Herring v. Commonwealth

Present: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 130989 JUSTICE LEROY F. MILLETTE, JR.
June 5, 2014
TONY MARK HERRING, JR.
TONY MARK HERRING, JR.
v. Record No. 131059
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In these appeals we consider the sufficiency of
assignments of error and whether evidence supported the
defendant's convictions for abduction, attempted murder, and
use of a firearm during the course of an attempted felony.
I. Facts and Proceedings
In December 2010, Tony Mark Herring, Jr., lived with his
wife Heather Renee Herring and their three children in
Greenville, Augusta County, Virginia. Tony's father,
grandfather to the three children, lived with the family.
Although Heather's mother also lived with the Herrings, only
Tony, Heather, the three children, and the grandfather were
present in the house at the time of the incident giving rise to
these appeals.
On December 14, 2010, Heather confronted Tony with her
suspicions of Tony having an affair, which began a lengthy
dispute between Heather and Tony. Although Tony and Heather
initially only engaged in a verbal argument, the dispute
escalated to the point of physical violence and Tony
brandishing two different weapons while verbally threatening
Heather's life.
Based on these events, Tony was indicted for attempted
first degree murder of Heather pursuant to Code §§ 18.2-26 and
18.2-32, abduction of the grandfather and each of Tony's three
children pursuant to Code § 18.2-47, and use of a firearm while
attempting to murder Heather pursuant to Code § 18.2-53.1.
Tony pled not guilty to each of the charges and waived a jury
trial. At the conclusion of the bench trial, the circuit court
found Tony guilty of each offense. After considering a pre-
sentence report, the circuit court sentenced Tony to (1) ten
years for the attempted murder conviction with two years
suspended, (2) five years for each abduction conviction with
all five years of each conviction suspended, and (3) three
years for the use of a firearm conviction.
Tony timely appealed to the Court of Appeals, arguing that
the evidence was insufficient to support his convictions. In
an unpublished opinion, the Court of Appeals affirmed Tony's
convictions for attempted first degree murder of Heather and
use of a firearm during the commission of an attempted felony,
but reversed Tony's convictions for abduction of the
grandfather and Tony's three children. Herring v.
2
Commonwealth, Record No. 1430-12-3 (April 16, 2013). The Court
of Appeals denied both Tony's and the Commonwealth's petitions
for rehearing en banc. Herring v. Commonwealth, Record No.
1430-12-3 (May 29, 2013).
Tony and the Commonwealth timely filed petitions for
appeal with this Court. We combine these appeals, and address
the assignments of error and the arguments of the parties to
the extent they direct us to resolve the following:
1. Should Tony's appeal to the Court of Appeals have
been dismissed under Rule 5A:12(c)(1)(ii), and Tony's
appeal to the Supreme Court of Virginia be dismissed
under Rule 5:17(c)(1)(iii), because Tony's assignment
of error in each court is insufficient?
2. Did the Court of Appeals err in holding that the
evidence was not sufficient to support the circuit
court's judgment in finding Tony guilty of abduction
of the grandfather and Tony's three children?
3. Did the Court of Appeals err in holding that the
evidence was sufficient to support the circuit
court's judgment in finding Tony guilty of attempted
first degree murder of Heather and guilty of use of a
firearm during the commission of that attempted
felony?
II. Discussion
A. Standard of Review
"When reviewing a defendant's challenge to the sufficiency
of the evidence to sustain a conviction, this Court reviews the
evidence in the light most favorable to the Commonwealth, as
the prevailing party at trial, and considers all inferences
fairly deducible from that evidence." Allen v. Commonwealth,
3
287 Va. 68, 72, 752 S.E.2d 856, 858-59 (2014) (alterations
omitted). "The lower court will be reversed only if that
court's judgment is plainly wrong or without evidence to
support it." Id. at 72, 752 S.E.2d at 859 (internal quotation
marks omitted).
"To the extent we interpret a statute or the Rules of the
Supreme Court, these are questions of law that we review de
novo." Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d
309, 311 (2014).
B. Tony's Assignments of Error
The Commonwealth contends that Tony's assignments of error
contain four separate insufficiencies which require us to
reverse the judgment of the Court of Appeals reversing Tony's
abduction convictions, and to dismiss Tony's appeal to this
Court.
1. Tony's Assignment of Error in the Court of Appeals as Set
Forth in Tony's Petition for Appeal to the Court of Appeals
The Court of Appeals held that Tony's assignment of error
was sufficient to invoke its appellate jurisdiction. Rule
5A:12(c)(1)(ii) governs the sufficiency of assignments of error
in the Court of Appeals. That Rule provides that "[a]n
assignment of error which does not address the findings or
rulings in the trial court . . . , or which merely states that
the judgment or award is contrary to the law and the
4
evidence[,] is not sufficient." Rule 5A:12(c)(1)(ii). Tony's
single assignment of error in his petition for appeal to the
Court of Appeals reads:
1. The trial court erred by failing to grant the
defendant[']s motion to strike the Commonwealth's
evidence as being insufficient as a matter of law to
sustain his convictions for attempted murder,
abduction[,] and the use of a firearm in the
commission of a felony.
a. The Assignment of Error Addresses the Circuit Court's
Findings or Rulings
The Commonwealth argues that this assignment of error is
insufficient because it "does not address the findings or
rulings in the trial court" because Tony never made a motion to
strike the evidence. Rule 5A:12(c)(1)(ii).
"In the context of a bench trial, we have previously
recognized that a challenge to the sufficiency of [the]
evidence may be preserved for appeal when made in closing
argument." Preferred Sys. Solutions, Inc. v. GP Consulting,
LLC, 284 Va. 382, 394-95, 732 S.E.2d 676, 682-83 (2012); see
also Little v. Cooke, 274 Va. 697, 718, 652 S.E.2d 129, 141-42
(2007). Tony waived his right to a jury and was tried in a
bench trial. During closing argument, Tony's counsel asserted
that the Commonwealth's evidence was insufficient to find that
Tony was guilty beyond a reasonable doubt, and specifically
moved to strike the Commonwealth's case:
5
I would make that . . . motion to strike the
Commonwealth's case with respect to the attempted
murder charge as well as all of the abduction
charges. With respect to the firearm charge in the
commission of a felony, I would say that fails as
well, Judge.
(Emphasis added.) It is clear that this was a motion to strike
the Commonwealth's evidence made during closing argument in a
bench trial, which sufficiently preserved Tony's insufficiency
of the evidence argument. Thus, Tony's assignment of error in
the Court of Appeals did address the findings or rulings in the
trial court.
b. The Assignment of Error Does Not Merely State that the
Judgment Is Contrary to the Law and the Evidence
The Commonwealth argues that this assignment of error is
insufficient because it "merely states that the judgment is
contrary to the law and the evidence." Rule 5A:12(c)(1)(ii).
We find the holding in Findlay v. Commonwealth, 287 Va.
111, 752 S.E.2d 868 (2014), to be dispositive of this issue.
In that case, we addressed whether the appellant's single
assignment of error in the Court of Appeals was sufficient
under Rule 5A:12(c)(1)(ii). Id. at 113-15, 752 S.E.2d at 870-
71. We held that the single assignment of error challenging
"the trial court's denial of [the appellant's] Motion to
Suppress all of the seized videos" was not insufficient because
it did not "merely allege that [the appellant's] convictions
are contrary to the law" nor did it "state generally that the
6
evidence is insufficient." Id. at 113, 116, 752 S.E.2d at 870-
71. Instead, we recognized that the assignment of error
"points to a specific . . . ruling of the trial court . . .
that [the appellant] believes to be in error." Id. at 116, 752
S.E.2d at 871. In confirming the sufficiency of the assignment
of error, we said that "[s]uch specificity adequately puts the
court and opposing counsel on notice" regarding what alleged
errors the appellant sought to have reversed, and thus
prevented both the court and opposing counsel from having to
search through the entire record. Id. (citing First Nat'l Bank
of Richmond v. William R. Trigg Co., 106 Va. 327, 341, 56 S.E.
158, 163 (1907)).
Similarly, Tony's assignment of error in the Court of
Appeals points to the circuit court's specific ruling that Tony
believes to be in error: the court's failure to grant Tony's
motion to strike. Moreover, this assignment of error connects
that alleged error to Tony's claim that the Commonwealth failed
to prove the elements of specific convictions. Tony's
assignment of error in the Court of Appeals therefore does not
"merely state[] that the judgment or award is contrary to the
law and the evidence." Rule 5A:12(c)(1)(ii). Tony instead
satisfies the plain language of Rule 5A:12(c)(1)(ii) by
"lay[ing] his finger on the error in his assignment of error."
7
Findlay, 287 Va. at 115, 752 S.E.2d at 871 (internal quotation
marks and alteration omitted).
Seeking to distinguish Findlay, the Commonwealth observes
that this case involves an insufficiency of the evidence claim
rather than a challenge to the suppression of evidence, and is
therefore directly addressed by the plain language of Rule
5A:12(c)(1)(ii). When it comes to insufficiency of the
evidence claims, the Commonwealth argues that appellants should
be required to provide greater substance than what Findlay
outlined for an assignment of error to be sufficient.
The plain language of Rule 5A:12(c)(1)(ii) makes clear
that its terms govern the sufficiency of all assignments of
error in the Court of Appeals. We have already explained why
Tony's assignment of error was not an impermissibly generalized
statement that the evidence was insufficient. Requiring more
would be tantamount to demanding that appellants include a
"because" clause or its equivalent in their assignments of
error to explain why it was error for the trial court to take
the action that it did. We rejected that proposition in the
past, and we reject it again today. See id. at 116, 752 S.E.2d
at 871-72.
The Court of Appeals correctly held that this assignment
of error was sufficient under Rule 5A:12(c)(1)(ii).
8
2. Tony's Assignment of Error in This Court as Set Forth in
Tony's Petition for Appeal to This Court
Rule 5:17(c)(1)(iii) governs the sufficiency of
assignments of error in the Supreme Court of Virginia. That
Rule provides that "[a]n assignment of error that does not
address the findings or rulings in the trial court or other
tribunal from which an appeal is taken, or which merely states
that the judgment or award is contrary to the law and the
evidence, is not sufficient." Rule 5:17(c)(1)(iii). Tony's
single assignment of error in his petition for appeal to this
Court reads:
1. The Court of Appeal[s] erroneously held that the
trial court had not erred when it failed to grant
Defendant[']s motion to strike the Commonwealth's
evidence as being insufficient as a matter of law to
prove that the Defendant formed a specific intent to
commit malicious premeditated murder and that
subsequently he performed a direct yet ineffectual
act toward the commission of that crime, and that
therefore the defendant used a firearm in the
commission of a felony.
The Commonwealth argues that this assignment of error is
insufficient because it is different than the assignment of
error contained in Tony's petition for appeal to the Court of
Appeals. Rule 5:17(c)(1)(iii) does not prohibit such an
alteration, and we have never held that such an alteration can
make insufficient an otherwise sufficient assignment of error
in this Court. In fact, Rule 5:17(c)(1)(ii), which addresses
appeals from the Court of Appeals to this Court, requires that
9
a petition for appeal to this Court assign error "to
assignments of error presented in, and to actions taken by, the
Court of Appeals." Similarly, Rule 5:17(c)(1)(iii) requires
that an assignment of error in this Court "address the findings
or rulings in the . . . tribunal from which an appeal is
taken." Therefore, at a minimum, an assignment of error in
this Court will vary from an assignment of error in the Court
of Appeals because the petition for appeal to this Court
assigns error to what occurred in the Court of Appeals. 1
The Commonwealth cites our prohibition against allowing
appellants to alter the substance of an assignment of error, as
stated in the appellant's petition for appeal to this Court,
once this Court grants such an assignment of error. See, e.g.,
White v. Commonwealth, 267 Va. 96, 102-03, 591 S.E.2d 662, 665-
66 (2004); Santen v. Tuthill, 265 Va. 492, 497 n.4, 578 S.E.2d
788, 791 n.4 (2003); Cardinal Holding Co. v. Deal, 258 Va. 623,
1
On May 16, 2014, this Court adopted amendments to Rule
5:17(c). These amendments did not alter the Rule language
quoted in this opinion. However, we note that Rule 5:17(c) now
includes the following additional language:
An assignment of error in an appeal from the Court of
Appeals to the Supreme Court which recites that "the
trial court erred" and specifies the errors in the
trial court, will be sufficient so long as the Court
of Appeals ruled upon the specific merits of the
alleged trial court error and the error assigned in
this Court is identical to that assigned in the Court
of Appeals.
Rule 5:17(c)(1)(iii).
10
629, 522 S.E.2d 614, 617-18 (1999); Black v. Eagle, 248 Va. 48,
57-58, 445 S.E.2d 662, 667 (1994); Hamilton Dev. Co. v. Broad
Rock Club, Inc., 248 Va. 40, 43-44, 445 S.E.2d 140, 142-43
(1994). We continue to embrace the rule as set forth and
exemplified in these cases that, once this Court grants an
assignment of error in a petition for appeal, no party may
thereafter alter the substance of that assignment of error
without the permission of this Court – be it in a brief or at
oral argument.
However, this rule cannot be interpreted to prohibit a
petitioner from drafting a different assignment of error in a
petition for appeal to this Court than that which was stated in
the petition for appeal to the Court of Appeals. The rule
against altering assignments of error is predicated on the fact
that we award appeals "based on assignments of error, a
required part of every petition for appeal" to this Court under
Rule 5:17(c)(1). Hamilton Dev., 248 Va. at 44, 445 S.E.2d at
143. We do not award appeals based on the assignments of error
that are a required part of every petition for appeal to the
Court of Appeals under Rule 5A:12(c)(1). Thus, it is not a
basis for dismissal under Rule 5:17(c)(1) when an assignment of
error in the petition for appeal to this Court merely differs
from an assignment of error in the petition for appeal to the
Court of Appeals.
11
Instead, we will continue to assess the sufficiency of
assignments of error in this Court under the plain terms of
Rule 5:17(c)(1)(iii), just as we assess the sufficiency of
assignments of error in the Court of Appeals under the plain
terms of Rule 5A:12(c)(1)(ii). As the Commonwealth does not
otherwise argue that Tony's assignment of error in his petition
for appeal to this Court is insufficient under Rule
5:17(c)(1)(iii), there is no merit to the Commonwealth's
argument that this assignment of error is insufficient.
3. Tony's Assignment of Error in This Court as Set Forth in
Tony's Opening Brief to This Court
Tony's single assignment of error in his opening brief to
this Court reads:
1. The trial court erred when it failed to grant
Defendant's Motion to Strike the Commonwealth's
evidence as being insufficient as a matter of law to
prove that the Defendant formed a specific intent to
commit malicious premeditated murder and that
subsequently he performed a direct yet ineffectual
act toward the commission of that crime, and that
therefore the Defendant used a firearm in the
commission of a felony.
The Commonwealth argues that this assignment of error is
insufficient because it assigns error to the trial court
instead of to the "tribunal from which [the] appeal is taken,"
that is, to the Court of Appeals. Rule 5:17(c)(1)(iii). The
Commonwealth also argues that, because this assignment of error
is different from the assignment of error as stated in Tony's
12
petition for appeal to this Court, it creates an "uncertainty"
that "disentitles" Tony to relief.
As we have just reaffirmed, once we grant an assignment of
error as stated in a petition for appeal to this Court, if a
material alteration of that assignment of error is made in
subsequent filings or at oral argument without this Court's
permission, then that alteration is impermissible. See, e.g.,
White, 267 Va. at 102-03, 591 S.E.2d at 665-66; Santen, 265 Va.
at 497 n.4, 578 S.E.2d at 791 n.4; Cardinal Holding, 258 Va. at
629, 522 S.E.2d at 617-18; Black, 248 Va. at 57-58, 445 S.E.2d
at 667; Hamilton Dev., 248 Va. at 43-44, 445 S.E.2d at 142-43.
That rule applies regardless of whether the post-grant
alteration would be either a benefit or a detriment to the
appellant. Simply put, we do not recognize any unauthorized
substantive alteration to the assignment of error in the
petition for appeal which was the basis of this Court's order
granting the appeal. 2 See Hamilton Dev., 248 Va. at 44, 445
S.E.2d at 143. Moreover, because Tony's alteration of the
2
We have previously held that, "while it is improper for
an appellant to alter the wording of a granted assignment of
error[,] non-substantive changes to an assignment of error do
not default the issue raised." Northam v. Virginia State Bar,
285 Va. 429, 434 n.*, 737 S.E.2d 905, 907 n.* (2013) (internal
quotation marks and alterations omitted). This is because non-
substantive alterations "do not permit the appellant to argue a
different issue on appeal," and thus "we may properly consider
[such] modified assignments of error." Id.; see, e.g., Hudson
v. Pillow, 261 Va. 296, 301-02, 541 S.E.2d 556, 560 (2001).
13
assignment of error is without effect, there is no uncertainty
as to what the assignment of error is: it is the assignment of
error as set forth in Tony's petition for appeal to this Court
that formed the basis for this appeal.
Tony's appeal to this Court will not be dismissed based on
the Commonwealth's challenge to Tony's ineffective modification
of the assignment of error subsequent to the granting of his
appeal.
C. Tony's Convictions for Abduction
1. Whether the Issue of Intent Was Preserved
Rule 5A:18 governs the preservation of issues for
appellate review in the Court of Appeals, and Rule 5:25 is its
counterpart for the preservation of issues for appellate review
in this Court. Those Rules provide that "[n]o 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." Rule 5A:18; 5:25.
The Commonwealth argues that Tony failed to preserve the
issue of whether the evidence was sufficient to support the
intent element of his abduction convictions because Tony's
counsel, in closing argument, never challenged the sufficiency
of the evidence to prove Tony's intent to deprive the
grandfather and Tony's three children of their personal
liberty.
14
During closing argument, Tony's counsel stated:
I would make that . . . motion to strike the
Commonwealth's case with respect to . . . all of the
abduction charges. . . . I don't think that the
Commonwealth has proved that [Tony] had any specific
intent based on the two witnesses who were there,
that he had any intent to kill anybody, and that he
did not . . . abduct anybody according to the
statute.
When Tony's counsel challenged the Commonwealth's evidence
by making a motion to strike, Tony's counsel argued that the
evidence was insufficient to prove abduction "according to the
statute," and therefore challenged all of the elements of the
statute. Cf. Washington v. Commonwealth, 216 Va. 185, 192, 217
S.E.2d 815, 822 (1975) (holding that a defendant knows, "from
the invocation of the statute and its subsection, [of] the
essential elements of the case against him"). The statute in
question is Code § 18.2-47(A), which sets forth the elements
the Commonwealth must prove beyond a reasonable doubt to
convict a defendant of abduction, and which includes, among
other elements, the element of intent. By arguing that the
abduction statute in its entirety was not satisfied, Tony's
counsel preserved his challenge to the sufficiency of the
evidence as to every statutory element of abduction, including
intent to deprive the victims of their personal liberty.
15
2. Whether the Evidence Was Sufficient to Support Tony's
Abduction Convictions
A person is guilty of abduction if, "by force,
intimidation[,] or deception, and without legal justification
or excuse, [he or she] seizes, takes, transports, detains[,] or
secretes another person with the intent to deprive such other
person of his personal liberty or to withhold or conceal him
from any person, authority[,] or institution lawfully entitled
to his charge." Code § 18.2-47(A). The Court of Appeals held
that although the evidence was sufficient to satisfy the
element that the grandfather and Tony's three children were
"detain[ed]" by "intimidation," the evidence was insufficient
to satisfy the element that Tony had the "intent to deprive
such other person[s] of [their] personal liberty."
On appeal before this Court, the Commonwealth disputes the
insufficiency of the evidence to support the elements of
detention by intimidation and intent to detain. 3 We address
3
The plain language of Code § 18.2-47(A) does not provide
a general exemption for parents from being charged with
abduction of their children. Taylor v. Commonwealth, 260 Va.
683, 688, 537 S.E.2d 592, 594-95 (2000). In contrast to the
facts considered in Taylor, however, in this case Tony was a
father who, with full parental rights over his three children,
"detain[ed]" his children simply by keeping them within the
house in which they lived with their father and mother.
Compare id. at 685-87, 537 S.E.2d at 593-94. Because no party
has argued the issue, we decline to address whether the facts
of this case provide any support for a claim that the father
had a "legal justification or excuse" to "detain[]" his
children, under the exemption language of Code § 18.2-47(A).
16
both elements and find that, when the evidence is viewed in the
light most favorable to the Commonwealth, the circuit court's
judgment in convicting Tony of abducting the grandfather and
Tony's three children was not "without evidence to support it."
Allen, 287 Va. at 72, 752 S.E.2d at 859 (internal quotation
marks omitted). Therefore, we will reverse the Court of
Appeals' judgment as to the abduction convictions, and direct
that the circuit court's judgment be affirmed.
a. The Evidence Was Sufficient to Prove Detention by
Intimidation
For purposes of Code § 18.2-47(A), a defendant "detains" a
victim by having that victim "remain in a certain location, or
even in a certain position" through the use of force,
intimidation, or deception. Burton v. Commonwealth, 281 Va.
622, 628, 708 S.E.2d 892, 895 (2011). For purposes of Code
§ 18.2-47(A), it is possible to "detain[]" a victim by having
that victim remain within a house. See, e.g., Joyce v.
Commonwealth, 210 Va. 272, 274, 170 S.E.2d 9, 11 (1969)
(discussing the predecessor to Code § 18.2-47(A)).
In this case, the evidence was sufficient to prove that
Tony used intimidation to force the grandfather and Tony's
three children to remain in the home. Tony had a heated verbal
argument with Heather, leading to Tony physically abusing and
threatening to kill Heather. Thereafter, Tony armed himself
17
with a shotgun and another firearm. After Heather fled the
house, Tony threatened "I will [expletive] kill you Heather
Renee," and fired the shotgun outside. Once back inside, Tony
paced throughout the home while still armed. Tony also
threatened to kill the police, the grandfather, and Tony's
children. During Tony's rampage, Tony's daughters hid in the
laundry room until their grandfather put them in his bedroom
with their brother and locked the door. After the grandfather
struck Tony in order to distract him, the grandfather hustled
the children out of the house and out of harm's way, telling
them to go to his truck in the front yard and to lie on the
floorboard.
Viewed in the light most favorable to the Commonwealth,
this evidence supported the circuit court's judgment that Tony
detained the grandfather and Tony's three children through
intimidation as required under Code § 18.2-47(A).
b. The Evidence Was Sufficient to Prove Intent
"Intent is the purpose formed in a person's mind and may,
like any other fact, be shown by circumstances." Howard v.
Commonwealth, 207 Va. 222, 228, 148 S.E.2d 800, 804 (1966).
"Intent is a state of mind which can be evidenced only by the
words or conduct of the person who is claimed to have
entertained it." Burkeen v. Commonwealth, 286 Va. 255, 259,
749 S.E.2d 172, 175 (2013) (internal quotation marks omitted).
18
We reject the Commonwealth's argument that simply because
the grandfather and children were detained, and because a
person can be presumed to intend the natural and probable
consequences of his actions, the intent element is therefore
satisfied. The General Assembly saw fit to include both a
detention and a specific intent element in Code § 18.2-47(A),
and we will give effect to each statutory element rather than
allow part of the statute to become mere surplusage. BBF, Inc.
v. Alstom Power, Inc., 274 Va. 326, 331, 645 S.E.2d 467, 469
(2007) ("[W]e are not free . . . to ignore language[] contained
in statutes." (internal quotation marks omitted)); see also
Travelers Prop. Cas. Co. of Am. v. Ely, 276 Va. 339, 345, 666
S.E.2d 523, 527 (2008) (noting the "settled rule in this
Commonwealth that every provision in or part of a statute shall
be given effect if possible"). Thus, we have previously
refused to conflate these two elements, and instead continue to
recognize that "although proof of either element may be used to
establish the other, the evidence presented must establish both
elements beyond a reasonable doubt." Burton, 281 Va. at 628,
708 S.E.2d at 895.
In contrast with the facts in Burton, the evidence in this
case was independently sufficient to prove that Tony intended
to detain the grandfather and Tony's three children. In
concluding that Tony intended to detain the grandfather and
19
Tony's three children by force or intimidation, the circuit
court relied upon the evidence establishing that Tony was
walking around the house with a shotgun which had already been
discharged, that Tony had another firearm either on or near his
person, that Tony had told at least one of his daughters that
he was going to shoot her, her sister, her brother, her
grandfather, and himself, and that Tony declared to the
grandfather that he was "going to have to shoot you" as the
grandfather was leaving the home. In recounting these facts,
the circuit court found "what [it] need[ed] to know about what
[Herring's] intent was with respect to keeping them there [in
the house]." And from these facts, the court "infer[red] that
[Herring] intended those people not to leave." We must "defer
to the[se] findings of fact made by [the] trial judge at [the]
bench trial [because] there is evidence to support" those
findings and they are not plainly wrong. Sullivan v.
Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010); see
also Mongold v. Woods, 278 Va. 196, 204, 677 S.E.2d 288, 293
(2009) ("We will defer to the circuit court's determination of
the facts unless unsupported by evidence or plainly wrong
because an appellate court lacks the fact-finder's ability to
hear and see the witnesses and assess their credibility.").
Viewed in the light most favorable to the Commonwealth,
this evidence supported the circuit court's judgment that Tony
20
intended to deprive the grandfather and Tony's three children
of their personal liberty as required under Code § 18.2-47(A).
D. Tony's Conviction for Attempted First Degree Murder
"An attempt in criminal law is an apparent unfinished
crime, and hence [contains] two elements[:] (1) [t]he intent to
commit a crime[,] and (2) [an overt] act done towards its
commission, but falling short of the execution of the ultimate
design." Sizemore v. Commonwealth, 218 Va. 980, 983, 243
S.E.2d 212, 214 (1978) (quoting Glover v. Commonwealth, 86 Va.
382, 385-86, 10 S.E. 420, 421 (1889)). The overt act "need not
. . . be the last proximate act to the consummation of the
crime in contemplation, but is sufficient if it be an act
apparently adopted to produce the result intended." Id. The
Court of Appeals held that the evidence was sufficient to
support both the element that Tony intended to commit first
degree murder of Heather, and the element that Tony committed
an overt act in furtherance of that crime.
On appeal before this Court, Tony disputes the sufficiency
of the evidence to support the elements of intent and an overt
act. We address both elements and find that, when the evidence
is viewed in the light most favorable to the Commonwealth, the
circuit court's judgment in convicting Tony of attempted first
degree murder of Heather was not "without evidence to support
it." Allen, 287 Va. at 72, 752 S.E.2d at 859 (internal
21
quotation marks omitted). Therefore, we will affirm the Court
of Appeals' judgment as to the attempted murder conviction,
which itself affirmed the circuit court's judgment.
1. The Evidence Was Sufficient to Prove Intent
First degree murder is "[m]urder, other than capital
murder, by poison, lying in wait, imprisonment, starving, or by
any willful, deliberate, and premeditated killing, or in the
commission of, or attempt to commit, arson, rape, forcible
sodomy, inanimate or animate object sexual penetration,
robbery, burglary or abduction, except as provided in [Code]
§ 18.2-31." Code § 18.2-32. In the context of attempted
murder, the evidence must show "specific intent to kill the
victim." Hargrave v. Commonwealth, 214 Va. 436, 437, 201
S.E.2d 597, 598 (1974).
In this case, the evidence was sufficient to show Tony's
specific intent to kill Heather. Tony and Heather had a
lengthy verbal argument. During this dispute, Tony pushed,
choked, and physically struck Heather. Tony armed himself with
a shotgun and, after Heather had escaped outside, stood on the
front porch and yelled a clear threat: "I will [expletive] kill
you Heather Renee." Although the grandfather could not say
that Tony was aiming at Heather before the shotgun was fired,
the grandfather was sufficiently concerned as to the safety of
22
the family that he pushed the shotgun upwards so that the
shotgun would discharge harmlessly in the air.
Viewed in the light most favorable to the Commonwealth,
this evidence supported the circuit court's judgment that Tony
intended to kill Heather.
2. The Evidence Was Sufficient to Prove an Overt Act
"An attempt [is] any overt act done with the intent to
commit the crime, and which, except for the interference of
some cause preventing the carrying out of the intent, would
have resulted in the commission of the crime." Howard, 207 Va.
at 228, 148 S.E.2d at 804 (internal quotation marks and
citation omitted). We have long rejected the position that the
overt act can only be the "last proximate act to the
consummation of the crime in contemplation." Glover, 86 Va. at
385-86, 10 S.E. at 421. Instead, an overt act is any "act
apparently adopted to produce the result intended" so long as
that act is not "mere preparation." Martin v. Commonwealth,
195 Va. 1107, 1110-11, 81 S.E.2d 574, 576 (1954).
In this case, the evidence was sufficient to show that
Tony entertained the specific intent to kill Heather and that
Tony committed overt acts adopted to produce that intended
result that went beyond mere acts of preparation. Tony armed
himself with a shotgun, followed his intended victim outside to
the front yard, and stood on the front porch while the gun
23
"veer[ed] around" without aiming at any particular target.
Tony ceased his pursuit of Heather only after the grandfather
pushed the shotgun upwards, causing the shotgun to discharge
harmlessly into the air. These actions fall short of the last
proximate act of Tony using the shotgun to kill Heather. See
Sizemore, 218 Va. at 986, 243 S.E.2d at 216. But the last
proximate act is not required to prove an overt act. Instead,
we hold that Tony committed an overt act because his actions
were more than mere preparation, and those actions were adopted
to produce the intended result of killing Heather. Compare id.
at 986, 243 S.E.2d at 215-16.
Viewed in the light most favorable to the Commonwealth,
this evidence supported the circuit court's judgment that Tony
committed an overt act while he had the specific intent to kill
Heather.
E. Tony's Conviction for Use of a Firearm During the
Commission of an Attempted Felony
It is "unlawful for any person to use . . . any pistol,
shotgun, rifle, or other firearm or display such weapon in a
threatening manner while committing or attempting to commit
[various enumerated felonies, including] murder." Code § 18.2-
53.1. The parties agree that the sufficiency of the evidence
supporting Tony's conviction under Code § 18.2-53.1 rises or
24
falls with Tony's challenge to the sufficiency of the evidence
supporting his attempted first degree murder conviction.
The evidence that supported Tony's conviction of attempted
first degree murder also supported the circuit court's judgment
that Tony was guilty of use of a firearm while attempting to
murder Heather.
III. Conclusion
For the aforementioned reasons, we will reverse that
portion of the Court of Appeals' judgment reversing Tony's
convictions for abduction of the grandfather and Tony's three
children, and reinstate the circuit court's judgment as to
those abduction convictions. We will also affirm that portion
of the Court of Appeals' judgment upholding Tony's convictions
for attempted first degree murder of Heather and use of a
firearm during the commission of an attempted felony.
Record 130989 – Affirmed in part,
reversed in part,
and final judgment.
Record 131059 – Affirmed.
JUSTICE POWELL, with whom JUSTICE McCLANAHAN joins, concurring
in part and dissenting in part.
I concur in the judgments of the Court, which uphold all
of the defendant’s convictions. As explained below, however, I
disagree with the majority’s analysis in reaching these
25
judgments because the defendant’s assignment of error in the
Court of Appeals was deficient and, therefore, the Court of
Appeals did not have jurisdiction to decide the appeal. As a
result, there was no basis for its reversal of the convictions
for abduction of the defendant’s father and his three children,
and I would reverse the decision of the Court of Appeals in the
Commonwealth’s appeal, Record No. 130989, on the basis that the
Court of Appeals had no power to act. See Findlay v.
Commonwealth, 287 Va. 111, 115 n.2, 752 S.E.2d 868, 871 n.2
(2014) (recognizing that a litigant’s failure to comply with
the requirements of Rule 5A:12(c) deprives the Court of Appeals
of active jurisdiction and requires dismissal of an appeal). I
also would not reach the defendant’s assignment of error in
Record No. 131059 for the same reason, and thus, I concur in
the judgment of this Court in that appeal confirming the
convictions reached in the trial of this case.
The majority believes that Findlay controls these appeals
and that Tony’s assignment of error to the Court of Appeals
does not violate Rule 5A:12(c)(1)(ii). However, I believe that
Tony’s assignment of error is exactly the kind of assignment of
error that Rule 5A:12(c)(1)(ii) prohibits. Therefore, although
I agree with the majority that Tony sufficiently preserved his
argument for appeal through his motion to strike the
Commonwealth’s evidence made during his closing argument in a
26
bench trial, for the following reasons, I would vacate the
Court of Appeals’ decision for want of active jurisdiction and
dismiss these appeals.
In Findlay, the petitioner/appellant assigned error to
“the trial court’s denial of his Motion to Suppress all of the
seized videos that came from the defendant's computer, and his
computer hard drive, and all derivatives thereof.” Id. at 113,
752 S.E.2d at 870. We held that that assignment of error was
sufficient because it did not “merely allege that his
convictions are contrary to the law” nor did he “state
generally that the evidence is insufficient.” Id. at 116, 752
S.E.2d at 871. Indeed, this Court held that Findlay “point[ed]
to a specific preliminary ruling of the trial court — the trial
court's denial of his motion to suppress — that he believe[d]
to be in error” and, therefore, “[s]uch specificity adequately
puts the court and opposing counsel on notice as to ‘what
points [appellant]’s counsel intends to [rely upon in asking
for] a reversal of the judgment or decree’ and prevents them
from having to ‘hunt through the record for every conceivable
error which the court below may have committed.’”. Id.
(quoting First Nat’l Bank of Richmond v. William R. Trigg Co.,
106 Va. 327, 341, 56 S.E. 158, 163 (1907)).
Here, Tony’s assignment of error was
27
[t]he trial court erred by failing to grant
the defendant[’]s motion to strike the
Commonwealth’s evidence as being
insufficient as a matter of law to sustain
his convictions for attempted murder,
abduction and use of a firearm in the
commission of a felony.
Rule 5A:12(c)(1)(ii) states that
[a]n assignment of error which does not
address the findings or rulings in the
trial court or other tribunal from which an
appeal is taken, or which merely states
that the judgment or award is contrary to
the law and the evidence is not sufficient.
If the assignments of error are
insufficient or otherwise fail to comply
with the requirements of this Rule, the
petition for appeal shall be dismissed.
I believe that Tony’s assignment of error is tantamount to one
which merely states that the “award is contrary to the law and
the evidence.”
The purpose of assignments of error is
to point out the errors with reasonable
certainty in order to direct this court and
opposing counsel to the points on which
[an] appellant intends to ask a reversal of
the judgment, and to limit discussion to
these points. Without such assignments,
[an] appellee would be unable to prepare an
effective brief in opposition to the
granting of an appeal, to determine the
material portions of the record to
designate for printing, to assure himself
of the correctness of the record while it
is in the clerk’s office, or to file, in
civil cases, assignments of cross-error.
Harlow v. Commonwealth, 195 Va. 269, 271-
72, 77 S.E.2d 851, 853 (1953).
Yeatts v. Murray, 249 Va. 285, 290, 455 S.E.2d 18, 21 (1995).
28
“To require the appellee or the court to
hunt through the record for every
conceivable error which the court below may
have committed, when none has been pointed
out by the party complaining of the
judgment, would obviously be unreasonable
and oppressive on the party recovering
judgment, and most burdensome on this
court, unnecessarily impeding the progress
of its business; and, by the confusion and
uncertainty which it would beget as to the
questions on which the case was decided in
the court below, destroy its character as
an appellate tribunal; and by the
multiplicity of the questions for
discussion tend much more to confusion and
error in its own decisions than the
correction of errors which may in fact have
occurred in the [lower court].”
First Nat’l Bank, 106 Va. at 341-42, 56 S.E. at 163 (quoting
Clements v. Hearne, 45 Tex. 415, 416 (1876)).
Consequently, it is the duty of an
appellant’s counsel “to ‘lay his finger on
the error’ in his [assignment of error],”
Carroll v. Commonwealth, 280 Va. 641, 649,
701 S.E.2d 414, 418 (2010) (quoting First
Nat’l Bank, 106 Va. [at] 342, 56 S.E. [at]
163), and not to invite an appellate court
“to delve into the record and winnow the
chaff from the wheat.” Loughran v.
Kincheloe, 160 Va. 292, 298, 168 S.E. 362,
364 (1933).
Findlay, 287 Va. at 115-16, 752 S.E.2d at 871.
In Yeatts, the assignment of error “merely state[d] that
the habeas court erred by dismissing the petition ‘without
ordering an evidentiary hearing as to his allegations of
ineffective assistance of counsel.’” Yeatts, 249 Va. at 290-
29
91, 455 S.E.2d at 21-22. We held that this assignment of error
was insufficient because it “only challenge[d] the alleged
procedural failure to order an evidentiary hearing; it [did]
not challenge, with reasonable certainty, the habeas court's
substantive ruling on the merits of the ineffective assistance
claims.” Id. at 291, 455 S.E.2d at 22. In Harlow v.
Commonwealth, 195 Va. 269, 270, 77 S.E.2d 851, 852 (1953), the
petitioner/appellant assigned the following errors:
1. Because the trial court erred in giving
to the jury in writing, improper
instructions in the instance of and on
motion of the Commonwealth. 2. The trial
court erred in refusing to give to the jury
proper instructions offered and requested
by the Defendant, in writing, over the
objections and exceptions of the Defendant.
We held that the assignments of error did “not point out the
errors relied on nor do they identify the instructions which
allegedly were erroneously given and refused. In this
situation[,] the assignments of error are insufficient.” Id.
at 272-73, 77 S.E.2d at 853. I believe that Tony’s assignment
of error is not unlike the assignments of error in Yeatts and
Harlow.
In my opinion, Tony’s assignment of error is even more
nebulous than the above assignments of error, or even the
assignment of error in Findlay, which this Court held supplied
sufficient specificity because it alleged that the trial court
30
erred in denying his motion to suppress – a motion containing
limited arguments rather than the entirety of the trial. In
sharp contrast, Tony’s assignment of error attacks the
sufficiency of each charge brought against him, inviting,
indeed requiring, this Court to examine the entire record for
sufficient facts supporting every element of each offense. As
such, his assignment of error suffers the very flaw addressed
in Findlay, where this Court stated that an assignment of error
that generally stated that the evidence was insufficient would
not comport with the requirements of Rule 5A:12(c)(1)(ii). 287
Va. at 116, 752 S.E.2d at 871. By holding that Tony’s
assignment of error to the Court of Appeals is sufficient, the
majority effectively eviscerates Rule 5A:12(c)(1)(ii) and Rule
5:17(c)(1)(iii), the only requirement the Court continued to
recognize in Findlay. Indeed, it is now difficult to envision
an assignment of error that would be deemed insufficient under
the majority’s reasoning.
Recognizing that the purpose of an assignment of error is
to place the opposing party and the Court on notice, with
reasonable certainty, of the points on which the
petitioner/appellant will seek reversal, the majority attempts
to couple Tony’s inadequate assignment of error with the
argument made in the trial court. However, to the extent that
Tony’s motion to strike is itself a shotgun approach attacking
31
each element of each charge, it is insufficient to “lay his
finger on the error” as contemplated under Findlay. 287 Va. at
115, 752 S.E.2d at 871. Moreover, the fact that Tony’s counsel
challenged the offenses during his argument does not save his
assignment of error as we have never held that an insufficient
assignment of error could be saved even by a perfectly
preserved argument. The two are independent requirements for
appeal. See Rule 5A:12(c) (establishing the requirements for a
petition for appeal) and Rule 5A:18 (defining what rulings of
the trial court may serve as a basis for reversal). Therefore,
I believe that Tony’s assignment of error is insufficient and I
would dismiss his appeal.
32