COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia
RANDALL J. KEYES, S/K/A
RANDALL JACK KEYS
OPINION BY
v. Record No. 3338-01-3 JUDGE WALTER S. FELTON, JR.
NOVEMBER 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
William E. Bobbitt, Jr., Public Defender, for
appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Randall Keyes was convicted in a jury trial of sending a
threatening letter, in violation of Code § 18.2-60(A). On appeal,
he contends the trial court erred in finding that: (1) the letter
was sent as required by Code § 18.2-60(A); (2) the evidence was
sufficient to prove the letter contained a threat to kill or do
bodily harm as required by Code § 18.2-60(A); (3) the evidence of
his prior conviction for the attempted rape of Roslyn Carter could
be presented to the jury; and (4) in refusing to give an
instruction that defined the elements of stalking. For the
following reasons we affirm the judgment of the trial court.
I. BACKGROUND
On February 27, 2001, Lucille Pullin, an employee of
Augusta Correctional Center, was sorting outgoing mail when she
found an envelope bearing a return address from Randall Keyes
and addressed to Roslyn Carter. In 1998, Keyes attempted to
rape Ms. Carter. Pursuant to instructions she previously
received, Ms. Pullin removed the letter and forwarded it to
Sgt. Wayne Thompson, the institutional investigator at Augusta
Correctional Center.
Sgt. Thompson opened the letter and contacted Special Agent
Ron Hall of the Department of Corrections' Inspector General's
Office. Special Agent Hall examined the letter and submitted it
to the Division of Forensic Science, along with handwriting
samples from Keyes, for handwriting analysis. Richard Horton, a
forensic document examiner, determined that the handwriting on
the envelope was quite comparable and similar to the known
samples of Keyes' writing. Furthermore, Horton testified that
the indented writing found on the letter paper within the
envelope resulted from an original writing by Keyes. 1
1
According to Horton, "indented writing is caused . . .
when a person writes for example on a notepad and there are
indentations . . . underneath into the pages below." Horton
possesses equipment that allows him to look at totally invisible
indentations typically down to six or seven pages on a pad.
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The letter itself, pasted together using materials cut from
other documents, when read from top to bottom and left to right,
stated:
TARGET
FEEL THE RAW NAKED POWER OF THE/DICK ON THE
RISE/HE’S HOT, SEXY,/ How many times you
wanna f***?/ LET THE hardcore porn
BEGIN . . ./ OR KISS YOUR ASS GOODBYE.
THE NIGHTMARE CHILD
The letter also contained a picture depicting a partially
unclothed man wearing a mask or article of clothing covering the
bottom part of his face.
The envelope containing the letter was addressed to Ms.
Carter. Keyes' return address was placed in the upper left
corner and the words "Legal Mail" were written in the upper
right corner to assure delivery. 2
At trial, prior to opening statements, Keyes moved to
exclude any evidence of his prior conviction for the attempted
rape of Ms. Carter. The trial court overruled the objection,
stating:
It is my understanding that the only
evidence that the Commonwealth has as to the
source of this [letter] would be from
the . . . handwriting expert or that the
2
Pursuant to Virginia Department of Corrections, Division
Operating Procedure 851, Attachment #1, "'Legal mail' may be
opened only in [the prisoner's] presence to be checked for
contraband . . . . Other mail will be opened and may be read by
the staff." As provided by Division Operating Procedure
851.5.D, "All inmates shall receive the equivalent of up to ten
(10) first class stamps for legal correspondence per week."
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defendant doesn't admit sending this letter.
So, it, it seems to me that the Commonwealth
is going to have to prove the identity of
the person that composed or, and sent or
tried to send this letter and . . .
gentlemen, this man, it's my understanding,
I've been lead [sic] to believe that he was
convicted of attempted rape of this Ms.
Carter and the, this threatening document
has very definite sexual overtones and for,
for the purpose of proving his identity
only, that's the reason I'm going to let it
in. Otherwise, I wouldn't. If, if the
Commonwealth didn't have a problem or an
issue about proving his identity, I'd, I
would agree with you, Mr. Bobbitt [Keyes'
attorney], because I don't think it comes in
for any other purpose but it does come in to
the extent that it would corroborate the
testimony of the expert witness so that's
the reason I'm doing it, letting it in.
On December 2, 2001, Keyes was convicted of sending a
threatening letter, in violation of Code § 18.2-60(A). 3
3
At the time of Keyes' offense, Code § 18.2-60 provided:
If any person write or compose and also send
or procure the sending of any letter,
inscribed communication or electronically
transmitted communication producing a visual
or electronic message, so written or
composed, whether such letter or
communication be signed or anonymous, to any
person, containing a threat to kill or do
bodily injury to the person to whom such
letter or communication is sent . . . the
person so writing or composing and sending
or procuring the sending of such letter or
communication shall be guilty of a Class 6
felony . . . .
The 2001 and 2002 Sessions of the General Assembly enacted
amendments to Code § 18.2-60 subsequent to Keyes' violation.
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II. ANALYSIS
When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be
disturbed only if plainly wrong or without
evidence to support it.
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992).
A. SENDING A LETTER
We first consider whether the evidence was sufficient to
establish that Keyes sent or procured the sending of the letter
when he placed it in the institutional mail.
In Houston v. Lack, 487 U.S. 266 (1988), the Supreme Court
was asked to decide whether a prisoner's notice of appeal was to
be considered filed at the moment of delivery to prison
authorities for forwarding to the appropriate court or at some
later point in time. Prentiss Houston drafted a notice of
appeal after his petition for a writ of habeas corpus was
denied. Twenty-seven days after the entry of the court's
judgment, Houston deposited the notice of appeal with the prison
authorities for mailing. The notice of appeal was mailed and
arrived at the federal district court thirty-one days after the
entry of the judgment, one day after the expiration of the
thirty-day filing period.
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The Court held that a notice of appeal is filed at the time
a prisoner delivers it to the prison authorities for forwarding
to the court clerk. Houston, 487 U.S. at 276. It reasoned that
a "prisoner has no choice but to hand his notice over to prison
authorities for forwarding to the clerk." Id. at 275. "[T]he
moment at which . . . prisoners necessarily lose control over
and contact with their notices of appeal is at delivery to
prison authorities, not receipt by the clerk." Id. See
generally Frieden v. Cluett, Peabody & Co., 142 Va. 738, 747-48,
128 S.E. 61, 64 (1925) (letter properly addressed and put in the
post office or delivered to the postman is presumed to reach its
destination).
The same rationale applies in this case. Keyes sent the
letter or procured its sending, as required by Code
§ 18.2-60(A), when he placed it into the institutional mail. He
properly addressed the envelope and deposited it in the
institutional post office as legal mail to ensure postage and
delivery. In order for the letter to be mailed, Keyes had no
choice but to turn it over to prison officials. Once the letter
was no longer within his control, delivery was complete. Under
the version of Code § 18.2-60(A) in effect at the time Keyes
acted, it was not necessary for the letter to reach its intended
target or for her to read it. Consequently, the evidence was
sufficient to establish that Keyes sent the letter.
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B. LETTER CONTAINED A THREAT
We next consider whether the evidence was sufficient to
prove that the letter contained a threat to kill or do bodily
injury, as required by Code § 18.2-60(A).
"A threat, in the criminal context, is
recognized to be a communication avowing an
intent to injure another's person or
property. The communication, taken in its
particular context, must reasonably cause
the receiver to believe that the speaker
will act according to his expression of
intent."
Summerlin v. Commonwealth, 37 Va. App. 288, 297, 557 S.E.2d 731,
736 (2002) (quoting Perkins v. Commonwealth, 12 Va. App. 7, 16,
402 S.E.2d 229, 234 (1991)). "[A] threat is 'an avowed present
determination or intent to injure presently or in the future.'"
Id. (quoting Parnell v. Commonwealth, 15 Va. App. 342, 345-46,
423 S.E.2d 834, 836-37 (1992)). "Threats of physical harm need
not be directly expressed, but may be contained in 'veiled
statements' nonetheless implying injury to the recipient when
viewed in all the surrounding circumstances." State v.
McGinnis, 243 N.W.2d 583, 589 (Iowa 1976). In its particular
context, Keyes' letter expressed a threat to kill or do bodily
harm to Ms. Carter.
First, the letter was addressed to Ms. Carter, with whom
Keyes has a history. He was convicted three years prior for the
attempted rape of Ms. Carter. Second, the letter was written
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using cutout words and phrases and signed, "The Nightmare Child"
in an effort to conceal the author's identity.
Third, the salutation of the letter addresses Ms. Carter as
"Target." The letter continues, stating, "Feel the raw naked
power of the dick on the rise." Keyes implicitly implies that
she will feel his raw sexual power and then asks her, "how many
times you wanna f***?" The letter concludes, "let the hardcore
porn begin . . . or kiss your ass goodbye," indicating his
present determination to rape or kill Ms. Carter in the future.
Finally, Keyes placed the words "legal mail" on the
envelope. The purpose was to reduce the possibility that his
letter would be detected and assure it had postage to reach its
intended target. This fact strengthens the evidence of his
criminal purpose.
Placing the letter in its particular context, the evidence
was sufficient for a jury to conclude the letter contained a
threat to kill or do bodily injury to Ms. Carter.
C. ADMISSION OF PRIOR CONVICTION
"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."
James v. Commonwealth, 18 Va. App. 746, 753, 446 S.E.2d 900, 904
(1994). "Generally, evidence that a defendant has committed
crimes other than the offense for which he is being tried is
highly prejudicial and inadmissible." Hackney v. Commonwealth,
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28 Va. App. 288, 293, 504 S.E.2d 385, 388 (1998). However,
there are exceptions.
Evidence of other offenses is admitted if it
shows the conduct and feeling of the accused
toward his victim, if it establishes their
prior relations, or if it tends to prove any
relevant element of the offense charged.
Such evidence is permissible in cases where
the motive, intent or knowledge of the
accused is involved, or where the evidence
is connected with or leads up to the offense
for which the accused is on trial. Also,
testimony of other crimes is admissible
where the other crimes constitute a part of
the general scheme of which the crime
charged is a part. Frequently it is
impossible to give a connected statement
showing the crime charged without incidental
reference to such contemporaneous and
similar crimes and where there is only such
incidental disclosure of other offenses.
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970).
Keyes contends that the trial court erred in ruling that
evidence of his conviction for the attempted rape of Ms. Carter
could be presented to the jury. We disagree. The prior
attempted rape conviction put the letter in context and helped
identify Keyes as the author of the letter and the intent with
which he sent it.
The intercepted letter was written using cutout words and
phrases and signed "The Nightmare Child" in an effort to conceal
the author's identity. Furthermore, while Keyes' name and
identifying data was handwritten on the envelope containing the
threatening letter, the Commonwealth's expert was unable to
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completely rule out other possible authors. Thus, identity was
clearly an issue as well as the conduct and feeling of the
author toward the intended victim.
Q [Keyes' attorney]: So the indications or
similarities, you're saying you've
compared . . . the known writing [of Keyes]
with the questioned writing and you find
similarities there?
A [Richard Horton]: Yes, the indications
finding means that there are many
significant similarities between the habits
in the questioned writing and the habits in
Mr. Keyes' writing and that it's very
unlikely that someone other than him wrote
those entries.
Q: Why didn't you just say that it was his
handwriting?
A: Well, because the address entries on the
envelope are quite stylized in, probably in
an attempt to distort. I had to look
extensively through Mr. Keyes' writing to
find areas where he did write quite stylized
like that but I never found that degree of
stylization, and quite frankly, the reason I
didn't identify him is because there were,
there were some things that I didn't find,
that I didn't find. What I found was very
good but it was short of me being positive
that he was the writer.
Because of the sexual overtones found in the letter addressed to
her, Keyes' prior conviction for the attempted rape of Ms.
Carter was material to prove his intent to communicate a threat
to her and to identify him as the individual who prepared the
letter.
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D. REFUSAL TO GIVE STALKING INSTRUCTION
Lastly, we consider whether the trial court erred in
refusing to give to the jury, Keyes' alternate instruction
defining the elements of the offense of stalking. Keyes did not
offer the stalking instruction as a lesser-included offense nor
did the court address it as such.
JUDGE WOOD: Let the record reflect that the
defendant is present in the Courtroom with
his attorney. Gentlemen, the Court proposes
to give Instructions 1, 2, and 4, and I will
refuse Instruction B, which is offered by
the defendant [Keyes].
MR. BOBBITT [Keyes' attorney]: Your Honor,
we, we would object to the Court's refusal
to give Instruction B, which is the
instruction on stalking, on the grounds that
the evidence presented in the case is
appropriate to that offense in that it shows
that, that there was a previous sexual
incident between Mr. Keyes and, and Ms.
Carter, because there was evidence of an
attempted, that he had been convicted of
attempted rape and that the, the letter in
this case has to do more with a, some sort
of threat of criminal sexual assault rather
than any physical injury and, and so we
would submit that the stalking instruction
would be more appropriate.
JUDGE WOOD: All right. I'll note your
objection to the ruling of the Court.
For the trial court to have considered stalking as an
alternate offense and to have given the instruction to the jury,
Keyes would have had to request an amendment of the indictment
to charge that offense. He did not.
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"[A]n accused cannot be convicted of a crime
that has not been charged, unless the crime
is a lesser-included offense of the crime
charged. Thus, neither the Commonwealth nor
an accused is entitled to a jury instruction
on an offense not charged, unless the
offense is a lesser-included offense of the
charged offense."
Commonwealth v. Dalton, 259 Va. 249, 253, 524 S.E.2d 860, 862
(2000). Since the stalking instruction was not offered as a
lesser-included offense instruction, and Keyes did not seek to
amend the indictment, the trial court did not err in refusing to
give the alternate stalking instruction to the jury.
The judgment of the trial court is affirmed.
Affirmed.
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