Charnick v. Commonwealth
| Docket Number | 1230-22-1 |
| Decision Date | 16 January 2024 |
| Parties | JAMES THOMAS CHARNICK v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W Hutton, Judge
(Joshua A. Goff; Goff Voltin, PLLC, on brief), for appellant. Appellant submitting on brief.
Matthew J. Beyrau, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Beales and Raphael Argued by videoconference
James Thomas Charnick appeals his convictions for carjacking, use of a firearm in the commission of a felony, and credit card theft in violation of Code §§ 18.2-53.1, -58.1, and -192. He contends that the trial court erred by admitting certain exhibits, finding the evidence sufficient to convict him, and denying his motion to set aside the verdict based on his claim that the Commonwealth withheld exculpatory evidence. For the following reasons, we affirm the judgment.
Background[1]
While at a park in Hampton with her four young children one afternoon in March 2020, Alexis Marshall saw a man dressed in black and wearing a hoodie walk by. A short time later, as she was returning to her parked car with her children, the man approached her. Marshall noted that he had numerous tattoos on his face, and she thought she had seen him previously at a nearby store that sold car tires. When she asked if he "[was] at Tire World," he responded "no." He then told her, "But you can give me those keys before I pop you." She understood his use of "pop" as "slang language" meaning "shoot."[2] Marshall did not see a gun, but she believed he had one because of both his verbal threat and the fact that his hand was in his pocket and "a point" was "showing" "like[] he had something in there." When the man repeated his threat and said he was "serious," Marshall gave him her keys. After the man got into her car and locked the doors, he told her to "get away from the car before [he] sho[]t" her. He then drove away with her phone and wallet in the car. Marshall went to a nearby house, and the police were notified of the crimes.
Detective Michael Snelgrow of the Hampton Police Division investigated the offenses. Marshall described the offender's facial tattoos and clothing to the detective. She said that he had "a tattoo of a cross" beneath his right eye. Snelgrow's notes stated that Marshall also said the man had sideburns, but at trial she denied making such a statement.
As part of the investigation, on the day of the incident, Detective Snelgrow showed Marshall 5,467 mugshots.[3] Marshall did not identify the appellant as the carjacker from the mugshots because, according to her, none of the men pictured had similar facial tattoos.[4] She testified that the appellant's photo "wasn't in there," and the detective did not recall if he subsequently verified whether the photo had been included.[5]
Marshall's car was equipped with a GPS tracking device. The day after the theft, Hampton police tracked the car to a laundromat in Norfolk and notified Norfolk police. Arriving at the site about 9:30 a.m. that morning, Officer Joshua Irizarry of the Norfolk Police Department saw three people in the car. As he watched them, the driver and one of the passengers got out of the car and switched seats. Officer Irizarry parked behind the car to prevent it from leaving, and officers detained the occupants. The appellant was the person who had moved out of the driver's seat. He was dressed entirely in black and had numerous tattoos on his face. One of the passengers was Dana Bacon, who was questioned and released. The third man in the car was held on an unrelated outstanding warrant.
After Detective Snelgrow advised the appellant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), he denied being near the Hampton park the previous day and committing the carjacking. He claimed that Bacon had given him a ride and denied switching seats with Bacon. The appellant acknowledged that his uncle lived near Tire World and that he had used his uncle's address several times in the past and slept there on occasion.
Law enforcement officers searched Marshall's car before returning it to her. Although her wallet was still in the car, "everything was scattered out of it," and her Wells Fargo and SunTrust credit cards were missing. Her phone also was not in the car.
Marshall testified that her Wells Fargo credit card account emailed her receipts when the card was used. She explained that after the carjacking and robbery, she received three emailed receipts for charges she had not made. Additional evidence established that those charges were made several hours after the carjacking at a 7-Eleven store in Norfolk. Hampton Police Detective Bryce Kiser obtained surveillance footage from the store for that time period. It showed the appellant getting out of a white sedan "matching" Marshall's vehicle and entering the store. He was dressed entirely in black and used a red credit card to purchase several items.[6] Detective Kiser recognized the appellant by the "very distinct" tattoos on his face, which the detective had observed previously. The Commonwealth introduced a collection of four photographs with timestamps taken from the 7-Eleven security video, which Detective Kiser had prepared. The appellant objected to the introduction of the photos, arguing that "the relevancy" of the photographs "ha[d not] been established." The court admitted them as an exhibit.
The Commonwealth also presented a credit card transaction log from the store. Christian Ebido, an assistant manager at the 7-Eleven, testified that he had access to the credit card transaction logs as part of his job and they were used to provide customer receipts when needed. He explained that Detective Kiser gave him a credit card number that he used to search the store's records. Ebido found a match for the card number and ran a report based on that number. He verified that the report was accurate. Three transactions on the log conducted within the same six-minute period involved the use of one or more credit cards ending in the same four digits. The times of those transactions corresponded with the timestamped photographs of the appellant from the surveillance videos. The appellant objected to the admission of the credit card transaction log on multiple grounds. He argued that the evidence was not relevant, was inadmissible hearsay, had not been authenticated, and lacked a "proper foundation" for admission. The court overruled the objection and admitted the log, stating that Ebido had "clearly identified" the evidence and its weight would be determined later.
The appellant testified in his defense. He denied taking Marshall's car. He said that on the afternoon of the carjacking, he was in Norfolk with "a female" he was "dealing with" and Bacon had picked him up later that evening, at about 9:30 or 10:00 p.m. The appellant admitted purchasing items at the 7-Eleven on the night of the carjacking but said that Bacon had given him the credit card and asked him to go into the store to do so. The appellant denied looking at the card when he used it and said he did not know that it was stolen. He further testified he "had no knowledge of what was going on" when they went to pick up a friend the next morning and were stopped by the police. The appellant denied having a cross tattoo. Instead, he said he had "a teardrop and an R and a 90" under his right eye and "a teardrop" under his left eye. He complied with the prosecutor's request to show each side of his face to the court. The appellant admitted on cross-examination that he did not recall that either of the other two occupants of the stolen car at the time of his arrest had "face tattoos."
The trial court, as the trier of fact, found that the facts in the case were "not coincidental." It specifically determined that the evidence as a whole showed the appellant was the person who stole the victim's car and credit cards after threatening to shoot her. As a result, the court concluded that the appellant was guilty of the charged offenses.
Before sentencing, the appellant made motions for a new trial and to set aside the verdict. Defense counsel asserted that the evidence was insufficient to convict the appellant for a variety of reasons. He further alleged that because Marshall had not identified anyone from the mugshots she was shown after the offense, the Commonwealth had violated Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing whether the appellant's photo had been included. The prosecutor explained that the detective had prepared the photo array using a computer system but did not note the search parameters and therefore was unable to recreate the array. The trial court ruled that no Brady violation had been established because "too much of what [the appellant] argue[d was] entirely speculative." The court denied the appellant's motions.
The appellant was sentenced to a prison term of twenty-three years and six months with seven years suspended.
The appellant asserts that the trial court erred by admitting three exhibits that showed he had been at the 7-Eleven concluding the evidence was sufficient to convict him, and denying his motion to set aside the verdict based on his Brady claim that the Commonwealth withheld exculpatory evidence.
The appellant suggests that the trial court erred by admitting Commonwealth's Exhibits 1, 2, and 3. Exhibit 1 consists of the four photographs of the appellant taken from the 7-Eleven surveillance video. Exhibits 2 and 3 comprise two pages of specific entries from the store's credit card transaction log. The appellant argues...
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