Bazemore v. Com.

Decision Date13 January 2004
Docket NumberRecord No. 0103-02-1.
Citation590 S.E.2d 602,42 Va. App. 203
PartiesNicko BAZEMORE v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Andrew G. Wiggin, Virginia Beach, for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS and FELTON, JJ.

UPON A REHEARING EN BANC

HUMPHREYS, Judge.

This matter comes before the Court on a rehearing en banc from an unpublished panel decision rendered May 13, 2003. See Bazemore v. Commonwealth, 03 Vap UNP 0103021, 2003 WL 21057291 (2003). In that decision, a divided panel of this Court affirmed Nicko Bazemore's conviction for grand larceny, but reversed his convictions for feloniously eluding police and second degree murder. By order dated June 12, 2003, we granted the Commonwealth's petition for a rehearing en banc, stayed the mandate of that decision, and reinstated the appeal. Upon rehearing this case en banc, we affirm each of Bazemore's convictions.

I. Background

"When an appellant challenges the sufficiency of the evidence to sustain his conviction, we review the evidence in the light most favorable to the Commonwealth and grant to it `all reasonable inferences fairly deducible therefrom.'" Kelley v. Commonwealth, 17 Va.App. 540, 548, 439 S.E.2d 616, 621 (1994) (citation omitted). So viewed, the evidence presented during Bazemore's trial proved that on the morning of August 4, 2000, Officer M.C. Marshall noticed a broken rear window on a green minivan in the City of Suffolk and received information that the license plates on the minivan were registered to another vehicle. When Officer Marshall activated the siren and lights on his police car, the driver of the green minivan continued to drive.

During Officer Marshall's pursuit of the green minivan, which covered a little more than a mile in relatively heavy traffic, the driver of the minivan failed to heed two stop signs, accelerated to 50 miles per hour, and later decreased his speed "to ... 10 miles an hour." The green minivan made a series of turns, failed to heed another stop sign, and struck another minivan after entering the intersection. Officer Marshall could not estimate the vehicle's speed; however, he testified that his own speed was "approximately 15 to 20 miles an hour" when the green minivan entered the intersection. A witness described the green minivan as "shooting across the intersection."

After the green minivan hit the other minivan, yet another vehicle hit the other minivan. A passenger in the minivan that was hit sustained a fractured cervical spine and died. After the collision, the green minivan spun off the road and crashed into a nearby house.

As Officer Marshall approached the green minivan, he observed Greg Shorter leave the van through the front passenger door. Officer Marshall also observed Bazemore moving from the driver's seat and attempting to exit through the front passenger door. Officer Marshall then arrested Shorter and Bazemore. Denise Byron, another passenger in the green minivan, was found lying on the ground, after having been thrown from the van when it hit the house.

When the rescue squad arrived, Bazemore complained of pain and told officers responding to the scene that he was driving the green minivan when it crashed. Officers observed that Bazemore was wearing one shoe. Inside the green minivan, officers found Bazemore's other shoe under the brake pedal. They also found a 9-mm handgun, a screwdriver, and a Florida license plate. The minivan's ignition had been damaged, and a rag was covering the steering column. The evidence proved that the green minivan had been stolen two days earlier in the City of Norfolk and that broken glass was found on the pavement after it had been stolen.

Several hours after police arrested Bazemore, he waived his Miranda rights. Bazemore initially told the police that a friend, whom he only knew as "Malik," and Shorter offered him a ride at 9:00 p.m. on the night before the accident. Bazemore said that he noticed the screwdriver on the floor and the broken window and that Malik told him he had gotten the van from Norfolk. Bazemore also said he learned within two hours that the van had been stolen. Later, Byron joined them and sat in the rear area of the van.

Bazemore told police he began driving the vehicle at 3:00 a.m. He also said that after the officer attempted to stop the vehicle, he believed the vehicle might be stolen. When asked "Why didn't you stop the vehicle?," he responded "I was scared." As the interview progressed, Bazemore said that Malik did not exist and that when he entered the minivan, Shorter was the driver and sole occupant. Bazemore admitted he was driving the van when the accident occurred and could not recall his speed because "it happened so quick."

On October 25, 2000, the grand jury for the City of Suffolk indicted Bazemore on charges of grand larceny, "in violation of [Code] § 18.2-95," felony eluding police, in violation of Code §§ 46.2-817 and 18.2-10, and second degree murder. The indictment for second degree murder stated that Bazemore "unlawfully and feloniously while in the prosecution of a felonious act, accidentally, contrary to the intention of the parties, did kill and murder . . . in violation of [Code] §§ 18.2-33, 18.2-32, and 18.2-26."

During his trial, after the trial judge had denied Bazemore's motion to strike the evidence, Bazemore testified that Shorter, who is also called "Malik," was driving the green minivan when he entered it. They spent the hours before the incident driving to various places. Bazemore testified he was driving when Byron joined them at 5:30 or 6:00 in the morning, but he denied seeing the broken steering column. Although he knew Shorter did not own the minivan and did not have money to buy a vehicle, he did not ask Shorter where he obtained it or who owned it.

Bazemore also testified that, after the police signaled him to stop and began to pursue him, he and Shorter switched places in the moving vehicle. He said that Shorter was driving when the vehicle entered the intersection and that he did not remember telling police he was driving when the collision occurred. Despite his previous statement to police that he had not seen a gun in the van, Bazemore testified that Shorter displayed the gun, said he was not going back to prison, and ignored Bazemore's and Byron's requests to stop. Bazemore also testified that after the accident, Shorter crawled across him from the driver seat to get out of the van. He testified that he lied to the police in the interview to protect Shorter because he "was afraid of everything that was going on around him" and afraid of Shorter.

The jury convicted Bazemore of "grand larceny by receiving stolen property," of the "felony . . . of disregarding the signal of a law enforcement officer," and of "felony homicide." The final conviction order denotes the convictions as "Grand Larceny ([Code] § 18.2-95)," "Eluding Police-Endangerment (§ 46.2-81[7](B) (Felony)," and "Second Degree Murder (§ 18.2-32) (Felony)."

II. Analysis

On appeal, Bazemore contends (1) the evidence was insufficient to support the convictions, (2) the trial judge erred by refusing to give the jury an instruction defining the word "wanton," and (3) the trial judge erred by failing to properly instruct the jury on the elements of the offense of feloniously eluding the police and, thus, permitted the jury to improperly convict him of feloniously eluding the police and felony homicide. For the reasons that follow, we affirm Bazemore's convictions.

A.

Bazemore first contends the evidence was insufficient to support his conviction for grand larceny by receiving stolen property. Specifically, he argues the evidence was insufficient to prove he knew the vehicle was stolen, intended to permanently deprive the owner of the vehicle, and had dishonest intent.

We first note, in regard to this argument, that Bazemore contends the evidence was insufficient to convict him of violating Code § 18.2-108. The final conviction order recites, however, that the conviction was for grand larceny in violation of Code § 18.2-95, which was the charge specified in the indictment. Although neither Bazemore nor the Commonwealth addressed this discrepancy, we address it for purposes of clarity.

The record reflects that the trial judge's instructions permitted the jury to convict Bazemore of "grand larceny," which was the offense charged in the indictment, or to convict him of other lesser offenses, including "grand larceny by receiving stolen property."

The verdict form establishes that the jury convicted Bazemore of "grand larceny by receiving stolen property," which is prohibited by Code § 18.2-108. Following the guilt phase of the trial, the jury fixed Bazemore's punishment at one year in prison for "grand larceny by receiving stolen property." Consistent with the jury's findings, the trial judge entered an order reflecting that the jury convicted Bazemore and fixed his sentence for "grand larceny by receiving stolen property." The final conviction order, however, contains no reference to Code § 18.2-108 and recites only that Bazemore was convicted of "grand larceny ([Code] § 18.2-95)."

The Supreme Court has held that "[r]eceiving stolen goods, knowing the same to be stolen, may be charged as larceny." Clark v. Commonwealth, 135 Va. 490, 498, 115 S.E. 704, 706 (1923), overruled on other grounds by Chittum v. Commonwealth, 211 Va. 12, 174 S.E.2d 779 (1970). See also Cabbler v. Commonwealth, 212 Va. 520, 524, 184 S.E.2d 781, 783 (1971) (holding that "[l]arceny by receiving stolen goods is a lesser offense which is included in the major one of larceny"). In view of these decisions, the jury's verdict forms, and the trial judge's order entered upon the jury's verdict, we hold that the trial judge's failure to include a...

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