Cosby v. Commonwealth
| Decision Date | 21 November 2017 |
| Docket Number | Record No. 1982-16-2 |
| Court | Virginia Court of Appeals |
| Parties | LEVERT ALEXANDER COSBY v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Decker, Malveaux and Senior Judge Clements
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Lauren Whitley, Deputy Public Defender, for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Appellant was convicted of felony failure to appear. On appeal, he contends that the trial court erred by prohibiting him from introducing evidence that he arrived at the courtroom twenty minutes late on the date of trial. He also asserts that the trial court erred by denying his motion to strike1 because the evidence was insufficient for a rational fact finder to conclude his failure to appear was "willful." For the reasons that follow, we affirm the trial court's denial of appellant's motion to strike, but conclude that the trial court erred in its evidentiary ruling regarding appellant's arrival at the courthouse. Accordingly, we reverse appellant's conviction and remand the case for further proceedings should the Commonwealth be so advised.
"When considering on appeal the sufficiency of the evidence presented below, 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.'" Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). "On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Wells v. Commonwealth, 65 Va. App. 722, 725, 781 S.E.2d 362, 364 (2016) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).
Appellant was charged with possession of a firearm by a convicted felon and possession of marijuana with the intent to distribute. He stood trial on May 5, 2016, but after that proceeding ended in a mistrial, the second trial was set with a jury for July 14, 2016, at 10:00 a.m. When appellant failed to appear at 10:00 a.m., the trial court dismissed the jury and issued a capias for his arrest.2
Appellant was arrested for felony failure to appear. Prior to trial on that charge, the Commonwealth filed a motion in limine seeking to preclude testimony from Curtis Mullins, a former police detective,3 that appellant was present at the courthouse at 10:20 a.m. on July 14, 2016, dressed for trial. The Commonwealth argued that appellant's late arrival was irrelevant and would tend to confuse the jury. Defense counsel maintained that the testimony was relevant to whether appellant's failure to appear for trial was "willful." The trial court agreed with theCommonwealth and granted the motion; however, the trial court ruled that Mullins could testify at sentencing regarding appellant's late arrival.
At trial, Detective Patrick Mansfield testified that he appeared in court at approximately 10:00 a.m. on July 14, 2016, to testify at appellant's trial. Mansfield stated that the witnesses and potential jurors were present in the courtroom, but appellant was not. Mansfield acknowledged he could not recall exactly what time he "went downstairs from the third floor," but estimated he left the court around 10:30 or 11:00 a.m. Likewise, Mansfield could not recall how long after 10:00 a.m. appellant's case was "called" to begin.
Mullins testified on behalf of the defense. He stated that he was outside the courtroom when appellant's case was called for trial on July 14, 2016, and that Mullins did not see appellant in the courthouse at that time. Mullins also testified that appellant had appeared in a timely manner at his earlier trial in May. Defense counsel attempted to elicit testimony from Mullins regarding whether he ever saw appellant at the courthouse on July 14, 2016, but the trial court sustained the Commonwealth's objection.
Appellant's aunt, Shawishi Washington, also testified for the defense. She stated that appellant was living with her on July 14, 2016, and that she had planned to drive him to court because neither appellant nor any other family member had a driver's license.4 Washington explained that, as of July 14, 2016, she was recuperating from lung surgery in June 2016 and was still taking pain medications. Washington noted that she took her pain medication "early" on the morning of July 14, 2016, but became "sick" when she was unable to eat enough food with the medication. Washington testified that she soiled her clothes prior to leaving for court and was delayed in leaving her house with appellant. She estimated that she left her house at approximately 9:45 a.m., but encountered traffic. Washington stated that she dropped appellantoff at the door before parking "because [appellant] wanted to get out and run [for] it." She stated that appellant did not bring his cell phone with him to court because he "did not know what the outcome [of the trial would] be" and that he was prohibited from bringing a cell phone into the courthouse. Washington noted that she had left her cell phone at home in the course of "rushing" to get to court. On cross-examination, Washington acknowledged a bus stop was located less than a half-mile from her house, but could not state specifically where because she did not take the bus.
At the conclusion of trial, the jury convicted appellant of felony failure to appear.
At the sentencing hearing, Mullins testified that he saw appellant in the hallway outside the courthouse at 10:20 a.m. dressed for trial. When asked if the jurors and witnesses had been excused at the time Mullins saw appellant, Mullins answered he "didn't know what happened in the courtroom" because he was outside in the hallway.
The jury sentenced appellant to a $1,000 fine.
On appeal, appellant maintains the trial court erred by granting the Commonwealth's motion in limine and by excluding Mullins's testimony that he saw appellant in the hallway dressed for court at approximately 10:20 a.m.
"Decisions involving the admission of evidence are reviewed on appeal for abuse of discretion." Booker v. Commonwealth, 60 Va. App. 35, 40, 723 S.E.2d 621, 623 (2012).
In Virginia, "[a]ll relevant evidence is admissible." Va. R. Evid. 2:402(a)). The determination of whether to admit evidence "rests within the sound discretion of the circuit court and will only be disturbed on appeal upon a showing of an abuse of discretion." Gamache v. Allen, 268 Va. 222, 228, 601 S.E.2d 598, 601 (2004). Further, "[i]n determining whether [relevant] evidence should be admitted, the circuit court must apply a balancing test to assess theprobative value of the evidence and its prejudicial effect." Id. at 227, 601 S.E.2d at 601.
Lee v. Spoden, 290 Va. 235, 251, 776 S.E.2d 798, 806 (2015).
Under Virginia Rule of Evidence 2:401, "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence." The scope of relevant evidence in Virginia is quite broad, as "[e]very fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue is relevant." Virginia Elec. & Power Co. v. Dungee, 258 Va. 235, 260, 520 S.E.2d 164, 179 (1999); see also Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 6-1, at 342 (7th ed. 2012) ().
Commonwealth v. Proffitt, 292 Va. 626, 634, 792 S.E.2d 3, 6-7 (2016). Pursuant to Virginia Rule of Evidence 2:403(a),5 the trial court has the authority to exclude relevant evidence only when its "probative value is substantially outweighed by the danger of unfair prejudice," Egan v. Butler, 290 Va. 62, 72, 772 S.E.2d 765, 771 (2015) (quoting Va. R. Evid. 2:403(a)) (emphasis omitted), or when the evidence is "[likely to] confus[e] or mislead[] the trier of fact," Va. R. Evid. 2:403(a).
Appellant was charged with felony failure to appear in violation of Code § 19.2-128(B). Code § 19.2-128(B) provides that "[a]ny person (i) charged with a felony offense . . . who willfully fails to appear before any court as required shall be guilty of a Class 6 felony." "'Willfully,' as used in Code § 19.2-128(B), has the customary meaning that the act must have been done 'purposely, intentionally, or designedly.'" Hunter v. Commonwealth, 15 Va. App. 717, 721, 427 S.E.2d 197, 200 (1993) (en banc). "Any failure to appear after notice of theappearance date is prima facie evidence that such failure to appear is willful." Williams v. Commonwealth, 57 Va. App. 750, 763, 706 S.E.2d 530, 536 (2011) (quoting Hunter, 15 Va. App. at 721, 427 S.E.2d at 200). Thus, "[w]hen the government proves that an accused received timely notice of when and where to appear for trial and thereafter does not appear on the date or place specified, the fact finder may infer that the failure to appear was willful." Hunter, 15 Va. App at 721, 427 S.E.2d at 200. However, "[the] correct application [of willfully] in a particular case will generally depend upon the character of the act involved and the attending circumstances."6 Id. (quoting Lambert v. Commonwealth, 6 Va. App. 360, 363, 367 S.E.2d 745, 746 (1988)).
Appellant does not dispute that he failed to appear in court at the designated time, but argues he was entitled to present evidence rebutting the inference that his failure to appear was "willful." We agree. "Intent may, and most often must, be proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts are within the province of the trier of fact."...
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