Flanders v. Commonwealth

Decision Date13 February 2020
Docket NumberRecord No. 181228
Citation838 S.E.2d 51
Parties Sarah Elizabeth FLANDERS v. COMMONWEALTH of Virginia
CourtVirginia Supreme Court

Andrew M. Sacks (Stanley E. Sacks ; Jill R. Schmidtke ; Sacks & Sacks, on brief), Norfolk, for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and McCullough, JJ., and Koontz, S.J.


In this appeal, we consider as a matter of first impression whether felony hit and run may serve as a predicate offense for a felony-homicide conviction.


"On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Vasquez v. Commonwealth , 291 Va. 232, 236, 781 S.E.2d 920 (2016) (quoting Bowman v. Commonwealth , 290 Va. 492, 494, 777 S.E.2d 851 (2015) ). So viewed, the evidence established that while a utility crew conducted overnight repair work, a man walked through the job site causing them to suspend work until he cleared the area. Five or ten minutes later, a woman later identified as Sarah Flanders "abruptly" pulled up to the job site in a red Dodge Durango and asked the workers to call 911 because it "looked like someone had been run over behind" the neighboring school and "the person was bleeding to death." She then "sped away" and "quickly left the scene."

The utility crew's supervisor drove behind the school to investigate. He found an injured man, who he recognized as the same person who had passed through earlier. He was conscious but visibly in "a lot of pain." He had difficulty breathing and was bleeding from abrasions on his head

and knees. He told the supervisor that he had been hit. The supervisor immediately called 911. By the time first responders arrived five minutes later, the man had lost consciousness. A police officer observed that the man's clothes and backpack had black marks "like soot" on them and that there were visible tire tracks in the pine needles and soil of the median where he was lying. The man eventually regained consciousness and identified himself as Rick Pentz. Pentz was transported to a hospital where he died approximately four hours later from blunt force trauma to his torso.

Police collected various personal items belonging to Pentz from the scene, including a cell phone whose call log reflected a 19-second call to Flanders approximately an hour before the incident. During an interview with investigators the next day, Flanders denied any involvement in Pentz' death. She did, however, admit that she drove a red Dodge Durango on the date of the incident. She also said that she knew Pentz and had been friends with him for around six years. The two of them had once lived together in a residence close to where the incident occurred. When asked whether she had been with Pentz lately, she replied that she had last seen him earlier in the week when she dropped him off at work. Investigators eventually told Flanders that Pentz had died, then left her alone in the interview room where she was overheard saying aloud to herself that "she thought that this was crazy and that she thought that he was going to make it."1

Investigators seized and forensically examined the Durango they suspected Flanders drove during the incident. They identified Pentz' blood on the front bumper. In addition, the investigators found yellow paint consistent with the yellow paint on the median curb where Pentz was found inside of the front and rear driver's side tires. Mail addressed to Flanders was in the passenger seat, and her DNA was on the steering wheel and gear shift knob.

Flanders was ultimately charged with felony hit and run, in violation of Code § 46.2-894, and felony homicide, in violation of Code § 18.2-33. At trial, the Commonwealth introduced evidence that Flanders and Pentz were involved in another incident two days prior to Pentz' death. An officer responded to a restaurant parking lot where he encountered a red Dodge Durango parked partially in the road and partially in the grass with a bicycle lying next to it. Flanders was in the driver's seat and Pentz, who had apparently been riding the bicycle, was standing near the driver's door. Both were agitated. The officer asked them whether "somebody had tried to strike somebody with a vehicle," but both denied it. Flanders acknowledged this incident when questioned after Pentz' death and explained that Pentz "had jumped on the passenger door of her Durango."

Counsel for Flanders moved to strike the felony-homicide charge at the close of the Commonwealth's evidence. The crux of his argument was that a hit and run in violation of Code § 46.2-894 was insufficient as a matter of law to support a conviction of felony homicide, and that even assuming that some hit and run convictions could serve as a predicate for felony homicide, the facts of this case did not rise to the level of imputing malice to Flanders' actions. The Commonwealth responded that Flanders' actions amounted to a single, continuous transaction in which she intended to strike Pentz with her vehicle. Under these circumstances, the Commonwealth argued, a felony-homicide conviction was proper because the homicide was within the res gestae of the predicate hit and run. The trial court denied the motion to strike and ultimately found Flanders guilty of both charges, noting that the issues counsel raised "create[ ] a very interesting legal conundrum that minds wiser than mine will have to sort out for you and your client."

Flanders filed motions to set aside the verdict renewing the arguments made at trial and additionally asserting that the evidence at trial was insufficient to support her convictions. Following argument at sentencing, the trial court denied the motions and imposed an active sentence of 22 years' imprisonment. The Court of Appeals affirmed by unpublished opinion, holding that the evidence established that Pentz' death was within the res gestae of the hit and run.

We awarded Flanders this appeal.


Flanders' sole assignment of error argues that the evidence was insufficient to support her felony-homicide conviction. Resolving this assignment of error requires a two-step inquiry. The first issue, whether felony hit and run may serve as a predicate offense for a felony-homicide conviction, presents a question of law we review de novo. See AGCS Marine Ins. Co. v. Arlington Cty. , 293 Va. 469, 473, 800 S.E.2d 159 (2017) ("[W]e review all conclusions of law de novo."); see also, e.g. , Mulford v. Walnut Hill Farm Grp., LLC , 282 Va. 98, 106, 712 S.E.2d 468 (2011) ("[T]he ultimate conclusion as to whether [a] roadway [is] a public road is reviewed de novo."). If felony hit and run can be a predicate offense, then the second step is to determine whether the evidence in this case was sufficient to establish that Pentz' death was within the res gestae of the hit and run, and thus was an appropriate predicate offense for Flanders' felony-murder conviction. We apply a familiar standard of review to that inquiry:

"When reviewing the sufficiency of the evidence, ‘the judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’ " This Court "does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." "Rather, the relevant question is, upon review of the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

Yoder v. Commonwealth , 298 Va. ––––, ––––, 835 S.E.2d 897 (2019) (quoting Smith v. Commonwealth , 296 Va. 450, 460, 821 S.E.2d 543 (2018) ). To the extent this case involves issues of statutory interpretation, we review them de novo. Conyers v. Martial Arts World of Richmond, Inc. , 273 Va. 96, 104, 639 S.E.2d 174 (2007).

A. Development of the Felony-Homicide Doctrine in Virginia

We begin our consideration of felony homicide under Code § 18.2-33 with an overview of how that offense fits within Virginia's scheme for punishing homicides. As early as 1796, the General Assembly perceived a need "to mitigate the harshness of the common law which punished murder and numerous other crimes with death." Fitzgerald v. Commonwealth , 223 Va. 615, 636, 292 S.E.2d 798 (1982). Explaining that "the several offences which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment," the General Assembly created gradations of murder such that only first-degree murder was punishable by death. Acts 1796, ch. 2; Fitzgerald , 223 Va. at 636, 292 S.E.2d 798. Although the General Assembly has amended the murder statutes over time, the sole purpose of these changes has been to create gradations in the punishments imposed. Fitzgerald , 223 Va. at 636, 292 S.E.2d 798. These statutory gradations have not created new offenses. Instead, they established punishments for the common law crime of murder that correspond to the degree of culpability with which it is committed. Id. ; see Livingston v. Commonwealth , 55 Va. (14 Gratt.) 592, 596 (1857) ("[T]he true object and effect of [statutory gradations] was not to create two offences out of the crime of murder, but to arrange the various kinds of murder at the common law, under the two denominations of murder in the first degree, and murder in the second degree; and to annex to the cases in each denomination a punishment corresponding in severity to the degree of atrocity with which they might be perpetrated."). Thus, although Virginia law recognizes capital murder, first-degree murder, and second-degree murder and punishes each with different ranges of penalties corresponding to "prevailing societal and legal...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT