Xavier Demonye Bonilla v. Commonwealth of Virginia ( 2024 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and Fulton
UNPUBLISHED
Argued at Norfolk, Virginia
XAVIER DEMONYE BONILLA
MEMORANDUM OPINION* BY
v. Record No. 0742-23-1 JUDGE GLEN A. HUFF
JUNE 4, 2024
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Matthew W. Hoffman, Judge
Charles E. Haden for appellant.
Mason D. Williams, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Xavier Demonye Bonilla (“appellant”) appeals his second-degree murder conviction,
arguing that the trial court erred in denying his motions to strike where the Commonwealth’s
evidence was insufficient as a matter of law. He further contends the trial court erred by preventing
him from introducing evidence of the decedent’s prior “aggressive and disruptive” behavior. For
the following reasons, this Court finds no error by the trial court and, therefore, affirms appellant’s
conviction.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
BACKGROUND1
On the night of August 2, 2022, D’nea Williams was working as a bartender at Triple
Effectz (“the bar”) in Newport News, Virginia. She observed both appellant and the decedent,
Justin Dudney, inside the bar that evening. Williams described Dudney as not “overly drunk,” but
noted that he “aggravate[d] other customers” by “walking up to people, talking to them or saying
things to them, like pulling them to him and people not knowing him.” Although the bar’s manager
received multiple complaints about Dudney’s behavior, Williams testified that Dudney was not
aggressive at any point.
At one point in the evening, Williams saw Dudney approach appellant and act familiarly
with him, but appellant “just looked at him like he didn’t know what [Dudney] was talking about
and just continued on talking to other people.” Later that night, Dudney approached appellant from
behind while appellant was seated at the bar talking with Williams.2 Because appellant did not
realize Dudney was standing behind him, Williams told him that Dudney was trying to get his
attention. Dudney then tapped appellant on the shoulder and said something that appellant asked
him to repeat.
Williams testified that she heard Dudney tell appellant, “if there’s something you want to
get off your chest, we can go to the bathroom.” Video surveillance footage from inside the bar
showed Dudney step backwards to give appellant space to stand up from his chair. It then depicted
1
On appeal, this Court recites the facts “in the ‘light most favorable’ to the
Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App.
225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, this
Court “discard[s] the evidence of the accused in conflict with that of the Commonwealth, and
regard[s] as true all the credible evidence favorable to the Commonwealth and all fair inferences
to be drawn therefrom.” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323,
324 (2018)).
2
The Commonwealth also introduced video surveillance footage from a security camera
mounted inside the bar facing the bartender’s customers, which showed Dudney walk over and
stand behind appellant.
-2-
the following sequence of events that occurred in mere seconds: appellant stood up and turned to
face Dudney, Dudney’s right arm moved upward, and appellant punched Dudney twice in the face
in quick succession with considerable force. Dudney fell backwards to the ground where he lay
without moving and appeared unconscious while appellant walked away. Williams followed
appellant and saw him standing by his car nursing a bleeding hand and repeating to himself, “he just
walked up on me.”
Dudney ultimately died from the injury to his head, and appellant was indicted for
second-degree murder. During appellant’s trial, the Commonwealth presented Williams’s
testimony and video surveillance footage from the bar. During Williams’s cross-examination,
appellant attempted to elicit testimony about Dudney’s behavior in the bar two weeks before his
death. According to appellant, that testimony would describe how Dudney had appeared to become
angry about something on the prior occasion and how he then “mouth[ed] off” to other patrons and
even invaded the personal space of a patron by tapping him on the shoulder. The circuit court
sustained the Commonwealth’s objection to this testimony, finding the proffered evidence
insufficient to establish an admissible character trait of the decedent.
During the defense’s case-in-chief, appellant testified that he had only punched Dudney in
self-defense. He claimed that when he first ordered a drink from Williams, Dudney approached him
and said, “don’t get no fucking drink from over here, go over there.” He then claimed that Dudney
started arguing with appellant’s friend. While appellant was trying to calm his friend, Dudney said,
“this ain’t what you want.” Appellant testified that he and his friend simply walked away from both
of those interactions, but that appellant complained about Dudney’s behavior to the bar manager.
Appellant then alleged that he felt “confused” and “scared” when Dudney approached him
again at the bar and stood behind him. As appellant stood up from his seat at the bar, Dudney
allegedly told him, “I’m going to [the] bathroom if you got something you want to get off your
-3-
chest, and no one can save you.” Appellant claimed he thought Dudney was trying to start a fight.
According to appellant, he thought Dudney “was going to hit” him because Dudney “made a quick
move” like “he was jumping at [appellant].” In response, appellant punched Dudney.
When confronted with the video footage, appellant admitted that Dudney had backed away
to give appellant space to stand up from the bar stool. And when asked to identify where in the
video Dudney “jump[ed]” at him, appellant referenced the moment Dudney’s arm began to raise,
claiming, “I said his hand was coming up.” The video, however, also clearly showed that Dudney
did not draw his arm back or close his hand into a fist. Moreover, appellant wavered throughout his
testimony about which hand he thought Dudney was going to use to hit him. He also admitted that
Dudney’s body began to drop after the first punch and before the second one.
The circuit court denied appellant’s motions to strike the evidence, and the jury found him
guilty of second-degree murder. On May 22, 2023, the circuit court sentenced appellant to 16
years’ incarceration. This appeal followed.
ANALYSIS
I. Evidence of Decedent’s Prior Behavior
Because he raised a claim of self-defense, appellant argues that the trial court erred in
excluding evidence of Dudney’s allegedly aggressive behavior in the bar two weeks before he died.
“[W]e review a trial court’s decision to admit or exclude evidence using an abuse of discretion
standard and, on appeal, will not disturb a trial court’s decision to admit evidence absent a
finding of abuse of that discretion.” Carter v. Commonwealth, 293 Va. 537, 543 (2017)
(alteration in original) (quoting Avent v. Commonwealth, 279 Va. 175, 197 (2010)). “[W]e do
not substitute our judgment for that of the trial court. Rather, we consider only whether the
record fairly supports the trial court’s action.” Id. (quoting Grattan v. Commonwealth, 278 Va.
602, 620 (2009)).
-4-
When a defendant claims self-defense, “[e]vidence of a victim’s propensity for violence
is relevant to determine ‘who was the aggressor or what was the reasonable apprehension of the
defendant for his safety.’” Id. at 544 (quoting Workman v. Commonwealth, 272 Va. 633, 649
(2006)). Conversely, a defendant claiming self-defense is not entitled to offer evidence of prior
acts that fall short of showing a propensity for violent and turbulent acts. Short v.
Commonwealth, 213 Va. 746, 747 (1973) (prior homosexual advances to a third party did not
“disclose such violent and turbulent acts as to make the evidence admissible”).
Here, appellant’s proffer of the expected testimony was that Dudney previously “mouth[ed]
off,” invaded others’ personal space, and otherwise behaved obnoxiously at the bar on a single
incident two weeks before Dudney’s death. Nothing in that proffer included acts of violence by
Dudney or indicated a “propensity for violence.” Carter, 293 Va. at 544. Therefore, the trial court
did not abuse its discretion in sustaining the Commonwealth’s objection to the evidence.3
II. Sufficiency of Evidence
Appellant next asserts that the evidence was insufficient to convict him of second-degree
murder. “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.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)
(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
3
In his argument on appeal, appellant mischaracterizes the proffer of Williams’s
expected testimony. He states that the trial court erred in “preventing [appellant]’s counsel from
questioning prosecution witness D’Nea Williams about how Dudney had come into the bar twice
in the preceding two weeks and been drunkenly aggressive and disruptive and had even
threatened to beat the security guard’s ass on one of those occasions.” But when seeking
admission of Williams’s testimony about Dudney’s prior behavior, appellant’s counsel proffered
to the trial court only that, on a single occasion two weeks before the attack, Dudney displayed
an angry demeanor, tapped a stranger on the shoulder, and used profanities. Counsel did not
proffer that Williams would testify about a threat to beat the bar’s security guard.
-5-
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,
228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted
to substitute its own judgment, even if its opinion might differ from the conclusions reached by
the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018)).
“It is firmly established that ‘[c]ircumstantial evidence is competent and is entitled to as
much weight as direct evidence provided that the circumstantial evidence is sufficiently
convincing to exclude every reasonable hypothesis except that of guilt.’” Kelley v.
Commonwealth, 69 Va. App. 617, 629 (2019) (alteration in original) (quoting Pijor v.
Commonwealth, 294 Va. 502, 512 (2017)). “Circumstantial evidence is not ‘viewed in isolation’
because the ‘combined force of many concurrent and related circumstances, each insufficient in
itself, may lead a reasonable [fact finder]’ to conclude beyond a reasonable doubt that a
defendant is guilty.” Rams v. Commonwealth, 70 Va. App. 12, 27 (2019) (alteration in original)
(quoting Muhammad v. Commonwealth, 269 Va. 451, 479 (2005)).
“[T]he credibility of a witness, the weight accorded the testimony, and the inferences to
be drawn from proven facts are matters solely for the fact finder’s determination.” Fletcher v.
Commonwealth, 72 Va. App. 493, 502 (2020) (quoting Crawley v. Commonwealth, 29 Va. App.
372, 375 (1999)). In addition, “[i]n its role of judging witness credibility, the fact finder is
entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused
is lying to conceal his guilt.” Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011)
(quoting Marable v. Commonwealth, 27 Va. App. 505, 509-10 (1998)).
-6-
Furthermore, this Court defers “to the [fact finder]’s interpretation of all of the evidence,
including video evidence.” Meade v. Commonwealth, 74 Va. App. 796, 806 (2022). At trial, the
jury “views video and other evidence to determine [the facts].” Id. Accordingly, this Court
“view[s] video evidence . . . for the limited purpose of determining whether any rational
factfinder could have viewed it as the [jury] did.” Id.A. Self-Defense
Appellant first argues that his testimony established that he acted in self-defense.
“Self-defense is an affirmative defense to a charge of murder, and in making such a plea, a
‘defendant implicitly admits the killing was intentional and assumes the burden of introducing
evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.’”
Commonwealth v. Sands, 262 Va. 724, 729 (2001) (quoting McGhee v. Commonwealth, 219 Va.
560, 562 (1978)). “A claim of self-defense may be either justifiable or excusable; if it is either,
the accused is entitled to an acquittal.” Lynn v. Commonwealth, 27 Va. App. 336, 353 (1998)
(citing Bailey v. Commonwealth, 200 Va. 92, 96 (1958)), aff’d, 257 Va. 239 (1999). “Justifiable
homicide in self-defense occurs [when] a person, without any fault on his part in provoking or
bringing on the difficulty, kills another under reasonable apprehension of death or great bodily
harm to himself.” Id. (alteration in original) (quoting Bailey, 200 Va. at 96). An excusable
killing in self-defense occurs when a defendant, “although in some fault in the first instance in
provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his
desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own
life or save himself from great bodily harm.” Id. (quoting Bailey, 200 Va. at 96).
Here, the evidence was sufficient for the jury to reject appellant’s self-defense claim and
convict him of second-degree murder. In particular, the video footage introduced into evidence
did not show Dudney engaging in any violent or aggressive behavior towards either appellant or
-7-
other persons in the bar. In fact, after approaching appellant while he was seated at the bar,
Dudney merely tapped appellant on the shoulder to get his attention. That his statement to
appellant was intended as an invitation to fight somewhere else neither justifies nor excuses
appellant’s violent response. See Harper v. Commonwealth, 196 Va. 723, 727 (1955) (“Words
alone, no matter how grievous or insulting, are never justification for assault by force or
violence.”).
Furthermore, when appellant turned to face Dudney and stood up from the bar stool,
Dudney took a step back to put space between himself and appellant. At that point, appellant
could have walked away from Dudney without any further interaction, just like he admitted to
doing twice previously that evening after Dudney directed “inciting” comments towards him.
Instead, appellant punched Dudney in the face, saw him begin to fall, and punched Dudney in the
face a second time.
Appellant’s actions were not made in response to a reasonable threat. Although appellant
claimed he thought Dudney was going to hit him first, the video footage contradicts that
testimony. This Court determines that no reasonable factfinder could view the video as depicting
Dudney threatening violence. It shows only that Dudney started to raise his arm above his head;
he did not curl his hand into a fist nor did he draw his arm backwards in preparation for landing a
blow to appellant’s body. In stark contrast to appellant’s testimony, the video very clearly shows
that Dudney never “jump[ed]” at appellant or attempted to hit him.
In his testimony, appellant relied on Dudney’s raised arm as proof of a physical threat,
but when the Commonwealth pointed out that Dudney’s hand was not balled or prepared to
strike, appellant changed course and claimed it was Dudney’s other hand, hidden from the
camera’s view, that appeared ready to strike. He could not explain, however, exactly what that
other hand was doing to make him believe Dudney appeared ready to strike. Accordingly, when
-8-
reviewing the totality of the evidence, this Court concludes that a reasonable jury could find
beyond a reasonable doubt that appellant did not act in self-defense either time he punched
Dudney.
B. Evidence of Malice
Appellant’s second claim on appeal is that, even if the jury could have reasonably
rejected his self-defense claim, the evidence failed to establish malice. Murder is a homicide
committed with malice. Edwards v. Commonwealth, 68 Va. App. 284, 297 (2017). Malice
exists “in the ‘doing of a wrongful act intentionally, or without just cause or excuse, or as a result
of ill will.’” Tizon v. Commonwealth, 60 Va. App. 1, 11 (2012) (quoting Dawkins v.
Commonwealth, 186 Va. 55, 61 (1947)). Malice “may be directly evidenced by words, or
inferred from acts and conduct which necessarily result in injury.” Burkeen v. Commonwealth,
286 Va. 255, 259 (2013) (quoting Dawkins, 186 Va. at 61). “Volitional acts, purposefully or
willfully committed, are consistent with a finding of malice and inconsistent with inadvertence.”
Luck v. Commonwealth, 32 Va. App. 827, 833 (2000). “Whether malice existed is a question for
the fact finder.” Robertson v. Commonwealth, 31 Va. App. 814, 823 (2000). Under the totality
of circumstances, malice may be proven even with a single punch. See, e.g., Johnson v.
Commonwealth, 53 Va. App. 79, 103-04 (2008) (finding intent to permanently injure with a
single punch when defendant struck a defenseless victim with premeditated great force).
As established above, the jury was entitled to find that appellant acted out of anger when
he punched Dudney and that such behavior was not made in self-defense. Nevertheless,
appellant again argues that Dudney’s “threat” placed him in reasonable fear for his safety and
that his own actions in response were, therefore, not malicious. Because the jury could
reasonably discount appellant’s claim of a physical threat, the remaining evidence establishes
only that Dudney made a verbal comment prior to appellant punching him. This Court reiterates
-9-
that “words alone are not sufficient to engender a reasonable provocation that incites passion and
negates the presence of malice.” Smith v. Commonwealth, 68 Va. App. 399, 412 (2018). And
appellant’s claim that Dudney’s statement incited a non-malevolent response is also undercut by
appellant’s admission that he had already walked away from Dudney twice that night without
engaging in physical violence despite Dudney having made other “inciting” comments. The jury
was therefore entitled to find that appellant acted with malice in punching Dudney twice in quick
succession with enough force to render him unconscious, instead of choosing to walk away a
third time.
CONCLUSION
For the foregoing reasons, this Court affirms the circuit court’s judgment.
Affirmed.
- 10 -