Donald Keith Epps v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, O’Brien and AtLee
PUBLISHED
Argued at Lexington, Virginia
DONALD KEITH EPPS
OPINION BY
v. Record No. 0148-15-3 JUDGE MARY GRACE O’BRIEN
MAY 31, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James J. Reynolds, Judge
M. Lee Smallwood, II (Office of the Public Defender, on brief), for
appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Donald Keith Epps (“appellant”) was indicted for one count of abduction, in violation of
Code § 18.2-47, and one count of assault and battery, in violation of Code § 18.2-57. Appellant
pled guilty to assault and battery and was found guilty of abduction following a bench trial. The
court sentenced appellant to five years of incarceration in the state penitentiary with two years
suspended for abduction and twelve months in jail with six months suspended for assault and
battery. Appellant filed a post-trial motion to dismiss his convictions on the ground that the court
lacked jurisdiction because the order recording the indictments against him had not been entered at
the time of trial. The court denied his motion, and this appeal followed.
I. Material Proceedings
The grand jury met on October 27, 2014, and returned indictments in open court against
appellant for abduction and assault and battery. The indictments were signed by the grand jury
foreman. Following a bench trial for abduction, the court found appellant guilty and also accepted
his plea of guilty to assault and battery on November 17, 2014. His sentencing hearing occurred on
January 5, 2015.
On January 7, 2015, appellant’s counsel moved to dismiss the convictions because the order
reflecting the actions of the grand jury on October 27, 2014, had not been entered prior to trial.1 On
January 13, 2015, the court entered the order memorializing the grand jury’s actions (“the
presentment order”). Following a hearing on January 22, 2015, the court denied appellant’s motion
to dismiss his convictions. The court signed the sentencing order on January 23, 2015.
II. Assignments of Error
Appellant asserts the following errors:
I. The trial court erred in conducting a trial of Mr. Epps when it
lacked the jurisdiction to do so because no order recording the
presentation of the indictment in open court had been entered.
II. The trial court erred in concluding that the facts were sufficient to
convict Mr. Epps of abduction where Mr. Epps entered a guilty
plea to assault and battery, all of the conduct that arguably would
support a conviction for abduction was also conduct that was
assaultive, and therefore there was no offense of abduction
pursuant to the statutory and case law of the offense.
III. Facts
We consider the facts, as we are bound to do, in the light most favorable to the prevailing
party, the Commonwealth. Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586
(2008). So viewed, the evidence established the following: late in the evening of August 29, 2014,
appellant and Latisha Williams were in a bedroom in her residence in Danville. The parties
previously had a romantic relationship.
Williams testified that a dispute arose after appellant accused her of having sex with his
sister’s boyfriend. Appellant used Williams’s cell phone to call his sister. Williams then asked
1
Appellant did not contest the form or content of the indictments against him.
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appellant to leave, and he became upset, “jumped on” her, and began to strangle her. Williams tried
to kick appellant, but he grabbed her foot and tried to bend one of her toes back. He eventually
released her foot and bit her finger.
Williams testified that after she unsuccessfully attempted to retrieve her cell phone from
appellant, she ran from the bedroom and tried to leave the residence through a door in the kitchen.
Appellant pushed her away from the door, told her he was not going to allow her to leave, and
began to punch her. When he saw that she was bleeding as a result of his punches, he stopped,
called his brother, and left the residence. Williams testified that the incident in the kitchen lasted for
approximately ten minutes. At the close of the Commonwealth’s case, appellant made a motion to
strike the evidence. The court denied his motion.
According to appellant, Williams initiated the altercation by kicking him after he accused
her of giving him a sexually transmitted disease. He admitted that he repeatedly “shoved” Williams
onto the bed, but claimed that she bent her own toe back. Appellant claimed that he left the
bedroom first, and only assaulted Williams after she grabbed him from behind in the hallway
leading to the kitchen. He denied that he ever prevented her from leaving. Appellant renewed his
motion to strike the evidence at the conclusion of his case. The court denied the motion and found
appellant guilty of abduction.
IV. Analysis
A. Failure to Timely Record Presentation of Indictment
Appellant contends that his indictment for abduction was invalid because the presentment
order was not signed and entered prior to his trial.2 “The validity of the indictment is a question of
2
Appellant does not expressly restrict the assignment of error to the abduction charge,
but as he was tried only for abduction, and pled guilty to the assault and battery charge, we limit
our consideration of appellant’s argument to the abduction charge.
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law which we review de novo.” Howard v. Commonwealth, 63 Va. App. 580, 583, 760 S.E.2d 828,
829 (2014).
Code § 19.2-217 provides that “no person shall be put upon trial for any felony, unless an
indictment or presentment shall have first been found or made by a grand jury in a court of
competent jurisdiction.” Additionally, Rule 3A:5(c) of the Supreme Court of Virginia directs that
“[t]he indictment shall be endorsed ‘A True Bill’ or ‘Not a True Bill’ and signed by the foreman.
The indictment shall be returned by the grand jury in open court.” Appellant does not contest that
the grand jury returned an indictment against him on October 27, 2014, and that the indictment was
presented in open court prior to trial. He does not assign error to the content of the indictment, but
he asserts that the trial court’s delayed entry of the presentment order invalidates his conviction.
Appellant contends that because the order was not entered prior to trial, the court did not have
jurisdiction when it conducted the bench trial.3
Appellant relies on Cawood’s Case, 4 Va. (2 Va. Cas.) 527 (1826), and Simmons v.
Commonwealth, 89 Va. 156, 15 S.E. 386 (1892), to support his contention that he was not properly
indicted by the grand jury and his conviction is therefore void. In Cawood, the defendant’s name
was not included on the order that listed the indictments returned by the grand jury on April 26-27,
1824. 4 Va. (2 Va. Cas.) at 541-42. The Supreme Court found that Cawood had not been properly
indicted because there was no record that an indictment against him had ever been returned in open
court. Id. at 546. Because the court found it was “essential that a record should be made of the
[grand jury’s] finding on the Order Book,” the defendant’s conviction was reversed. Id. at 542, 547.
3
While Code § 19.2-227 provides that “[j]udgment in any criminal case shall not be
arrested or reversed upon any exception or objection made after a verdict to the indictment or
other accusation, unless it be so defective as to be in violation of the Constitution,” this statute
does not control because appellant’s argument does challenge the jurisdiction of the court to
conduct the trial.
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Likewise, in Simmons, there was no evidence that the indictment, which had been endorsed
by the foreman as a “true bill,” had ever been presented in court and “the fact recorded.” Simmons,
89 Va. at 157, 15 S.E. at 387. No valid indictment could be found in the Lee County Record Book.
Id. Based on this omission, the Supreme Court found that “the accused [was] not indicted.” Id.
“[T]here is no constitutional requirement that prosecutions for felony be by indictment. The
requirement is merely statutory [and] may be waived.” Livingston v. Commonwealth, 184 Va. 830,
836, 36 S.E.2d 561, 564 (1946) (citation omitted). Code § 17.1-513 provides that “[t]he circuit
courts shall . . . have original jurisdiction of all indictments for felonies.” Therefore, the
requirement that a felony prosecution be initiated pursuant to an indictment is statutory, not
constitutional. Accordingly, appellant’s reliance on Cawood and Simmons is inapposite.
In Hanson v. Smyth, 183 Va. 384, 387-89, 32 S.E.2d 142, 143-44 (1944), the defendant
challenged his conviction in a habeas corpus proceeding, and alleged that the record did not show
that the indictment against him was returned in open court after the grand jury met. The Supreme
Court found that because an indictment may be waived, it is not jurisdictional. Id. at 390-91, 32
S.E.2d at 144. The Court noted that the current version of Code § 19.2-217 was amended in 1940 to
allow a defendant to waive indictment and presentment. Id. at 390, 32 S.E.2d at 144. The Court
interpreted this amendment as the “clear expression of the legislative policy that the requirement of
an indictment in the prosecution for a felony may be waived, and hence is not jurisdictional.” Id.
As a result, the Court held that “the failure of the record to show affirmatively that the indictment
was returned into court by the grand jury is not such a defect as will render null and void the
judgment of conviction based thereon.” Id. at 390-91, 32 S.E.2d at 144.
The validity of an indictment is established by the grand jury returning a true bill in open
court and the subsequent entry and recordation of an order memorializing those events. The
Supreme Court has found that a mere procedural error does not nullify an otherwise valid
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indictment. See Reed v. Commonwealth, 281 Va. 471, 478-80, 706 S.E.2d 854, 858-59 (2011)
(finding indictments valid, despite the lack of a signature by a grand jury foreman because the order
showed that the indictments were returned in open court as true bills). In Howard v.
Commonwealth, 63 Va. App. 580, 582-83, 760 S.E.2d 828, 829 (2014), the defendant claimed that
the trial court lacked jurisdiction over him because the indictments were not read aloud when they
were returned in court, although they were signed by the foreman of the grand jury and an order
memorializing those events was subsequently entered by the judge. We held that when indictments
are returned in court, “[r]eading the indictments aloud verbatim is not required for [an] indictment to
be valid,” what “is important is that the indictment be ‘presented’ in court.” Id. at 585, 706 S.E.2d
at 830.
Additionally, Code § 17.1-123(A), which addresses the signing and recording of court
orders, does not contain a timing requirement. The statute does not require that an order must be
recorded on the same day as the event it is memorializing to be valid. The Supreme Court has held
that
[n]o order made by the court or proceeding had in a case during a
term and entered by the clerk in the record book should be allowed to
become invalid, or to fail of effect, by the omission of the judge,
through inadvertence or neglect, to sign the record of the orders and
proceedings on the day on which it was made or took place.
Weatherman v. Commonwealth, 91 Va. 796, 798, 22 S.E. 349, 350 (1895).
In the present case, appellant was properly indicted because the order entered on January 22,
2015 reflected that the grand jury met on October 27, 2014, and returned a true bill in open court on
the indictments against appellant. “A court speaks through its orders and those orders are presumed
to accurately reflect what transpired.” McBride v. Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d
126, 128 (1997). Appellant does not assert that the content of the indictment is deficient in any
manner or that the indictment was not returned in open court. His sole contention is that the
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presentment order had not been entered before he was tried on November 17, 2014. However,
because neither the statute, nor the rule, nor the case law contain a time requirement for entry of the
order, the timing of the recording of the order is merely a procedural requirement. Thus, the
delayed entry of the order is not a substantive violation that invalidates the indictment or deprives
the trial court of its jurisdiction over appellant.
B. Sufficiency of the Evidence of Abduction
Appellant contends that the evidence was insufficient to find him guilty of abduction. He
asserts that any detention of the victim was incidental to the assault and battery and did not
constitute a separate offense.
1. Standard of Review
When reviewing the sufficiency of the evidence to support a conviction, “it is our duty to
consider [the evidence] in the light most favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom.” Boykins v. Commonwealth, 210 Va. 309, 311, 170 S.E.2d
771, 773 (1969). The issue is “whether the record contains evidence from which any ‘rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Young v.
Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). The trial court’s judgment “will not be set aside unless it appears from the
evidence that the judgment is plainly wrong or without evidence to support it.” Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Additionally, “[w]hether an abduction is merely incidental to another crime is a question of
law. However, because no two crimes are exactly alike, determining whether an abduction is
incidental necessarily requires consideration of the historical facts of each case.” Hoyt v.
Commonwealth, 44 Va. App. 489, 496 n.4, 605 S.E.2d 755, 758 n.4 (2004). Therefore, the trial
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court’s findings of historical fact are controlling but we review the court’s application of those facts
to the law de novo. Smith v. Commonwealth, 56 Va. App. 711, 721, 697 S.E.2d 14, 19 (2010).
2. Evidence of Abduction
Code § 18.2-47(A) provides that “[a]ny person who, by force, intimidation or deception, and
without legal justification or excuse, seizes, takes, transports, detains or secretes another person with
the intent to deprive such other person of his personal liberty . . . shall be deemed guilty of
‘abduction.’” The Commonwealth may prove assault and battery under Code § 18.2-57 by
establishing a ‘“wil[l]ful or unlawful touching’ of another.” Parish v. Commonwealth, 56 Va. App.
324, 330, 693 S.E.2d 315, 318 (2010) (quoting Wood v. Commonwealth, 149 Va. 401, 404, 140
S.E. 114, 115 (1927)).
Appellant asserts that any detention of Williams that occurred was merely incidental to the
assault and battery and cannot, therefore, be the basis for an abduction conviction. The Virginia
Supreme Court has held that
one accused of abduction by detention and another crime involving
restraint of the victim, both growing out of a continuing course of
conduct, is subject upon conviction to separate penalties for separate
offenses only when the detention committed in the act of abduction is
separate and apart from, and not merely incidental to, the restraint
employed in the commission of the other crime.
Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14 (1985). Further, “[t]he only
issue when abduction is charged alongside an offense for which detention is an intrinsic element is
whether any detention exceeded the minimum necessary to complete the required elements of the
other offense.” Lawlor v. Commonwealth, 285 Va. 187, 225, 738 S.E.2d 847, 869 (2013). The
issue becomes whether sufficient evidence exists to support the factfinder’s determination that a
defendant used greater restraint than that necessary to commit the simultaneously charged offense.
See Powell v. Commonwealth, 261 Va. 512, 541, 552 S.E.2d 344, 360-61 (2001).
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In the present case, the crime of assault and battery was concluded before the abduction
occurred. While there is a temporal connection between the two crimes, they did not occur
simultaneously. An assault and battery occurred in the bedroom, when appellant strangled Williams
and pushed her back on the bed. He continued to batter her by bending her toe and biting her finger.
At that point, the assault and battery was a completed crime.
The trial court, as finder of fact, believed Williams when she testified that she fled down the
hallway and was pursued by appellant. We have recognized that “[t]he credibility of the witnesses
and the weight accorded the evidence are matters solely for the fact finder who has the opportunity
to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995); see also Rogers v. Commonwealth, 183 Va. 190, 201-02, 31
S.E.2d 576, 580 (1944). Once Williams was in the kitchen, appellant obstructed her access to the
door that led outside and would not allow her to leave the residence. Clearly, this detention was
separate and apart from the assault and battery that had occurred in the bedroom.
Williams testified that the parties were in the kitchen for approximately ten minutes. During
that time, as she was trying to get to the door, appellant blocked her exit and hit her in the mouth.
Further, he specifically told Williams that he was not going to allow her to leave. That statement
illustrates appellant’s intent to detain Williams. Blocking the kitchen door and detaining Williams
was not necessary to complete the crime of assault and battery that had occurred earlier in the
bedroom. The abduction occurred subsequent to appellant’s pursuit of Williams down the hall, as
she attempted to flee from him after he initially assaulted her. These were two distinct crimes,
committed at different times, even committed in different rooms of the house. We find that the
court did not err in convicting appellant of both assault and battery and abduction.
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V. CONCLUSION
For the foregoing reasons, the decision of the trial court is affirmed.
Affirmed.
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