COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia
TARYL O. BARNES
OPINION BY
v. Record No. 2295-99-2 JUDGE ROBERT P. FRANK
OCTOBER 24, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
Dixon L. Foster, Judge Designate
S. Neil Stout (Flax & Stout, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Taryl O. Barnes (appellant) was convicted in a bench trial
of first degree murder in violation of Code § 18.2-32 and
abduction in violation of Code § 18.2-47. On appeal, he
contends the trial court erred in finding: 1) testimony
regarding his employment inadmissible; 2) the evidence
sufficient to support the conviction for first degree murder
after the Commonwealth amended the indictment to abduction under
Code § 18.2-47; and 3) that the homicide was within the res
gestae of the abduction. For the reasons that follow, we affirm
the judgment of the trial court.
I. BACKGROUND
Appellant recruited Sean Harris (Sean) and William Harris
(William) to sell drugs from the South Central Motel in
Richmond. Appellant told Sean and William they could make $600
per day selling drugs, so Sean and William moved to the motel.
They lived at the motel and received drugs for resale from
appellant and his girlfriend, Regina Smith (Smith). Once they
sold the drugs, they would remit the proceeds to appellant.
Smith was the boss of the drug operation, and appellant was her
lieutenant. Smith instructed appellant how to conduct the drug
sales.
On the night of May 24, 1998, Sean and some other people
had gone to a nightclub, leaving Jeffery Williams (victim) at
the motel. Sean left cash and cocaine under his mattress. When
he returned, he discovered that $80 in cash and $200 worth of
drugs were missing.
When Sean asked the victim about the theft, the victim
responded that he knew nothing about it. The victim added,
however, that Smith had taken the money and drugs. Smith said
that the victim was lying and told Sean to bring the victim to
her. Sean did so. Smith told appellant to leave the room,
which he did, and then she asked the victim why he had been
lying. She punched him in the face and "smacked" and choked
him. At Smith's command, Sean and William beat the victim with
their fists and feet for ten to fifteen minutes.
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Sean and William carried the victim outside to the curb
where Chilief Brisbon (Brisbon), Sean's roommate, punched the
victim. At Smith's direction, William and Brisbon carried the
victim back to a motel room. The victim had to be assisted in
returning to the room.
Once they entered the room, Brisbon jumped up and down on
the victim's head with heavy boots. Then, he struck the victim
three or four times with a golf club, using extreme force. The
victim was "out of it" after the beating with the golf club.
Brisbon left the room and returned with appellant and
Smith. Brisbon secured the victim, who was still alive and
mumbling, by putting duct tape around his ankles, wrists, and
mouth. When Brisbon began having trouble with the tape,
appellant took the tape and tore pieces of it for Brisbon so he
could bind the victim. Appellant told Brisbon to turn the
victim over so his hands could be taped. The victim was in
"pretty bad condition."
Appellant and Smith discussed the victim's condition. They
felt they could not leave him in the room and decided that Sean,
William, and Brisbon had to do "something" with him.
Sean testified that appellant then said, "take him
somewhere and leave him, but don't kill him." Smith told Sean
to get rid of the victim and made a "cut-the-throat" motion.
While Sean testified that appellant was out of the room when
Smith made the gesture, William testified that appellant
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remained in the room until Brisbon left the room, which was
after Smith's gesture.
Appellant and William dragged the victim to the rear
bedroom window and propped him up. Brisbon left the room and
drove his car around to the back of the motel. Appellant lifted
the victim up to the window so Brisbon could lift him out of the
window and into the open car trunk. Sean drove William,
Brisbon, and the victim to Goochland County. Sean shot the
victim three times, killing him.
At trial, appellant offered Richard Bullock as a witness.
The Commonwealth objected on relevancy grounds, and the trial
court sustained the objection. Appellant proffered that Bullock
would have testified that appellant worked five days a week
doing manual labor for minimum wage. Bullock stated he knew
appellant from the beginning of 1997 to the beginning of 1998.
Appellant argued Bullock's testimony was relevant to show he was
not a drug dealer. Appellant argued that a drug dealer who was
making $600 per day would not engage in minimum wage work.
Appellant testified he was not selling drugs, he had never
sold drugs, he did not help to tape the victim, and he had not
instructed the others to kill the victim. Appellant testified
he was neither involved in nor saw the beating. Appellant
denied assisting Brisbon in putting the victim in the car. He
stated he last saw the victim, who was playing a video game,
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between 4:00 p.m. and 5:00 p.m. on Saturday, May 23, 1998. The
victim was untouched at that time.
Investigator C.J. Fisher of the Virginia State Police
testified appellant stated he saw the victim after the beating.
Appellant told Fisher the victim's eyes were open but he was not
alert.
At the conclusion of the Commonwealth's case-in-chief,
appellant moved to strike the evidence as to the firearm and
abduction charges. His motion was granted as to the firearm
charge, and the Commonwealth amended the indictment from Code
§ 18.2-48, abduction for pecuniary benefit, to Code § 18.2-47,
abduction with the intent to deprive one of their personal
liberty.
At the conclusion of all the evidence, appellant renewed
his motion to strike, stating that he was relying on his prior
arguments. The trial court denied the motion and found
appellant guilty of first degree murder and abduction.
II. ANALYSIS
Appellant first contends the trial court erred when it
ruled Richard Bullock's testimony was inadmissible. Appellant
contends Bullock's testimony that he was regularly employed as a
full-time, minimum wage laborer was relevant to prove he did not
sell drugs. Appellant argues anyone making hundreds of dollars
per day dealing drugs would not be a minimum wage laborer. The
trial court sustained the Commonwealth's objection on relevancy
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grounds, agreeing with the Commonwealth that it is common for
drug dealers to have other legitimate employment.
"'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.'"
Crews v. Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409
(1994) (citation omitted). "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)
(citations omitted). Evidence that tends to prove a material
fact is relevant and admissible, "'unless excluded by a specific
rule or policy consideration.'" Evans v. Commonwealth, 14 Va.
App. 118, 122, 415 S.E.2d 851, 853-54 (1992) (citation omitted).
A fact is material if it tends to prove an element of an offense
or defense. See Johnson v. Commonwealth, 2 Va. App. 598, 601,
347 S.E.2d 163, 165 (1986) (citation omitted). "Every fact,
however remote or insignificant, that tends to establish the
probability or improbability of a fact in issue, is admissible."
Epperly v. Commonwealth, 224 Va. 214, 230, 294 S.E.2d 882, 891
(1982) (citation omitted).
Bullock's testimony would have required the trial court, as
trier of fact, to infer from appellant's minimum wage employment
that appellant did not deal drugs. Appellant neither proffered
nor presented evidence of the relationship between minimum wage
employment and drug dealing. Appellant asked the fact finder to
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speculate as to that relationship. The trial court, rather than
speculate, agreed with the Commonwealth that no evidence of a
correlation was presented or proffered and, therefore, found
that the evidence was not relevant. Further, there was evidence
that appellant's employment with Bullock was too remote in time
to be relevant. The record indicates that Bullock employed
appellant from late 1997 until early 1998. Sean testified he
sold drugs for appellant from mid-May 1998 until the victim's
murder on May 24, 1998. Sean testified the drug distribution
out of the motel "went on" for several weeks. There is no
evidence in the record to indicate appellant was selling drugs
from the end of 1997 to the beginning of 1998. Because the fact
finder rejected the testimony on the ground that no evidence was
presented or proffered to establish the correlation between
employment and drug distribution and the proffered testimony
concerned facts remote in time, we find the trial court did not
abuse its discretion in rejecting Bullock's testimony.
Appellant next contends that abduction to deprive one of
their personal liberty under Code § 18.2-47 is not a predicate
offense for Code § 18.2-32, 1 but he concedes abduction for
1
Section 18.2-32 states, in part:
Murder, other than capital murder, by
poison, lying in wait, imprisonment,
starving, or by any willful, deliberate, and
premeditated killing, or in the commission
of, or attempt to commit, arson, rape,
forcible sodomy, inanimate or animate object
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pecuniary benefit under Code § 18.2-48 is a predicate offense
for Code § 18.2-32. Appellant cites no case law to support his
position, and we find none. He cites Professor Roger D. Groot
as distinguishing between the "level of risks" associated with
abduction as the offense is defined under Code § 18.2-48,
abduction for pecuniary benefit, and Code § 18.2-47, abduction
to deprive one of their personal liberty. Appellant argues that
Professor Groot concludes the level of risk associated with Code
§ 18.2-48 makes the offense a proper predicate felony for the
purpose of a finding of guilt under Code § 18.2-32 but the level
of risk associated with an offense under Code § 18.2-47 does not
qualify that offense as a predicate felony.
"'Where a statute is unambiguous, the plain meaning is to
be accepted without resort to the rules of statutory
interpretation.'" Sykes v. Commonwealth, 27 Va. App. 77, 80,
497 S.E.2d 511, 512 (1998) (quoting Last v. Virginia State Bd.
of Medicine, 14 Va. App. 906, 910, 421 S.E.2d 201, 205 (1992)).
"'"Courts are not permitted to rewrite statutes. This is a
legislative function. The manifest intention of the
legislature, clearly disclosed by its language, must be
applied."'" Id. at 80-81, 497 S.E.2d at 512-13 (quoting Barr v.
Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d
sexual penetration, robbery, burglary or
abduction, except as provided in § 18.2-31,
is murder of the first degree, punishable as
a Class 2 felony.
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672, 674 (1990) (quoting Anderson v. Commonwealth, 182 Va. 560,
566, 29 S.E.2d 838, 841 (1944))).
Code § 18.2-32, by not referring to a particular abduction
statute, makes no distinction between the various types of
abduction. If the legislature intended to restrict the
predicate abduction offense to a specific statute, it would have
done so. In other statutes, the legislature did, in fact, limit
the nature of the abduction to Code § 18.2-48. The capital
murder statute, Code § 18.2-31, limits the predicate abduction
offense to Code § 18.2-48. See Code § 18.2-31. Code
§ 18.2-67.5:3, an enhanced penalty statute, limits abduction to
Code § 18.2-48. See Code § 18.2-67.5:3. The juvenile transfer
statute, Code § 16.1-269.1(C), requires a preliminary hearing in
juvenile court for a number of specified offenses, including
"abduction in violation of § 18.2-48." Code § 16.1-269.1(C).
The Code of Virginia is replete with references to the
violation of specific abduction statutes, and, therefore, if the
legislature had intended to limit Code § 18.2-32 to abduction in
violation of Code § 18.2-48, it would have done so, as it did in
so many other statutes. Appellant asks us to restrict
"abduction" in Code § 18.2-32 to abduction in violation of Code
§ 18.2-48. To accept appellant's request, we would be required
to re-write the statute, a function only afforded the
legislature. The legislature did not limit abduction to Code
§ 18.2-48, and we decline the invitation to do so. See Forst v.
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Rockingham Poultry Mktg. Coop. Inc., 222 Va. 270, 278-79, 279
S.E.2d 400, 404 (1981).
Finally, appellant contends the murder took place outside
the res gestae of the abduction. Appellant argues that because
the murder was not closely related in time, place, and causal
connection to the abduction, it was not part of the same
criminal enterprise as the abduction. Appellant maintains his
role in the abduction ceased when Sean, William, and Brisbon
drove away with the victim. 2
2
The Commonwealth argues this issue is procedurally
defaulted because it was not raised in the motion to strike at
the conclusion of the Commonwealth's case-in-chief, nor in the
motion to strike at the conclusion of all of the evidence.
While we agree with the Commonwealth as to the motions to
strike, appellant argued the "time, place, and causal
connection" issues during his closing argument, while stating to
the trial court, "We've gone away from the old res gestae
argument."
"The res gestae of the underlying crime begins where an
indictable attempt to commit the felony is reached . . . and
ends where the chain of events between the attempted crime or
completed felony is broken." Berkeley v. Commonwealth, 19 Va.
App. 279, 286, 451 S.E.2d 41, 45 (1994) (citations omitted).
Applying res gestae to felony murder, the Virginia Supreme
Court held that "the felony-murder statute applies where the
killing is so closely related to the felony in time, place, and
causal connection as to make it a part of the same criminal
enterprise." Haskell v. Commonwealth, 218 Va. 1033, 1043-44,
243 S.E.2d 477, 483 (1978).
This Court has held that in a bench
trial, where a defendant wishes to preserve
a sufficiency motion after presenting
evidence, the defendant must make a motion
to strike at the conclusion of all the
evidence, present an appropriate argument in
summation, or make a motion to set aside the
verdict.
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Appellant concedes in his brief that abduction is a
continuing offense. We have held that "it [is] for the fact
finder to determine in each case . . . whether the [abduction]
had been terminated within the purview of [Code § 18.2-32]."
Haskell v. Commonwealth, 218 Va. 1033, 1043, 243 S.E.2d 477, 483
(1978). Yet, appellant maintains the abduction ended when the
victim was driven away. The murder, he contends, was a separate
offense, not committed in the perpetration of the abduction.
Appellant was a full participant in the victim's detention,
even if he did not participate in the violent beating.
Testimony proved that appellant was impatient with the manner in
which Brisbon was stripping the duct tape off the roll. He
grabbed the roll from Brisbon and handed Brisbon strips of tape
to enable Brisbon to bind the victim's ankles, wrists, and
mouth. Appellant told Brisbon to turn the victim over to better
tape his hands. The fact finder could properly conclude
appellant supervised the binding and gagging of the victim.
Appellant acknowledged to Officer Fisher that the victim
was not in good condition after the beating. Other testimony
established that Smith and appellant decided they could not
leave the victim in the motel room. They decided Sean, William,
and Brisbon had to do "something" with him. While Sean
Howard v. Commonwealth, 21 Va. App. 473, 478, 465 S.E.2d 142,
144 (1995) (citations omitted). We find that because appellant
argued "time, place and causal connection" in his closing
argument, he preserved this issue for appeal.
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testified appellant said, "take him somewhere and leave him, but
don't kill him," the trier of fact was free to disbelieve "don't
kill him" as self-serving. When weighing the evidence, the fact
finder is not required to accept entirely either party's account
of the facts. See Barrett v. Commonwealth, 231 Va. 102, 107,
341 S.E.2d 190, 193 (1986) (citation omitted). The fact finder
may reject that which it finds implausible, yet accept other
parts which it finds to be believable. See id.
Testimony proved that appellant was present when Smith gave
the "cut-the-throat" motion, directing that the victim be
killed. Appellant then assisted in removing the victim from the
motel room through the rear window, knowing that the victim
would continue to be detained and deprived of his personal
liberty. According to Sean, appellant ordered that the victim
be taken "somewhere."
When appellant assisted the others in moving the victim to
the car, the fact finder could infer that he did so with
knowledge that Smith had directed the killing. He, therefore,
assisted in the abduction, which resulted in the killing, and
had knowledge that the killing was one of the objects of the
abduction. The fact finder could further conclude that
appellant ordered the abduction. Even if appellant was unaware
of the plan to kill the victim, his death clearly was
foreseeable from the other acts of violence committed by the
abductors or from the previously administered beating.
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However, appellant could be convicted under Code § 18.2-32
without specific knowledge or intent to kill the victim if the
homicide was within the res gestae of the abduction. See
Haskell, 218 Va. at 1043-44, 243 S.E.2d at 483; Griffin v.
Commonwealth, 33 Va. App. 413, 421-22, 533 S.E.2d 653, 657
(2000).
The [felony-murder] doctrine was
developed to elevate to murder a homicide
committed during the course of a felony by
imputing malice to the killing. The
justification for imputing malice was the
theory that the increased risk of death or
serious harm occasioned by the commission of
a felony demonstrated the felon's lack of
concern for human life. . . . The purpose
of the doctrine was to deter inherently
dangerous felonies by holding the felons
responsible for the consequences of the
felony, whether intended or not.
King v. Commonwealth, 6 Va. App. 351, 354, 368 S.E.2d 704,
705-06 (1988) (citations omitted).
With Code § 18.2-32, the legislature made killing with
malice while committing or attempting to commit one of certain
other specified felonies a form of first degree murder. See
Code § 18.2-32. Neither premeditation nor an intent to kill is
an element of felony-murder, but malice is required.
"Malice inheres in the doing of a
wrongful act intentionally or without just
cause or excuse, or as a result of ill
will. . . ." Where a person maliciously
engages in criminal activity, such as
robbery, and homicide of the victim results,
the malice inherent in the robbery provides
the malice prerequisite to a finding that
the homicide was murder. And, all of the
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criminal participants in the initial felony
may be found guilty of the felony-murder of
the victim so long as the homicide was
within the res gestae of the initial felony.
Wooden v. Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814
(1981) (citations omitted).
In this case, the fact finder determined that the abduction
continued at the time of the homicide and therefore was within
the res gestae of the abduction. The murder was committed by
appellant's accomplices, acting in concert with appellant to
further the abduction. See King, 6 Va. App. at 357, 368 S.E.2d
at 707 (holding that for the felony-murder doctrine to be used
to convict for murder, "'the killing must have been done by the
defendant or by an accomplice or confederate or by one acting in
furtherance of the felonious undertaking'").
Therefore, the homicide was so closely related to the
abduction in time, place and causal connection as to make it
part of the same criminal enterprise.
For these reasons, we affirm the judgment of the trial
court and affirm appellant's convictions.
Affirmed.
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