectively instructed the jury to disregard Detective Street's
inadmissible statement. The court reiterated a similar
admonition when instructing the jury. In the absence of record
evidence to the contrary, "we presume that the jury followed the
- 4 - trial court's instruction to disregard the testimony in
question." Howard v. Commonwealth, 6 Va. App. 132, 144, 367
S.E.2d 527, 534 (1988). Accordingly, the trial court did not err
in denying a mistrial.
SUFFICIENCY OF THE EVIDENCE
Appellant next contends the evidence is insufficient to
identify him as the perpetrator of the murder. We disagree.
When the sufficiency of the evidence is challenged on
appeal, we must determine whether the evidence, viewed in the
light most favorable to the Commonwealth, and the reasonable
inferences fairly deducible from the evidence support each and
every element of the charged offense. See Moore v. Commonwealth,
254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr v.
Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991). When
the Commonwealth relies upon circumstantial evidence to prove
guilt, the circumstances proved must be consistent with guilt and
must exclude all reasonable hypotheses of innocence. See Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983).
Under familiar principles, we will not disturb the jury's verdict
unless it is plainly wrong or unsupported by the evidence. See
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,
721 (1988).
Here, circumstantial evidence is sufficient to prove that
appellant was the person who committed the murder. Howard
identified appellant as the person she had seen approach the car
- 5 - on three occasions attempting to sell cocaine to the victim. In
close proximity to Howard, appellant and the victim discussed the
quantity of cocaine the victim was trying to buy. Howard
observed that on the last occasion that appellant approached the
car, appellant looked nervous and appeared to be concealing
something in his pants pocket. Appellant had the victim exit the
car and led him to the apartment breezeway. Within seconds after
appellant and the victim entered the breezeway, Howard heard a
gunshot and saw the victim run toward the car holding his chest.
When he arrived at the car, he stated "the son of a bitch shot
me." Appellant contends the evidence failed to exclude the
reasonable hypothesis, based on the testimony of an alibi
witness, that appellant was having dinner with his mother when
the killing occurred. Appellant further contends the jury could
not have reasonably believed Howard's in-court identification of
him because Howard first saw the appellant at the preliminary
hearing when police brought him into the courtroom in handcuffs. 1
We find no merit in appellant's arguments.
The credibility of witnesses and the weight accorded to
1 The evidence established that Police Detective James Hickman showed Howard two "photo spreads" and asked her if the killer's photograph was among the spreads. Hickman testified that neither of the photo spreads displayed a picture of the appellant. Howard "took her time" and "looked at each [photograph] individually." Eventually, Howard indicated to Hickman that the killer was not displayed in any of the photographs.
- 6 - their testimony are matters within the exclusive province of the
jury. See Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d
477, 479 (1993). From these facts, the fact finder could
reasonably infer that Howard was able to identify the appellant
as the person who was attempting to sell drugs to the victim and
that the victim was referring to appellant when he stated "the
son of a bitch shot me." On these facts, the jury reasonably
concluded that appellant committed the murder. On the evidence,
the jury certainly could have found that Howard's identification
of appellant was credible and could have disbelieved appellant's
alibi witness. Accordingly, the evidence is sufficient to prove
that appellant murdered the victim. For the foregoing reasons, we affirm the convictions.
Affirmed.
- 7 -