Barnes v. Commonwealth

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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