Alexander Michael Edwards v. Commonwealth of Virginia ( 2017 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Huff, Judges Chafin and Decker
Argued at Salem, Virginia
ALEXANDER MICHAEL EDWARDS
MEMORANDUM OPINION* BY
v. Record No. 0939-16-3 CHIEF JUDGE GLEN A. HUFF
APRIL 11, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
John T. Cook, Judge
Joshua Farmer (Farmer Legal, PLLC, on brief), for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Alexander Michael Edwards (“appellant”) appeals his convictions of two counts of
malicious wounding, in violation of Code § 18.2-51, and conspiracy to murder, in violation of
Code § 18.2-22. Following a bench trial in the Circuit Court of Campbell County (“trial court”),
appellant was sentenced to twenty-one years in prison, with fifteen years suspended on these
charges.1 On appeal, appellant contends that the trial court erred in two respects:
1. The trial court erred in denying [appellant’s] motion to strike at
the close of the Commonwealth’s evidence and in ruling that the
Commonwealth’s evidence was sufficient, as a matter of law, to
sustain convictions for malicious wounding in that the
Commonwealth failed to present evidence that [appellant] acted
with the requisite malicious intent to maim, disfigure, disable, or
kill.
2. The trial court erred in denying [appellant’s] motion to strike at
the close of the Commonwealth’s evidence and in ruling that the
Commonwealth’s evidence was sufficient, as a matter of law, to
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant’s other convictions are not at issue in this appeal.
sustain a conviction for conspiracy to commit a murder in that the
Commonwealth failed to present evidence that two or more
persons agreed to commit the crime.
For the following reasons, this Court affirms the trial court’s ruling in part and reverses in part.
I. BACKGROUND
On appeal, “we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.”
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,
the evidence is as follows.
From late November to December of 2013, appellant, who was twenty years old at the
time, was living in the same house as two girls, K.M. (twelve years old), who suffers from a
learning disability, and F.M. (eleven years old); their brother S.M. (thirteen years old); their
mother; and mother’s boyfriend, Daniel. During this time, Daniel, who worked as a tattoo artist,
was operating his business out of their home and was keeping his tattoo gun in the house.
On December 22, 2013, while appellant was home alone with S.M., K.M., and F.M.,
appellant used Daniel’s tattoo gun to tattoo F.M.’s and K.M.’s arms against their wishes.
Appellant “yanked” the girls’ arms and pulled them into the kitchen to administer the tattoos.
Despite having no experience tattooing, appellant tattooed K.M.’s name on her left shoulder and
then, without changing the needle, tattooed both of F.M.’s shoulders and one wrist with their
dog’s name, Reesee. The girls’ arms hurt while appellant applied the tattoos, and F.M. stated
that she cried throughout the incident. S.M. refused to get a tattoo from appellant and was upset
about appellant tattooing his sisters. When mother and Daniel arrived home later that day,
fighting ensued among appellant, mother, and Daniel, and ceased only after law enforcement
intervened.
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K.M. and F.M. later testified that even though they did not want the tattoos, they had not
left the kitchen because they were afraid of appellant and felt helpless against him. When they
tried to resist and told appellant they did not want tattoos, appellant stated that “if he didn’t do it,
then he would do something,” which F.M. understood to mean that he would hurt them. F.M.
had witnessed appellant fight S.M. and had seen appellant punch a wall and a door when he
became angry. K.M. had witnessed appellant hit S.M. with a belt and hold him down in the
grass outside their house. Appellant had also sexually assaulted K.M. on numerous occasions
while he was living with them.
In January 2014, one of K.M.’s school resource officers contacted Investigator Stuart T.
Herndon (“Herndon”) of the Campbell County Sheriff’s Office regarding the injury to K.M.’s
left shoulder. Herndon, accompanied by a child protective services worker, reported to K.M.’s
school and saw that K.M. had a tattoo with a burn mark over it on her left shoulder. The burn
was the result of an attempt by Daniel to remove the tattoo with a “hot razor” with mother’s
consent. Daniel had also tried to remove F.M.’s tattoos using his tattoo gun and the “brush back”
method. Appellant was later taken into custody.
While appellant was awaiting trial in jail, Herndon received a letter from another inmate,
Robert T. Farrar (“Farrar”), who had been housed in the same area as appellant. The letter was
written by appellant, addressed to Farrar, and stated the following:
Dear Robbie, need these two people killed to keep them from
testifying in my case . . . . I got $5,000.00 in payments for you to
handle this. Without these two, the Commonwealth has no case on
my sex charges. Alex Edwards.
In addition to the letter, appellant verbally asked Farrar to “let him know” if he could help
appellant find someone to kill two potential witnesses for the prosecution. Farrar told appellant
that he knew some people but later testified that he “never intended on—asking any of them.”
Appellant had previously admitted to Farrar that he had sexually abused K.M., and Farrar later
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testified that this confession had repulsed him. Therefore, when he received the letter, Farrar
gave the letter to authorities the next day because he knew “[he] couldn’t sit there and keep that
information to [himself]. [He] had to tell somebody.”
After the close of the Commonwealth’s evidence, appellant moved to strike the malicious
wounding and conspiracy charges. As to the malicious wounding charges, defense counsel
argued that appellant intended “to put art on . . . the children’s body, . . . and there’s certainly—
there’s no intent to put—to maim, disfigure, disable or kill.” As to the conspiracy charge,
appellant argued there was no evidence that Farrar agreed with appellant to commit any act in
furtherance of murder. The trial court denied the motions to strike. Appellant did not present
evidence, and the trial court found him guilty of the charges. This appeal followed.
II. STANDARD OF REVIEW
The standard of appellate review of a denial of a motion to strike is well established in
Virginia.
When the sufficiency of [the Commonwealth’s] evidence is
challenged by a motion to strike, the trial court should resolve any
reasonable doubt as to the sufficiency of the evidence in the
[Commonwealth’s] favor and should grant the motion only when it
is conclusively apparent that [the Commonwealth] has proven no
cause of action against defendant, or when it plainly appears that
the trial court would be compelled to set aside any verdict found
for the [Commonwealth] as being without evidence to support it.
Avent v. Commonwealth, 279 Va. 175, 198-99, 688 S.E.2d 244, 257 (2010) (alterations in
original) (quoting Banks v. Mario Indus., 274 Va. 438, 454-55, 650 S.E.2d 687, 696 (2007)).
“What the elements of the offense are is a question of law that we review de novo. Whether the
evidence adduced is sufficient to prove each of those elements is a factual finding, which will not
be set aside on appeal unless it is plainly wrong.” Lawlor v. Commonwealth, 285 Va. 187,
223-24, 738 S.E.2d 847, 868 (2013). “[I]f there is evidence to support the conviction, the
reviewing court is not permitted to substitute its judgment, even if its view of the evidence might
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differ from the conclusions reached by the finder of fact at the trial.” Commonwealth v.
McNeal, 282 Va. 16, 20, 710 S.E.2d 733, 735 (2011) (quoting Commonwealth v. Taylor, 256
Va. 514, 518, 506 S.E.2d 312, 314 (1998)).
III. ANALYSIS
On appeal, appellant contends that the trial court erred in denying his motions to strike
the malicious wounding charges and the conspiracy charge. With regard to the malicious
wounding, appellant concedes that he wounded K.M. and F.M. and acted with malice;
nevertheless, he argues that the evidence was insufficient to prove that he intended to disfigure
them by applying the tattoos. Concerning the conspiracy, appellant argues that there was
insufficient evidence of an agreement.2 This opinion addresses each assignment of error in turn.
A. Malicious Wounding
Code § 18.2-51 provides that it is a felony to “maliciously shoot, stab, cut, or wound any
person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or
kill.” (Emphasis added). To support a conviction under this statute, the injury must have been
“inflicted maliciously and with intent to maim, disfigure, disable or kill.” Campbell v.
Commonwealth, 12 Va. App. 476, 483, 405 S.E.2d 1, 4 (1991) (en banc) (emphasis added)
(superseded on other grounds).
When a statute makes an offense to consist of an act combined
with a particular intent, that intent is just as necessary to be proved
as the act itself, and must be found as a matter of fact before a
conviction can be had; and no intent in law or mere legal
presumption, differing from the intent in fact, can be allowed to
supply the place of the latter.
2
The Commonwealth concedes that the evidence was insufficient to support a conviction
for conspiracy. While concessions of law are not binding on this Court, Wright v.
Commonwealth, 278 Va. 754, 760 n.3, 685 S.E.2d 655, 658 n.3 (2009), concessions of fact may
be binding, Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en
banc).
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Banovitch v. Commonwealth, 196 Va. 210, 215-16, 83 S.E.2d 369, 373 (1954) (quoting Thacker
v. Commonwealth, 134 Va. 767, 770, 114 S.E. 504, 505 (1922)).
“A person’s intent in performing an act is the purpose formed in the person’s mind for the
performance of the act.” Campbell, 12 Va. App. at 483, 405 S.E.2d at 4. Unless admitted by the
accused, intent must be proved by facts and circumstances “consistent with guilt” and
“exclud[ing] every reasonable theory of innocence.” Commonwealth v. Hudson, 265 Va. 505,
513, 578 S.E.2d 781, 785 (2003). “While no single piece of evidence may be sufficient, the
‘combined force of many concurrent and related circumstances, each insufficient in itself, may
lead a reasonable mind irresistibly to a conclusion.’” Stamper v. Commonwealth, 220 Va. 260,
273, 257 S.E.2d 808, 818 (1979) (quoting Karnes v. Commonwealth, 125 Va. 758 764, 99 S.E.
562, 564 (1919).
[M]alice inheres in the intentional doing of a wrongful act without
legal justification or excuse, or as the result of ill will. Malice and
the specific intent to maim, etc., may be evidenced by words or
inferred from acts and conduct under the rule that a person is
presumed to have intended the natural and probable consequences
of his voluntary act.
Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 272 (1969) (emphasis added).
As used in Code § 18.2-51, “[t]he word ‘disfigure’ means a ‘permanent and not merely a
temporary and inconsequential disfigurement.’” Id. at 484, 405 S.E.2d at 4 (quoting Lee v.
Commonwealth, 135 Va. 572, 578, 115 S.E. 671, 673 (1923)). Disfigurement is further defined
as “[a]n impairment or injury to the appearance of a person or thing.” Disfigurement, Black’s
Law Dictionary (10th ed. 2014). Consequently, for the evidence to support a specific intent to
disfigure, the evidence must be sufficient to find that the accused intended to “impair or injure”
the appearance of the victim. Although “the nature and extent of the bodily injury and the means
by which [such injury was] accomplished may reflect this intent,” these factors are not exclusive;
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“the critical issue is . . . the intent with which the injuries were inflicted.” Campbell, 12
Va. App. at 483, 405 S.E.2d at 4.
In this case, the evidence was sufficient for a reasonable fact finder to conclude that
appellant specifically intended to disfigure F.M. and K.M. when he tattooed their arms. In
finding that appellant intended to “impair or injure” K.M.’s and F.M.’s appearances, the fact
finder was able to consider the following: K.M. and F.M. were unequivocal in their resistance to
having appellant tattoo their arms; appellant was inexperienced in administering tattoos and did
not change the needle between tattooing each girl; the girls were hurt by the tattooing; and,
despite F.M. crying, appellant forced her to receive three separate tattoos. Further, appellant
does not dispute that the tattoos permanently disfigured F.M. and K.M. and it may be inferred
that one “intend[s] the natural and probable consequences of his voluntary act.” Fletcher, 209
Va. at 640, 166 S.E.2d at 272. Thus, the finding that appellant intended to disfigure K.M. and
F.M. was not plainly wrong or without evidence in support. Accordingly, this Court affirms
appellant’s malicious wounding convictions.
B. Conspiracy
Under Code § 18.2-22, it is unlawful for any person to “conspire, confederate or combine
with another, either within or without this Commonwealth, to commit a felony within this
Commonwealth.” Code § 18.2-22(a). “In Virginia, the crime of conspiracy is complete when
the parties agree to commit an offense.” Gray v. Commonwealth, 260 Va. 675, 680, 537 S.E.2d
862, 865 (2000). “The agreement is the essence of the conspiracy offense.” Fortune v.
Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 49 (1991) (quoting Zuniga v.
Commonwealth, 7 Va. App. 523, 527-28, 375 S.E.2d 381, 384 (1988)).
An agreement requires plurality of intent, a meeting of the minds.
“It must be shown that the requisite intent existed as to at least two
persons. That is, there must be a common design, so that if only
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one party to the agreement has the necessary mental state then
even that person may not be convicted of conspiracy.”
Id. (quoting W. LaFave & A. Scott, Criminal Law § 461, at 470 (1972)). “One who has no
intention of following through with the common scheme but, instead, has the explicit intent to
foil the ultimate conspiratorial success has not entered into an agreement.” Id. at 648, 406
S.E.2d at 49.
In this case, this Court holds that the evidence was not sufficient as a matter of law to
convict appellant of conspiracy to commit murder. Although appellant sought Farrar’s
assistance in murdering the two witnesses, there is no evidence that Farrar agreed to assist
appellant. Instead, the evidence demonstrated that Farrar was repulsed by appellant’s
descriptions of his offenses against the girls and that Farrar handed the note to the authorities the
next day in order to “foil the ultimate conspiratorial success.” See Fortune, 12 Va. App. at 648,
406 S.E.2d at 49. While Farrar acknowledged that he knew of people who could assist appellant,
he also testified that he did not intend to ask any of them and his actions that followed support
that conclusion. No evidence refuted this testimony. Thus, there was no evidence of an
agreement. Accordingly, this Court holds as a matter of law that the trial court erred to convict
appellant of conspiracy to commit murder.
IV. CONCLUSION
For the foregoing reasons, this Court affirms appellant’s malicious wounding convictions
but reverses appellant’s conspiracy conviction and dismisses the indictment.
Affirmed in part; reversed and dismissed in part.
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