Blow v. Com.

• Decision Date: 19 August 2008
• Docket Number: Record No. 1644-07-2.
• Citation: 52 Va. App. 533,665 S.E.2d 254
• Court: Virginia Court of Appeals
• Parties: Jerry Lemone BLOW, Sr. v. COMMONWEALTH of Virginia.

665 S.E.2d 254

52 Va. App. 533

Jerry Lemone BLOW, Sr. v. COMMONWEALTH of Virginia.

Record No. 1644-07-2.

Court of Appeals of Virginia.

August 19, 2008.

Karen L. Stallard, Supervising Appellate Defender (Office of the Public Defender, on brief), for appellant.

Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: KELSEY, HALEY and PETTY, JJ.

PETTY, Judge.

Following a bench trial, appellant, Jerry Lemone Blow, Sr., was convicted of unlawful wounding of a law enforcement officer, in violation of Code § 18.2-51.1, and the malicious wounding of his daughter, in violation of Code § 18.2-51.¹ On appeal, Blow presents two challenges to his convictions. First, he argues that the evidence was insufficient to warrant a conviction for the unlawful wounding of a police officer. Second, he argues the trial court erred by applying the doctrine of transferred intent in finding him guilty of the malicious wounding of his daughter. As discussed below, we affirm his convictions.

I. BACKGROUND

On appeal, we "view the evidence in the light most favorable to the Commonwealth, the party prevailing below, and grant all reasonable inferences fairly deducible therefrom." Clifton v. Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996) (citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted). We present the facts below with that standard in mind.

On the morning of November 26, 2007, Blow and his wife had an argument in the living room of their home. Eventually, the argument escalated and Blow attacked his wife with a kitchen knife, stabbing her several times. The couple's daughter was also in the room during the attack. While Blow was "standing over" his prone wife and stabbing her, his daughter ran up behind Blow and "jumped on his back and ... tried to grab the knife." As a result, Blow cut his daughter's hand with the knife. The daughter "yelled out, `Daddy, I cut my hand. Daddy, I cut my hand.'"² At that point, Blow stopped stabbing his wife, took some money out of her pocketbook, and left the house.

After Blow's departure, his daughter went to the neighbor's house and asked them to call the police. As part of their response, the police issued a broadcast for officers to be on the look out for Blow and his green Saturn car. Later that morning, Officer John Dean of the Richmond police observed the green Saturn, activated the siren and lights of his marked police car, and followed Blow as he was pulling onto Interstate 64. However, instead of pulling over, Blow fled from the officer.

Thus began a chase through the City of Richmond and Henrico County that lasted for 28 miles on Interstates 64, 95, and 195, as well as other roads. The chase involved a number of police officers in ten patrol cars from the City of Richmond, Henrico County, and the State Police. During the chase, Blow performed a number of illegal u-turns, changed lanes erratically, and reached speeds exceeding 100 miles per hour.

Near the end of the chase, State Trooper Adam Kulpa led the pursuit. Eventually, he maneuvered his patrol car in front of the Saturn while traveling about 55 or 60 miles per hour. Kulpa testified that at that time he "noticed the suspect vehicle move at a faster rate than I was going and ran into the back of my vehicle. At this point, I had not decelerated. I was maintaining my speed." The cars "broke contact," and Kulpa took his foot off of the accelerator to help him maintain control of his car. "Then," Kulpa testified, "a brief moment later, I'll estimate 5 to 10 seconds, my vehicle was struck a second time by the suspect vehicle." Blow passed Kulpa's car on the right-hand side and then suddenly swerved to the left, striking the front passenger side of Kulpa's cruiser with the rear driver's side of the Saturn. Blow then lost control of the Saturn, "spun out," and hit the wall on the left side of the highway. Kulpa sustained injuries to his upper back and neck as a result of the collision.

Based upon Trooper Kulpa's testimony and a review of the video recording from Kulpa's car, the trial court concluded that two of the three collisions resulted from deliberate acts on Blow's part:

In the video [Trooper Kulpa] ... goes past on the left and gets ahead of [Blow's Saturn]. He is maintaining his position and he is struck in the rear.

He is struck in the rear again, but the Court would not find that that was intentional. The statement was that he was hit. There is a little blurring on the video, but it is not forceful. It doesn't look forceful. The police car maintains control, anyway.

The second hit, the police officer says took 5 to 10 seconds afterwards, but he took his foot off the accelerator and was hit 1 to 2 seconds later. If you're both maintaining speed and he lets his foot off the accelerator, the likely result of that is that you would, he would hit you again. That may not have been Mr. Blow's intent.

He then pulls to the right and passes the car and hits the car from the right-hand side. From the video, the police car did not move out of the lane in watching that, and so your car intentionally struck him twice.

After finding Blow guilty, the court sentenced him to a total of nineteen years incarceration, with fourteen years, six months suspended. This appeal followed.

II. ANALYSIS

The appellate standard of review for sufficiency of the evidence issues is well established. "`[T]he judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict.'" Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991) (quoting Evans v. Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975)). Thus, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence to support it." Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see Code § 8.01-680. We are mindful that "great deference must be given to the factfinder who, having seen and heard the witnesses, assesses their credibility and weighs their testimony." Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998). Therefore, we do not "substitute our judgment for that of the trier of fact." Wactor v. Commonwealth, 38 Va.App. 375, 380, 564 S.E.2d 160, 162 (2002). Instead, "the relevant question" on appeal "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

A. Unlawful Wounding of Trooper Kulpa

Both on brief and at oral argument, Blow argues that the evidence was insufficient to show that he had the specific intent to maim, disable, disfigure or kill Trooper Kulpa. Instead, Blow contends, the evidence failed to exclude his proposed reasonable hypothesis of innocence: that he merely intended to flee from the officers, rather than to injure the trooper. We conclude that the record supports the trial court's finding that Blow had the necessary intent to injure Trooper Kulpa.³

Intent may, and usually must, be proved by circumstantial evidence, Servis v. Commonwealth, 6 Va.App. 507, 524, 371 S.E.2d 156, 165 (1988), such as a person's conduct and statements, Long v. Commonwealth, 8 Va.App. 194, 198, 379 S.E.2d 473, 476 (1989). And Blow is correct that while "[c]ircumstantial evidence is as competent and is entitled to as much weight as direct evidence[,]" it must "exclude every reasonable hypothesis except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). However as we explained in Haskins v. Commonwealth, 44 Va.App. 1, 9, 602 S.E.2d 402, 406 (2004), whether a defendant's hypothesis of innocence is reasonable is a question of fact and is "subject to deferential appellate review." Where, as here, "the factfinder has rejected the hypothesis as unreasonable, that determination cannot be overturned as arbitrary unless no reasonable factfinder would have come to that conclusion." Id. at 12, 602 S.E.2d at 406 (citations omitted) (emphasis in the original).

We find these facts similar to those in Luck v. Commonwealth, 32 Va.App. 827, 531 S.E.2d 41 (2000), where we affirmed a conviction for malicious bodily injury of a police officer. There, the trial court found that Luck had led police on a sixteen-mile, high-speed chase during which he drove dangerously, including "repeatedly steer[ing] his car into police vehicles" and accelerating and striking police cruisers from behind when they attempted a "rolling roadblock." Id. at 830, 832-33, 531 S.E.2d at 42-43.

Here, the evidence established that Blow, while attempting to flee, led the officers on a dangerous, high-speed, twenty-eight-mile-long car chase. During this chase, Blow drove recklessly on busy highways, changed lanes erratically, and made illegal u-turns. Despite the lengthy chase, Blow was unable to escape Trooper Kulpa and was about to be forced to a stop. From these facts the trial court could reasonably infer that Blow intended to prevent this from happening by deliberately crashing into Trooper Kulpa's car. This act would "obviously cause a serious wreck, maiming, disfiguring, disabling or killing anyone involved in it." Id. at 833, 531 S.E.2d at 43. Thus, the trial court properly rejected Blow's hypothesis of innocence as unreasonable in light of its amply supported factual finding that Blow intended to injure Trooper Kulpa.

B. Transferred Intent

Blow also argues that his...