David Martin Woodruff v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
DAVID MARTIN WOODRUFF
v. Record No. 1958-94-3 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA FEBRUARY 13, 1996
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
(Steven R. Want, on brief), for appellant.
Appellant submitting on brief.
(James S. Gilmore, III, Attorney General;
Leah A. Darron, Assistant Attorney General,
on brief), for appellee. Appellee submitting
on brief.
David Martin Woodruff (appellant) was adjudged, in a bench
trial, of having violated the conditions of a suspended sentence.
On appeal, he argues that the trial court erred in admitting
evidence of threats made against individuals other than those
named in the order suspending his sentence. Finding no error, we
affirm.
On April 28, 1994, appellant pled guilty to four counts of
destruction of property, two counts of making threatening
telephone calls, and one count of making a false report of a
crime to a law enforcement officer. The trial court sentenced
him to forty-eight months in jail, suspending forty-two months
conditioned on good behavior and on appellant having no contact
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
with Teri Borkowski (Borkowski), Kyle Mohr (Mohr), Nicole Swann,
and Lorie Ann Shelley (the victims of his crimes).
On May 9, 1994, the court issued a show cause summons for
appellant to appear and show cause why his suspended sentence
should not be reinstated. Before the show cause hearing,
appellant filed notice of his intent to rely on an incompetency
defense. At the show cause hearing on September 7, 1994,
Borkowski testified that, on May 3, 1994, she received messages
from appellant on her answering machine. The messages threatened
Borkowski and Mohr, and a recording indicated that the calls
originated from the Montgomery County Jail. Mohr testified that
he received similar messages on his answering machine. Joe
Francis testified that appellant gave him the telephone numbers
of Borkowski and Mohr, and told him to call them and make
threats.
The Commonwealth called Montgomery County Deputy Daniel
Levesque (Levesque) to testify that appellant made threatening
remarks regarding Borkowski, the Commonwealth's Attorney, and the
Assistant Commonwealth's Attorney. Appellant objected, arguing
that any threats against the Commonwealth's Attorney and the
Assistant Commonwealth's Attorney were irrelevant to the
conditions of his suspended sentences. 1 The Commonwealth argued
1
On appeal, appellant also argues that Levesque's testimony
was inadmissible evidence of other bad acts and that the
Commonwealth was required to provide advance disclosure of its
intent to present such evidence. These specific arguments were
not raised before the trial court and are barred by Rule 5A:18.
2
that the threats were admissible to counter appellant's
mitigation evidence. The trial court ruled that Levesque could
testify that appellant made threats against persons other than
Borkowski or Mohr, but that he could not identify the objects of
those threats. Appellant made no further objection.
Appellant denied making any threatening calls or asking
Francis to do so. The trial court found that appellant had
violated the conditions of his suspended sentence. The court
allowed appellant to present the testimony of a psychologist and
his father as mitigation evidence, but imposed the suspended
forty-two month sentence.
"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). Evidence of appellant's threatening remarks was
clearly relevant to prove whether he had violated the good
behavior requirement of his suspended sentence. Additionally,
"hearsay evidence, which would normally be inadmissible in a
criminal trial, may be admitted into evidence in a revocation
hearing based on the court's discretion." Davis v. Commonwealth,
12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991). Thus, the trial
court did not abuse its discretion in allowing Levesque to
testify that appellant made threats against persons other than
Borkowski and Mohr.
Accordingly, the decision of the trial court is affirmed.
3
Affirmed.
4