Baublitz v. Commonwealth
| Decision Date | 20 September 2022 |
| Docket Number | 0838-21-2 |
| Parties | MICHAEL ANTHONY BAUBLITZ v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF LANCASTER COUNTY R. Michael McKenney Judge.
Michael L. Donner, Sr. (Setliff Law, P.C., on briefs), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Beales and White Argued at Richmond, Virginia.
RANDOLPH A. BEALES JUDGE.
The Circuit Court of Lancaster County convicted Michael Anthony Baublitz ("Baublitz") of unlawfully shooting at an occupied building. On appeal, Baublitz argues that the trial court erred by convicting him as a principal in the second degree because it did not convict his co-defendant and brother, Christopher Baublitz, as a principal in the first degree. He also argues that the evidence was insufficient to demonstrate that he acted as a principal in the second degree.
"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, [as] the prevailing party at trial." Gerald v. Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). Sometime before 7:00 a.m. on November 14, 2019, Baublitz and his brother parked separate vehicles on Telece Green's property in Lancaster County. Green told the brothers that they could park on his land, and he saw both men carry firearms as they walked toward a field owned by the Tides Inn. A few moments later, Green heard three gunshots. Green testified that he then soon heard the sound of the brothers' vehicles starting and that Baublitz and his brother "left right away" after the gunshots.
Diedra Dunnaway lived in a house across a large field from Green's property. Around 6:45 a.m., Dunnaway stated that she had heard a gunshot and testified that "it hit my house so hard until my windows vibrated." Dunnaway ran to check on her son in the living room, where she saw that her glass storm door had been shattered and there was a hole in her front door. Dunnaway called 911. Dunnaway said that she then heard two additional shots fired after the shot that had hit her house, but only one of the three shots had actually hit her house. Dunnaway took photos of the hole in the door that were introduced into evidence at Baublitz's trial.
Lancaster County Deputy Sheriff Anne Phelps drove to Dunnaway's house and removed a metal projectile that was lodged in her front door. Phelps gave the projectile to Department of Wildlife Resources Officer Tyler Bumgardner, who recognized it as a .50 caliber muzzle-loaded bullet. Bumgardner testified that he went to Green's house, and Green told him that he had heard three shots fired that day. After speaking with Green, Bumgardner testified that he considered Baublitz and his brother as the suspects.
Deputy Sheriff Phelps, Officer Bumgardner, and Officer Kramer searched the field and woods across the street from Dunnaway's house using a police dog trained to detect gunpowder from recently fired firearms. Bumgardner testified that he found two hunting blinds in that area. He also found an orange scent bomb used to attract deer to a location, three "gas check seals,"[1] and fresh footprints in the mud that were still wet. The dog alerted to freshly fired gunpowder odor on the gas check seals.
After searching the field and woods, Officers Bumgardner and Kramer drove to Baublitz's home with the police dog. Officer Bumgardner testified that Baublitz told them that he had been hunting with his brother earlier that morning and had shot at a deer with his crossbow. However, when Officer Kramer told Baublitz that the dog would alert to the presence of any recently fired gunpower, Baublitz informed the officers that he had actually been hunting with a firearm instead. Baublitz led the officers to his attic, where he had hidden a still-loaded .50 caliber muzzleloader rifle under some insulation. Baublitz also showed the officers the ammunition he used, which Bumgardner described as having a similar "size, shape, color, and description" to the projectile removed from Dunnaway's door (and the gas check seals found in the field). Officer Bumgardner testified that Michael Baublitz told him (and later wrote in a written statement) that his brother Christopher Baublitz had shot at-but missed-a deer that morning. Appellant Michael Baublitz also wrote in his statement that "someone else took a shot at" the deer and that twenty minutes later Baublitz himself took a shot at a deer.
After speaking with appellant Michael Baublitz, Officers Bumgardner and Kramer went to see Christopher Baublitz at his home. Bumgardner testified that Christopher Baublitz stated that he had been hunting with his brother Michael Baublitz (after parking on Green's property that morning) and had used a .50 caliber muzzleloader. Christopher Baublitz produced both a .50 caliber muzzleloader and a document purportedly signed by the Tides Inn manager, Stuart Barwise, giving Christopher permission to hunt on its property. By the time of trial, Barwise had died, but Susan Williamson, the director of rooms at the Tides Inn, testified that she had co-signed hundreds of documents with Barwise over the years and that the signature on brother Christopher Baublitz's document was actually not Barwise's signature.
Officer Bumgardner testified that a projectile fired from "an average .50 caliber muzzleloader" would drop "five to seven feet" after moving in the air 400 yards-the approximate distance from the location from which the shot was fired to Dunnaway's front door. Bumgardner submitted Baublitz's and his brother's muzzleloaders and the projectile recovered from Dunnaway's door to the Virginia Department of Forensic Science. Forensic analysis revealed that the projectile was consistent with the brothers' firearms and had similar characteristics as would be produced if it had been shot through either of the firearms. Therefore, the report could not conclusively determine which firearm shot the bullet that went into Dunnaway's door.
After the close of all the evidence,[2] the trial court found that The trial court then determined "beyond a reasonable doubt the only two people shooting in the vicinity of Ms. Dunnaway's home were Michael Baublitz and Christopher Baublitz." The trial court, despite its inability to determine which of the two Baublitz brothers fired the shot that actually hit Ms. Dunnaway's front door "without having to speculate," found that each brother acted "as a principal in the second degree to the other's conduct." Accordingly, the trial court convicted both Baublitz and his brother Christopher Baublitz of unlawfully shooting at an occupied building.
Michael Baublitz now appeals his conviction to this Court.
In his first assignment of error, Baublitz argues that the trial court "erred in convicting Michael Baublitz of violating Va. Code § 18.2-279 as a principal in the second degree under Indictment CR20-125." In his second assignment of error, Baublitz contends that the trial court erred in convicting him "because the Circuit Court had to, yet failed to, find first that co-defendant Christopher Baublitz was a principal in the first degree of the underlying substantive offense before convicting Michael Baublitz as a principal in the second degree." In his third assignment of error, Baublitz argues that the trial court erred in convicting him "because the evidence was insufficient as a matter of law for the Circuit Court to find that Michael Baublitz was present, aiding, and abetting, any crime committed by any principle [sic] in the first degree."
However, Baublitz concedes in his opening brief that his "counsel did not make any argument to the Circuit Court that encompasses the errors assigned here." At his trial, Baublitz did not move to strike at the conclusion of the evidence. After the trial court convicted Baublitz, he did not move to set aside the verdict or otherwise challenge the evidence. On appeal, Baublitz instead "is asking the Court to consider the ends-of-justice exception to the contemporaneous objection rule to consider this appeal."[3]
"No 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, except for good cause shown or to enable this Court to attain the ends of justice." Rule 5A:18. "Rule 5A:18 requires a litigant to make timely and specific objections, so that the trial court has 'an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.'" Brown v. Commonwealth, 279 Va. 210, 217 (2010) (quoting West v. Commonwealth, 43 Va.App. 327, 337 (2004)).
"The 'ends-of-justice' exception to Rule 5A:18 is 'narrow and is to be used sparingly.'" Melick v. Commonwealth, 69 Va.App. 122, 146 (2018) (quoting Pearce v. Commonwealth, 53 Va.App. 113, 123 (2008)).
"In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred." Redman v. Commonwealth, 25 Va.App. 215, 221 (1997) (emphasis in original).
"[W]hen an appellant raises a sufficiency of the evidence argument for the first time on appeal, the standard is higher than whether the evidence was insufficient." Brittle v Commonwealth, 54 Va.App. 505, 514 (2009). This Court "cannot consider the merits of every improperly preserved sufficiency of the evidence...
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