Johnson v. Commonwealth
| Decision Date | 24 July 2012 |
| Docket Number | Record No. 1595-11-4 |
| Court | Virginia Court of Appeals |
| Parties | KEVIN JACK JOHNSON v. COMMONWEALTH OF VIRGINIA |
Present: Chief Judge Felton, Judges McCullough and Huff Argued at Alexandria, Virginia
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Edith M. Min (Eugene Frost; Mell & Frost, PC, on brief), for appellant.
Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Kevin Jack Johnson ("appellant") appeals from his conviction for larceny, third or subsequent offense, in violation of Code § 18.2-104, following a jury trial in the Circuit Court of Stafford County ("trial court"). Appellant asserts the trial court erred by admitting evidence of other uncharged crimes, contending that the evidence was not relevant to prove his lack of mistake, modus operandi, or common scheme related to the charged offense and that the prejudicial impact of the evidence outweighed its probative value.1
"Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). So viewed, the evidence presented at trial showed that in April 2009, appellant, Marcus Russell, and United States Marine Corps Staff Sergeant Brent Michaels lived together at 542 Widewater Road ("the Widewater property") in Stafford County, Virginia. At the time, Staff Sgt. Michaels was stationed at Marine Corps Base Quantico ("Quantico"). Staff Sgt. Michaels owned a Chevrolet Tahoe that had affixed to its windshield a Department of Defense ("DOD") identification sticker which permitted that vehicle to enter Quantico. Appellant frequently drove Staff Sgt. Michaels' Tahoe.
In April 2009, Joshua Bauer, a supply officer in the U.S. Marine Corps, was attending officer training school at Quantico. While stationed there, Bauer stored his customized black Ford Mustang ("the Mustang") in a parking lot on the base.2 Bauer saw the Mustang on April 1, 2009 during "an officer end of the day walk through of the parking lot." On April 5, 2009, Bauer returned to the lot to check on the Mustang and discovered that it and the trailer were not in the designated parking space. Bauer reported to law enforcement authorities that the Mustang and trailer were missing.
Around 9:00 p.m. on the evening of April 4, 2009, the day before Bauer discovered his Mustang was missing, Russell saw appellant drive Staff Sgt. Michaels' Chevrolet Tahoe onto the Widewater property. Appellant was alone in the Tahoe, which was towing a trailer with a black Mustang on top of it. Russell, a vehicle repairman, described the Mustang as "very modified" and 3
Appellant told Russell that he had the Mustang to "tun[e]" it up for someone. However, several days after appellant brought the Mustang onto the Widewater property, Russell observed that appellant was "taking [the car] apart" and that "half the car ended up in the shed." Appellant removed "the front [of the Mustang], engine parts, the turbo, the innercooler, the wheels," and replaced the rims. He "completely . . . stripped" the Mustang, and placed the parts he removed in a shed on the property. He also obscured from view the vehicle identification number ("VIN") located at the base of the windshield by placing a sheet of paper on top of it. Russell became suspicious about appellant's purpose for the vehicle because the car "was just blatantly being taken apart" and "that's not the way you tune up a car or you adjust anything." In May 2009, Russell contacted the Stafford County Sheriff's Department to report his suspicions concerning appellant's handling of the Mustang from the time appellant brought it to the Widewater property on the night of April 4, 2009.
On May 27, 2009, sheriff's department investigators executed a search warrant at the Widewater property, where they found the Mustang and trailer.4 They located some of theMustang's parts in a shed on the property, and found other parts from the Mustang, including custom seats, in appellant's home office on the Widewater property. A review of appellant's eBay account revealed that he sold a Corbeau seat bracket, matching the one removed from Bauer's Mustang, for $122.50.
Officers also located two other vehicles possessed by appellant. The VIN on each of those vehicles was covered by a sheet of paper.5 A subsequent check of the VINs revealed that both vehicles had been reported stolen.6
Appellant testified in his defense, asserting that Staff Sgt. Michaels alone brought the Mustang and trailer to the Widewater property.7 Appellant conceded that he sold one of the Mustang's seat brackets on eBay, but denied knowing the vehicle was stolen. He explained that Staff Sgt. Michaels gave him the custom seats from the Mustang as payment for any future work he might perform on the car for Staff Sgt. Michaels and that he and Staff Sgt. Michaels shared the office space where the seats were found. He admitted that he drove Staff Sgt. Michaels' Tahoe "at times," but denied that the DOD sticker on Staff Sgt. Michaels' truck gave him access to theQuantico base. He testified he did not have any knowledge as to how the VIN on the Mustang came to be covered.8
By its verdict, the jury credited the Commonwealth's evidence and rejected appellant's testimony as incredible. It convicted appellant of larceny, third or subsequent offense, in violation of Code § 18.2-104, and fixed his sentence at two years and six months' imprisonment. The trial court thereafter imposed the sentence fixed by the jury, and further sentenced appellant to an additional term of two years, pursuant to Code § 19.2-295.2, suspended upon successful completion of two years' post-release supervision.
"In this case, as in all others, we seek to decide cases, 'on the best and narrowest ground available' from the record." Kirby v. Commonwealth, 50 Va. App. 691, 698 n.2, 653 S.E.2d 600, 603 n.2 (2007) (quoting Miles v. Commonwealth, 274 Va. 1, 2, 645 S.E.2d 924, 925 (2007) (Kinser, J., concurring) (citations omitted)). This approach encourages "'judicial self-restraint'" by avoiding the resolution of broad, reasonably debatable legal issues when narrower, less debatable legal issues fully dispose of the appeal before the court. Cooper v. Commonwealth, 54 Va. App. 558, 566, 680 S.E.2d 361, 365 (2009) (quoting Craddock v. Commonwealth, 40 Va. App. 539, 551 n.1, 580 S.E.2d 454, 461 n.1 (2003)).
On appeal, appellant asserts that the trial court abused its discretion by admitting evidence of the stolen Grand Marquis, located at the Widewater property where the stolen Mustang was found, and the stolen Accord, located at the used car dealership where he and Russell previously operated their repair business together. He contends that evidence was not relevant to prove lack of mistake,modus operandi, or common scheme related to the charge that he took the Mustang and that the prejudicial impact of that evidence outweighed its probative value.
From our review of the record on appeal, we conclude that we need not decide whether the trial court erred in admitting evidence of the stolen Grand Marquis and Accord. Assuming, without deciding, that the trial court erred in admitting evidence of the other stolen vehicles, our review of the record leads us to conclude that any such error was harmless.
An error may be harmless where other evidence of guilt is "so overwhelming and the error so insignificant by comparison that the error could not have affected the verdict." Hooker v. Commonwealth, 14 Va. App. 454, 458 n.2, 418 S.E.2d 343, 345 n.2 (1992).
In cases where no constitutional error is alleged, Code § 8.01-678 provides that no judgment of the trial court will be reversed for any error committed at trial where "it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached."
In determining whether an error is harmless, we review "'the record and the evidence and evaluate the effect the error may have had on how the finder of fact resolved the contested issues.'" Charity v. Commonwealth, 24 Va. App. 258, 265-66, 482 S.E.2d 59, 62 (1997) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1007, 407 S.E.2d 910, 912 (1991)). Non-constitutional error is harmless when it plainly appears from the record and the evidence given at the trial "that, had the error not occurred, the verdict would have been the same." Lavinder, 12 Va. App. at 1005, 407 S.E.2d at 911.
Here, the resolution of conflicting testimony by Russell and appellant was crucial to the jury's determination of whether appellant took Bauer's Mustang without his permission and with the intent to permanently deprive him of his vehicle. The credibility of the witnesses, the weight accorded testimony, and the inferences drawn from proven facts are matters to be determined bythe fact finder, here the jury. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). The jury observed each witness and his demeanor firsthand. It heard Bauer testify that he stored his Mustang at the Quantico base and did not give anyone permission to touch or remove the vehicle from that location. It heard that appellant frequently drove Staff Sgt. Michaels' Tahoe, a vehicle that displayed on its windshield a DOD sticker which permitted entry to Quantico. It credited Russell's testimony that, on the night of April 4, 2009, appellant alone drove Staff Sgt. Michaels' Tahoe, towing the trailer and Mustang, to the Widewater property, that appellant removed the custom parts from the Mustang and placed them in a shed, and that the VIN on the Mustang was concealed by a sheet of paper....
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