Mildred Renee Oliver v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Petty and Senior Judge Willis
Argued at Richmond, Virginia
MILDRED RENEE OLIVER
MEMORANDUM OPINION* BY
v. Record No. 0748-05-3 JUDGE ROBERT P. FRANK
JULY 5, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Joseph H. M. Schenk, Jr., Public Defender (Office of the Public
Defender, on brief), for appellant.
Denise C. Anderson, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Mildred R. Oliver, appellant, was convicted, in a bench trial, of second-degree murder, in
violation of Code § 18.2-32. On appeal, she contends the trial court erred in finding the evidence
sufficient to convict her of the offense. For the reasons stated, we affirm the judgment of the trial
court.
ANALYSIS
“When a defendant challenges on appeal the sufficiency of the evidence to sustain his
convictions, it is the appellate court’s duty to examine the evidence that tends to support the
convictions and to permit the convictions to stand unless they are plainly wrong or without
evidentiary support. Code § 8.01-680.” Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d
263, 265 (1998). “If there is evidence to support the convictions, the reviewing court is not
permitted to substitute its own judgment, even if its opinion might differ from the conclusions
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
reached by the finder of fact at the trial.” Id. Conflicts in the evidence are resolved by the fact
finder, and such conflicts are not revisited on appeal unless “‘the evidence is such that reasonable
[persons], after weighing the evidence and drawing all just inferences therefrom, could reach but
one conclusion.’” City of Bedford v. Zimmerman, 262 Va. 81, 86, 547 S.E.2d 211, 214 (2001)
(quoting J & E Express, Inc. v. Hancock Peanut Co., 220 Va. 57, 62, 255 S.E.2d 481, 485 (1979)).
Second-degree murder is defined as a “malicious killing” of another person. Turner v.
Commonwealth, 23 Va. App. 270, 274, 476 S.E.2d 504, 506 (1996). Express malice is evidenced
when “one person kills another with a sedate, deliberate mind, and formed design.” Pugh v.
Commonwealth, 223 Va. 663, 668, 292 S.E.2d 339, 341 (1982) (quoting M’Whirt’s Case, 44 Va.
(3 Gratt.) 594, 604 (1846)).
In challenging the sufficiency of the evidence, appellant contends there is no evidence that
she acted maliciously or that she caused the victim’s death. The facts belie these assertions.1
Fletcher Williamson testified that appellant arrived at his residence around 3:00 a.m. on
August 1, 2004. Williamson noticed blood on appellant’s T-shirt and on “her right wrist, right
arm.” Appellant told him the police were looking for her. Williamson testified,
[S]he told me she cut her boyfriend. I . . . I said for what? What
did you . . . she said because he called him . . . she told me he
called her . . . said he called her a bitch. And I didn’t say anything.
Then she said she cut . . . she cut him and left him . . . him in the
floor, bleeding.
Appellant told Williamson not to tell the police about this incident. Appellant asked him if he had a
shirt, which he gave her. Initially, appellant told police she did not recall what she did with the
bloody shirt, yet later, she said Williamson had it.
1
Appellant further contends there was no evidence of a specific intent to murder the
victim. This argument is without merit. Second-degree murder does not require a specific intent
to kill. Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989).
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Appellant gave police a number of conflicting narrations of what transpired between her and
the victim. She initially denied being at the apartment when the victim was killed and further
denied any confrontation with him. Finally, she made a formal statement to the police admitting
that “she must have had a knife in her hand . . . if he was cut, no one was there but her and
him . . . .” She continued, “I must’ve cut him because I had blood on me.” Appellant signed a
written statement that included, “I must have been the one that cut or stabbed [the victim], but I just
do not remember how or why I did it.”
Here, appellant admitted stabbing the victim in anger because he called her a bitch. When
she left, she knew he was bleeding. Her clothing was covered in blood. She gave inconsistent
statements to the police.
“A defendant’s false statements are probative to show he is trying to conceal his guilt, and
thus is evidence of his guilt.” Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823,
831 (1991) (citing Carter v. Commonwealth, 223 Va. 528, 432, 290 S.E.2d 865, 867 (1982)). She
wielded a deadly weapon to kill the victim. Malice may be inferred from the deliberate use of a
deadly weapon. See Morris v. Commonwealth, 17 Va. App. 575, 578, 439 S.E.2d 867, 870 (1994).
Appellant also argues her “confession” to police is based on her own speculation, that since
no one else was present, she must be the perpetrator. Yet, her statement to Williamson was neither
speculative nor based on certain assumptions. She told Williamson she cut the victim because he
called her a bitch. She left him on the floor bleeding. The trial court clearly believed appellant’s
unequivocal statement to Williamson. “[T]he trial court, acting as a fact finder, must evaluate the
credibility of the witnesses, resolve the conflicts in their testimony and weigh the evidence as a
whole.” Albert v. Commonwealth, 2 Va. App. 734, 738, 347 S.E.2d 534, 536 (1986).
Appellant next argues a reasonable hypothesis is that the victim stabbed himself, relying on
the medical examiner’s testimony that it was “mechanically possible” for the victim to have stabbed
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himself. However, the thrust of the medical examiner’s testimony was that it would be “very
unusual” for the fatal wound to be self-inflicted. In his twenty-five (25) years as a medical
examiner, the witness opined he never saw such a self-inflicted wound.
Whether the hypothesis of innocence is reasonable is itself a
“question of fact,” subject to deferential appellate review. “Merely
because defendant’s theory of the case differs from that taken by
the Commonwealth does not mean that every reasonable
hypothesis consistent with his innocence has not been excluded.
What weight should be given evidence is a matter for the
[factfinder] to decide.” Miles v. Commonwealth, 205 Va. 462,
467, 138 S.E.2d 22, 27 (1964); see also Lyons v. City of
Petersburg, 221 Va. 10, 13, 266 S.E.2d 880, 881 (1980)
(“Circumstantial evidence is sufficient to convict if it excludes
every reasonable hypothesis of innocence. This occurs when the
trier of facts has an abiding conviction of the guilt of the accused.”
(emphasis added)). By finding the defendant guilty, therefore, the
factfinder “has found by a process of elimination that the evidence
does not contain a reasonable theory of innocence.” United States
v. Kemble, 197 F.2d 316, 320 (3d Cir. 1952).
Haskins v. Commonwealth, 44 Va. App. 1, 9, 602 S.E.2d 402, 406 (2004) (other citations
omitted).
Thus, the evidence, beyond a reasonable doubt, proves that appellant maliciously stabbed
the victim and left him to bleed to death.
The judgment of the trial court is affirmed.
Affirmed.
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