COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia
JAMES BILLY HENRY
MEMORANDUM OPINION * BY
v. Record No. 0520-96-4 JUDGE JAMES W. BENTON, JR.
JUNE 17, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WARREN COUNTY
Dennis L. Hupp, Judge
Thomas D. Logie for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
James Billy Henry was convicted of threatening to burn a
home in violation of Code § 18.2-83. On this appeal he raises
the following nine issues:
1. Was the evidence sufficient as a matter of law to
sustain the guilty verdict of the jury?
2. Was the evidence sufficient as a matter of law to prove
that [Henry] uttered a threat containing his present
intention to burn the trailer?
3. Was the evidence sufficient as a matter of law to prove
that the complaining witness was actually put in fear
that [Henry] would burn the trailer as a result of the
alleged threat, and was any such fear reasonable, under
the doctrine of Perkins v. Commonwealth, 12 Va. App. 7,
402 S.E.2d 229 (1991)?
4. Should the trial [judge] have permitted the
Commonwealth to introduce evidence in its case in chief
that [Henry] had been convicted of misdemeanor offenses
which did not involve moral turpitude which occurred
after the alleged incident in this case?
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
5. Assuming that the Commonwealth should have been
permitted to introduce any evidence of subsequent
criminal acts on the part of [Henry], should the
Commonwealth have been permitted to introduce the
verdicts of the General District Court? If so, should
the Commonwealth have had to first establish the
alleged incidents so as to expose its complaining
witness to cross-examination concerning the alleged
incidents?
6. In these circumstances, should the Commonwealth have
been permitted to introduce any evidence at all
concerning other alleged criminal acts against the
complaining witness of which [Henry] had been accused?
If so, were some of the alleged incidents too far
afield to be relevant or to have their probative value
outweigh their prejudicial effect?
7. Should the [trial judge] have given a cautionary
instruction to the jury concerning the limited use of
the "other offenses" evidence in this case, assuming
that such evidence was properly admitted in the first
place?
8. Did the trial [judge] err in failing to find that the
probative value of the evidence outweighs its
prejudicial effect, or in the alternative did the
[trial judge] err in making such a finding if in fact
one was made?
9. Did the Commonwealth prove that the trailer which
[Henry] was accused of threatening to burn was a
"house" within . . . Code Section 18.2-83?
For the reasons that follow, we affirm the conviction.
Facts
Henry was indicted for threatening to burn Lisa Mathews'
trailer home. The evidence at trial proved that Henry and
Mathews were cousins. Mathews often drove Henry to places. In
return, Henry gave her money for gas and other incidental
expenditures.
Mathews testified that a dispute arose between them in 1994
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when he asked her to lend him money and she refused. On November
26, 1994, she received a telephone call from Henry. Henry asked
Mathews if she had the money he needed for his court costs. When
Mathews told Henry that she did not have money to give him, Henry
stated, "either you get the money, or I'm going to burn your
. . . house down, with you and the baby in it." He immediately
hung up the phone.
Mathews testified that Henry's telephone call caused her to
become "[s]cared, afraid, [and] frightened." She was afraid
"[t]hat he was going to come and burn [her] house down, because
[she] didn't have the money to give him." Mathews did not
immediately report the threat.
Mathews testified that over the next several months, Henry
threatened her, assaulted her, and damaged her vehicle. Between
November and March, Mathews reported those other threats and
obtained warrants for his arrest. Following those other threats,
Mathews went to the magistrate on March 15, 1995 and reported
Henry's threat to burn her residence. Mathews testified that she
did not immediately report the threat to burn her house "because
[she] didn't really feel, at the time, that he was going to do
anything."
Henry testified and denied making the threat. He further
testified that Mathews became hostile and sought to punish him
because he stopped giving her money.
The jury convicted Henry of threatening to burn Mathews'
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residence and recommended a sentence of twelve months in jail and
a fine of $1,500. The trial judge imposed the jury's sentence.
Other Crimes Evidence (Issues 4, 5, 6, 7, and 8)
Over Henry's objection, the judge ruled that the prosecutor
would be permitted to introduce redacted warrants showing Henry's
convictions for offenses against Mathews between November 26,
1994 and March 15, 1995. In addition, the judge ruled that Henry
would be permitted to introduce evidence of the number and nature
of the charges brought by Mathews against Henry and to prove the
acquittals.
At trial, Mathews testified that although Henry threatened
to burn down her trailer on November 26, 1994, she did not obtain
the warrant for the threat to burn until March 15, 1995. She
testified, however, that the threat frightened her. The
Commonwealth introduced warrants showing that Henry was convicted
of making obscene phone calls to Mathews on December 7, 1994 and
February 22, 1995, of assault and battery against Mathews on
December 9, 1994, and of damaging her vehicle on February 21,
1995. Mathews testified that Henry's conduct after November
enhanced her concern about his November threat to burn her
trailer. Henry's counsel cross-examined Mathews as to the dates
she went to the magistrate to obtain the several warrants.
Henry's counsel introduced evidence that Henry was acquitted of
some charges Mathews brought against him during that time period.
Generally, evidence of an accused's other bad acts is
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inadmissible to prove that the accused committed the crime for
which the accused is on trial. See Rodriguez v. Commonwealth,
249 Va. 203, 206, 454 S.E.2d 725, 727 (1995).
Well established exceptions to the general
rule of exclusion of other bad acts evidence
apply where the evidence is relevant to show
some element of the crime charged. To be
admissible as an exception, evidence of other
bad acts must be relevant to an issue or
element in the present case.
Morse v. Commonwealth, 17 Va. App. 627, 631, 440 S.E.2d 145, 148
(1994). The other bad acts may have occurred either before or
after the offense for which the accused is on trial. See
Stockton v. Commonwealth, 227 Va. 124, 142, 314 S.E.2d 371, 383
(1984).
The relevance of other bad acts evidence to prove an issue
or element must outweigh the inherent prejudice of proving that
the accused has committed such other acts. See Lafon v.
Commonwealth, 17 Va. App. 411, 418, 438 S.E.2d 279, 283 (1993).
However, the principle is well established that the balancing of
probative value and prejudice "is committed to the sound
discretion of the trial judge and will not be overturned on
appeal absent an abuse of discretion." Id.
The trial judge did not abuse his discretion in admitting
the evidence of the other crimes. The evidence concerned events
occurring within the weeks and months following Henry's threat to
burn Mathews' house. The evidence of the other bad acts showed
Henry's feelings toward Mathews and negated any suggestion that
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his statements were hyperbole. The trial judge properly found
that the evidence was relevant to show Henry's conduct and
attitude toward Mathews. See Moore v. Commonwealth, 222 Va. 72,
76, 278 S.E.2d 822, 824 (1981); see also Smith v. Commonwealth,
239 Va. 243, 256, 389 S.E.2d 871, 878 (1990) (upholding the
admission of evidence of other offenses when offered to prove
premeditation, motive or intent, conduct and feelings of accused
toward victim, and absence of accident or mistake). The evidence
was also relevant to explain why Mathews delayed in reporting the
incident. Mathews testified that the threat frightened her. The
evidence of other crimes tended to prove that subsequent events
intensified Mathews' fear over the original threat. Thus, the
evidence was connected to the crime for which Henry was on trial
and tended to prove facts in issue. See Scott v. Commonwealth,
228 Va. 519, 527, 323 S.E.2d 572, 577 (1984).
Henry argues that the trial judge failed to find that the
probative value of the evidence outweighed its prejudicial
effect. Henry failed to raise this issue in the trial court.
Therefore, he is barred from raising that issue now on appeal.
See Rule 5A:18.
The trial judge also did not abuse his discretion by
allowing the conviction to be proved through the general district
court judgment orders. See Essex v. Commonwealth, 18 Va. App.
168, 171, 442 S.E.2d 707, 709 (1994). Moreover, the trial judge
allowed Henry to cross-examine Mathews about the number and
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nature of the charges of the other crimes. Thus, Henry was
allowed to prove acquittals. The trial judge's limitation on
Henry's cross-examination on this issue was not an abuse of
discretion.
In addition, Henry failed to raise an objection in the trial
court that the judgments should not have been used because they
were rendered by a court not of record. He may not raise that
claim on appeal. See Rule 5A:18.
Furthermore, any possible error was harmless. The trial
judge only allowed evidence of offenses that explicitly involved
Mathews and only allowed redacted portions of the records,
excluding any reference to the punishments. In addition, the
trial judge allowed Henry to provide an explanation of the
events. During Henry's testimony, his counsel admitted into
evidence arrest warrants for other charges brought by Mathews
against Henry in the past.
Finally, contrary to Henry's assertion that the trial judge
refused to instruct the jury, the judge gave the following
limiting instructions to the jury:
Instruction No. 6
You have heard evidence concerning other
incidents between Lisa Mathews and the
Defendant. Some of these are the subject of
the warrants which have been placed in
evidence, and the Defendant was acquitted on
some charges and convicted on others. You
may consider these incidents as they may bear
on the possible motives and bias on the part
of Lisa Mathews, the Defendant, or both, and
for no other purpose except as may be
permitted under Instruction No. 8.
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Instruction No. 8
You may consider evidence that the defendant
was convicted of offenses against Lisa
Mathews other than the offense for which he
is on trial only as evidence of the
defendant's conduct and feeling toward the
victim and relations between them, in
connection with the offense for which he is
on trial and for no other purpose.
These instructions properly limited the jury's consideration
of the other crimes evidence. Thus, the judge did not err in
denying Henry's proposed Instruction A on the matter. See Joseph
v. Commonwealth, 249 Va. 78, 90, 452 S.E.2d 862, 870 (stating
that if principles set forth in a proposed instruction are "fully
and fairly covered" in other granted instructions, the trial
judge does not abuse discretion in refusing to grant the proposed
instruction), cert. denied, 116 S. Ct. 204 (1995).
The Trailer (Issue 9)
Mathews testified that she was living in a "trailer . . . a
mobile home." Mathews further testified that the trailer is
"affixed to the ground" and that the trailer is "in the ground."
The evidence further proved that the trailer is 60 feet long and
12 feet wide.
Henry testified that the trailer does not have running water
and that the water runs off the gutter into a cistern. Henry
made a motion to strike the evidence because "we do not have a
building that is within the specific statute that's charged."
The trial judge overruled the motion.
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Code § 18.2-83 requires that the threat to burn be directed
toward "any place of assembly, building or other structure, or
any means of transportation." It does not require that the
threat to burn be directed toward a "house." The evidence proved
that the trailer rested on cinder blocks, had walls, and was
Mathews' place of dwelling. The evidence proved beyond a
reasonable doubt that the trailer was a structure covered by the
statute. Cf. Rooney v. Commonwealth, 16 Va. App. 738, 432 S.E.2d
525 (1993). Accordingly, Henry's argument that the evidence was
insufficient to convict him because the Commonwealth failed to
prove that Mathews' trailer was a "house" is without merit.
Sufficiency of the Evidence (Issues 1, 2, and 3)
To establish the threat to burn under Code § 18.2-83, the
Commonwealth was required to prove that Henry made and
communicated to Mathews a "threat to bomb, burn, destroy or in
any manner damage any place of assembly, building or other
structure, or any means of transportation."
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.
Perkins v. Commonwealth, 12 Va. App. 7, 16, 402 S.E.2d 229, 234
(1991).
"On appeal, we review the evidence in the light most
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favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the
evidence proved that when Mathews told Henry that she did not
have money to give him, Henry responded, "either you get the
money, or I'm going to burn your . . . house down, with you and
the baby in it." Mathews testified that appellant's words
frightened her. Mathews also testified that Henry's subsequent
conduct lent credence to his earlier threat. Thus, she became
motivated to obtain an arrest warrant for Henry's threat to burn
her home.
Henry's warning was a communication that "reasonably
cause[d] the receiver to believe" that he would act on his
expression of intent. Perkins, 12 Va. App. at 16, 402 S.E.2d at
234. The fact that Henry conditioned his threat upon Mathews'
failure to give him money for court costs does not render his
warning any less a threat. Code § 18.2-83 is not limited to
unconditional threats. Even if it were, the evidence proved that
Mathews told Henry that she did not have the money he needed;
thus, Mathews had put herself within the terms of the condition.
See Duncan v. Commonwealth, 2 Va. App. 717, 723-24, 347 S.E.2d
539, 543 (1986). Therefore, the trial judge properly refused
Henry's proposed Instruction B, which defined threat as a
statement of an "unconditional intent to burn."
The evidence also proved that, although initially not
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motivated to seek a warrant for Henry's arrest, Mathews
ultimately did so because Henry's later conduct represented an
escalation of Henry's hostility toward her. Indeed, Henry's
subsequent conduct rendered reasonable Mathews' initial fear.
Accordingly, we affirm the conviction.
Affirmed.
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