Dean v. Commonwealth

Decision Date04 December 2012
Docket NumberRecord No. 1590–11–2.
Citation61 Va.App. 209,734 S.E.2d 673
PartiesWendell Kirk DEAN v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

OPINION TEXT STARTS HERE

Amy E. Thorpe, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: ELDER, PETTY and McCULLOUGH, JJ.

ELDER, Judge.

Wendell Kirk Dean (appellant) appeals his two jury trial convictions for robbery, a third or subsequent offense, in violation of Code §§ 18.2–58 and 19.2–297.1, for which he received two mandatory life sentences. On appeal, he contends the trial court erred in admitting evidence of two prior Maryland convictions for robbery because these convictions were not for offenses “substantially similar” to those listed in Code § 19.2–297.1. We agree. Thus, we reverse appellant's convictions for robbery, a third or subsequent offense under that code section, and remand for a new trial.1

I. BACKGROUND

Appellant robbed two different banks in Spotsylvania County in November 2010 and was apprehended while fleeing from the scene of the second robbery. After being arrested and advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant confessed to the second robbery and also said he had served time in Maryland for “prior robberies.” The bank tellers in both Spotsylvania County robberies identified appellant as the perpetrator.

Appellant was indicted for two counts of robbery, third or subsequent offense. The Commonwealth notified appellant of its intent to rely on two prior Maryland convictions for robbery to prove the predicate offenses. Appellant moved to exclude the prior Maryland convictions, but the trial court ruled the records of those convictions would be admitted.

At trial, the Commonwealth's evidence proved appellant committed the two charged Spotsylvania County robberies. The Commonwealth's evidence also established that appellant was convicted in Maryland in 1983 for the 1982 robbery of a movie theater manager, against whom he used a “dangerous and deadly weapon” to steal $3,500 in U.S. currency. It also proved appellant was convicted in Maryland in 1992 for the 1992 robbery of a McDonald's employee, against whom he used a “dangerous and deadly weapon” to steal $2,000 in U.S. currency. Based on that evidence, appellant was convicted of robbery, a third or subsequent offense, and pursuant to Code § 19.2–297.1, he was sentenced to a mandatory term of imprisonment for life.

Following appellant's conviction and sentencing, he noted the instant appeal.

II. ANALYSIS

Generally, [w]e review a circuit court's decision to admit or exclude evidence under an abuse of discretion standard and, on appeal, will not disturb [that] decision ... absent a finding of abuse of that discretion.” Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618, 620 (2010). However, [a circuit] court by definition abuses its discretion when it makes an error of law.... The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (alteration in original) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047–48, 135 L.Ed.2d 392, 414 (1996)). Therefore, to the extent admissibility rests upon the interpretation of a statute, that interpretation is a question of law subject to de novo review. Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011).

Appellant was convicted and sentenced pursuant to Code § 19.2–297.1, which provides in relevant part as follows:

Any person convicted of two or more separate acts of violence ... and who has been at liberty ... between each conviction, shall, upon conviction of a third or subsequent act of violence, be sentenced to life imprisonment and shall not have all or any portion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been previously convicted of two or more such acts of violence.

Code § 19.2–297.1(A). The statute further provides that [f]or the purposes of this section,‘ act of violence ’ means[, inter alia,] ... [r]obbery under § 18.2–58.” Code § 19.2–297.1(A)(i)(e).214 Finally, the statute provides that necessary predicate convictions “shall include convictions under the laws of any state or of the United States for any offense substantially similar to those listed under ‘acts of violence’ if such offense would be a felony if committed in the Commonwealth.” Code § 19.2–297.1(B) (emphasis added).

No Virginia appellate court has previously determined what qualifies as an offense “substantially similar to those listed under ‘acts of violence’ for purposes of Code § 19.2–297.1. However, [t]he validity of using other Code sections as interpretive guides is well established. The Code of Virginia constitutes a single body of law, and other sections can be looked to where the same phraseology is employed.” King v. Commonwealth, 2 Va.App. 708, 710, 347 S.E.2d 530, 531 (1986). Therefore, in determining what this “substantially similar” language means in Code § 19.2–297.1, we consider how this same language in other statutes has been interpreted. “Finally, a court must strictly construe a penal statute against the Commonwealth and limit its application to cases falling clearly within the statute.” Courtney v. Commonwealth, 281 Va. 363, 369, 706 S.E.2d 344, 347 (2011).

Virginia's appellate courts have set out several salient principles relevant to our analysis of whether the offense of robbery in Maryland is substantially similar to the offense of robbery in Virginia. First, the Commonwealth bears the burden of proving an out-of-state conviction was obtained under laws substantially similar to those of the Commonwealth. Shinault v. Commonwealth, 228 Va. 269, 271, 321 S.E.2d 652, 654 (1984). If the Commonwealth shows substantial similarity, the burden shifts to the defendant to produce “evidence of dissimilarity.” Rufty v. Commonwealth, 221 Va. 836, 839, 275 S.E.2d 584, 586 (1981).

Proving substantial similarity between two states' laws requires showing more than “a general likeness.” Shinault, 228 Va. at 271, 321 S.E.2d at 654. However, the laws need not be substantially similar “in every respect.” Cox v. Commonwealth, 13 Va.App. 328, 330–31 & n. 2, 411 S.E.2d 444, 445–46 & n. 2 (1991) (holding Code § 18.2–270's requirement of “substantial[ ] similar[ity] is “ essentially the same ” as “substantial [ ] conform[ity] required by the habitual offender provisions of Code § 46.2–351 and applying substantial similarity decisions to decide a substantial conformity case (emphasis added)); see also Turner v. Commonwealth, 38 Va.App. 851, 860 n. 4, 568 S.E.2d 468, 472 n. 4 (2002) (recognizing Virginia case law has equated substantial similarity and substantial conformity and applying the test in Cox, which involved an issue of substantial conformity, to decide a substantial similarity case). “In making this determination, we look to the elements of the two [offenses] rather than to the offender's conduct.” Commonwealth v. Ayers, 17 Va.App. 401, 402, 437 S.E.2d 580, 581 (1993).

Key to our analysis here is the established principle that a crime in another state is not “substantially similar” to the most closely corresponding crime under Virginia law if the other state's law “permits convictions for acts which could not be the basis for convictions under [the Virginia law at issue].” Cox, 13 Va.App. at 330–31, 333, 411 S.E.2d at 446,quoted with approval in Turner, 38 Va.App. at 860–62, 568 S.E.2d at 472–73 (holding the crime of housebreaking in violation of the Uniform Code of Military Justice (UCMJ) was not “substantially similar” to any relevant Virginia statute because “a person could be convicted of ‘Housebreaking’ under the UCMJ without evidence of elements indispensable to violations of [the relevant Virginia statutes]). Compare Medici v. Commonwealth, 260 Va. 223, 230, 532 S.E.2d 28, 32 (2000) ([W]e need only compare the Virginia rape statute with the subsection of the California statute under which Medici was charged and convicted.”), overruled on other grounds,270 Va. 325, 333, 619 S.E.2d 71, 76 (2005), with Cox, 13 Va.App. at 331, 411 S.E.2d at 446 (in applying the elements test to a prior conviction under a city ordinance, holding that if the record of the prior conviction “does not identify the specific [subdivision] of the ordinance,” the court “must examine the entire [ordinance] to see if it permits convictions not permitted under [the Virginia statute]).

For example, another state's DUI statute is not substantially similar to Virginia's where Virginia's contains a rebuttable presumption of intoxication based on blood alcohol content, and the other state's statute contains a conclusive presumption based on that same information. Shinault, 228 Va. at 271–72, 321 S.E.2d at 654;see Cox, 13 Va.App. at 329, 331, 411 S.E.2d at 445, 446 (holding a West Virginia DUI ordinance was “substantially broader [than the related Virginia statute], encompassing additional offenses,” and, thus, that it was not substantially conforming). Because the defendant could have been convicted, under the other state's statute, of behavior which would not have been a crime in Virginia, the other statute is not substantially similar. Cox, 13 Va.App. at 330–31, 411 S.E.2d at 446;see Turner, 38 Va.App. at 860–62, 568 S.E.2d at 472–73;see also United States v. Thomas, 367 F.3d 194, 197–99 (4th Cir.2004) (reaching the same conclusion under the Assimilative Crimes Act, 18 U.S.C. § 13, “which assimilated Virginia's DWI statutes in a fourth-offense “DWI” case committed on federal property in Virginia, because the Maryland statute under which the appellant sustained his three prior convictions, like the...

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