Pinedo v. Commonwealth
| Decision Date | 05 May 2020 |
| Docket Number | Record No. 0515-19-3 |
| Citation | 72 Va.App. 74,841 S.E.2d 371 |
| Court | Virginia Court of Appeals |
| Parties | Olmedo Alberto PENA PINEDO v. COMMONWEALTH of Virginia |
Bernadette M. Donovan (Donovan & Engle, PLLC, on briefs), for appellant.
Leanna C. Minix, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Russell and Athey
OPINION BY JUDGE ROBERT J. HUMPHREYS
On January 16, 2018, a grand jury in the Circuit Court of Rockingham County ("circuit court") indicted appellant Olmedo Alberto Pena Pinedo ("Pena")1 for (1) aggravated malicious wounding, in violation of Code § 18.2-51.2, (2) use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1, (3) conspiracy to commit robbery, in violation of Code §§ 18.2-22, 18.2-58, and (4) robbery, in violation of Code § 18.2-58. Because the victim later died from his injuries, the circuit court granted the Commonwealth’s motion to nolle prosequi the aggravated malicious wounding charge. On May 21, 2018, a grand jury indicted Pena for first-degree felony murder, in violation of Code § 18.2-32. On December 6, 2018, a jury found Pena guilty of all charges.
On appeal, Pena argues that the circuit court "erred when it refused to instruct the jury with the model instruction regarding a claim-of-right defense."
In the light most favorable to Pena as the proponent of the instruction, the facts are as follows: in August of 2017, Pena moved in with his cousin, Luis Lafferty ("Lafferty") in Harrisonburg, Virginia. Pena and Lafferty went into "business" together selling drugs and trading firearms. Lafferty and T.B., a minor who had run away from the custody of the Department of Social Services, had "a sexual relationship" with each other. At the same time, T.B. was also "in a relationship" and living with Kamau Imani ("Imani").
A few weeks before October 19, 2017, while T.B. was still "on the run," Lafferty picked her up and brought her to his house. T.B. and Lafferty had intercourse, after which Lafferty left the room. With Lafferty gone, T.B. "took [the] opportunity" to steal about $5,0002 in "drug money," jointly collected by Lafferty and Pena. Lafferty and Pena made this money by "[s]elling drugs" together. After stealing the money, T.B. immediately left and was picked up by Imani and his friend, Marlin Glascoe ("Glascoe").3
Lafferty told Pena what happened, and the two men drove around looking for T.B. They could not find her "on foot," even though there were only two ways into the subdivision. Lafferty realized that someone had picked her up and suspected it was Imani. Lafferty had heard that Imani "set [T.B.] up ... to rob" him. Less than twenty minutes later, because Lafferty was upset about the theft, he sent T.B. a message on "Snapchat," an internet social media platform, stating, "[A]re you really going to do this to me?" T.B. blocked Lafferty’s messages. Lafferty assumed that T.B. was going to give the money to Imani. On October 12, 2017, T.B. received a message from Pena on "Snapchat" that stated, "when I find you and trust me, I'm going to make sure you stay missing, starting with your family."
On the evening of October 19, 2017, Jessie Pulliam ("Pulliam") and his friend, Shane Pouncey ("Pouncey"), went to Lafferty and Pena’s house. Pouncey contacted T.B. through "Snapchat" in order to purchase marijuana as a "set up" to retrieve the stolen money. The exchange was set to occur at Hunter’s Ridge apartments in Harrisonburg, Virginia. Pena told Lafferty that they needed to "go handle some business." The group got into Pulliam’s SUV, and Pena told Lafferty that They started driving to Hunter’s Ridge apartments. During the ride, Pouncey used Pulliam’s phone to message T.B. about the arrangement.
Glascoe drove T.B. and Imani to Hunter’s Ridge apartments. Imani sat in the passenger seat, and T.B. sat behind him. After a short period, the vehicle driven by Pulliam pulled behind Glascoe’s vehicle. Pena and Lafferty directed Pulliam to stop behind Glascoe’s vehicle "so it could not pull out at all." Pena approached the passenger side of Glascoe’s vehicle, while Lafferty approached the driver’s side. Both men were armed. Lafferty and Pena said, "where’s our money."4 Pena opened the passenger door and patted down Imani. At some point, Pena took "a few hundred dollars" from Imani. Pena shot Imani in the neck and then left with Lafferty, Pouncey, and Pulliam in Pulliam’s vehicle. Pena directed Pulliam to drive toward Blue Ridge Community College. On the way, Pouncey asked Pena for some money from the incident, and Pena "handed him a wad." Pena eventually went "on the run" while Lafferty turned himself in.
Meanwhile, Imani was "bleeding and gasping for air," so Glascoe drove him to the hospital. When Imani arrived at RMH Sentara Hospital, he was in critical condition, bleeding profusely. Imani later died of his injuries. After the incident, police found some marijuana and a scale inside Glascoe’s vehicle. Police eventually apprehended Pena in Beckley, West Virginia.
At trial on December 4-6, 2018, the Commonwealth presented evidence from various informants. An informant named Bobby Diehl ("Diehl") testified about statements Pena made to him while they were incarcerated together. Diehl testified that Pena stated that "they had set up a meeting with [Imani] because of some money that had disappeared from a girl that [Imani] was with at the time." At the "meeting," Pena said, "where’s my fucking money," and Imani replied that "he didn't have" Pena’s money. When Pena "went to hit him with his pistol," the weapon fired and shot Imani.
The defense did not call any witnesses. After the defense rested, Pena sought a jury instruction on the "claim of right" defense. The proposed instruction stated, "If you believe the defendant took the property he is charged with stealing under a belief that he had a good faith claim of right to take it, then, even though his belief was mistaken, you shall find the defendant not guilty of robbery." The circuit court ruled that there was not more than a scintilla of evidence to support the instruction. In interpreting Butts v. Commonwealth, 145 Va. 800, 133 S.E. 764 (1926), the circuit court found that a claim of right instruction requires "more than a mere belief," but also good faith. In this case, the circuit court found that there was not more than a scintilla of evidence that the belief was in good faith.
The jury was instructed on first-degree felony murder, second-degree murder, involuntary manslaughter, robbery, conspiracy to commit robbery, and use of a firearm in the commission of a robbery. The jury found Pena guilty of first-degree felony murder and all other charges for which he was indicted.
Generally, "the matter of granting and denying [jury] instructions does rest in the sound discretion of the trial court." Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185 (2009). "This Court’s ‘sole responsibility in reviewing’ the trial court’s decision ‘is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.’ " Graves v. Commonwealth, 65 Va. App. 702, 707, 780 S.E.2d 904 (2016) (quoting Cooper, 277 Va. at 381, 673 S.E.2d 185 ). "When reviewing a trial court’s refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction," in this case Pena. Fahringer v. Commonwealth, 70 Va. App. 208, 211, 827 S.E.2d 1 (2019) (quoting Williams v. Commonwealth, 64 Va. App. 240, 244, 767 S.E.2d 252 (2015) ).
A defendant is only "entitled to an instruction upon his theory of the case" when "such instruction is supported by some appreciable evidence. " Williams, 64 Va. App. at 246, 767 S.E.2d 252 (quoting Harris v. Commonwealth, 134 Va. 688, 695, 114 S.E. 597 (1922) ). In order for a jury to be properly instructed on a matter, "[m]ore than a scintilla of evidence must be present to support an instruction." Id. (alteration in original) (quoting Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385 (1990) ). "[T]he weight of the credible evidence that will amount to more than a mere scintilla of evidence is a matter to be resolved on a case-by-case basis." Id. at 247, 767 S.E.2d 252 (quoting Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563 (1993) ).
Pena argues that there was more than a scintilla of evidence to support a claim of right instruction because there was evidence that he and Lafferty were simply reclaiming the money that was stolen from them.5 When successful, the claim of right defense negates a defendant’s mens rea specific intent requirement for conviction for certain offenses such as the "intent to steal" requirement for a larceny conviction. Groves v. Commonwealth, 50 Va. App. 57, 63, 646 S.E.2d 28 (2007). By doing so, it operates as an affirmative defense in the Commonwealth to several offenses, including robbery. See Butts v. Commonwealth, 145 Va. 800, 813, 133 S.E. 764 (1926).
Robbery is a crime against possession of property, not its ownership. See Johnson v. Commonwealth, 215 Va. 495, 496, 211 S.E.2d 71 (1975) ; Clay v. Commonwealth, 30 Va. App. 254, 259-60, 516 S.E.2d 684 (1999) ; see also People v. Hamilton, 40 Cal.App.4th 1137, 47 Cal. Rptr. 2d 343, 347 (1995) ( ...
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Pinedo v. Commonwealth
...regarding a claim-of-right defense."The Court of Appeals affirmed the circuit court's decision. See Pena Pinedo v. Commonwealth , 72 Va. App. 74, 85-86, 841 S.E.2d 371 (2020). Like the circuit court, the Court of Appeals concluded that there was "not more than a scintilla of evidence" to es......