COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, McClanahan and Senior Judge Coleman
Argued at Salem, Virginia
ERNEST DEWITT FORD, JR.
OPINION BY
v. Record No. 2629-04-3 JUDGE ELIZABETH A. McCLANAHAN
MAY 30, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
William W. Sweeney, Judge Designate
Joseph A. Sanzone (Sanzone & Baker, P.C., on brief), for
appellant.
Deana A. Malek, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
A jury convicted Ernest Dewitt Ford, Jr. of animal cruelty, Code § 18.2-144, and
possession of a firearm after being convicted of a felony, Code § 18.2-308.2. He challenges the
sufficiency of the evidence supporting his convictions1 and contends the trial court erred in
prohibiting him from advising the jury during the guilt phase of trial of the mandatory minimum
sentence for the latter offense. Finding no error, we affirm.
I. Background
We view the evidence and the reasonable inferences therefrom in the light most favorable
to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786, cert.
denied, 540 U.S. 972 (2003). We “examine the evidence that tends to support the conviction and
1
While the Commonwealth maintains these arguments are barred by Rule 5A:18, we find
the defendant sufficiently raised them before the trial court.
. . . permit the conviction to stand unless [it] is plainly wrong or without evidentiary support.”
Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).
On January 24, 2004, fifteen-year-old Erin Rockwell and her thirteen-year-old sister
Kasey were playing in a barn across the road from their father’s house with their three dogs. The
dogs began barking when a vehicle approached the barn. Both girls heard and saw a four-wheel
vehicle through slats in the barn. Erin saw the vehicle stop and “heard [the engine] cut off.” She
observed a large man with a long-barreled gun in the vehicle. When the man raised the gun and
aimed it in the direction of the barn, Erin warned her sister to get down. When the man fired the
gun, Erin and Kasey heard a dog yelp. Erin saw no one else in the area and heard no other
gunshots.
As the girls left the barn to get their father, the man drove to the edge of the barn near
where the girls’ dogs had been. He came within three feet of the girls with a dog following him
and asked them how they were. Neither girl responded; they were nervous and shocked. Erin
looked at the man’s face. Kasey saw a long-barreled gun lying on the man’s lap.
Bruce Rockwell, the girls’ father, was inside the house when he heard a single, close
gunshot from a “high-powered rifle.” He was going to check on the girls, when they entered the
house. They were excited and upset and told him someone had shot their dog. The girls were
accompanied by two of their dogs and the dog that had been following the vehicle. The tag on
its collar read “Ford.” Later that day, the defendant’s son came and took the dog home.
As the Rockwells searched the barn for their third dog, the girls observed a man driving a
four-wheel vehicle and yelled to their father, “that’s the man that did it.” Rockwell recognized
the driver as Ernest Ford, Jr., the defendant, and called the sheriff’s department. The Rockwells’
dog was found the next day about ten to fifteen feet from the barn with a gunshot wound in the
stomach.
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The defendant admitted he was driving a four-wheel vehicle and saw the girls near the
barn on the afternoon of the incident. He assumed he had scared them because “they had their
mouths open just looking at him.” In a statement to police, the defendant stated, “a good old
felon always come up with a gun if he had to.” The defendant explained that he made this
statement while discussing what he would do to prevent dogs from attacking his livestock,
meaning that he would ask someone to bring a gun, not that he would get one.
The defendant argues the evidence is insufficient to show he possessed a firearm or shot
the dog because Erin’s testimony and her father’s identification of him to the police are
questionable, there are conflicts in the witnesses’ time lines, and the evidence only shows he was
present which is insufficient to support his convictions. The jury resolved these conflicting facts
against the defendant.
II. Analysis
The Commonwealth had to prove the defendant possessed a firearm after having been
convicted of a felony, Code § 18.2-308.2, and maliciously shot a companion animal of another
“with intent to maim, disfigure, disable or kill,” Code § 18.2-144. Under the proper standard of
review, we discard any evidence that conflicts with that of the Commonwealth. Kelly v.
Commonwealth, 41 Va. App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc). “The issue is
whether a reasonable [fact finder], upon consideration of all the evidence, could have rejected”
the defendant’s theories of defense and found him guilty beyond a reasonable doubt. Hudson,
265 Va. at 513, 578 S.E.2d at 785; see also Jackson v. Virginia, 443 U.S. 307, 319 (1979) (We
consider “whether . . . any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” (emphasis in original)).
“The credibility of the witnesses and the weight accorded the evidence are matters solely
for the fact finder who has the opportunity to see and hear that evidence as it is presented.”
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Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). “[T]he fact
finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the
accused is lying to conceal his guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500
S.E.2d 233, 235 (1998); see also Covil v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82
(2004); Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981). Unless we can
say as a matter of law that no jury would have convicted the defendant on these facts, we must
affirm.
We hold that sufficient, credible evidence permitted the jury to find beyond a reasonable
doubt that the defendant possessed a firearm and shot the Rockwells’ dog. The defendant
admitted he was driving a four-wheel vehicle and saw the girls by the barn on the day of the
shooting. He testified they looked scared when they saw him. Erin saw the defendant shoot a
firearm toward the barn. Kasey saw him with a firearm right after the shooting. The girls were
certain the defendant was the man they saw at the barn with the firearm. These facts support the
jury’s finding that the defendant had a firearm and used it to shoot the Rockwells’ dog.
We recognize that the defendant denied having a firearm and presented evidence that
someone else might have shot the dog and there were inconsistencies in the Commonwealth’s
time line. However, it is the province of the jury, rather than an appellate court, to weigh the
facts and to judge the credibility of the various witnesses.
Next, the defendant argues he should have been permitted during opening statements to
advise the jury that the firearm offense carried a mandatory punishment. He argues that such
knowledge provides “the jury with necessary information to assist them in the deliberative
process” to make informed decisions and would prevent them from committing error during their
deliberations. This argument, however, ignores the jury’s role of determining guilt or innocence
based on the evidence.
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“A trial court has broad discretion in the supervision of opening statements and closing
argument.” O’Dell v. Commonwealth, 234 Va. 672, 703, 364 S.E.2d 491, 509 (1988). “The trial
court’s exercise of its discretion will not be disturbed on appeal unless the record affirmatively
shows that it has been abused and that the defendant has been prejudiced.” Thornton v.
Commonwealth, 31 Va. App. 825, 830, 525 S.E.2d 646, 648 (2000); see also Jordan v. Taylor,
209 Va. 43, 51, 161 S.E.2d 790, 795 (1968); Walls v. Commonwealth, 38 Va. App. 273, 280,
563 S.E.2d 384, 387 (2002).
In 1994, the General Assembly created two distinct stages of all felony and Class 1
misdemeanor trials – the guilt phase and the punishment phase. Code § 19.2-295.1; Griffin v.
Commonwealth, 22 Va. App. 622, 624, 472 S.E.2d 285, 286 (1996). During the guilt phase, the
jury weighs the evidence and determines whether the defendant is guilty or innocent. Upon
finding the defendant guilty, the trial court conducts a separate proceeding “limited to the
ascertainment of punishment.” Code § 19.2-295.1; Rule 3A:17.1. During the penalty phase, the
jury is instructed as to punishment and counsel may make statements and present evidence
relevant to the penalty to be imposed. Rule 3A:17.1(c), (d), (e), and (f). At that time, the
Commonwealth may introduce the defendant’s prior criminal convictions and the defendant
“may introduce relevant, admissible evidence related to punishment.” Code § 19.2-295.1. This
bifurcated procedure promotes “a punishment appropriate to the circumstances without
corrupting the initial determination of guilt or innocence with prejudice.” Daye v.
Commonwealth, 21 Va. App. 688, 691, 467 S.E.2d 287, 288 (1996).
“The law applicable to determining the appropriate sentence for a defendant found guilty
of the charged offense is not relevant and, therefore, falls outside the scope of permissible
argument in the guilt phase.” Walls, 38 Va. App. at 281, 563 S.E.2d at 388; see Wilkins v.
Commonwealth, 253 Va. 156, 157, 482 S.E.2d 837, 838 (1997) (deterrence should not be a
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factor in determining guilt or innocence); Fain v. Commonwealth, 7 Va. App. 626, 628, 376
S.E.2d 539, 540 (1989) (prosecutor’s appeal to jury’s “sympathy, passion or prejudice is not
permitted” during closing argument); see also Ronald J. Bacigal, Virginia Criminal Procedure
§ 17:5, at 468 (2006) (counsel is not permitted to argue the law, or “inflame the passions of the
jury or appeal to their prejudice”).
In Walls, the defendant challenged the trial court’s ruling that his closing argument in the
guilt phase of his trial could not include mention of a mandatory minimum sentence.2 This Court
held that “the available range of punishment upon conviction for a crime is not relevant to the
issue of guilt or innocence.” 38 Va. App. at 279, 563 S.E.2d at 387. “Allowing closing
argument which encourages an acquittal irrespective of the evidence would, in essence, permit
the jury to do in the guilt phase that which it lacks the authority to do in the sentencing phase --
impose a sentence less than the statutory minimum -- by finding the defendant not guilty.” Id. at
282, 563 S.E.2d at 388.3 Accordingly, the trial court did not abuse its discretion in refusing to
permit the defendant to refer to punishment during the guilt phase of the trial. Id. at 284, 563
S.E.2d at 389.
2
The defendant maintains Walls distinguished between arguing and mentioning a
mandatory sentence to a jury and between opening statement and closing arguments. We do not
read Walls to support these distinctions. The Walls Court held that evidence related to
punishment is irrelevant in the guilt phase of trial. Walls neither distinguished between
mentioning and arguing a sentence to a jury, nor addressed the opening statement. That issue
was not contested on appeal – the Walls Court addressed the guilt phase as a whole.
3
See also United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969) (defense counsel
has no right to urge a jury to acquit in contravention of the evidence); Commonwealth v. Hill,
264 Va. 315, 319, 568 S.E.2d 673, 676 (2002), cert. denied, 537 U.S. 1202 (2003) (questions
regarding the range of punishment are not permissible during juror voir dire in a non-capital case
since the answers would be speculative as the jurors would have no factual basis for making a
punishment determination); In re Commonwealth of Virginia, 229 Va. 159, 163, 326 S.E.2d 695,
697 (1985) (trial court must adhere to inflexible mandatory sentence).
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Walls controls the outcome of this case. Evidence regarding punishment is irrelevant to a
determination of guilt or innocence. Accordingly, we cannot say the trial court abused its
discretion in prohibiting the defendant from mentioning the mandatory minimum sentence to the
jury during the guilt phase of his trial.
Although the defendant admits the trial court’s ruling was consistent with and governed
by the current law, he urges this Court to alter existing law. The relevant law, however, is Code
§ 19.2-295.1.
Concerns about the “‘propriety, wisdom, necessity and
expediency’” of legislation, however, can only be resolved by the
legislative branch of government. Willis v. Mullett, 263 Va. 653,
658, 561 S.E.2d 705, 709 (2002) (quoting City of Richmond v.
Fary, 210 Va. 338, 346, 171 S.E.2d 257, 263 (1969)). “This
Court’s function is not to pass on the wisdom of legislation.” Dale
v. City of Newport News, 18 Va. App. 800, 802, 447 S.E.2d 878,
879 (1994).
Mouberry v. Commonwealth, 39 Va. App. 576, 585-86, 575 S.E.2d 567, 571 (2003). The
General Assembly rewrites statutes and changes laws. Id. at 584, 575 S.E.2d at 571. Our role is
to apply the law as written, not to change it to accord with the defendant’s perception of what
might be a “better” law.
III. Conclusion
For these reasons, we find sufficient credible evidence to support the defendant’s
convictions and that the trial court did not abuse its discretion in restricting argument regarding
punishment during the guilt phase of the trial. Accordingly, we affirm.
Affirmed.
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