Opinion
Record No. 1975-91-3
August 10, 1993
FROM THE CIRCUIT COURT OF DICKENSON COUNTY DONALD A. MCGLOTHLIN, JR., JUDGE.
Frederick W. Adkins (Cline, Adkins Cline, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal, we decide whether the evidence was sufficient to support Toni Withrow's convictions for attempted capital murder, grand larceny, abduction, and use of a firearm in the commission of a felony. We also decide whether the trial judge erred by admitting hearsay evidence. Upon review of the record, we find that the evidence was insufficient to support the convictions of attempted capital murder and grand larceny, but was sufficient to support the convictions of abduction and use of a firearm in the commission of a felony. We also hold that the trial judge did not admit hearsay evidence. Accordingly, we reverse the attempted capital murder and grand larceny convictions and affirm the abduction and use of a firearm convictions.
Applying well-known principles, we review the evidence in the light most favorable to the Commonwealth, granting to it "all reasonable inferences fairly deducible therefrom."Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On the evening of July 8, 1985, police officer Ronald Kendrick stopped a vehicle operated by Roger McFall, whom he suspected of driving while intoxicated. Toni Withrow was a passenger in McFall's vehicle. When McFall failed to comply with Kendrick's request to step out of his vehicle, Kendrick took McFall by the arm and asked him to step to the back of the vehicle where he could test him for driving intoxicated. McFall complied and, after testing him, Kendrick arrested McFall for driving under the influence.
McFall became belligerent and resisted Kendrick's attempt to arrest him. After Kendrick placed a handcuff on McFall's right hand, McFall struck Kendrick, knocking him backwards. Kendrick attempted to restrain McFall, and the two began to wrestle. At that point, Kendrick felt a tug on his holstered pistol. He turned and struck Withrow, who was pulling at his pistol. Withrow testified that Kendrick struck her twice. Eventually, Withrow managed to remove the pistol from Kendrick's holster. She cocked the pistol, pointed it at Kendrick with her finger on the trigger, and warned him not to hit her again. She told Kendrick that neither she nor McFall was going to jail.
At Withrow's command, Kendrick removed the handcuff from McFall. Withrow then ordered Kendrick to sit in his car. She stepped up to Kendrick, knelt down in front of him, and aimed his pistol approximately four to six inches from his abdomen. She stated that "she didn't want to have to kill [Kendrick] but she couldn't let [him] go." Kendrick pleaded with her to "just take the gun and leave or whatever she wanted to do." McFall likewise stated to Withrow that they should leave, assuring her that Kendrick would not follow them. As McFall and Withrow got into McFall's car and left, she continued to point the pistol at Kendrick. As they drove away, Withrow threw the pistol out of the car window where Kendrick retrieved it. Withrow testified that she had no intention of killing Kendrick or of stealing his pistol and that her only purpose in intervening was to prevent the forcible arrest of McFall and injury to him. Kendrick estimated that Withrow held him at gunpoint for approximately ten minutes.
Following another pursuit by police officer Gary Hall, Withrow and McFall were later arrested at Withrow's home. During the pursuit, Withrow pointed a loaded rifle at Hall, allegedly to frighten him away. Kendrick was among the group of officers who eventually arrested Withrow and McFall. Kendrick admitted striking Withrow in the face after she had been handcuffed and was kneeling on the ground. Kendrick testified that he slapped her with his open hand; Withrow contends that he hit her with his blackjack.
I. HEARSAY
Withrow contends that Officer Kendrick's testimony as to what McFall said in an effort to persuade Withrow to leave the scene was inadmissible hearsay. We disagree. Hearsay is an out-of-court statement or nonverbal assertion that is offered in court to prove the truth of the matter asserted therein.Arnold v. Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987). If the declaration is offered solely to show that it was uttered, without regard to the truth or falsity of its content, the declaration is not "hearsay," and, therefore, is not excluded by the hearsay rule. Speller v. Commonwealth, 2 Va. App. 437, 446, 345 S.E.2d 542, 548 (1986); see also Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436, 441 (1987). The hearsay rule does not operate to exclude evidence of a statement, request or message offered for the mere purpose of explaining or throwing light on the conduct of the person to whom it was made. 7B Michie's Jurisprudence,Evidence § 195 n. 12 (Repl. Vol. 1985) (citing Upchurch v. Commonwealth, 220 Va. 408, 410, 258 S.E.2d 506, 510 (1979)).
The evidence of McFall's imploring statements to Withrow was not offered to prove the truth of the matters stated therein, but rather to cast light upon Withrow's state of mind at the time or why she may have acted in the manner that she did. Whether certain declarations, questions, commands or accusations are true or false are often irrelevant and not offered for that purpose; therefore, they are not hearsay. See Atkins v. Commonwealth, 13 Va. App. 365, 368, 412 S.E.2d 194, 196 (1991). The fact that McFall implored Withrow to leave and not to shoot or kill Kendrick was admissible as a verbal fact that was admissible as having a bearing on her state of mind. The evidence was another relevant circumstance in proving whether Withrow possessed the requisite intent for attempted murder. Accordingly, the trial judge did not err by admitting Kendrick's testimony of McFall's statements made to Withrow.
II. GRAND LARCENY
A judgment will not be disturbed on appeal unless the decision is plainly wrong or without evidence to support it. Id. The credibility of witnesses and the weight accorded their testimony are matters solely within the discretion of the trier of fact.Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).
Larceny is the wrongful taking of the goods of another without the owner's consent and with the intention to permanently deprive the owner of possession of the goods. Slater v. Commonwealth, 179 Va. 264, 266, 18 S.E.2d 909, 910 (1942);Nelson v. Commonwealth, 12 Va. App. 268, 270, 403 S.E.2d 384, 386 (1991). "Intent is a [person's] state of mind that may be proved by an accused's acts or by [her] statements and that may be shown by circumstantial evidence." Wright v. Commonwealth, 245 Va. 177, 193, 427 S.E.2d 379, 390 (1993). One who takes another's property with the intent of using it temporarily and then returning it unconditionally within a reasonable time, and having a substantial ability to do so, lacks the intent to commit larceny. 2 Wayne R. LaFave, Criminal Law § 8.5(b) (1986). The intent permanently to deprive the owner of his property must coincide with the wrongful taking. Slater, 179 Va. at 264, 18 S.E.2d at 910; Jones v. Commonwealth, 3 Va. App. 295, 300, 349 S.E.2d 414, 418 (1986). Whether a person who takes property has the intent permanently to deprive the owner of his property at the time of the taking is a question for the jury and, if such intent can reasonably be inferred from the circumstances, the jury's finding of intent, approved by the trial court, cannot be disturbed on appeal.Webb v. Commonwealth, 122 Va. 899, 904, 94 S.E. 773, 775 (1918).
We hold that under the circumstances of this case, a reasonable fact finder could not infer that Withrow took Officer Kendrick's pistol with the intent permanently to deprive him of it. Although the wrongful taking of property in itself "imports [an]animus furandi," id., a wrongful taking is not conclusive of whether a taking was with the intent permanently to deprive the owner of his property. See Slater, 179 Va. at 266-67, 18 S.E.2d at 910-11 (a wrongful taking may be with the intent to dispossess the owner of his property either permanently or temporarily); see also Webb, 122 Va. at 904, 94 S.E. at 775; 2 Wayne R. LaFave, Criminal Law § 8.5 n. 1 (1986). Although the evidence was in dispute whether Withrow seized Kendrick's pistol to frustrate his arrest of McFall or to stop Kendrick from hitting her, neither version supports the inference that Withrow took Kendrick's pistol with the intent of never returning it.See People v. De Stefano, 178 N.E.2d 393, 395 (Ill. 1961) (no larcenous intent found where defendant's purpose for taking property was inconsistent with a need to permanently deprive the owner of possession); see also Gibson v. State, 256 A.2d 890, 892 (Md.Ct.Spec.App. 1969); in accord Cain v. State, 145 S.E.2d 773, 773-74 (Ga.Ct.App. 1965); Slay v. State, 241 So.2d 362, 364 (Miss. 1970).
Where the circumstances may not expressly show the purpose for which property has been wrongfully taken, the fact finder may, when the facts are consistent with a theft, infer a larcenous intent. However, where the purpose of the taking is clearly shown, the fact finder may not infer an intent permanently to deprive the owner of his property when the evidence shows that not to be the person's intention.
The fact that Withrow, after having the pistol in her possession for ten minutes, voluntarily returned it to a place accessible to Kendrick negates that she intended permanently to dispossess Kendrick of it. Generally, the subsequent abandonment of property that has been wrongfully taken does not negate a larcenous intent that existed at the time of the taking. Whalen v. Commonwealth, 90 Va. 544, 549, 19 S.E. 182, 183 (1894) ("When one wrongfully takes property of another with the intent to deprive the owner thereof, larceny is complete, though the accused afterwards abandons it"); Slater, 179 Va. at 267, 18 S.E.2d at 911; Jones, 3 Va. App. at 301-02, 349 S.E.2d at 418. However, under the circumstances that existed when Withrow seized Kendrick's pistol, the evidence does not support an inference that she intended to steal it. The situation was not one in which the fact finder could infer that Withrow intended to steal the pistol, changed her mind and abandoned it. The fact that Withrow returned the property to the owner, or to a place accessible to him, cannot be disregarded, nor can we disregard the circumstances surrounding the taking in determining whether Withrow had a larcenous intent at the time of the taking.See De Stefano, 178 N.E.2d at 395 (no larcenous intent found where defendant returned item to owner shortly after taking and before arrest); see also Gibson, 256 A.2d at 891-92 (no larcenous intent where defendant abandoned property after temporary use and in a place accessible to owner); Cain, 145 S.E.2d at 773-74; Slay, 241 So.2d at 363-64; compare Slater, 179 Va. at 267, 18 S.E.2d at 911 (larcenous intent found where defendant abandoned owner's property in another state and admitted no intent to return it directly to owner);compare also State v. Buck, 754 S.W.2d 925, 928 (Mo.Ct.App. 1988) (larcenous intent found where defendant returned item only after he suspected that he might be investigated for theft);Menke v. State, 740 S.W.2d 861, 864 (Tex.Ct.App. 1987),cert. denied, 490 U.S. 1067 (1989).
Thus, because Withrow took Officer Kendrick's pistol for the purpose of either preventing McFall's arrest or preventing Kendrick from hitting her, and because she abandoned it at a place within Kendrick's reach, within a short time after the taking, the evidence does not support an inference that when she took the pistol, she intended to deprive Kendrick of it permanently. Accordingly, we reverse the conviction of grand larceny.
III. ATTEMPTED CAPITAL MURDER
The evidence was also insufficient to prove beyond a reasonable doubt that Withrow attempted to murder Deputy Kendrick.
Attempted murder consists of two elements: the specific intent to kill and the commission of some direct act toward consummation of the killing that is beyond mere preparation, but falls short of actual execution. Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213 (1978). The intent which must be shown in a prosecution for attempted murder is "the intent in fact, as distinguished from an intent in law."Epps v. Commonwealth, 216 Va. 150, 156, 216 S.E.2d 64, 69 (1975) (quoting Merritt v. Commonwealth, 164 Va. 653, 662, 180 S.E. 395, 399 (1935)). Intent is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances surrounding the offense, including the person's conduct and statements. Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974); Howard v. Commonwealth, 207 Va. 222, 228, 148 S.E.2d 800, 804 (1966). Whether an accused formed the specific intent to kill is a question for the trier of fact, and a finding of intent to kill will not be disturbed on appeal if it is based on reasonable inferences drawn from proven facts. Hancock v. Commonwealth, 12 Va. App. 774, 782-83, 407 S.E.2d 301, 306 (1991).
Simply stated, the evidence does not support an inference that Withrow intended to kill Kendrick. Withrow's statements and her conduct do not tend to prove that she intended to kill Kendrick. Withrow told Kendrick that "she didn't want to have to kill [him] but she couldn't let [him] go," presumably because letting Kendrick go would defeat her efforts to thwart his arrest of herself and McFall. Under the circumstances, her statement could not be construed as saying that, because she could not let him go, she was going to kill him. The evidence does not support such an inference. Neither her acts nor her statement shows an intent or desire to kill Kendrick. Rather, they show an intent not to do so. She left the scene without having harmed Kendrick. Her words and conduct were consistent with an intention not to harm Kendrick. Although Withrow held a cocked pistol pointed at Kendrick for the ten minutes before her escape, "the use of a deadly weapon, standing alone, is not sufficient to prove the specific intent required to establish attempted murder." Hargrave, 214 Va. at 437, 201 S.E.2d at 598 (citing Thacker v. Commonwealth, 134 Va. 767, 770, 114 S.E. 504, 505 (1922)). The only reasonable inference that could be drawn from Withrow's words and actions is that she seized Kendrick's pistol in order to hold him at bay while she and McFall could flee or to prevent him from striking her.
"[T]he question of what constitutes an attempt is often intricate and difficult to determine, and . . . no general rule can be laid down which will serve as a test in all cases."Sizemore, 218 Va. at 985, 243 S.E.2d at 215. "Each case must be determined on its own facts." Id. However, in every case in which a person has been found to have attempted to murder another, the words and actions of the individual must clearly show an intent to kill, combined with an overt act toward the consummation of the crime. See Sizemore, 218 Va. at 986-87, 243 S.E.2d at 216; Epps, 216 Va. at 156, 216 S.E.2d at 69;Hargrave, 214 Va. at 437, 201 S.E.2d at 598, Howard, 207 Va. at 228, 148 S.E.2d at 894; Lee v. Commonwealth, 144 Va. 594, 600, 131 S.E. 212, 214 (1926); Hancock, 12 Va. App. at 783, 407 S.E.2d at 306.
Where an accused is shown to have pointed a gun at a victim at close range and stated repeatedly in unequivocal terms that he was going to kill the victim, the evidence supports a finding of an intent to kill and an overt act toward the consummation of that act. Sizemore, 218 Va. at 981-82, 243 S.E.2d at 213;Epps, 216 Va. at 152, 216 S.E.2d at 66; Howard, 207 Va. at 224-26, 148 S.E.2d at 801-03. In other cases, where an accused fired a shot toward a victim after making statements evincing an intent to kill, the evidence proved a specific intent to kill and an overt act. Hargrave, 214 Va. at 436-37, 201 S.E.2d at 598;Howard, 207 Va. at 226, 148 S.E.2d at 803. Where an accused made two unambiguous threats to kill, procured a gun and lay in wait for his victim, a prima facie case for attempted murder is established. Lee, 144 Va. at 600, 131 S.E. at 214. Similarly, where an accused forced several people to remain in a building, set fire to the only exit door, and threatened the people that if they came out before ten minutes had expired, he would shoot them, the evidence was sufficient to prove an intent to kill. Hancock, 12 Va. App. at 783, 407 S.E.2d at 306.
In Sizemore, the defendant stated six or seven times, "I'm going to kill you." 218 Va. at 982, 243 S.E.2d at 213. The defendant's co-actor in Epps stated, "Come out, I am going to kill you," "[c]ome out or I will kill you," and that "he was going to blow [the victim's] head off." 216 Va. at 152, 216 S.E.2d at 66. In Howard, the defendant told his co-actor that if the victim did not remain quiet, to "kill him." 207 Va. at 225, 148 S.E.2d at 802.
When the victim refused to give the defendant his gun, the defendant said, "All right, I have another gun. I will go back home and come back and get you and the gun both." Later, when the defendant returned with another gun, he stated, "I shot one twice and I am going to kill another." Lee, 144 Va. at 598, 131 S.E. at 214.
In both Howard and Hancock, the defendants claimed, as did Withrow, that their conduct and threats were calculated to frighten their victims into compliance with their orders and did not evince an intent to kill. Based on the facts in those cases, however, the triers of fact reasonably could have inferred that the defendants intended to kill their victims and could have rejected the defendants' self-serving claims that they intended only to frighten them. Howard, 207 Va. at 227-28, 148 S.E.2d at 803-04; Hancock, 12 Va. App. at 783, 407 S.E.2d at 306. In this case, the jury could not reasonably have rejected Withrow's claim that she did not intend to kill Kendrick, but instead intended to prevent him from hitting her or arresting her and McFall. Her statements and actions were not consistent with an intent to kill and were consistent with an intent to facilitate her escape.
For these reasons, we hold that the evidence was insufficient to support a finding of specific intent to kill and, therefore, reverse the conviction of attempted capital murder.
IV. ABDUCTION
The elements required to prove abduction are set forth in Code § 18.2-47: "Any person, who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes the person of another, with the intent to deprive such other person of his personal liberty . . . shall be deemed guilty of abduction."
The Commonwealth proved beyond a reasonable doubt the elements necessary to establish that Withrow abducted Kendrick. With the threat of a pistol, Withrow physically detained Kendrick for ten minutes at the scene of McFall's attempted arrest. See Scott v. Commonwealth, 228 Va. 519, 523, 323 S.E.2d 572, 574 (1984);Joyce v. Commonwealth, 210 Va. 272, 275, 170 S.E.2d 9, ___ (1969); Simms v. Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735 (1986). By her admission, she detained Kendrick to prevent him from arresting her and McFall, an act that required Kendrick to exercise his personal liberty. She intended to deprive Kendrick of his liberty.
Contrary to Withrow's contention, asportation of the victim from one place to another is not required for an abduction. Scott, 228 Va. at 526, 323 S.E.2d at 576; Simms, 2 Va. App. at 617-18, 346 S.E.2d at 735-36.
Accordingly, the evidence was sufficient to support a conviction of abduction and, therefore, we affirm the conviction.
V. USE OF A FIREARM
The evidence is sufficient to support Withrow's conviction for use of a firearm in the commission of a felony.
Withrow concedes that if the evidence is sufficient to support the conviction of abduction, it is sufficient to support a conviction for use of a firearm in the commission of abduction. Therefore, having found the evidence sufficient to support the abduction conviction, we necessarily find the evidence sufficient to support the conviction for use of a firearm in the commission of a felony.
Affirmed in part, reversed in part.
I concur with the majority in Parts I, IV and V and, therefore, I join them in affirming the convictions for abduction and use of a firearm in the commission of a felony.
I respectfully disagree with the majority in Parts II and III wherein they hold that the evidence is insufficient to prove beyond a reasonable doubt that Withrow intended to kill Officer Kendrick and intended to steal his pistol.
Withrow's intent depended upon her state of mind and, therefore, was a factual issue to "be proved by an accused's acts or by [her] statements and that may be shown by circumstantial evidence." Wright v. Commonwealth, 245 Va. 177, 193, 427 S.E.2d 379, 290 (1993). On these facts, the jury reasonably could infer that Withrow forcibly took Kendrick's pistol, cocked it, and pointed it at him intending to kill him. Her statement that "she didn't want to have to kill [him] but she couldn't let [him] go" could reasonably be construed by the fact finder to mean that she intended to kill Kendrick because, under the circumstances, she was left with no other choice. The jury could have concluded that Withrow took Kendrick's pistol and intended to kill him with it but that McFall prevailed upon her not to do so. Based on those facts, as found by the jury, grand larceny and attempted capital murder were proven beyond a reasonable doubt. I would affirm the attempted capital murder and larceny convictions.