George Tyrone Hutchinson, aka etc. v. Commonwealth

THE COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia
GEORGE TYRONE HUTCHINSON, a/k/a
STEVEN DAVIS, a/k/a CHRISTIAN BEANEY MEMORANDUM OPINION * BY
JUDGE ROBERT J. HUMPHREYS
v. Record No. 1865-01-2 JULY 16, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Craig W. Stallard, Assistant Public Defender,
for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
George Tyrone Hutchinson appeals his convictions, after a
bench trial, for felony failure to appear, pursuant to Code
§ 19.2-128, and for assault of a law enforcement officer,
pursuant to Code § 18.2-57. 1 Hutchinson contends there was
insufficient evidence to sustain the convictions. For the
reasons that follow, we affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Hutchinson was also charged for three drug offenses which
were stricken by the court at trial and are therefore not at
issue on appeal.
I. BACKGROUND
On January 5, 2001, Officer Erlan Marshall of the Richmond
City Police Department observed Hutchinson driving a car with an
inspection rejection sticker on it. Accordingly, Marshall
pulled Hutchinson over. Hutchinson stopped his car in a parking
lot, next to a black Jeep. As Marshall walked to the driver's
side window, he observed Hutchinson was shaking and appeared to
be very nervous and agitated. Marshall also detected a strong
odor of marijuana coming from the car. He asked to see
Hutchinson's driver's license, and Hutchinson told him that he
did not have any identification. He then asked Hutchinson to
step out of the car and attempted to place him in handcuffs.
At that point, a struggle ensued. Marshall and Hutchinson
were "struggling, bouncing off vehicles, fighting each other, in
between vehicles as [Hutchinson] was attempting to get away from
[Marshall]." Some items of Hutchinson's clothing fell to the
ground during the struggle. Finally, "[Hutchinson] pushed off
of [Marshall] in [Marshall's] chest area and ran." Marshall
apprehended Hutchinson a few moments later, with the help of a
bystander. Marshall had sustained a scratch and a bruise on the
side of his face as a result of the struggle.
After Hutchinson was taken to the police station, and after
the officers had left the scene, a citizen called Officer Shane
Waite and informed him that he should return to the scene and
look under the Jeep that was parked next to Hutchinson's car.
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Officer Waite returned and found a small bag under the Jeep
containing marijuana, heroin and crack cocaine.
Later that afternoon, felony warrants, including warrants
for drug charges and a warrant for felony assault of a law
enforcement officer, were issued for Hutchinson, setting the
arraignment for January 8, 2001 at 9:00 a.m. The warrants state
that Hutchinson was served by the sheriff that same day,
January 5, 2001. 2
An additional warrant was issued for Hutchinson on
January 11, 2001, for felony failure to appear "in the Richmond
General District Court after having been bonded or summoned to
appear on a charge of [p]oss[sion] [of] [c]ocaine, [h]eroin,
[m]arijuana[,] [and] intent[ional] [a]ssault [on a] [p]olice
[o]fficer." Hutchinson was subsequently indicted for possession
of cocaine with intent to distribute, possession of heroin with
intent to distribute, possession of marijuana with intent to
distribute and assault on a law enforcement officer. Hutchinson
was also indicted for felony failure to appear, for his failure
to appear in court on January 8, 2001.
During the trial, the following dialogue took place between
the court and Officer Marshall:
2
The warrants were actually issued in the name of Steven
Davis. Hutchinson gave officers this false name upon his arrest
and booking. It was later determined that "Steven Davis" was
Hutchinson, and there is no issue on appeal concerning
Hutchinson's identity.
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Court: Officer, were you in court on
January 8[, 2001]?
Officer Marshall: No, sir. January 8 was
the Monday following the arrest. I arrested
[Hutchinson] on a Friday, and January 8, was
the, I guess, it was the arraignment day or
the day they come to court right after. I
wasn't here . . .
Just before the Commonwealth rested, the following colloquy took
place between the court and the Commonwealth's Attorney:
Court: I guess there was nobody there on
the day of [January] 8th[, 2001], none of
the officers –-
Commonwealth's Attorney: No, Your Honor.
No officers were there, it was just the
arraignment. The Commonwealth would just
ask the Court to take judicial notice that
[Hutchinson] wasn't in court on that
particular day, January 8.
Court: All right.
Hutchinson raised no objection to the Commonwealth's request.
The Commonwealth presented no other evidence relating to the
failure to appear charge.
At the close of the Commonwealth's case, Hutchinson raised
a motion to strike the evidence on each of the charges. With
regard to the felony failure to appear charge, Hutchinson argued
the Commonwealth "did not present evidence of a witness that the
defendant was not present in court at that time, and that he was
released on bond to appear on that date, and I don't think they
have proven that." With regard to the assault charge,
Hutchinson argued the Commonwealth failed to prove intent to
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injure Officer Marshall. The court dismissed the drug charges,
but denied the remaining motions. On the assault charge, the
court found "[Hutchinson] intended to do what he needed to do to
hurt [Officer Marshall] to get up so that he could throw his
drugs under the Jeep."
Hutchinson presented no evidence, but instead renewed his
motions to strike, incorporating his previous arguments. The
court found Hutchinson guilty of both charges.
II. ANALYSIS
On appeal, Hutchinson first argues there was insufficient
evidence to sustain the conviction for failure to appear because
the Commonwealth presented no evidence on the failure to appear
charge and because the request for judicial notice was
inadequate to establish the elements of the offense.
"Judicial notice involves the admission of a fact in
evidence without proof of that fact because it is commonly known
from human experience." 3 "A trial court may take judicial notice
of those facts that are either (1) so 'generally known' within
the jurisdiction or (2) so 'easily ascertainable' by reference
to reliable sources that reasonably informed people in the
3
O'Dell v. Commonwealth, 234 Va. 672, 696 n.7, 364 S.E.2d
491, 505 n. 7 (1988).
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community would not regard them as reasonably subject to
dispute." 4
Here, the trial court took judicial notice, without
objection by Hutchinson, of the fact that Hutchinson failed to
appear in court on January 8, 2001. Thus, Hutchinson's argument
that the Commonwealth produced no evidence with respect to the
felony failure to appear charge is without merit. Indeed, the
judicial notice taken by the court was clearly a fact in
evidence, which the court could rely upon in making its
determination.
Hutchinson's alternative argument, that even if the court
took judicial notice of that fact, it was insufficient to
establish the necessary elements of the offense, specifically,
notice and intent, is barred from our consideration on appeal by
Rule 5A:18. During trial, Hutchinson argued only that the
Commonwealth failed to produce evidence of a witness that
Hutchinson was not present in court and that he was released on
bond to appear on that date. Hutchinson failed to present any
argument concerning his contention that the Commonwealth failed to
prove the elements of the offense. "[T]hough taking the same
general position as in the trial court, an appellant may not rely
on reasons which could have been but were not raised for the
4
Taylor v. Commonwealth, 28 Va. App. 1, 7-8, 502 S.E.2d
113, 116 (1998) (quoting Ryan v. Commonwealth, 219 Va. 439, 445,
247 S.E.2d 698, 703 (1978)).
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benefit of the lower court." 5 We will not consider an argument on
appeal which was not presented to the trial court. 6 Accordingly,
this issue is procedurally barred.
Hutchinson next contends that the trial court erred in
finding the evidence sufficient as a matter of law to support
the assault charge, as the Commonwealth failed to prove
Hutchinson intended to cause injury to Officer Marshall.
It is fundamental that "where the sufficiency of the
evidence is challenged on appeal, that evidence must be
construed in the light most favorable to the Commonwealth,
giving it all reasonable inferences fairly deducible therefrom." 7
In pertinent part, Code § 18.2-57(C) provides as follows:
[I]f any person commits an assault or an
assault and battery against another knowing
or having reason to know that such other
person is a law-enforcement officer as
defined hereinafter . . . such person shall
be guilty of a Class 6 felony, and, upon
conviction, the sentence of such person
shall include a mandatory, minimum term of
confinement for six months which mandatory,
5
West Alexandria Properties, Inc. v. First Virginia Mortg.
& Real Estate Inv. Trust, 221 Va. 134, 138, 267 S.E.2d 149, 151
(1980) (citations omitted).
6
Rule 5A:18; Buck v. Commonwealth, 247 Va. 449, 452-53, 443
S.E.2d 414, 416 (1994) (issue not preserved where defendant gave
different reason to support Batson claim on brief than at
trial).
7
Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d
44, 45 (1986) (citing Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975)).
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minimum term shall not be suspended, in
whole or in part.
"Assault and battery, . . . requires proof of 'an overt act
or an attempt . . . with force and violence, to do physical
injury to the person of another,' 'whether from malice or from
wantonness,' together with 'the actual infliction of corporal
hurt on another . . . wil[l]fully or in anger.'" 8
The evidence here was sufficient for the trial judge to find
beyond a reasonable doubt the elements of assault and battery.
The trial judge expressly found that he disbelieved Hutchinson's
testimony, finding that Hutchinson's intent was to do whatever he
had to do, including cause injury to Marshall, in order to escape
arrest.
"Intent is the purpose formed in a person's mind which may,
and often must, be inferred from the facts and circumstances in a
particular case." 9 "Circumstantial evidence is as competent and
is entitled to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt." 10
8
Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d
250, 251 (1992) (citing Jones v. Commonwealth, 184 Va. 679,
681-82, 36 S.E.2d 571, 572 (1946); Merritt v. Commonwealth, 164
Va. 653, 658, 180 S.E. 395, 397 (1935); Wood v. Commonwealth,
149 Va. 401, 404, 140 S.E. 114, 115 (1927)).
9
Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313,
314 (1979).
10
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983).
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When facts are equally susceptible to more
than one interpretation, one which is
consistent with the innocence of the
accused, the trier of fact cannot
arbitrarily adopt an inculpatory
interpretation. The fact finder, however,
is entitled to draw inferences from proved
facts, so long as the inferences are
reasonable and justified. Furthermore, the
fact finder may infer that a person intends
the immediate, direct, and necessary
consequences of his voluntary acts. Thus,
when the fact finder draws such inferences
reasonably, not arbitrarily, they will be
upheld. 11
Thus, in struggling so violently when Marshall tried to
handcuff him, Hutchinson clearly acted in a manner of reckless
and wanton disregard for the safety of the officer. That
Hutchinson acted with an intent to escape does not prevent a
finding that he also acted with a second intent, to assault and,
if necessary, to batter the officer in order to effect that
escape. 12 The trial court was entitled to "infer that
[appellant] intend[ed] the immediate, direct, and necessary
consequences of his voluntary acts." 13 The direct consequence of
Hutchinson's voluntary act of struggling was to inflict physical
11
Moody v. Commonwealth, 28 Va. App. 702, 706-07, 508
S.E.2d 354, 356 (1998) (citations omitted).
12
See id. at 707-08, 508 S.E.2d at 356-57 (holding fact
that perpetrator in stolen car was attempting to escape parking
lot and motioned pedestrian out of his way did not preclude
finding that perpetrator, who accelerated and did not swerve as
he approached pedestrian, formed specific intent to run over
pedestrian if he did not move).
13
Id.
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injury upon Marshall. Accordingly, the circumstantial evidence
was sufficient to prove Hutchinson acted with that intent.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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