Donnell Downey v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Ortiz and Raphael
UNPUBLISHED
Argued at Richmond, Virginia
DONNELL DOWNEY
MEMORANDUM OPINION* BY
v. Record No. 0600-22-2 JUDGE MARY GRACE O’BRIEN
APRIL 4, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
B. Elliott Bondurant, Judge
Charles E. Haden for appellant.
Liam A. Curry, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
The trial court convicted Donnell Downey (appellant) of first-degree murder, conspiracy to
commit burglary, conspiracy to commit robbery, burglary, attempted robbery, and three counts of
use of a firearm in the commission of a felony. The court also found appellant guilty of violating
the terms of his pretrial bond. On appeal, appellant contends that the evidence is insufficient to
support his convictions. He also argues that his indictment for attempted robbery cited the wrong
statute, and therefore, he was found guilty of a “non-existent offense.” Finally, he asserts that the
court erred by sentencing him to “[1] year in prison” for violating the terms of his pretrial bail, to 20
years of incarceration for attempted robbery, and to 20 years of incarceration for conspiracy to
commit robbery because the sentences “exceed the maximum penalty allowed by statute.” For the
following reasons, we affirm appellant’s convictions but remand the case for a new sentencing
hearing. See Rawls v. Commonwealth, 278 Va. 213, 221-22 (2009).
*
This opinion is not designated for publication. See Code § 17.1-413.
BACKGROUND
On appeal, we state the facts in the light most favorable to the Commonwealth. Poole v.
Commonwealth, 73 Va. App. 357, 360 (2021). In doing so, we discard any of appellant’s
conflicting evidence and regard as true all credible evidence favorable to the Commonwealth and all
inferences that may reasonably be drawn from that evidence. Gerald v. Commonwealth, 295 Va.
469, 473 (2018).
O.A., an eight-year-old child, was shot and killed during a residential burglary and
attempted robbery on January 21, 2019. O.A. lived with his father, Orlando Anderson, and his
paternal grandmother, Linda Anderson, in King William County.
On the night of January 21, O.A. and his grandmother were asleep in her bedroom, and
Anderson was in his room. Anderson heard a loud noise and discovered that two masked
intruders had broken into his home. He grabbed a shotgun and attempted to shoot, but his gun
jammed. The intruders then shot at Anderson as they ran out of the back door. Anderson chased
them and managed to fire one round from his shotgun. As he returned inside, Anderson heard
Linda yell that O.A. had been shot. Anderson and Linda rushed O.A. to the hospital, where he
later died from a single gunshot wound to the head.
During a forensic investigation of Anderson’s home, police recovered several “Federal
Brand, caliber .9 millimeter Luger” cartridge casings, which a later analysis confirmed were all fired
from the same gun. Appellant’s DNA was found on the cartridge casings. Several bullets
recovered at the scene also had been fired from a Glock pistol.
On the afternoon of January 21, Trevon Holmes1 and his cousin, Charles Coleman, drove to
Keith Hargrove’s residence in Richmond to purchase marijuana. While there, Holmes saw
1
At appellant’s trial, Trevon Holmes was identified as having the surname “Gresham.”
However, at a separate joint trial for co-defendants Charles Coleman and Keith Hargrove, he
identified himself as “Trevin Holmes.”
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appellant holding a Glock pistol. Later that day, Holmes returned home, leaving Coleman,
Hargrove, and appellant at Hargrove’s house.
State Police Special Agent Martin Kriz interviewed appellant several times during his
investigation. Appellant admitted that he had been with Coleman and Hargrove on January 21.
Coleman told appellant that “there was going to be money and drugs and they were going to take
that money and drugs and split it between themselves.” Appellant traveled from Richmond to
Anderson’s residence with Coleman and Hargrove, and described in detail how they broke in,
including that appellant entered the house after Coleman kicked in the door. Appellant told Special
Agent Kriz he was carrying a firearm when he entered Anderson’s house but denied firing it. When
confronted with the DNA evidence, appellant admitted that he had supplied ammunition to
Coleman and Hargrove as part of their plan.
At trial, appellant acknowledged that he had repeatedly admitted his involvement in the
crimes during the investigation; however, he claimed that he lied to police because he thought he
might be having a heart attack and “would have said anything to get [a] medical bond.” He
admitted that he was in Richmond with Coleman and Hargrove and he knew they were planning
“some scheme or scam,” but he denied participating and stated that he did not leave Richmond that
night. Finally, he explained that he could provide the detailed account of the crimes to Special
Agent Kriz only because he heard Coleman and Hargrove discuss the crimes the next day.
FBI Special Agent Jeremy D’Errico created a report based on data collected from cell
phones belonging to Holmes, Coleman, Hargrove, and appellant. The data showed that all four
phones were in the same area in Richmond around 10:15 p.m. on January 21, consistent with
Holmes’s testimony. Holmes’s phone left the area shortly before 11:00 p.m. and traveled north into
Hanover County. Between 11:00 p.m. and 11:40 p.m., data from Hargrove’s phone established that
Hargrove traveled from Richmond to a location near Anderson’s house around the time of the
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intrusion. The other phones did not have any recorded data. By approximately 12:30 a.m. on
January 22, Hargrove’s phone was back in Richmond.
The court rejected appellant’s testimony and convicted him of the charged offenses.
ANALYSIS
I. Sufficiency of the Evidence
Appellant first argues that the evidence was insufficient to support his convictions because
the Commonwealth “failed to prove that [he] participated in the offenses or otherwise acted in
concert with the others to commit the offenses.” Additionally, appellant contends that “there was no
proof of an agreement” to support his conspiracy convictions.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting
Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting
Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is, upon
review of the evidence in the light most favorable to the prosecution, whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.(quoting Pijor, 294 Va. at 512).
Appellant admitted at trial that he knew Coleman and Hargrove were planning “some
scheme or scam.” Although he claimed at trial that he did not participate, he repeatedly admitted
his involvement during his interviews with the police. Appellant provided details about the
crimes—such as the layout of the house, the point of entry, and the gunfire exchange with
Anderson—that permitted the fact finder to infer he was present when the crimes occurred. The
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court permissibly rejected appellant’s testimony that he lied to the police to get a bond and
instead reasonably credited his prior inculpatory statements. See Sierra v. Commonwealth, 59
Va. App. 770, 784 (2012) (“[T]he trial court . . . ‘was at liberty to discount [appellant’s]
self-serving statements as little more than lying to “conceal his guilt,” and could treat such
prevarications as “affirmative evidence of guilt.”’” (quoting Armstead v. Commonwealth, 56
Va. App. 569, 581 (2010))). Moreover, the evidence that Holmes had seen appellant with a gun
earlier that evening and the presence of appellant’s DNA on the bullet casings found in
Anderson’s home support the court’s conclusion that appellant actively participated in the crimes
and acted in concert with the others.
Additionally, ample evidence supports appellant’s conspiracy convictions.
“Conspiracy is defined as ‘an agreement between two or more persons by some concerted
action to commit an offense.’” Speller v. Commonwealth, 69 Va. App. 378, 389 (2018) (quoting
Wright v. Commonwealth, 224 Va. 502, 505 (1982)). “Proof of an explicit agreement,” however,
“is not required, and the Commonwealth may, and frequently must, rely on circumstantial
evidence to establish the conspiracy.” Combs v. Commonwealth, 30 Va. App. 778, 787 (1999).
Indeed, “it is a rare case where any ‘formal agreement among alleged conspirators’ can be
established.” Pulley v. Commonwealth, 74 Va. App. 104, 120 (2021) (quoting Carr v.
Commonwealth, 69 Va. App. 106, 118 (2018)). Accordingly, the fact finder may infer a
conspiracy “from the overt actions of the parties, and a common purpose and plan may be
inferred from a development and collocation of circumstances.” Combs, 30 Va. App. at 787
(quoting McQuinn v. Commonwealth, 19 Va. App. 418, 425 (1994)). Thus, when “the
defendants ‘by their acts pursued the same object, one performing one part and the others
performing another part so as to complete it or with a view to its attainment, the [fact finder] will
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be justified in concluding that they were engaged in a conspiracy to [effect] that object.’” Pulley,
74 Va. App. at 120 (first alteration in original) (quoting Carr, 69 Va. App. at 118).
Appellant admitted that he went to Anderson’s residence with Coleman and Hargrove and
entered the house after Coleman kicked in the door. He also admitted that he provided
ammunition to the others. The cell phone location data corroborated appellant’s pretrial
confession. From this evidence, the court reasonably concluded that appellant was “engaged in a
conspiracy” to commit robbery and burglary. Id. (quoting Carr, 69 Va. App. at 118).
II. Error in the Indictment
Appellant next argues that the “court erred in finding [him] guilty of the non-existent
offense of attempted robbery in violation of . . . Code § 18.2-90.” The indictment for the
attempted robbery charge states:
The Grand Jury in and for the County of King William
charges that on or about January 21, 2019, in the County of King
William, the defendant did attempt to rob O.A. of U.S. Currency
and/or personal property, by means of violence, assault, putting
him in fear of serious bodily harm, threats, or by the threat or
presenting of a firearm.
Attempted Robbery
In violation of Virginia Code § 18.2-90, a Class 2 Felony,
BUR-2212-F2.
Appellant notes that “[t]here is of course no such offense as attempted robbery in
violation of . . . Code § 18.2-90” and that “the offense of attempted robbery is correctly
described as an offense in violation of . . . Code § 18.2-58 and . . . Code § 18.2-26.”2 Appellant
contends that because “it appears from the court’s orders that [he] was charged with, convicted,
and sentenced for a non-existent offense” of attempted robbery in violation of Code § 18.2-90,
“the purported orders are void and the indictment for attempted robbery . . . should accordingly
2
The conviction and sentencing orders also erroneously reference Code § 18.2-90.
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be dismissed.” Appellant concedes that he did not present this issue to the trial court but asks
this Court to invoke the ends of justice exception to Rule 5A:18.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection
was stated with reasonable certainty at the time of the ruling, except for good cause shown or to
enable this Court to attain the ends of justice.” Rule 5A:18. “‘The ends of justice exception is
narrow and is to be used sparingly,’ and applies only in the extraordinary situation where a
miscarriage of justice has occurred.” Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en
banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220 (1997)). “The burden of
establishing a manifest injustice is a heavy one, and it rests with the appellant.” Id. at 210 (quoting
Brittle v. Commonwealth, 54 Va. App. 505, 514 (2009)). “Virginia courts applying the
ends-of-justice exception require a defendant to present not only a winning argument on appeal but
also one demonstrating that the trial court’s error results in a ‘grave injustice’ or a wholly
inexcusable ‘denial of essential rights.’” Winslow v. Commonwealth, 62 Va. App. 539, 546-47
(2013) (quoting Brittle, 54 Va. App. at 513). “Where the record does not affirmatively establish
error, we cannot invoke the ends of justice exception to Rule 5A:18.” Smith v. Commonwealth, 59
Va. App. 710, 724 (2012).
“The purpose of an indictment is to provide the accused with notice of the cause and
nature of the accusations against him.” Commonwealth v. Bass, 292 Va. 19, 28 (2016). “The
requirement that felony prosecutions proceed by indictment or presentment is statutory, not
constitutional, and the accused may waive the right to be tried by such.” Id. Thus, “[e]rror in the
citation of the statute[,] . . . or omission of the citation, will not be grounds for dismissal of an
indictment or information, or for reversal of a conviction, unless the court finds that the error or
omission prejudiced the accused in preparing his defense.” Rule 3A:6(a).
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Although the indictment here cited the wrong statute, it accurately listed the charged offense
and the elements of that offense and thus sufficiently put appellant on notice of the cause and nature
of the accusations against him. See id.; George v. Commonwealth, 242 Va. 264, 280-81 (1991);
Stamper v. Commonwealth, 228 Va. 707, 712-13 (1985). Cf. Ellis v. Commonwealth, 75 Va. App.
162, 171-72 (2022) (affirming a conviction for driving with a suspended license where the
summons provided sufficient notice of the “gravamen of the offense,” despite a “misrecital of the
ordinance number”). Appellant also fails to identify how he was prejudiced by the error. Because
we conclude that the record shows that the indictment accurately informed appellant of the charged
offense despite the error in the indictment and he suffered no identifiable prejudice, we find no
miscarriage of justice. Therefore, the ends of justice exception does not apply, and Rule 5A:18 bars
our consideration of appellant’s argument on appeal.
III. Sentence
Finally, appellant argues that his sentences for attempted robbery, conspiracy to commit
robbery, and for violating the conditions of his pretrial release “exceed the maximum penalty
allowed by statute and are therefore void.” The court sentenced appellant to “[i]ncarceration in
jail for one (1) year for the charge of bailee violation release/pretrial condition,” to “twenty (20)
years for the charge of attempted robbery,” and to “twenty (20) years for the charge of
conspir[acy] to commit robbery.” Appellant concedes that he did not present this argument to the
court below but again asks this Court to address the issue under the ends of justice exception to
Rule 5A:18.
“[A] sentence imposed in violation of a prescribed statutory range of punishment is void
ab initio[.]” Fletcher v. Commonwealth, 72 Va. App. 493, 511 (2020) (alterations in original)
(quoting Rawls, 278 Va. at 221). “Denying [a defendant] his liberty on the basis of a void
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sentence would impose a grave injustice upon him[.]” Id. (alterations in original) (quoting
Gordon v. Commonwealth, 61 Va. App. 682, 685 (2013)).
The Commonwealth concedes that attempted robbery is “a Class 4 felony punishable by a
sentence of two to ten years in prison” and that conspiracy to commit robbery is “a Class 5
felony punishable by a sentence of one to ten years in prison.”3 See Code §§ 18.2-10(d), (e),
18.2-22(a)(2), 18.2-26(1), 18.2-58. Thus, the Commonwealth agrees with appellant that his
sentences for attempted robbery and for conspiracy to commit robbery “should be reversed and
the matter should be remanded solely for the imposition of . . . new sentence[s].” While we
“examine independently the errors confessed,” the “considered judgment of the law enforcement
officers that reversible error has been committed is entitled to great weight.” Copeland v.
Commonwealth, 52 Va. App. 529, 532 n.3 (2008) (quoting Young v. United States, 315 U.S. 257,
258-59 (1942)).
Upon reviewing the record, we agree that appellant’s sentences for attempted robbery and
conspiracy to commit robbery exceed the statutory maximums and are therefore void ab initio.
See Fletcher, 72 Va. App. at 511. Accordingly, “‘application of the ends of justice exception is,
therefore, fully justified’ here.” Id. (quoting Gordon, 61 Va. App. at 685). A “criminal
defendant . . . is entitled to a new sentencing hearing” where “a sentence [is] imposed in
violation of a prescribed statutory range of punishment.” Rawls, 278 Va. at 221. Therefore, we
vacate appellant’s sentences for the attempted robbery and conspiracy to commit robbery
convictions and remand to the trial court for a new sentencing hearing.
3
We note that under Code § 18.2-10(d), punishment for Class 4 felonies may also
include “a fine of not more than $100,000” and that under Code § 18.2-10(e), Class 5 felonies
may also be punishable, “in the discretion of the jury or the court trying the case without a jury,
[by] confinement in jail for not more than 12 months and a fine of not more than $2,500, either
or both.”
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Appellant further asserts that the “one year in prison” sentence imposed for the
misdemeanor bailee violation exceeded the statutory maximum. See Code § 18.2-11 (stating that
“authorized punishments” for Class 1 misdemeanor convictions include “confinement in jail for
not more than twelve months”). We note that the court sentenced appellant to “[i]ncarceration in
jail for one (1) year for the charge of bailee violation,” not prison. (Emphasis added).
Nevertheless, we assume without deciding that the “one year” sentence, rather than the “twelve
months” authorized maximum for a Class 1 misdemeanor, was error and remand to the court for
resentencing on the bailee violation conviction to comport with the applicable statute.4 See Code
§ 18.2-11.
CONCLUSION
For these reasons, we affirm appellant’s convictions and remand solely for resentencing
for the attempted robbery, conspiracy to commit robbery, and bailee violation convictions.
Affirmed and remanded.
4
The new sentencing order should also reflect the correct code sections for appellant’s
attempted robbery conviction.
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