Marcus Anthony Jones v. Commonwealth of Virginia ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Coleman
Argued at Richmond, Virginia
MARCUS ANTHONY JONES
MEMORANDUM OPINION* BY
v. Record No. 3288-02-2 JUDGE LARRY G. ELDER
MARCH 2, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
F. Ward Harkrader, Jr., Judge
Andrea S. Lantz, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
Marcus Anthony Jones (appellant) appeals from his bench trial conviction for obstructing
justice in violation of Code § 18.2-460(C), a Class 5 felony. On appeal, he contends the
evidence was insufficient to prove either a threat of bodily harm or force or an intent to
intimidate. We hold the evidence, viewed in the light most favorable to the Commonwealth,
proved both challenged elements of the offense beyond a reasonable doubt. Thus, we affirm.
On appeal from a criminal conviction, we view the evidence and all reasonable inferences
therefrom in the light most favorable to the Commonwealth. Polk v. Commonwealth, 4 Va. App.
590, 595, 358 S.E.2d 770, 773 (1987). On issues of witness credibility, we defer to the
conclusions of “the fact finder[,] who has the opportunity of seeing and hearing the witnesses.”
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985). On appeal, we
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
may reverse the trial court’s findings of fact only if they are plainly wrong or without evidence to
support them. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Code § 18.2-460(C) provides in relevant part as follows:
If any person by threats of bodily harm or force knowingly
attempts to intimidate or impede a . . . witness[] or any
law-enforcement officer, lawfully engaged in the discharge of his
duty, or to obstruct or impede the administration of justice in any
court . . . relating to the violation of . . . any violent felony offense
listed in subsection C of § 17.1-805, [which includes malicious
wounding as proscribed in Code § 18.2-51,] he shall be guilty of a
Class 5 felony.
Words alone can constitute a violation of the statute. Polk, 4 Va. App. at 594, 358 S.E.2d
at 772. “[I]t is the threats made by the offender, coupled with his intent, that constitute the
offense.” Id. at 593-94, 358 S.E.2d at 772. Although the “effect of the offender’s threats . . . is
not an element of the crime defined in [the statute],” id., in appropriate circumstances, the effect
of a defendant’s actions on the alleged victim may be relevant to the issue of whether the actions
constituted a threat of bodily harm or force.
Intent, like any element of a crime, may, and usually must, be proved by circumstantial
evidence, see Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), such
as a person’s conduct and statements, see Polk, 4 Va. App. at 595, 358 S.E.2d at 773.
“Circumstantial evidence is as competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every reasonable hypothesis except that of
guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). “[T]he
Commonwealth need only exclude reasonable hypotheses of innocence that flow from the
evidence, not those that spring from the imagination of the defendant.” Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
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Here, appellant, found by the trial court to be “a physically imposing young man,”
approached Officer Underwood in an angry, confrontational manner, and reminded Underwood
he previously had arrested appellant for malicious wounding. Two of appellant’s friends stood
within three feet of appellant during most of the encounter. Appellant told Officer Underwood,
“[Y]ou better fix [the malicious wounding] charge, this is motherfucking bullshit, and I’m not
going out like that.” Appellant said “his attorney had advised him . . . he was facing five to ten
years” and “that he needed to plea[d] [guilty].” Appellant “[a]gain . . . stated that [the charge]
was bullshit” and said it should have been “written up in some other way” because “he didn’t
really hurt [the victim].” Appellant mentioned a mutual friend and said he “was going to talk to
[Officer Underwood] about taking care of the charges.”
Appellant stood within arm’s length of Officer Underwood on at least two occasions
during the confrontation, causing Underwood to move backward to preserve his “safety space.”
Appellant’s demeanor was such that customers nearby began to move away and Officer
Underwood feared for both his own safety and the safety of family members who had
accompanied him to the store that day. Although appellant never made a fist and never uttered
any specific threats against Underwood or his family, appellant was loud and confrontational and
kept repeating that Underwood “better” fix or “need[ed] to fix this charge.” Implicit in
appellant’s statements was that Officer Underwood had “better” “fix this charge [or else].”
Underwood, fearing appellant was “going to assault [him]” or engage in “some sort of physical
altercation,” put his hand on the weapon beneath his shirt, adopted “[his] basic fighting stance,”
and told appellant “this was not the place to discuss this.” Only then did appellant end the
encounter and leave the store.
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This evidence, viewed in the light most favorable to the Commonwealth, was sufficient
to prove both that appellant’s actions constituted a “threat of bodily harm or force” and that he
acted with the requisite intent to intimidate Officer Underwood. Thus, we hold the evidence was
sufficient to support appellant’s conviction, and we affirm.
Affirmed.
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Coleman, J., dissenting.
In my opinion the evidence is not sufficient to prove the essential element that Jones, either
by words or actions, threatened Officer Underwood with 1) bodily harm or 2) force. Accordingly, I
respectfully dissent from the majority opinion.
Without question, the fact that Jones approached Officer Underwood in a public setting
inside a retail store while Underwood was accompanied by family members and Jones verbally
abusing the officer with loud, vulgar, and inappropriate language concerning the officer’s arrest of
Jones was offensive and unacceptable behavior. However, I fail to find any evidence that Jones
threatened Underwood with bodily harm or force. The most that can be said as I read the record and
the majority’s account of what occurred is that Jones, a physically imposing man, stood within an
arm’s length of Underwood during his verbally abusive tirade and as Underwood would step back
Jones would step forward to maintain the arm’s length distance between them. Jones made no
threatening gestures or overtures toward Underwood and did not verbally threaten him with any
type of bodily harm or with force. I fail to see that maintaining an arm’s length distance, even when
accompanied by abusive, vulgar language, without more, threatens to do bodily harm or force.
No doubt, Jones expressed extreme displeasure with the fact that he had been charged with
malicious wounding and made clear that he wanted or expected Officer Underwood to take some
action to intervene. However, Jones made no verbal threat or gestures of bodily harm to
Underwood. To the extent that Jones’ comment “you better fix this” or “you need to fix this” could
be construed, as the majority aptly points out, that he implicitly said “or else,” in no way did those
words or his actions imply “or else I will physically harm you or use force against you.” The “or
else” just as reasonably implied “or else, I will suffer the expense and inconvenience of defending
myself,” “or else, I may go to jail,” “or else, I will complain to your superior,” “or else, I will sue
you,” etc., etc., etc. Furthermore, the fact that patrons moved from the area in which Jones was
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being loud, abusive and vulgar in no way proves that Jones threatened Underwood with bodily harm
or force.
For the foregoing reasons, I disagree with the majority opinion. I would reverse the
conviction and dismiss the charge.
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