Johnny Edward Harter v. Commonwealth of Virginia , 31 Va. App. 743 ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia
JOHNNY EDWARD HARTER
OPINION BY
v. Record No. 0032-99-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Humes J. Franklin, Jr., Judge
Robert A. Kantas (J. Gregory Webb; Michie,
Hamlett, Lowry, Rasmussen & Tweel, P.C., on
briefs), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted Johnny Edward Harter of breaking and
entering and grand larceny. He contends the trial court erred
(1) in admitting evidence of other crimes, (2) in finding the
evidence sufficient to convict, (3) in denying two motions for a
new trial, (4) in not ruling on a motion to suspend the
sentencing order, and (5) in refusing to sign his written
statement of facts. Finding no error, we affirm the defendant's
convictions.
The finance trailer of the District Home 1 was broken into
between 1:30 p.m. Saturday, January 24, 1998 and 8:30 a.m.
1
The District Home is a nursing home for the elderly
formerly operated by the City of Waynesboro. See Code
§§ 63.1-183 to -194.
Monday, January 26, 1998. The police found no signs of forced
entry but $360 in cash and $15,000 in checks had been taken.
The defendant was staying with Lois Jones, who worked in the
finance office of the District Home. At 5:00 a.m. on the Monday
the break-in was discovered, the defendant told Jones that he
was going to the store and took her car. He took the car keys
but also took her office keys which were in a different pocket
of her coat separate from her car keys. Jones's car was
observed parked near the finance office at 6:00 a.m. while she
was still at home asleep.
When Jones arrived at work about 8:30 a.m., she learned of
the break-in and that her car had been seen near the Home.
Jones returned home and confronted the defendant. He became
irate with her but denied any involvement in the crime. When
Jones persisted in an explanation, the defendant threw her on
the bed and put his hands around her throat. She asked the
defendant how he thought it looked for her car to have been seen
at her office when it had been broken into, and he responded
that they will "think that you and I did it." Jones left to go
back to work, heard a gunshot, turned, and saw the defendant
pointing a gun at her. He told her not to go, but she did.
The defendant argues that the trial court erred in
admitting evidence that he physically assaulted Jones when she
confronted him. He argues that it was evidence of other crimes,
irrelevant, and highly prejudicial. Evidence that the defendant
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may have committed crimes other than the one charged is
generally inadmissible. See Kirkpatrick v. Commonwealth, 211
Va. 269, 272, 176 S.E.2d 802, 805 (1970). However, "acts or
conduct of the defendant after the crime, which are not elements
of the crimes charged, are admissible because they may tend to
show a 'consciousness of guilt.' In such cases, the defendant
has no right to sanitize the evidence." Hope v. Commonwealth,
10 Va. App. 381, 386, 392 S.E.2d 830, 834 (1990) (en banc)
(citations omitted) (evidence of flight can be considered as
evidence of guilt). "The fact-finder is entitled to all of the
relevant and connected facts," including those which occurred
before or after the crime charged, "even though they may show
the defendant guilty of other offenses." Scott v. Commonwealth,
228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984) (citations
omitted).
In Hope, the defendant fell while fleeing from the police.
They found a loaded gun near the spot where he fell. The
defendant possessed recently stolen property, but no evidence
indicated that the burglary was accomplished by force. However,
the evidence which proved that he possessed a gun was admissible
because the defendant's conduct "is an important factor in the
estimate of the weight of circumstances which point to his
guilt." Hope, 10 Va. App. at 385-86, 392 S.E.2d at 833
(citations omitted). The "'combined force of many concurrent
and related circumstances, each insufficient in itself, may lead
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a reasonable mind irresistibly to a conclusion.'" Id. at 386,
392 S.E.2d at 833 (quoting Peoples v. Commonwealth, 147 Va. 692,
704, 137 S.E. 603, 606 (1927)).
The trial court did not err in admitting evidence of the
defendant's reaction when Jones accused him of having committed
the burglary. The incidental prejudicial impact arising from
his assault on his accuser is outweighed by the probative value
showing the defendant's knowledge of the crime and complicity in
it. The evidence was relevant and permitted a finding that the
defendant was conscious of guilt.
The defendant also challenges the sufficiency of the
evidence on appeal. Accordingly, we view the evidence in the
light most favorable to the Commonwealth and grant to it all
reasonable inferences fairly deducible therefrom. See Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997).
The defendant told Jones at 5:00 a.m. on Monday, January
26, 1998, that he was going to the store. He took her car and
office keys, which were in different pockets of her coat.
Jones's car was observed near her office at 6:00 a.m. while she
was home asleep. The office was broken into, but there was no
sign of forced entry. When Jones confronted the defendant, he
overreacted and became violent. Jones found some of the stolen
property in her trash around 2:00 a.m. Tuesday morning. The
defendant had been alone in her house after the incident from
7:00 a.m. to 5:30 p.m., and no one else had been in her home
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that day. The defendant was present in Jones's house and able
to hide property in her trash.
Though the defendant and his wife testified that they had
gone together to Alan Brown's trailer the morning of the
break-in, Brown denied being with them that morning. The fact
finder was not required to accept the defendant's alibi evidence
or his contention that he was being set up by Jones and Mark
Louk, the person who saw Jones's car near the Home the morning
the break-in was discovered. When drawing reasonable inferences
from the facts, the fact finder "was entitled to weigh the
defendant's contradictory statements," Toler v. Commonwealth,
188 Va. 774, 781, 51 S.E.2d 210, 213 (1949), and to infer that
he was attempting to conceal his guilt. See Black v.
Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981). We
find credible and sufficient evidence to support the defendant's
convictions.
The defendant filed two separate motions for a new trial.
The first claimed that items taken from the District Home were
found in Mark Louk's carport after the trial. The defendant
asserted that these items incriminated Louk and supported his
claim that Louk had lied when he testified against the
defendant. The trial court denied his motion for a new trial
finding that the defendant had not exercised due diligence in
discovering the evidence.
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A new trial based on after-discovered evidence may be
granted under the limited circumstances where the defendant
shows that the evidence (1) was discovered after trial, (2)
could not have been secured for trial with the exercise of due
diligence, (3) is not merely cumulative, corroborative or
collateral, and (4) is material, and such is likely to produce a
different result at another trial. See Odum v. Commonwealth,
225 Va. 123, 130, 301 S.E.2d 145, 149 (1983).
Two days before trial, the defense counsel received an
anonymous tip that evidence from the break-in would be found in
Louk's carport. The defendant's counsel called the
Commonwealth's attorney for help, but the Commonwealth advised
him that the tip did not present sufficient probable cause to
obtain a search warrant. The police did contact Louk, and he
consented to a search of his house. They found nothing. Less
than a week after the trial, Louk informed the police that he
discovered a small package in his carport containing a vending
machine key from the District Home and silver coins similar to
those taken from the Home. Also, the bag contained what
appeared to be drugs and a hand-written note incriminating Louk.
Defense counsel did not inform the trial court about the
tip, nor of his request that the Commonwealth conduct a search.
At trial he did not request a continuance to investigate further
and did not question Louk about his suspicions during his
cross-examination. The trial court noted that the evidence was
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placed in Louk's carport sometime between trial and its
discovery.
We find no error in denying the first motion for a new
trial. The defendant did not bring the information to the
attention of the trial court when it first developed and did
nothing to investigate it except to ask the Commonwealth for
assistance. The evidence did not refute the evidence of the
guilt produced at trial. While the defendant claims it points
to Louk as the burglar, that conclusion is tenuous because Louk
himself discovered the packet. If Louk were the guilty party,
he would not have turned over to the police evidence that
incriminated him of the break-in as well as of drug offenses.
The granting of a new trial based on after-discovered evidence
is within the sound discretion of the trial court. See Yeager
v. Commonwealth, 16 Va. App. 761, 767, 433 S.E.2d 248, 251
(1993). The motion must be supported with "facts showing the
lack of knowledge of such evidence, the efforts made to obtain
it, and why those efforts failed." Mundy v. Commonwealth, 11
Va. App. 461, 483, 390 S.E.2d 525, 537 (1990) (en banc)
(citations omitted), cert. denied, 502 U.S. 840 (1991).
The defendant founded his second motion for a new trial on
a third-party confession. He presented the affidavit of Charles
Argenbright that claimed Chad Miller and he committed the
crimes. However, the affidavit varied from a letter Argenbright
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wrote a few days earlier. The trial court found that the two
versions were inconsistent about Argenbright's involvement, that
no evidence corroborated his involvement in the crimes for which
the defendant was convicted, and that the physical evidence of
the entry contradicted his story. The court noted that the new
evidence did not contradict or repudiate the evidence of the
defendant's guilt and the second theory could not be reconciled
with the defendant's first theory that Louk committed the
break-in.
The defendant relies on Hines v. Commonwealth, 136 Va. 728,
117 S.E. 843 (1923), in which the Court granted a new trial
based upon a third-party confession. In Hines, however, the
confession was made to numerous people, was always consistent,
and was supported by other corroborative evidence of its
validity. Hines is distinguishable from the case before us.
The defendant did not meet his burden of proving that the
third-party confession would likely produce a different result.
The trial court did not abuse its discretion in refusing to
grant the second motion for a new trial.
The defendant also filed a motion to suspend execution of
the sentence. The trial court did not grant the motion but
advised that it would continue the motion under advisement. The
trial court did not rule further and did not stay its order,
thereby intentionally permitting its jurisdiction to expire
under Rule 1:1. The defendant characterizes the trial court's
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failure to act as an abuse of discretion. He also objects that
it failed to sign his written statement of facts and argues that
the record is incomplete.
The trial court did not err in its handling of the various
post-trial motions. It did not grant the motions, but it kept
the matters under advisement for the remaining time it retained
jurisdiction. That action would have permitted the trial court
to rule in the defendant's favor until the very last moment.
The action was beneficial to the defendant rather than harmful.
In addition, the record does not reflect that the defendant
objected to the trial court's action. Accordingly, Rule 5A:18
bars our consideration of this issue on appeal. See Buck v.
Jordan, 256 Va. 535, 545, 508 S.E.2d 880, 885-86 (1998) (without
an objection, a party does not preserve for appeal the court's
refusal to rule on a motion).
The trial court is not obligated under Rule 5A:8 to sign
the defendant's written statement of facts where the record is
complete on its own. The trial court noted that the record was
complete and explained on the record what transpired on January
8, 1999 when the defendant met in the chambers with the
Commonwealth's attorney and the judge. We find no abuse of
discretion in the trial court's refusal to sign the defendant's
written statement of facts in lieu of transcript when the record
is complete without it.
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For the foregoing reasons, we affirm the convictions.
Affirmed.
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