Commonwealth of Virginia v. Frank Innes Flythe, a/k/a Frank Innes Rooks ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Decker and Senior Judge Felton
UNPUBLISHED
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 0592-15-4 JUDGE WILLIAM G. PETTY
SEPTEMBER 1, 2015
FRANK INNES FLYTHE, A/K/A
FRANK INNES ROOKS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Lorraine Nordlund, Judge
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on briefs), for appellant.
Brad Lindsay, Assistant Public Defender (Fairfax County Public
Defender’s Office, on brief), for appellee.
This case involves an appeal by the Commonwealth of Virginia, pursuant to Code
§ 19.2-398, of a trial court’s order dismissing the indictment against Frank Innes Flythe on
double jeopardy grounds. On appeal, the Commonwealth asserts that the court erred in
concluding that Flythe was acquitted due to insufficiency of the evidence and therefore cannot be
re-tried. The Commonwealth argues that the first trial was terminated due to a fatal variance in
the indictment, and thus double jeopardy does not apply. We disagree.
I. BACKGROUND
In an appeal brought by the Commonwealth pursuant to Code § 19.2-398, we view the
historical facts that provide the context of our analysis in the light most favorable to the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
prevailing party below, Flythe, and we grant him all reasonable inferences fairly deducible from
that evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
On June 16, 2014, Flythe was indicted for felony grand larceny of United States currency
from Sandra Amurrio on or about July 14, 2013. The trial was held before Judge Jan L. Brodie
on October 21, 2014 (“the trial”). The Commonwealth alleged that Flythe, a janitor at the Elks
Lodge, stole money that had been given as a gift to Maria Linares during her fifteenth birthday
party at the lodge on July 13, 2013. Maria Andrade, Linares’s cousin, testified that she was in
charge of writing down the names of gift givers, collecting all of the envelopes, and putting them
in a box. At the party, the guests handed their monetary gifts to Linares or Andrade, who put the
gifts into a box. Amurrio, Linares’s mother, testified that she never handled the money at the
party, but that she intended to deposit the money into an account and use it for Linares’s college
expenses. Andrade testified that at the end of the night she put the box of money under a table
and left it there. On July 14, 2013, Amurrio realized that no one had brought the box of money
home. Flythe was the janitor on duty at the Elks Lodge on the morning of July 14, 2013.
Amurrio returned to the lodge and found the box in a trash bag, however there was no money in
the box. Flythe was arrested twelve days later with $1400 cash in his possession.
At the close of the Commonwealth’s evidence, Flythe made a motion to strike. First,
Flythe argued that there was a fatal variance in the indictment because while the indictment
stated that he stole money from Sandra Amurrio, the Commonwealth’s evidence proved that the
money at issue belonged to Maria Linares. Flythe then made numerous arguments regarding the
sufficiency of the evidence. The judge denied the motion to strike on all grounds.
The defense rested without presenting any evidence. Flythe then renewed his motion to
strike and repeated the same arguments he made for his first motion. Judge Brodie took the
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motion under advisement. Both parties gave closing arguments, and the jury was sent to
deliberate. After the court returned from a recess, Judge Brodie ruled on the motion to strike:
The issue before the Court is whether or not one of the
elements can possibly be met based on the evidence and that is the
ownership by Sandra Amurrio.
I reviewed the cases and it is clear that in order to sustain an
indictment for larceny, the allegation of ownership of stolen
property is sustained by the proof of any legal interest or special
ownership which may be less than absolute title of the property.
In this case, we are looking at the ownership of the gifts that
were given at the party. In reviewing the evidence, I have no
evidence or legal authority to automatically impute a special
ownership to a parent.
I have no evidence that the parent ever took control or
managed it or held it other one, maybe that it transferred to the
child’s box [sic]. In light of that, I find that there is a fatal variance
existing between the indictment’s allegation and the evidence that
was presented and I am granting the motion to strike.
At this point, the Commonwealth moved to amend the indictment to change the name of the
victim from Sandra Amurrio to Maria Linares, arguing that changing the name of the victim did
not create a new offense. Judge Brodie denied the motion to amend, saying, “I have already
found and granted the motion to strike at this point. It is the equivalent of the Jury’s verdict. . . .
I have basically, by my [ruling on the] motion to strike, found the defendant not guilty. And I
don’t believe I can grant [the motion to amend] at this point.” Thereafter, the jury was
discharged. On October 28, 2014, Judge Brodie entered an order granting Flythe’s motion to
strike.
On December 15, 2014, Flythe was indicted for felony grand larceny of United States
currency from Maria Linares. On March 23, 2015, Flythe filed a motion to dismiss the
indictment on double jeopardy grounds. On March 27, 2015, a hearing on the motion was held
before Judge Lorraine Nordlund. Judge Nordlund found that Judge Brodie had granted Flythe’s
motion to strike because the Commonwealth simply chose an unsuccessful theory of the case,
rather than because of a fatal variance. The Commonwealth failed to prove that Amurrio had a
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possessory interest in the money, and double jeopardy barred the Commonwealth from pursuing
a different theory on retrial. Judge Nordlund granted Flythe’s motion to dismiss and entered an
order to that effect on April 7, 2015. The Commonwealth now appeals.
II. ANALYSIS
“In reviewing a double jeopardy claim, or a claim based on statutory interpretation, this
Court shall conduct a de novo review.” Davis v. Commonwealth, 57 Va. App. 446, 455, 703
S.E.2d 259, 263 (2011). In making our decision, we “‘examine the record of a prior proceeding,
taking into account the pleadings, evidence, charge, and other relevant matter.’” Davis v.
Commonwealth, 63 Va. App. 45, 52, 754 S.E.2d 533, 537 (2014) (quoting Jones v.
Commonwealth, 217 Va. 231, 233, 228 S.E.2d 127, 129 (1979)) (discussing how to review a
motion to dismiss based on collateral estoppel, a species of double jeopardy). Our inquiry is
whether Flythe’s indictment for grand larceny from Maria Linares, following the granting of a
motion to strike for larceny of the same money from Sandra Amurrio, is barred by double
jeopardy. Under the facts of this case, we hold that it is.
In part, the Fifth Amendment to the United States Constitution provides that “[no] person
[shall] be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. “‘This constitutional provision guarantees protection against (1) a second prosecution
for the same offense after acquittal; (2) a second prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense.’” Payne v. Commonwealth, 277
Va. 531, 540, 674 S.E.2d 835, 839 (2009) (quoting Payne v. Commonwealth, 257 Va. 216, 227,
509 S.E.2d 293, 300 (1999)).1 Here, we are concerned with the first of those protections.
1
Flythe argues that dismissal of the second indictment was mandated by the double
jeopardy provisions of the Fifth Amendment and the Virginia Constitution. Protections provided
by the Double Jeopardy Clause of the Fifth Amendment are “identical with those embodied in
Article I, section 8 of Virginia's Constitution.” Bennefield v. Commonwealth, 21 Va. App. 729,
739, 467 S.E.2d 306, 311 (1996). We have “consistently held that the protections afforded under
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The United States Supreme Court has repeatedly held that “‘[a] verdict of acquittal . . .
[may] not be reviewed . . . without putting [the defendant] twice in jeopardy, and thereby
violating the Constitution.’” Sanabria v. United States, 437 U.S. 54, 64 (1978) (alteration in
original) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977)). The
Court has described this principle as “‘the most fundamental rule in the history of double
jeopardy jurisprudence.’” Id. (quoting Martin Linen Supply Co., 430 U.S. at 571). Double
jeopardy bars retrial after an acquittal because “‘[t]o permit a second trial . . . would present an
unacceptably high risk that the Government, with its vastly superior resources, might wear down
the defendant so that even though innocent he may be found guilty.’” Evans v. Michigan, 133
S. Ct. 1069, 1075 (2013) (alteration in original) (quoting United States v. Scott, 437 U.S. 82, 91
(1978)). And, retrial after acquittal may subject the defendant to “additional ‘embarrassment,
expense and ordeal’ while ‘compelling him to live in a continuing state of anxiety and
insecurity.’” Id. (quoting Green v. United States, 355 U.S. 184, 187 (1957)). Accordingly, only
a single exception to this principle has been recognized by the Court: “When a jury returns a
verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a
judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to
reinstate the jury verdict of guilty.” Smith v. Massachusetts, 543 U.S. 462, 467 (2005).
However, if the judge enters an acquittal when “the prosecution has not yet obtained a
conviction, further proceedings to secure one are impermissible.” Id.
In Evans, the United States Supreme Court defined an acquittal as “any ruling that the
prosecution’s proof is insufficient to establish criminal liability for an offense.” 133 S. Ct. at
1074-75. In contrast, procedural rulings are those that dismiss a case due to an error of law or
the Virginia Constitution are co-extensive with those in the United States Constitution.” Id. at
739-40, 467 S.E.2d at 311.
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“because of some problem like an error with the indictment.” Id. at 1075. Because “no
expectation of finality attaches” to a mistrial or dismissal on procedural grounds, the same
concerns are not implicated, and the Double Jeopardy Clause does not bar retrial in those
instances. Id.
The Commonwealth contends that the granting of the motion to strike was a procedural
dismissal that did not amount to an acquittal because “the trial court ultimately only ruled on the
fatal variance portion of the motion to strike.” The Commonwealth points to Judge Brodie’s
comment that “I find that there is a fatal variance existing between the indictment’s allegation
and the evidence that was presented and I am granting the motion to strike.”
However, we cannot rely solely on a trial court’s isolated comments to decide whether
Flythe was acquitted. See Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286,
291 (1977). In reviewing a record, this Court follows the rule “well-established in this
Commonwealth that a circuit court speaks only through its written orders.” Roe v.
Commonwealth, 271 Va. 453, 457, 628 S.E.2d 526, 528 (2006). Furthermore, “[w]e assume that
trial judges have knowledge of the Commonwealth’s laws and properly apply those laws.”
Wilson v. Commonwealth, 23 Va. App. 318, 326, 477 S.E.2d 7, 10 (1996); see Yarborough, 217
Va. at 978, 234 S.E.2d at 291. Rule 3A:15(a) states that “the court on motion of the accused may
strike the Commonwealth’s evidence if the evidence is insufficient as a matter of law to sustain a
conviction.” (Emphasis added). And it is well established that a motion to strike can challenge
only the sufficiency of the evidence. See McCary v. Commonwealth, 36 Va. App. 27, 40, 548
S.E.2d 239, 245 (2001) (“[A] motion to strike properly challenges only the sufficiency of the
evidence offered up to that point . . . .”); Poole v. Commonwealth, 211 Va. 258, 260, 176 S.E.2d
821, 823(1970) (“The office of a motion to strike the evidence, made at the conclusion of the
Commonwealth’s case, is to challenge the sufficiency . . . of the evidence.”). Under Rule
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3A:15(c), a successful motion must result in an acquittal. Rule 3A:15(c) (“The court shall enter
a judgment of acquittal if it strikes the evidence . . . .”).
Thus, we first look to Judge Brodie’s October 28, 2014 order, which explicitly states:
At the conclusion of the case, Counsel for the Defendant renewed
the motion to strike the evidence presented by the Commonwealth.
The Court took the motion under advisement.
* * * * * * *
After some time, the Court called the parties back into the
courtroom. The Court granted the motion to strike previously
taken under advisement and dismissed the case.
This order makes clear that Judge Brodie was granting a motion to strike. And, such an order is
“presumed to accurately reflect what transpired.” McBride v. Commonwealth, 24 Va. App. 30,
35, 480 S.E.2d 126, 128 (1997). We presume that Judge Brodie was aware that the motion to
strike could not have been granted on the grounds of a variance alone, without a ruling on the
sufficiency of the evidence, and that such a ruling would result in an acquittal.
Reviewed with these principles in mind, the trial transcript supports Judge Nordlund’s
finding that Flythe’s motion to strike was granted on the grounds that the evidence was
insufficient to sustain a conviction. In support of his motion to strike, Flythe argued that the
Commonwealth had not proven an element of grand larcenythat the money allegedly stolen
was the property of the alleged owner. See Latham v. Commonwealth, 184 Va. 934, 939-40, 37
S.E.2d 36, 38 (1946). Flythe pointed out that Linares never testified that she gave Amurrio
permission to control the money. Further, Amurrio never testified that she monitored the money
or had it in her actual possession. Instead, Flythe argued, the evidence proved that it had been
Andrade’s responsibility to take care of the money. In addition, Flythe presented the separate
but related argument that there was no evidence of a trespassory taking of the money from the
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possession of the owner.2 Judge Brodie ultimately agreed with Flythe’s argument and granted
the motion to strike, saying “[t]he issue before the Court is whether or not one of the elements
can possibly be met based on the evidence and that is the ownership by Sandra Amurrio.” Judge
Brodie then went on to explain that the Commonwealth presented “no evidence” that Amurrio
ever took control of, managed, or held the money. In other words, the trial court found more
than just a defect in the indictment; it found that the Commonwealth failed to prove one of the
elements of grand larceny. Accordingly, we hold that Judge Nordlund did not err in finding that
the motion to strike was granted on the basis of insufficiency of the evidence and resulted in an
acquittal.3
There is no question that double jeopardy bars a second prosecution for the same offense
after an acquittal. See Payne, 277 Va. at 540, 674 S.E.2d at 839. Nevertheless, the
Commonwealth contends that the second indictment is not barred by double jeopardy because it
is not “‘a second prosecution for the same offense after acquittal.’” Id. (emphasis added)
(quoting Payne, 257 Va. at 227, 509 S.E.2d at 300). According to the Commonwealth, the
second indictment necessarily alleges a different offense from the first indictment because the
name of the victim has been changed.
In cases such as this, where the defendant is charged a second time for the same statutory
offense, the Double Jeopardy Clause “protects the accused from attempts to relitigate the facts
underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436 (1970).” Brown v. Ohio, 432
2
Flythe also argued that the property had been abandoned, that the Commonwealth had
failed to prove the value of the property, and that the Commonwealth had failed to prove that the
money taken was “good and lawful U.S. currency” as charged in the indictment.
3
Judge Brodie also recognized that she acquitted Flythe on the facts of the case: “It is the
equivalent of the Jury’s verdict. . . . I have basically, by my [ruling on the] motion to strike,
found the defendant not guilty.”
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U.S. 161, 165 (1977).4 This Court has ruled that a “change in the name of the victim did not
create a new offense nor did it change the nature or character of the offense for which appellant
was indicted.” Phan v. Commonwealth, 18 Va. App. 360, 364, 444 S.E.2d 9, 11 (1994).
Here, the first and second indictments are based on the same set of facts. The
Commonwealth has only alleged a single taking of a single box of money. Simply changing the
name on the indictment does not create a “new offense” to be tried. This is the type of vexatious
prosecution that the Double Jeopardy Clause aims to prohibit. See Tibbs v. Florida, 457 U.S. 31,
41 (1982) (noting that the Double Jeopardy Clause “prevents the State from honing its trial
strategies and perfecting its evidence through successive attempts at conviction”); Ashe, 397
U.S. at 447 (“No doubt the prosecutor felt the state had a provable case on the first charge and,
when he lost, he did what every good attorney would do—he refined his presentation in light of
the turn of events at the first trial. But this is precisely what the constitutional guarantee
forbids.”).
Having found that the granting of the motion to strike constituted an acquittal because the
Commonwealth’s evidence was insufficient as a matter of law, we need not address the
Commonwealth’s argument that a dismissal based on a fatal variance does not bar retrial under
the Double Jeopardy Clause.5
4
We recently applied this principle in the unpublished opinion Commonwealth v. Pijor,
No. 0043-15-4, 2015 Va. App. LEXIS 178 (Va. Ct. App. May 26, 2015), another double
jeopardy case arising from Fairfax County. Pijor was acquitted of larceny of a dog on a date
certain, but law enforcement thereafter discovered him in possession of the dog. Id. at *3. The
Commonwealth re-indicted Pijor for larceny of the same dog on a different date. Id. We held
that because there was but one taking of the dog, changing the date on the indictment could not
create a separate offense for purposes of circumventing the Double Jeopardy Clause. Id. at *8-9.
5
The Commonwealth relies on Code § 19.2-293 and advisory dicta in our opinion in
Purvy v. Commonwealth, 59 Va. App. 260, 717 S.E.2d 847 (2011), in arguing that a dismissal
based on a fatal variance does not constitute an acquittal due to the insufficiency of the evidence
and thus, does not bar retrial. While this argument may be correct where, as in Purvy, the
original conviction is reversed on appeal and the new indictment alleges a violation of a separate
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In summary, Judge Nordlund correctly decided that Flythe’s trial was terminated because
there was insufficient evidence to prove that Flythe had stolen the money from Sandra Amurrio.
Flythe was acquitted of grand larceny of the money, and the Commonwealth cannot name a
different victim and relitigate the issue at a second trial in hopes of achieving a conviction.
III. CONCLUSION
For the foregoing reasons, we hold that the decision to dismiss Flythe’s second
indictment on double jeopardy grounds was not in error. Accordingly, we affirm the decision to
dismiss the second indictment.
Affirmed.
and distinct code section, it is not clear that it applies where the Commonwealth fails to prove a
larceny from the owner described in the indictment. See Gardner v. Commonwealth, 262 Va. 18,
25, 546 S.E.2d 686, 690 (2001) (reversing and dismissing an indictment for larceny by false
pretenses for failing to prove that the property was stolen from the person named in the
indictment). What is clear, however, is that double jeopardy does bar further prosecution where,
as here, the acquittal was based on the insufficiency of the evidence, however that acquittal was
styled.
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