Derek McDaniel v. Commonwealth of Virginia ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia
DEREK McDANIEL
MEMORANDUM OPINION * BY
v. Record No. 3317-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 17, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.
Derek McDaniel (appellant) was convicted in a jury trial of
possession of a firearm by a convicted felon in violation of Code
§ 18.2-308.2. 1 On appeal, he contends that the trial court erred
in (1) finding the evidence sufficient to prove the gun introduced
into evidence at trial was the same gun appellant possessed on
July 25, 1999; (2) allowing evidence of other crimes; and (3)
finding the evidence sufficient to establish he possessed a
firearm on July 25, 1999. Finding no error, we affirm.
I.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant was also indicted for abduction in violation of
Code § 18.2-47, use of a firearm in the commission of a felony
in violation of Code § 18.2-53.1 and domestic assault in
violation of Code § 18.2-57.2(B) as a result of the July 25,
1999 series of events. Those charges were severed and later
dismissed.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
On July 25, 1999, Eugene Sizer was driving behind appellant
and appellant's girlfriend, Ronnette Watkins. He saw the two get
out of the car and appear to have a "misunderstanding." Sizer
separated them, and appellant got in the passenger seat of Sizer's
car. Appellant directed Sizer to drive to a nearby parking lot
where he "reached into a pocket, [and] took out a small, little
handgun." Sizer said it "startled" him and that it happened "real
fast, within a course of maybe a minute to two minutes." Sizer, a
convicted felon, did not want to be near the gun and asked
appellant to leave the car and take the gun with him.
Sizer had been in the military and was familiar with guns.
He described appellant's gun as "a small handgun, maybe a .25 or
.32 automatic, similar to a nickel plated, like a little small gun
you could almost fit in your hand." It was shiny, and the clip
"came in from the bottom." At trial, Sizer was asked if he
recognized the gun previously identified as Commonwealth's Exhibit
2 and he said, "Yes, I do. . . . That's the same gun that was on
the floorboard of my car. . . . The little, small, nickel plated
type handgun that could fit almost in the palm of your hand."
Sizer further stated, "I can swear that it looks exactly like the
weapon that I - - that [appellant] took out of my car."
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At approximately 11:15 p.m. on October 15, 1999, appellant
appeared at Gwendolyn Hogan's home. Hogan said he
looked like he had been in a scuffle. He
was out of breath and he was hot. He wanted
to lie down. So he laid down across my
kitchen floor. He was burning up. I put a
cold rag on his chest, an ice pack on his
head. I asked him what was wrong. He
explained that someone was after him. I
told him just to lay there and I was trying
to bring his body temperature down. He was
sick. He threw up on my floor. He laid
there probably about two and a half hours.
. . . [H]e gave me a firearm and asked me
to put it away where no one could find it
and that's what I did. . . . About 12:30 he
got up and made a couple of phone calls. At
about 1:00 o'clock he left my house. About
1:07 I had numerous officers beating down my
front door.
Hogan described the gun as "a hand held gun, about that big
(indicating), black and silver." Hogan than led officers to the
location of the weapon appellant had given her, and the officers
took possession of it. When asked if Commonwealth's Exhibit 2 was
the weapon, Hogan said, "That looks like the weapon. I can't be a
hundred percent certain because I really didn't stare at the
thing, but, yes, it's black and silver just like I described."
Fairfax County police officers, Steve Depue and James Call,
retrieved the gun from Hogan's bedroom. At trial, Depue testified
that Commonwealth's Exhibit 2 was the gun he retrieved from Hogan
and that it was in substantially the same condition as the night
he took it from Hogan. The parties stipulated that Commonwealth's
Exhibit 2 was a firearm. No fingerprints were recovered from the
weapon.
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Appellant testified and denied that he possessed a gun on
July 25, 1999 or on October 15, 1999. He also stated he was not
in Hogan's home after 7:00 p.m. on October 15, 1999.
A jury found appellant guilty of possession of a firearm by a
convicted felon for the incident on July 25, 1999. He was
sentenced to four years and six months in the penitentiary. From
that decision, he appeals.
II.
Appellant first contends that the firearm recovered from
Hogan's home was not sufficiently identified as the gun he
allegedly possessed on July 25, 1999. This argument is without
merit.
"The credibility of witnesses, the weight accorded testimony,
and the inferences to be drawn from proven facts are matters
solely within the province of the fact finder." Carter v.
Commonwealth, 38 Va. App. 116, 119, 562 S.E.2d 331, 332 (2002)
(citing Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473,
476 (1989)).
Sizer described in detail the gun appellant possessed while a
passenger in his car on July 25, 1999. He identified
Commonwealth's Exhibit 2, the gun taken from Hogan's home, as "the
same gun that was on the floorboard of my car. . . . The little,
small, nickel plated type handgun that could fit almost in the
palm of your hand. . . . I can swear that it looks exactly like
the weapon . . . [appellant] took out of my car." This testimony
is sufficient if believed by the fact finder to prove that
appellant was in possession of a weapon on July 25, 1999.
Additionally, Commonwealth's Exhibit 2 was identified by
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Hogan as having been left by appellant at her home. The police
retrieved the same gun from Hogan. Appellant makes no claim of
error in the chain of custody of the exhibit. Rather, he argues
only its relevancy because it lacked "unique characteristics."
Appellant relies on Washington v. Commonwealth, 228 Va. 535,
323 S.E.2d 577 (1984), to preclude the admission of the gun. He
contends that, since the gun admitted into evidence does not have
unique characteristics, the trial court erred in finding the
authenticity of the gun was proved. We disagree. The Supreme
Court in Whaley v. Commonwealth noted that:
If the offered item possesses the
characteristics which are fairly unique and
readily identifiable, and if the substance
of which the item is composed is relatively
impervious to change, the trial court is
viewed as having broad discretion to admit
merely on the basis of testimony that the
item is the one in question . . . .
214 Va. 353, 357, 200 S.E.2d 556, 559 (1973) (quoting McCormick,
Handbook of the Law of Evidence, Demonstrative Evidence, § 212, at
527 (2d ed. 1972)).
In Washington, the defendant identified a shirt to be
admitted into evidence in the same manner that Sizer identified
Commonwealth's Exhibit 2 as the gun appellant possessed on July
25, 1999. This evidence was both relevant and corroborative of
Sizer's earlier description of appellant's gun. Washington, 228
Va. at 550-51, 323 S.E.2d at 587-88. Thus, there was no error in
the admission of this evidence.
III.
Appellant next argues that Commonwealth's Exhibit 2 and the
testimony about its recovery was "other crimes" evidence, and
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should have been excluded. He argues that the evidence
"implicated [appellant] in a second crime, possession of a
firearm on October 15-16[, 1999] while he is being tried for
possession of a firearm on July 25[, 1999]." We disagree.
The general rule excluding evidence of
"other crimes" extends only to crimes which
are unrelated to those on trial, and which
are offered solely for the purpose of
showing that the accused was a person of
such character as to be a likely perpetrator
of the offense charged. If the evidence of
other conduct is connected with the present
offense, or tends to prove any element or
fact in issue at trial, it should be
admitted, whether or not it tends to show
the defendant guilty of another crime.
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Parnell v. Commonwealth, 15 Va. App. 342, 348, 423 S.E.2d 834,
838 (1992).
Admission of evidence under these
exceptions, however, is subject to the
further requirement that the legitimate
probative value of the evidence must exceed
the incidental prejudice caused the
defendant. Further, the admission of such
"other crimes" evidence is prohibited when
its only purpose is to show that the
defendant has a propensity to commit crimes
or a particular type of crime and,
therefore, probably committed the offense
for which he is being tried.
Guill v. Commonwealth, 255 Va. 134, 139, 495 S.E.2d 489, 491-92
(1998) (internal citations omitted). "The responsibility for
balancing the competing considerations of probative value and
prejudice rests in the sound discretion of the trial court. The
exercise of that discretion will not be disturbed on appeal in
the absence of a clear abuse." Hewston v. Commonwealth, 18
Va. App. 409, 414, 444 S.E.2d 267, 269 (1994) (internal citation
and quotation omitted).
"One of the issues upon which 'other crimes' evidence may
be admitted is that of the perpetrator's identity, or criminal
agency, where that has been disputed." Id. at 412, 444 S.E.2d
at 268. "Evidence of 'other crimes' is relevant and admissible
if it tends to prove any element of the offense charged," Guill,
225 Va. at 138, 495 S.E.2d at 491, "or if the evidence is
connected with . . . the offense for which the accused is on
trial." Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d
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377, 381 (1988), cert. denied, 490 U.S. 1009 (1989) (citation
omitted).
Initially, we note that the trial court substantially
limited the nature of the police officers' testimony about the
recovery of the gun and also gave both a cautionary instruction
and later instructed the jury limiting the use of this evidence. 2
The trial court cautioned the jury, both in the charge to the
jury and in written jury instructions that "[y]ou may consider
evidence that the Defendant may have committed an offense other
than the offense for which he is on trial only in connection
with the offense for which he is on trial and for no other
purpose" and "[e]vidence that the defendant may have committed a
similar crime at a later date is not proof that he possessed a
weapon on July 25, 1999." The jury is presumed to follow the
trial court's instructions. See Burley v. Commonwealth, 29
Va. App. 140, 147, 510 S.E.2d 265, 269 (1999).
We find our earlier analysis in Bullock v. Commonwealth, 27
Va. App. 255, 498 S.E.2d 433 (1998), to be applicable to the
instant case. In Bullock, we held that evidence of an earlier
robbery using the same gun at issue was admissible in a later
trial. The victim in the first robbery testified that the
shotgun recovered by the police "look[ed] identical" and it was
2
While appellant objects to the wording of the cautionary
instruction on brief, he both requested it and agreed to the
language used by the trial court and is barred from now raising
it on appeal. See Rule 5A:18.
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admitted as evidence to establish that the weapon was used
during the first robbery.
Here, Sizer identified the seized weapon, Commonwealth's
Exhibit 2, as "the same gun" appellant possessed on July 25,
1999. The requisite "logical . . . connection between"
appellant's subsequent possession of the weapon and the crime
charged was highly probative and, with the limiting
instructions, outweighed any incidental prejudice. See id. at
261, 498 S.E.2d at 436. Thus, we find no abuse of discretion in
the trial court's admission of this evidence.
IV.
Lastly, appellant contends that Sizer's testimony was
insufficient to prove appellant possessed a firearm on July 25,
1999. We disagree.
"The credibility of witnesses, the weight accorded
testimony, and the inferences to be drawn from proven facts are
matters solely within the province of the fact finder." Carter,
38 Va. App. at 119, 562 S.E.2d at 332 (citation omitted).
"[W]e must discard the evidence of the accused in conflict
with that of the Commonwealth, and regard as true all credible
evidence favorable to the Commonwealth and all fair inferences
that may be drawn therefrom." Watkins v. Commonwealth, 26
Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).
The fact finder believed Sizer and disbelieved appellant's
version of events. Sizer identified Commonwealth's Exhibit 2 as
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the gun appellant, a convicted felon, possessed in his car on
July 25, 1999. Credible evidence supports the jury's verdict in
this case.
For the foregoing reasons, the decision of the trial court
is affirmed.
Affirmed.
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