Summerlin v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia

JAMES C. SUMMERLIN
OPINION BY
v. Record No. 2071-00-1 JUDGE JEAN HARRISON CLEMENTS
JANUARY 15, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge

Schöen R. Parnell, Assistant Public Defender,
for appellant.

Kathleen B. Martin, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.

James C. Summerlin was convicted in a bench trial of

threatening to bomb a building, in violation of Code § 18.2-83.

On appeal, he contends the trial court erred (1) in admitting

evidence regarding a voice-mail message left by him three days

before the purported threat was made and (2) in finding the

evidence sufficient to convict him of the charged crime although

the purported threat communicated neither malice nor an intent to

make a threat. Finding no error, we affirm the conviction.

I. BACKGROUND

Under well-settled principles of appellate review, we view

the evidence and all reasonable inferences fairly deducible

therefrom in the light most favorable to the Commonwealth, the

prevailing party below. Burlile v. Commonwealth, 32 Va. App.

796, 798, 531 S.E.2d 26, 27 (2000), aff'd, 261 Va. 501, 544
S.E.2d 360 (2001). So viewed, the evidence established that, on

April 10, 2000, Clarissa McAdoo, the executive director of the

Suffolk Redevelopment and Housing Authority (SRHA), received a

voice-mail message from Summerlin, for whom the authority was

attempting to obtain housing. According to McAdoo, Summerlin

indicated in the message that he was "sick and tired of all the

lies [SRHA was] telling," that SRHA was "not providing for [him]

and [his] wife," and that "something [was] going to happen."

On April 13, 2000, at approximately 1:30 p.m., Summerlin

called SRHA, asking to speak to Ms. Williams, an SRHA employee.

When told by the receptionist, Patricia Riddick, that Williams

was in a meeting, Summerlin became angry. In a tone of voice

that Riddick described as "yelling," Summerlin accused Riddick of

being a racist. He added that, based on his previous experience

with Riddick's coworkers, all of the people at SRHA were racists

and that SRHA had given his home to an African-American couple.

When told again that Williams was in a meeting, Summerlin said

"he would hate to have to blow the building up to get [SRHA's]

attention." Scared by Summerlin's remark, Riddick attempted to

get the attention of her supervisor.
At that point, Mary Fortner, another receptionist, noting

from Riddick's facial expression that she was scared, told her to

put the caller on hold. After Riddick told her about the caller,

Fortner picked up the phone and spoke with Summerlin. He asked

for Williams and then told Fortner he had received a card in the

mail regarding a meeting SRHA was having. Fortner informed him

that the meeting was for "people in Section 8 . . . to get

together and have a discussion" and was not mandatory. Summerlin

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said he would not be attending the meeting and "was going to be

discriminated against." He added that, if he came to the

meeting, "things [would] be popping and a-rocking." When

informed by Fortner that she would need to put him on hold to

answer another call, Summerlin replied that would not be

necessary and slammed down the phone. Fortner described

Summerlin's tone of voice as being "[v]ery loud and angry."

Based on Summerlin's threatening phone call, the SRHA

building was evacuated at approximately 1:40 p.m. and the fire

department was called to the scene.
At trial, Summerlin objected to the admission of McAdoo's

testimony concerning his April 10, 2000 voice-mail message,

arguing that it was "not relevant to a charge that happened on

the 13th of April." The trial court overruled the objection,

finding that the evidence went to Summerlin's "state of mind."

The trial court subsequently found that Summerlin, on April 13,

2000, threatened to bomb a building, as proscribed by Code

§ 18.2-83, and convicted Summerlin under that statute.

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 II. RELEVANCE OF TESTIMONY REGARDING VOICE-MAIL MESSAGE

On appeal, Summerlin contends the trial court erred in

allowing McAdoo to testify regarding the voice-mail message he

left for her on April 10, 2000. That message, Summerlin argues,

having been received three days before the purported bomb threat

was made, was not relevant to the charged offense. We disagree.

"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 which 'tends to cast any light upon the subject of the

inquiry' is relevant." Cash v. Commonwealth, 5 Va. App. 506,

510, 364 S.E.2d 769, 771 (1988) (quoting McNeir v. Greer-Hale

Chinchilla Ranch, 194 Va. 623, 629, 74 S.E.2d 165, 169 (1953)

(internal quotations omitted)).

In this case, Summerlin's intent at the time he made the

alleged threat was clearly in dispute. The Commonwealth claimed

that Summerlin's statement to Riddick that he "would hate to have

to blow the building up to get [SRHA's] attention" constituted a

threat to bomb a building, in violation of Code § 18.2-83.

Summerlin argued that, in making that statement, he was merely

expressing an opinion and had no intent to make a threat to bomb

the SRHA building. Therefore, any evidence of Summerlin's state

of mind at the time he made the alleged threat would be relevant

to a subject of inquiry before the trial court.

As the trial judge correctly determined, Summerlin's

statements in his April 10, 2000 message to McAdoo that he was

"sick and tired of all the lies [SRHA was] telling," that SRHA

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was "not providing for [him] and [his] wife," and that "something

[was] going to happen" reflected Summerlin's state of mind as to

SRHA. Plainly, the challenged evidence demonstrated Summerlin's

discontent with and animosity toward SRHA and his related

intention to take some future action against SRHA. Furthermore,

the evidence concerned a message that was left a mere three days

before the subject bomb threat was made and was not, therefore, so

far removed in time from the charged offense as to render it

irrelevant. See Lafon v. Commonwealth, 17 Va. App. 411, 419, 438

S.E.2d 279, 284 (1993) (noting that, while remoteness is a factor

that may be considered in determining the relevance of evidence of

defendant's prior acts, such evidence should not be withheld

"solely on the basis of remoteness unless the expanse of time has

truly obliterated all probative value").
We find, therefore, that McAdoo's testimony concerning

Summerlin's April 10, 2000 voice-mail message was relevant to the

resolution of the issue of Summerlin's state of mind at the time

of the charged offense. See Parnell v. Commonwealth, 15 Va. App.

342, 348, 423 S.E.2d 834, 838 (1992) (holding that defendant's

statement to police after his arrest, in which he again

threatened victim, was admissible to prove his state of mind and

corroborated evidence of his hostility toward victim).

Accordingly, we hold the trial court did not abuse its discretion

in allowing the challenged testimony. Hence, the trial court's

ruling will not be disturbed. 1

1
Summerlin also argues, on appeal, that McAdoo's testimony
regarding the April 13, 2000 message was not relevant to his
state of mind because there was no testimony regarding his tone
of voice or any reference by him to contemplated illegal action.

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 III. SUFFICIENCY OF THE EVIDENCE

Summerlin further contends the evidence admitted at trial was

insufficient as a matter of law to convict him of the charged

offense. The Commonwealth, he argues, failed to prove beyond a

reasonable doubt that his statement to Riddick that "he would hate

to have to blow the building up to get [SRHA's] attention" was

made maliciously or communicated an intent to make a threat.

As noted, we review the evidence "in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.

248, 250, 356 S.E.2d 443, 444 (1987). "In so doing, we must

'. . . regard as true all the credible evidence favorable to the

Commonwealth and all fair inferences that may be drawn

therefrom.'" Norman v. Commonwealth, 2 Va. App. 518, 520, 346

S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va. 492,

498, 270 S.E.2d 755, 759 (1980) (internal quotations omitted)).

We will not disturb the conviction unless it is plainly wrong or

unsupported by the evidence. Sutphin v. Commonwealth, 1 Va. App.

241, 243, 337 S.E.2d 897, 898 (1985). We are further mindful that

the "credibility of a witness, the weight accorded the testimony,

and the inferences to be drawn from proven facts are matters

solely for the factfinder's determination." Keyes v. City of

Virginia Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).

Thus, he concludes, the trial court could only improperly
speculate as to what he was referring to in that message.
However, because Summerlin did not raise these arguments at
trial, he is barred by Rule 5A:18 from raising them for the
first time on appeal. See Ohree v. Commonwealth, 26 Va. App.
299, 308, 494 S.E.2d 484, 488 (1998). Moreover, the record does
not reflect any reason to invoke the "good cause" or "ends of

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 A. MALICE

Summerlin argues the evidence was insufficient to sustain his

conviction because the Commonwealth did not prove malice. This

argument presumes, in reliance on Perkins v. Commonwealth, 12 Va.

App. 7, 402 S.E.2d 229 (1991), that malice is a required element

of Code § 18.2-83. We hold that it is not.

In Perkins, we addressed, inter alia, the defendant's claim

that Code § 18.2-83 was unconstitutionally overbroad because it

did not "require any criminal mens rea, thus punishing one who

'jokingly' threaten[ed] such behavior." Id. at 15, 402 S.E.2d at

234. In finding the statute constitutional, we reasoned as

follows:

In Maye v. Commonwealth, the Supreme
Court of Virginia stated:

A claim that a statute on its
face contains no requirement of
mens rea or scienter is no ground
for holding the statute
unconstitutional since such
requirement will be read into the
statute by the court when it
appears the legislature implicitly
intended that it must be proved.

213 Va. 48, 49, 189 S.E.2d 350, 351 (1972).
Therefore, Code § 18.2-83 can be read as
requiring a criminal mens rea. Such a
narrowing construction of this statute
prevents overbreadth. Only an individual
who maliciously "makes and communicates
. . . any threat" prohibited by the statute
will be punished.

Perkins, 12 Va. App. at 15, 402 S.E.2d at 234 (emphasis added)

(additional citations omitted).

justice" exceptions to Rule 5A:18.

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 However, in Saunders v. Commonwealth, 31 Va. App. 321,

325-26, 523 S.E.2d 509, 511 (2000), we found that our statement

in Perkins that "[o]nly an individual who maliciously 'makes and

communicates . . . any threat' prohibited by the statute will be

punished" was dicta and, thus, not binding. In that case,

Saunders was charged with writing and sending to another a

letter that contained a threat to kill or do bodily injury to

that person, in violation of Code § 18.2-60(A). Relying

analogously on our use of the word "maliciously" in Perkins,

Saunders contended malice was an element of Code § 18.2-60(A), a

statute similar to Code § 18.2-83. Thus, he concluded, the

trial court erred in refusing to instruct the jury on that

element.

We disagreed, noting that the language in Perkins relied on

by Saunders was dicta and that Code § 18.2-60(A) made no mention

of malice. Id. We were "not persuaded that this Court in

Perkins intended to equate mens rea with malice, a concept

clearly at odds with well-established jurisprudence." Id. at

326, 523 S.E.2d at 511. Thus, we declined the "defendant's

invitation to imply both mens rea and malice as elements of Code

§ 18.2-60(A)." Id. "'We may not,'" we noted, "'add to a

statute language which the legislature has chosen not to

include.'" Id. (quoting County of Amherst Bd. of Supervisors v.

Brockman, 224 Va. 391, 397, 297 S.E.2d 805, 808 (1982)).

Similarly, Code § 18.2-83 makes no mention of malice. Thus,

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adopting the rationale we applied in Saunders, we conclude that

malice is not an element of Code § 18.2-83. Accordingly, proof

only of Summerlin's mens rea, or unlawful intent, was required.

B. INTENT TO MAKE A THREAT

Summerlin also argues the evidence was insufficient to

sustain his conviction because the Commonwealth did not prove that

he intended to make a threat. The language he used did not, he

argues, constitute a true threat. His statement to Riddick that

"he would hate to have to blow the building up to get [SRHA's]

attention" was nothing more, he asserts, than an expression of

frustration. It did not, he claims, communicate a present intent

to harm SRHA's property and no reasonable person could have

believed it was an actual threat.
To establish a threat to bomb under Code § 18.2-83, the

Commonwealth was required to prove Summerlin made and communicated

to SRHA a "threat to bomb, burn, destroy or in any manner damage

any place of assembly, building or other structure." As we stated

in analyzing this statute in Perkins:

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.

12 Va. App. at 16, 402 S.E.2d at 234. We further noted in Parnell
that a threat is "an avowed present determination or intent to

injure presently or in the future." 15 Va. App. at 345-46, 423

S.E.2d at 836-37. Code § 18.2-83, however, does not require the

Commonwealth to prove that Summerlin intended to carry out his

threat to bomb the SRHA building. Proof that he intended to make

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and communicate the threat and that the threat was made and

communicated satisfies the statutory requirement. See Parnell, 15

Va. App. at 346-47, 423 S.E.2d at 837.

"Intent may, and most often must, be proven by circumstantial

evidence and the reasonable inferences to be drawn from proven

facts are within the province of the trier of fact." Fleming v.

Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991).

"Intent may be shown by a person's conduct and by his statements."

Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476

(1989). Moreover, "[i]n determining whether words were uttered as

a threat[,] the context in which they were spoken must be

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considered." Parnell, 15 Va. App. at 345, 347, 423 S.E.2d at

836-37.

Here, viewed in the light most favorable to the Commonwealth,

the evidence established that, three days after leaving a message

expressing his dissatisfaction with the way he was being treated

by SRHA and announcing that "something was going to happen,"

Summerlin called SRHA, wanting to speak with Williams. When told

by Riddick that Williams was unavailable to take his call, he

became angry. Yelling, Summerlin accused Riddick and all of the

people at SRHA of being racists and said "he would hate to have

to blow the building up to get [SRHA's] attention." Summerlin's

comment scared Riddick. Summerlin then told Fortner in a "loud

and angry" tone of voice that he would not be attending a

particular meeting at SRHA, but, if he did, "things [would] be

popping and a-rocking." Following Summerlin's call, SRHA called

the fire department and evacuated the building.
In light of the manifest anger and hostility expressed by

Summerlin toward SRHA during his exchange with Riddick and in his

communications with McAdoo and Fortner, we conclude that the

trial court, as the finder of fact, was entitled to infer from

this evidence (1) that, based on the context in which it was

spoken, Summerlin's remark about bombing the SRHA building

constituted a communication avowing a present intent on

Summerlin's part to do harm to SRHA's property, (2) that

Summerlin intended to make that communication, and (3) that the

staff of SRHA reasonably believed that Summerlin intended to bomb

their building. Accordingly, we hold that the evidence presented

was sufficient to prove beyond a reasonable doubt that Summerlin

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made and communicated to SRHA a threat to bomb a building with

the requisite unlawful intent to make and communicate such a

threat, in violation of Code § 18.2-83.

For the foregoing reasons, we affirm Summerlin's conviction.

Affirmed.

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