Cuffee v. Commonwealth

• Decision Date: 08 January 2013
• Docket Number: Record No. 1971–11–1.
• Citation: 735 S.E.2d 693,61 Va.App. 353
• Parties: Gary Alexander CUFFEE v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

61 Va.App. 353

735 S.E.2d 693

Gary Alexander CUFFEE

v.COMMONWEALTH of Virginia.

Record No. 1971–11–1.

Court of Appeals of Virginia,

Chesapeake.

Jan. 8, 2013.

Kimberly E. Karle, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Benjamin H. Katz, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FRANK, ALSTON, JJ., and BUMGARDNER, Senior Judge.

ALSTON, JR., Judge.

Gary Alexander Cuffee (appellant) appeals his convictions for two counts of attempted malicious shooting in violation of Code §§ 18.2–51 and –26, two counts of use of a firearm in the commission of a felony (attempted malicious shooting) in violation of Code § 18.2–53.1, discharge of a firearm while on public property within 1,000 feet of a school in violation of Code § 18.2–280(C), and possession of a firearm by a convicted felon in violation of Code § 18.2–308.2. On appeal, appellant argues that the trial court erred in (1) convicting appellant of all of the offenses because the evidence was insufficient to prove that appellant was the perpetrator; (2) convicting appellant of discharging a firearm on public property within 1,000 feet of a school because the evidence was insufficient to show that appellant discharged a firearm on “government owned property”; and (3) convicting appellant of attempted malicious shooting of Beverly Smith, and the related count of use of a firearm in the commission of that offense, because the evidence was insufficient to show that appellant had the specific intent to shoot or wound Beverly. For the reasons that follow, we sustain the trial court's determinations on the assignments of error identified by appellant and therefore affirm appellant's convictions.

I. Background

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). As a result, we must “ ‘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 omitted) (quoting Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954)).

So viewed, the evidence indicated that in the early morning hours on August 13, 2010, Beverly Smith left the home of her father, Joe Smith,¹ near the Broadlawn apartment complex in the city of Chesapeake, to find her stepbrother. As Beverly walked in the area of the Broadlawn apartment complex near Stowe Street, appellant called out to Beverly and asked her to come over. Beverly, who did not know appellant, refused. Appellant asked Beverly if she smoked, and when she replied that she did not, appellant told Beverly to go back inside her house. Beverly refused, and appellant responded, “Go in the house before I make you go in the house.”

Shortly after this encounter, Beverly returned to Joe's house and Joe learned of her exchange with appellant. At Joe's request, Beverly led Joe to appellant's location behind a home on Stowe Street, where appellant stood with a companion. Joe was not previously acquainted with appellant but had “seen him on a couple of occasions” in the Broadlawn complex.

Joe and appellant got into an argument that lasted approximately ten minutes. Beverly was present during the argument and stood nearby. Joe cursed at appellant and generally acted as the aggressor in the argument. Appellant listened passively. After the argument, appellant walked in front of the home on Stowe Street behind which the men had been arguing.

About five minutes later, Beverly saw appellant return, waving a firearm up and down and shouting repeatedly, “Tell him to come down. Tell him to say what he has to say. Ask him what he [has] to say now.” Appellant walked in the street waiving the gun around and then walked “behind a car” parked on the street opposite from where Beverly stood. Beverly told Joe that appellant had a gun, and Beverly and Joe fled to behind a nearby tree. Appellant fired four or five shots in Beverly's and Joe's direction. According to Beverly, the shots came so close to her that she could feel the bullets pass by her.

Joe told Beverly to run behind the neighboring houses on Stowe Street. As Beverly ran, Joe ran in a different direction, crossing Stowe Street to the side on which appellant stood. Appellant fired two or three shots at Joe as he crossed the street. Joe ran behind one of the Broadlawn apartment buildings and hopped the fence separating the complex from the street on which his house was located. As Joe jumped the fence, appellant fired at him again. After traveling a circuitous route for about thirteen minutes, Joe escaped appellant, returned to his house, and called the police. Police responded to Joe's home at 1:38 a.m. Police recovered a casing from a spent .45 caliber round at the house on Stowe Street where Joe said the shooting took place, on the side of the house “closest to the street.” They also recovered a spent .45 caliber bullet at the back of the house.

On August 17, 2010, Detective James A. Gainer showed Joe a photographic array he created based on Joe's description of his assailant, generated by a database that combined Department of Motor Vehicles photographs with those of city jail inmates at random. Detective Gainer instructed Joe that the suspect he had previously described to police may or may not have been present in the photographs. Joe examined the photo array for two to three seconds, scanned each image, and selected appellant. Detective Gainer asked Joe “if he was positive,” and Joe said that “[y]es, he was positive that it was ... the picture of the suspect.” Joe told Detective Gainer that he had taken a few seconds to identify appellant because he thought the picture in the array was old and, as a result, he had to concentrate in order to be certain. Detective Gainer confirmed that the picture was an older one and told Joe he had positively identified appellant, who was suspected of the offense. Detective Gainer later testified at trial regarding Joe's identification of appellant from the photo array, and the photo array with Joe's marking identifying appellant was introduced into evidence.

In December 2010, appellant was indicted for two counts of attempted malicious shooting, two counts of use a firearm in an attempted malicious shooting, discharging a firearm upon public property within 1,000 feet of a school, and possession of a firearm after having been previously convicted of a felony.

A bench trial commenced on March 10, 2011. Joe testified regarding the events of the shooting as described above. Joe testified that he argued with appellant around 10:00 p.m., though he acknowledged that it “possibly” could have been “much later than that.” Joe testified that it was dark outside and that the location of the altercation was lit with streetlights, though some were out that evening. Joe described appellant as wearing a white T-shirt and said that appellant wore his hair in dreadlocks. However, Joe could not remember what kind of pants appellant wore. He acknowledged that he testified during the preliminary hearing that the man with whom he argued wore a white T-shirt and khaki pants but said he was no longer certain the man wore khaki pants. Joe also said he could not remember if his assailant had facial hair, as appellant did. In addition, Joe stated that he thought his assailant was taller than appellant. Regarding the shooting, Joe testified that he could see only a figure standing in a “shooting stance” and wearing a white shirt. At trial, Joe identified appellant as the man he argued with on the night of the shooting.

Joe also testified about his identification of appellant from the photo array. He testified that he told Detective Gainer he had “a hard time identifying the individual” because the picture was old. He also said that he was “hesitantly” able to select the person with whom he argued and who was the shooter from the array because he “had to really sit down and concentrate” because the picture was older. Joe testified that he concentrated closely and was able to identify appellant because “certain features” reminded him of his niece, including the structure of appellant's mouth area and nose area.

Beverly also testified regarding the events of August 13, 2010. Like Joe, Beverly testified that appellant wore a white shirt. She testified that the man who shot at her and Joe was the same man with whom Joe had argued earlier in the night. She said she saw appellant with a gun from across the street. She acknowledged that when she described the shooter to the police she was not “[one] hundred percent certain about what he looked like” but that she told them he had “long dreads” and was “brown-skinned.” Like Joe, Beverly testified that she thought the shooter was taller than appellant.

Following the Commonwealth's case-in-chief, appellant moved to strike the evidence, arguing that the identification of appellant as the perpetrator of the shootings was insufficient. The trial court denied appellant's motion to strike.

During appellant's case-in-chief, appellant presented the testimony of his mother, sister, and friend regarding appellant's whereabouts on the evening of August 12, 2010, and the morning of August 13, 2010. Appellant's mother, Sylvia Cuffee,² testified that appellant was playing video games in the family home on Johnson Street on the evening of August 12, 2010, when Sylvia left for a birthday party for appellant's grandmother. Sylvia testified that appellant was still playing video games in the house when she returned home that night. Sylvia said she went to sleep in the house and did not awaken until noon the next day, and she did not remember if appellant...