McQuinn v. Commonwealth , 19 Va. App. 418 ( 1994 )

Opinion

BARROW, J.

In this criminal appeal, we conclude that the evidence was sufficient to support the defendant’s convictions for conspiracy to commit robbery and attempted robbery. Furthermore, because of a recent legislative change, we are not barred from considering the defendant’s challenge to the sufficiency of the evidence. Although the defendant did not move to strike the prosecution’s evidence at the conclusion of his own evidence, he did make such a motion at the conclusion of the prosecution’s evidence.

Preservation of the Issue on Appeal

The Commonwealth argues that we are barred from addressing the sufficiency of the evidence in this case because the defendant failed to renew his motion to strike the evidence at the conclusion of his own evidence. However, the defendant’s motion at the conclusion of the Commonwealth’s evidence was sufficient to preserve the question for review on appeal. Several of our prior decisions have addressed the question of the necessity of renewing a motion to strike after having made such a motion at the conclusion of the Commonwealth’s evidence. See Day v. Commonwealth, 12 Va. App. 1078, 1079-81, 407 S.E.2d 52, 53-55 (1991); Campbell v. Commonwealth, 12 Va. App. 476, 480-81, 405 S.E.2d 1, 2-3 (1991); White v. Commonwealth, 3 Va. App. 231, 233, 348 S.E.2d 866, 867 (1986). A 1992 amendment to Code § 8.01-384 makes clear, however, that an objection need not be repeated in order to preserve an issue for appeal. A party is not required to “make [an] objection or motion again in order to preserve his right to appeal ... a ruling” after having previously made such a motion “known to the court.” Code § 8.01-384.

The General Assembly described its 1992 amendment as “declaratory of existing law.” Acts of Mar. 30, 1992, ch. 564, Va. Acts 725. This declaration highlights the language already contained in Code § 8.01-384, providing that “it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action he desires the court to take or his objections to the action of the court.” Code § 8.01-384. Thus, the legislature had already declared that which it found necessary to repeat in 1992, and it was, therefore, declaring “existing law.”

One of our decisions may have generated the need for General Assembly action to redeclare the law on this subject. In White v. Commonwealth, 3 Va. App. 231, 348 S.E.2d 866 (1986), a panel of our Court found “no Virginia authority which directly addresses this issue.” Id. at 233, 348 S.E.2d at 867. The panel’s opinion did not consider Code § 8.01-384. Instead, it relied on the law of three other states and language in Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1948), which predated the enactment of Code § 8.01-384, and held that the failure to renew a motion to strike after presentation of evidence by the defendant barred raising the issue of sufficiency on appeal. White, 3 Va. App. at 234, 348 S.E.2d at 868. A later, concurring opinion identified the conflict between White and Code § 8.01-384 and the inability of a panel to correct the problem because of the rule of stare decisis. Day v. Commonwealth, 12 Va. App. 1078, 1080-82, 407 S.E.2d 52, 54-55 (1991) (Barrow, J., concurring). The General Assembly chose to resolve the conflict by redeclaring the existing law in its 1992 amendment.

It is impossible to read the language of the amendment otherwise. The amendment does not redeclare the law as expressed in White because the language of the amendment is contrary to the rule in White. The amendment redeclares the law as the legislature had stated it in Code § 8.01-384, which was enacted before the White decision.

Furthermore, the amendment recognizes that the purpose of the contemporaneous objection requirement is satisfied once the trial court has addressed the objection and the grounds therefor. Campbell, 12 Va. App. at 480, 405 S.E.2d at 2. The issue of the sufficiency of the evidence, once raised by a motion to strike made at the conclusion of the prosecution’s evidence, remains the same after the presentation of the defendant’s evidence, unless the defendant contends his or her evidence renders the prosecution’s evidence insufficient as a matter of law. The issue remains the same because in both instances the court is required to view the evidence in the light most favorable to the prosecution. Therefore, if the defendant’s evidence does no more than conflict with the prosecution’s evidence and does not render it insufficient as a matter of law, the question of sufficiency does not change following presentation of the defendant’s evidence. In such an instance, reconsideration of a motion to strike the evidence, once denied, is unnecessary.

However, if the defendant contends that his or her evidence renders the prosecution’s evidence insufficient, such as when it establishes, as a matter of law, an affirmative defense or the incredibility of the prosecution’s evidence, the issue of sufficiency raised after the defendant’s evidence differs from that which existed at the close of the prosecution’s evidence. This new issue is not preserved for appeal because the issue was not raised at the close of the prosecution’s case. A motion to strike, therefore, dependent upon favorable consideration of the defendant’s evidence, raises a different issue that cannot be preserved by an earlier motion which fails to raise that issue.

Of course, the contrary may occur. The defendant’s evidence may supply a missing element which, although not recognized by the trial court, was absent when the motion to strike was made at the conclusion of the prosecution’s case. A defendant’s evidence may, in this way, strengthen a prosecution’s case. Therefore, where a defendant introduces evidence that strengthens the prosecution’s case, we “consider the entire record in reaching” our conclusion. Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1948).

In summary, on appeal, the contemporaneous objection rule prevents our review of an issue of the sufficiency of the evidence only when the issue has not been preserved by prior presentation to the trial court. If the issue on appeal is identical to that presented to the trial court at the conclusion of the prosecution’s evidence, we are not barred from considering it. We will, however, in deciding the question, consider any evidence presented later by the defendant if it tends to support the prosecution’s case. If, however, the issue raised on appeal requires us to consider evidence favorable to the defendant and presented to the trial court after the motion to strike has been made at the conclusion of the Commonwealth’s case, the issue on appeal necessarily differs from that presented to the trial court. In that case, we are barred from considering the issue, unless the defendant renewed the motion at the conclusion of his or her case and asserts the new basis for it.

Merits

The defendant’s convictions arose out of his alleged participation in a homicide. On the day of the killing, a man named Okele had argued with the victim, had accused him of selling fake drugs, and had threatened the victim saying, “I’m going to get my money one way or the other.” Later that day, an eyewitness saw Okele, the defendant, and another companion shoot at the victim. The victim struggled with Okele, broke free, and ran. Okele shot at him. The defendant then grabbed the gun and shot once at the victim. Finally, the other companion took the gun, shot twice, and the victim fell. He died from a single gunshot wound to his head.

The victim’s father testified that the night following the homicide an eyewitness told him that “three guys either walked up to my son and demanded money or something.” The court overruled the defendant’s objection that this evidence was hearsay and admitted the statement. Neither this witness, nor any other witness, testified directly that the defendant or either of his companions said anything to the victim, or that they took anything from the victim.

Consideration of the Hearsay Statement

The defendant did not appeal the trial court’s ruling on the admissibility of the witness’s statement to the victim’s father. Therefore, we will not consider its admissibility in this appeal. See Patty v. Commonwealth, 218 Va. 150, 159, 235 S.E.2d 437, 442 (1977), cert. denied, 434 U.S. 1010 (1978); see also Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). To do so would require us to rule on the issue without the benefit of briefs and argument and would deprive the parties of an opportunity to be heard on the question. Therefore, we cannot disregard this evidence in determining the sufficiency of the evidence to support the verdict. See Patty, 218 Va. at 159, 235 S.E.2d at 442. If we were to do so, we would effectively rule on an issue not properly before us.

Further, had the question of the admissibility of the evidence been raised and we held it inadmissible, we would reverse for a new trial, permitting the prosecution an opportunity upon retrial to introduce other available evidence, if any, relating to the issue. However, if we now exclude it from our consideration and find the evidence insufficient, we deprive the prosecution an opportunity to present other available evidence and, thus, reward the defendant for not raising the issue on appeal. See State v. Needham, 71 S.E.2d 29, 38 (N.C. 1952); Lang v. State, 412 S.E.2d 866, 868 (Ga. Ct. App. 1991). Therefore, in determining the sufficiency of the evidence, we include in our consideration the evidence of the witness’s statement to the father.

Sufficiency of the Evidence

We must decide if the evidence permitted the jury to infer that the defendant and his companions conspired and attempted to rob the victim. The witness’s statement is the only evidence which explains the encounter between the defendant, his companions, and the victim. Thus, if the jury could have inferred from the statement, beyond a reasonable doubt, that the defendant and his companions attempted to take, with intent to steal, the personal property of the victim, the evidence was sufficient to convict the defendant of attempted robbery and of conspiracy to rob the victim. See Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196 (1992).

Although the statement, “three guys either . . . demanded money or something,” was ambiguous regarding what was demanded, this statement did not stand alone. The jury also considered evidence that earlier in the day, the defendant’s companion, Okele, had confronted the victim, accused him of selling fake drugs, and told him that he would get his money “one way or another.” If an inference supporting guilt is “no more likely to arise from a proven fact than one favoring innocence, the inference of guilt is impermissible.” Morton v. Commonwealth, 13 Va. App. 6, 11, 408 S.E.2d 583, 586 (1991). However, if “other evidence also tends to prove the element of the crime, . . . the probative weight of the inferred fact need be no greater than that required of any other evidence.” Id. at 9-10, 408 S.E.2d at 584-85; see also United States v. Childs, 463 F.2d 390, 392 (4th Cir.), cert. denied, 409 U.S. 966 (1972). Thus, the witness’s statement to the victim’s father, combined with Okele’s earlier threat to the victim, was sufficient to support a finding that the defendant, Okele, and the other companion attempted to take personal property from the victim. Such evidence, coupled with the evidence of force, was sufficient to support the conviction of attempted robbery.

Furthermore, Okele’s threat also permitted the jury to infer that a conspiracy existed. The short time between the threat and the confrontation between the defendant, his companions, and the victim permitted the jury to infer that Okele had communicated with the defendant and the other companion and that they had agreed to attempt to retrieve Okele’s money from the victim by force. Moreover, each of the three men took the gun and shot at the victim, indicating that all three had a stake in the activity. To prove the existence of a conspiracy, the Commonwealth need not show a formal agreement; a conspiracy may be inferred from the overt actions of the parties, and “a common purpose and plan may be inferred from a ‘development and collocation of circumstances.’ ” Floyd v. Commonwealth, 219 Va. 575, 581, 249 S.E.2d 171, 175 (1978) (quoting United States v. Godel, 361 F.2d 21, 23 (4th Cir.), cert. denied, 385 U.S. 838 (1966)).

In conclusion, the evidence was sufficient to support the convictions because evidence that the defendant, Okele, and another companion “demanded money or something,” when considered with the further evidence that earlier in the day, Okele had threatened to get his money back from the victim, permitted the jury reasonably to infer that the demand was for money. Furthermore, the defendant’s motion to strike preserved this issue for appeal, even though he did not specifically renew the motion at the conclusion of his own evidence. In evaluating this question we consider the entire record, including evidence to which the defendant objected but did not raise on appeal. The judgments of conviction are affirmed.

Affirmed.