COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Frank
Argued by teleconference
RICHARD WILEY GRIFFIN
MEMORANDUM OPINION * BY
v. Record No. 0949-99-2 JUDGE LARRY G. ELDER
APRIL 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
(Derek E. Leake; Robert N. Johnson & Anne M.
Johnson, Inc.; Taylor, Taylor & Taylor, Inc.,
on briefs), for appellant. Appellant
submitting on briefs.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General;
Amy L. Marshall, Assistant Attorney General,
on brief), for appellee.
Richard Wiley Griffin (appellant) appeals from his jury
trial convictions for two counts of abduction for pecuniary
benefit, two counts of using a firearm in the commission of an
abduction, and one count of statutory burglary. On appeal,
appellant contends the trial court erroneously (1) admitted
evidence of a subsequent robbery committed by Willie Townsend,
an acquaintance of appellant's, and a carbon copy of a check
written by Townsend to appellant and (2) concluded the evidence
was sufficient to prove statutory burglary and abduction with
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
intent to obtain a pecuniary benefit. We hold that the trial
court did not abuse its discretion in admitting the challenged
evidence and that the evidence was sufficient to support
appellant's convictions.
I.
ADMISSIBILITY OF EVIDENCE
"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 is
relevant if it has any logical tendency, however slight, to
establish a fact at issue in the case." Ragland v. Commonwealth,
16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993).
A. EVIDENCE OF SUBSEQUENT BANK ROBBERY
Appellant contends the trial court erroneously admitted
testimony about the subsequent robbery of the bank at which
victim Lisa Stewart worked. At trial, however, appellant
objected only to the testimony of Stewart. He posed no
objection to the testimony of Carol Bain, the bank manager on
duty at the time of the robbery and the person whose shoe,
briefcase and car were taken. He also posed no objection to the
testimony of Investigator Roger Brooks, who responded to the
scene of the bank robbery and subsequently found, during a
search of Willie Townsend's home, many items taken in the bank
robbery.
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Under Rule 5A:18, "[n]o ruling of the trial court . . . will
be considered as a basis for reversal unless the objection was
stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice." Appellant failed to
object to the testimony of Bain and Brooks regarding the bank
robbery, and he does not allege that the good cause or ends of
justice exceptions to Rule 5A:18 should be applied here.
Therefore, we hold appellant waived his objections to Bain's or
Brooks's testimony about the bank robbery on grounds of relevancy
or prejudice.
We assume without deciding that appellant's relevancy
objection to Stewart's testimony about the bank robbery was
sufficient to preserve his contention on appeal that Stewart's
testimony was more prejudicial than probative. See Irving v.
Commonwealth, 15 Va. App. 178, 179, 180-83, 422 S.E.2d 471,
472-73, 473-75 (1992) (en banc) (in which Court split evenly on
issue of whether a relevancy objection preserves for appeal the
argument that evidence is more prejudicial than probative).
Nevertheless, we conclude the trial court did not abuse its
discretion in admitting the evidence.
[W]hen relevant evidence is offered which may
be inflammatory and which may have a tendency
to prejudice jurors against the defendant,
its relevancy "must be weighed against the
tendency of the offered evidence to produce
passion and prejudice out of proportion to
its probative value." The responsibility for
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balancing these competing considerations is
largely within the sound discretion of the
trial judge. And a trial court's
discretionary ruling will not be disturbed on
appeal absent a clear abuse of discretion.
Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)
(citations omitted).
Evidence of other bad acts or crimes is not admissible merely
to show a defendant's predisposition to commit such acts or
crimes. See, e.g., Kirkpatrick v. Commonwealth, 211 Va. 269, 272,
176 S.E.2d 802, 805 (1970). However, "'if such evidence tends to
prove any other relevant fact of the offense charged, and is
otherwise admissible, it will not be excluded merely because it
also shows him to have been guilty of another crime.'" Williams
v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426 (1962).
Where a course of criminal conduct is
continuous and interwoven, consisting of a
series of related crimes, the perpetrator has
no right to have the evidence "sanitized" so
as to deny the jury knowledge of all but the
immediate crime for which he is on trial.
The fact-finder is entitled to all of the
relevant and connected facts, including those
which followed the commission of the crime on
trial, as well as those which preceded it;
even though they may show the defendant
guilty of other offenses. Evidence of such
connected criminal conduct is often relevant
to show motive, method, and intent.
Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577
(1984) (citations omitted) (emphasis added).
Here, the evidence of the bank robbery was relevant to the
issue of appellant's motive and intent in abducting Stewart and
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her roommate, Pamela Wingfield, on January 12, 1993. Although
no direct evidence linked appellant to the bank robbery,
appellant and Townsend were neighbors and business associates,
and circumstantial evidence permitted the inference that
appellant entered the victims' apartment to obtain the bank key
in order to facilitate the bank robbery. Therefore, the
evidence was admissible unless its probative value was
outweighed by its prejudicial effect. Here, in order to prove
appellant's guilt under Code § 18.2-48, the Commonwealth was
required to prove that appellant's abduction of Stewart and
Wingfield was with the intent to obtain a pecuniary benefit.
Because the probative value of the bank robbery evidence in
reference to appellant's intent in committing the abduction was
so high, we hold the trial court did not abuse its discretion in
holding its probative value outweighed any prejudicial effect.
B. CARBON COPY OF CHECK
Appellant also contends the trial court erroneously
admitted the carbon copy of a check for $125 allegedly written
by Townsend to appellant because it was irrelevant, immaterial
and prejudicial. Under the standards set out above, we
disagree. At a minimum, the carbon copy, which was found in
Townsend's apartment along with a box of business cards bearing
appellant's name, was both relevant and material to corroborate
appellant's earlier statement that he and Townsend knew each
other and had a business relationship. Appellant's contentions
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that the check was more prejudicial than probative because the
Commonwealth did not prove that the check was delivered to
appellant or that it was for appellant's alleged assistance
regarding the bank robbery were not dispositive of its
admissibility. These were matters appropriate for argument to
the jury regarding the weight to be given the check and were not
dispositive of its admissibility. Therefore, we hold the trial
court did not abuse its discretion in admitting the carbon copy
into evidence.
II.
SUFFICIENCY OF EVIDENCE
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
judgment will not be set aside unless it is plainly wrong or
without supporting evidence. See Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
Any element of a crime, including intent, may be proved
with circumstantial evidence, see Servis v. Commonwealth, 6 Va.
App. 507, 524, 371 S.E.2d 156, 165 (1988), such as a person's
conduct and statements, see Long v. Commonwealth, 8 Va. App.
194, 198, 379 S.E.2d 473, 476 (1989). "Circumstantial evidence
is as competent and is entitled to as much weight as direct
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evidence, provided it is sufficiently convincing to exclude
every reasonable hypothesis except that of guilt." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
"[T]he Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the evidence, not those that spring
from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
A. ABDUCTION
Appellant contends the evidence was insufficient to support
his conviction for abduction under Code § 18.2-48 because it
failed to prove he used coercion or that he acted with the
intent to gain pecuniary benefit. We hold appellant failed to
preserve his objection to the sufficiency of the evidence to
prove coercion but that, in any event, the circumstantial
evidence was sufficient to establish both of these elements.
1. Use of force, intimidation or deception
Appellant's conviction for abduction required proof that he
"seize[d], [took], transport[ed], detain[ed] or secrete[d]"
Stewart and Wingfield "by force, intimidation or deception."
Code §§ 18.2-47, 18.2-48. As cited by appellant on brief, his
objection at trial was based only on the insufficiency of the
evidence to prove the victims were "sufficiently detained or
transported or taken or seized." Appellant did not contend at
trial that the evidence of force or intimidation was
insufficient. Because appellant failed to object with
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specificity to the evidence of force or intimidation, we hold
that he failed to preserve this objection for appeal. See Rule
5A:18.
Even if appellant had properly preserved this issue for
appeal, the evidence, viewed in the light most favorable to the
Commonwealth, supported the jury's finding that appellant used
force or intimidation to abduct the women. Immediately upon
entering the women's apartment, appellant locked the door's
deadbolt. A few minutes later, appellant ripped the telephone
out of the wall to prevent Wingfield from calling for help, and
he pulled out a gun while standing only three or four feet away
from them. While displaying the weapon, appellant said he
"didn't want to hurt [them]," "made [them] go in the bathroom,"
and told them to stay there without making any noise until he
said they could come out. The women did as he said, and while
in the bathroom, they were "very" scared. The only reasonable
hypothesis flowing from this evidence is that the women entered
the bathroom and remained there for over two hours based on
appellant's intimidation and threat to use force if they did not
cooperate.
2. Intent to gain pecuniary benefit
The term "pecuniary benefit" means "not only money, but
everything that can be valued in money." Krummert v.
Commonwealth, 186 Va. 581, 584-85, 43 S.E.2d 831, 832 (1947)
(decided under predecessor to current abduction statute).
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Further, "[t]he statutory element is the intent to extort money
or obtain a pecuniary benefit. It is not necessary that the
criminal actually succeed in realizing his desired gain."
Barnes v. Commonwealth, 234 Va. 130, 137, 360 S.E.2d 196, 201
(1987).
Here, the only reasonable hypothesis flowing from the
evidence, viewed in the light most favorable to the
Commonwealth, is that appellant abducted Stewart and Wingfield
with the intent to obtain a pecuniary benefit. He confined them
to their bathroom for over two hours, during which time he moved
about their apartment, opening and closing closet doors and
cabinets. Appellant told them he was waiting for a friend, and
Stewart heard appellant and another person moving through the
apartment to the victims' bedrooms. Stewart and Wingfield heard
appellant pick up their sets of keys, which included a key to
the front door of the bank where Stewart worked and a key to
Stewart's boyfriend's car. Appellant carried the keys to the
front door of the apartment, which the women heard "opening and
closing." When the women inspected their keys shortly after
appellant's departure, they discovered that someone had removed
from Stewart's key chain and duplicated at least one key, the
key to the car owned by Stewart's boyfriend. Finally, the
evidence permitted the inference that less than two weeks after
the abduction, appellant's "business partner," Willie Townsend,
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robbed the bank at which Stewart worked, entering through the
locked front door without having to pry it open.
Thus, although the evidence supported multiple hypotheses
regarding appellant's intent at the time of the abduction, all
involved the intent to obtain a pecuniary benefit--by intending
to steal something he found while looking through the closets
and cabinets, by taking the car operated by the key he
duplicated, or by duplicating the key to the bank where Stewart
worked in order to rob or facilitate the subsequent bank
robbery. Cf. Ridley v. Commonwealth, 219 Va. 834, 837, 252
S.E.2d 313, 314 (1979) (holding that in the absence of evidence
of a contrary intent, the trier of fact may infer that a
defendant's unauthorized presence in a house or building of
another in the nighttime was with intent to commit larceny). In
light of the above evidence and the absence of any evidence of a
prior relationship between appellant and the women or any other
motive for their abduction, the trier of fact was entitled to
conclude that appellant did not act merely to deprive the
victims of their personal liberty in violation only of Code
§ 18.2-47. For these reasons, we hold the evidence was
sufficient to prove appellant acted with the requisite intent.
B. STATUTORY BURGLARY
A conviction for statutory burglary requires proof of an
actual or constructive breaking. See Johnson v. Commonwealth,
221 Va. 872, 876, 275 S.E.2d 592, 594-95 (1981). "Where entry
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is gained by threats, fraud or conspiracy, a constructive
breaking is deemed to have occurred." Jones v. Commonwealth, 3
Va. App. 295, 299, 349 S.E.2d 414, 416-17 (1986).
Appellant contends the evidence was insufficient to
establish a constructive breaking through fraud because it did
not exclude the hypothesis that he was a plumber with a
legitimate reason for entering the apartment and that he formed
the intent to abduct the women only after entering. The
evidence, viewed in the light most favorable to the
Commonwealth, does not support this hypothesis. Appellant said
he was a plumber but entered the apartment without tools and
locked the deadbolt immediately after gaining entry. Although
he ran water in the bathroom after entering, he immediately
began to look around the apartment and pulled a gun on the
victims when they asked him to wait outside. The only
reasonable hypothesis flowing from the evidence under the facts
of this case is that appellant brought the gun, rather than any
plumbing tools, with him into the apartment because he intended
to abduct its occupants and that he had no legitimate reason for
entering.
III.
CONCLUSION
For these reasons, we hold the trial court did not abuse
its discretion in admitting evidence of the bank robbery
committed by Willie Townsend and a carbon copy of a check
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purportedly written by Townsend to appellant. We also conclude
the evidence was sufficient to prove the contested elements of
abduction and statutory burglary. Therefore, we affirm
appellant's convictions.
Affirmed.
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