Euphrates Earl Bean v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, AtLee and Raphael
EUPHRATES EARL BEAN
MEMORANDUM OPINION*
v. Record No. 0307-22-1 PER CURIAM
DECEMBER 13, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerrauld C. Jones, Judge
(Kristin Paulding; 7 Cities Law, on brief), for appellant. Appellant
submitting on brief.
(Jason S. Miyares, Attorney General; Matthew J. Beyrau, Assistant
Attorney General, on brief), for appellee.
Following a bench trial, the City of Norfolk Circuit Court convicted Euphrates Earl Bean of
two counts of aggravated malicious wounding, in violation of Code § 18.2-51.2, and two counts of
use of a firearm in the commission of felony, in violation of Code § 18.2-53.1. Bean asserts on
appeal that the evidence was insufficient to support the convictions. After examining the briefs and
record in this case, the panel unanimously holds that oral argument is unnecessary because “the
appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). Bean failed to timely
file a transcript, or statement of facts in lieu of a transcript, necessary to the appeal pursuant to
Rule 5A:8. As a result, we cannot reach his assignments of error and affirm his convictions.
BACKGROUND
Following an altercation that occurred in the city of Norfolk on August 29, 2019, Norfolk
Police Detective T. Ostulano obtained criminal warrants charging Bean with two counts of
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
malicious wounding and two counts of use of a firearm in the commission of a felony.
Ostulano’s accompanying criminal complaint asserted:
On 08/29/19 at 2101 hours, the Norfolk Police Department, along
with Norfolk Fire & Rescue, responded to the 2900 block of
Pershing Avenue for a shooting in progress. Upon arrival,
emergency personnel located Euphrates Bean, Jedidiah Patterson,
and Brian Thigpen suffering from gunshot wounds. Three separate
medic units transported all the gunshot victims to Sentara Norfolk
General Hospital. Witnesses stated that Euphrates Bean came out
of 3240 Lyons Ave. Apt B to confront the victims for being too
loud. He began taking pictures of the license plate of a car
belonging to one of the victims. A verbal altercation ensued
between them and the argument escalated when Bean pulled out a
hand gun and began shooting at the victims. Bean shot himself in
the leg in the process. Victims were not armed at the time of the
incident.
Thereafter, a Norfolk grand jury issued indictments for each offense.1
Following a bench trial, the circuit court convicted Bean of two counts of aggravated
malicious wounding and two counts of use of a firearm in the commission of a felony. By final
order dated December 9, 2021, the circuit court sentenced Bean to 48 years in prison, with 30
years suspended. Bean’s attorney filed a notice of appeal on December 20, 2021. The notice of
appeal indicated that Bean would pursue his appeal pro se and stated that Bean had not yet
ordered the transcript from the court reporter who reported the case. On March 10, 2022, the
Norfolk Circuit Court transmitted the record to this Court. The trial and sentencing transcripts
were not included in that transmission.
ANALYSIS
On appeal, Bean asserts that the circuit court erred in finding the evidence sufficient to
prove he committed aggravated malicious wounding because the Commonwealth’s evidence
1
The Commonwealth added indictments for aggravated malicious wounding, and later
the circuit court granted a motion for nolle prosequi and dismissed the indictments for malicious
wounding.
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failed to show that he acted with the requisite malice. He also asserts that the evidence failed to
support the convictions for the firearm offenses because he did not commit the underlying
felonies. We do not reach the merits of Bean’s contentions, however, because he failed to file a
transcript, or written statements of facts in lieu of a transcript, necessary for our review.
“The transcript of any proceeding is a part of the record when it is filed in the office of
the clerk of the trial court no later than 60 days after entry of the final judgment.” Rule 5A:8(a).
“When the appellant fails to ensure that the record contains transcripts or a written statement of
facts necessary to permit resolution of appellate issues, any assignments of error affected by such
omission will not be considered.” Rule 5A:8(b)(4)(ii). Indeed, if “the transcript [or statement of
facts] is indispensable to the determination of the case, then the requirements for making the
transcript [or statement of facts] a part of the record on appeal must be strictly adhered to.” Bay
v. Commonwealth, 60 Va. App. 520, 528 (2012) (alterations in original) (quoting Turner v.
Commonwealth, 2 Va. App. 96, 99 (1986)). “This Court has no authority to make exceptions to
the filing requirements set out in the Rules.” Shiembob v. Shiembob, 55 Va. App. 234, 246
(2009) (quoting Turner, 2 Va. App. at 99).
Bean filed the transcripts in the circuit court on April 4, 2022, more than 60 days after
entry of the final judgment on December 9, 2021. Notably, Bean did not file a motion for
extension of time in which to file the transcripts. See Rule 5A:8(a). Thus, the transcripts were
neither timely filed in the circuit court, nor included in the record. Because Bean challenges the
sufficiency of the evidence supporting his convictions, a transcript of the proceedings is required
for our evaluation of that evidence. Without a transcript or written statement of facts, we are
unable to address Bean’s contentions. Therefore, we conclude that timely-filed transcripts, or a
written statement of facts in lieu of a transcript, are indispensable to a determination of the
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assignments of error presented in Bean’s appeal. See Smith v. Commonwealth, 32 Va. App. 766,
772 (2000); Turner, 2 Va. App. at 99-100.
Because Bean failed to ensure that the record contained a timely-filed transcript, or
written statement of facts in lieu of a transcript, we are unable to resolve the assignments of
error. Rule 5A:8(b)(4)(ii). Consequently, we affirm the convictions.
CONCLUSION
For the foregoing reason, the circuit court’s judgment is affirmed.
Affirmed.
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