Ramsuer v. Commonwealth

• Court: Virginia Court of Appeals
• Writing for the Court: MEMORANDUM OPINION BY JUDGE TERESA M. CHAFIN
• Decision Date: 12 December 2017
• Docket Number: Record No. 1122-16-4
• Citation: Ramsuer v. Commonwealth, Record No. 1122-16-4 (Va. App. Dec 12, 2017)
• Parties: LARONN J. RAMSUER v. COMMONWEALTH OF VIRGINIA

LARONN J. RAMSUER v. COMMONWEALTH OF VIRGINIA

Record No. 1122-16-4

COURT OF APPEALS OF VIRGINIA

DECEMBER 12, 2017

UNPUBLISHED

Present: Judges Alston, Chafin and Senior Judge Haley

Argued at Fredericksburg, Virginia

MEMORANDUM OPINION^* BY JUDGE TERESA M. CHAFIN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Penney S. Azcarate, Judge

Bryan T. Kennedy, Assistant Public Defender, for appellant.

John I. Jones, IV, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

At the conclusion of a jury trial, Laronn J. Ramsuer ("appellant") was convicted of rape, sodomy, and abduction with intent to defile. Appellant received an enhanced punishment on each charge pursuant to Code § 18.2-67.5:2 due to a prior conviction for aggravated sexual battery. On appeal, appellant maintains that the trial court erred by finding that there was sufficient evidence to establish that he was "at liberty" under Code § 18.2-67.5:2. Appellant also contends that the trial court erred by refusing to summons a juror to testify about the consideration of impermissible evidence in jury deliberations. Finally, appellant contends that the trial court erred by not granting him a new trial based on the jury's consideration of impermissible extrinsic evidence. Finding no error, we affirm appellant's convictions.

Background

On appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below, and "accord [it] the benefit of all inferences fairly deducible from the evidence." Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). So viewed, the evidence is as follows.

On August 17, 2014, S.C. visited appellant at his home. Around midnight, appellant and S.C. walked down a small dark pathway through a wooded area to a convenience store. As they returned on the same path, appellant walked behind S.C. and placed a knife to her throat. He then raped and sodomized her.

At appellant's trial, the Commonwealth introduced recordings of phone calls that appellant made to his mother from jail. These recordings were played for the jury. In the recordings, appellant told his mother that he had been charged with "the same thing as in 2009," referencing his 2009 conviction for aggravated sexual battery. He also told her that he had "admitted it to the detective." During the calls, appellant named S.C. as the victim and confessed that he and S.C. were both intoxicated at the time of the incident. His mother asked on the third phone call, "[d]id she participate a little and then say, 'Stop?" Appellant responded, "No." In one of the calls, he told his mother to "stop trying to find loopholes and stuff. I did this shit." He ended that conversation with, "They record my calls."

The Commonwealth also introduced evidence pertaining to appellant's court-ordered supervision, stemming from his prior aggravated sexual battery conviction. Angela Morris, a probation and parole officer, testified that she supervised appellant's postrelease supervision from January 8, 2014 until his arrest in August 2014 for the assault of S.C. She testified that she monitored individuals on probation, parole, and postrelease supervision. Morris stated that people on all three forms of conditional release must comply with terms ordered by both her andthe court and that suspended time enforced compliance with those terms. Morris confirmed that in August of 2014, appellant was not in custody, but he was under her supervision.

At the close of the Commonwealth's evidence, appellant moved to strike the evidence supporting sentence enhancements under Code § 18.2-67.5:2. He argued that "postrelease supervision" is not included in the definition of "at liberty" under the statute. Thus, he contended that the Commonwealth failed to prove he was "at liberty" when the offense was committed. The trial court ultimately denied the motion, citing the similarities between postrelease supervision and probation and the fact that postrelease supervision did not exist in 1993, the year the section containing the definition of "at liberty" was last amended. The trial court found that postrelease supervision "throughout the Code is treated similar to probation and would fall under the probation umbrella of the statute."

The trial court instructed the jury that "[a]t liberty includes not only freedom without any legal restraints, but shall also include release pending trial, sentencing or appeal, or release on probation or parole or escape," following the language of Code § 53.1-151. After deliberations, the jury convicted appellant on all charges, including the sentence enhancement factors. The jury fixed appellant's punishment at confinement for life on each count.

In a post-trial motion, appellant moved to summons a juror to testify about alleged misconduct. He also requested a new trial on this basis. Appellant proffered that "several jurors stated that they could not hear the [jail] calls [played during the trial and admitted into evidence without limitation] well and could not hear exactly the words used." He further proffered that a juror had "changed the [audio] settings [on the computer provided to play the jail calls] so that [the jury] could hear what they believed to be one participant['s] words, and then the other in turn," and that "[t]he jury also listened to the calls without this manipulation." Appellant argued that this transformed the jail calls into extraneous evidence not admitted at trial.

The trial court rejected appellant's post-trial motion, convicted appellant of the charged offenses, and imposed the sentence fixed by the jury. This appeal followed.

Analysis

On appeal, appellant argues that the statutory definition of "at liberty" does not include postrelease supervision. He further argues that the trial court erred by refusing to summons a juror to testify about the consideration of impermissible evidence in jury deliberations. Finally, he contends that the trial court erred by not granting him a new trial based on the jury's consideration of impermissible extrinsic evidence. For the reasons that follow, we affirm the decision of the trial court.

I. Definition of "At Liberty" as Used in Code § 53.1-151

Appellant contends that the evidence presented at trial was insufficient to establish that he was "at liberty" under Code § 18.2-67.5:2 when he abducted, raped, and sodomized S.C. As appellant's argument requires us to interpret the definition of "at liberty" contained in Code § 18.2-67.5:2 and other statutes, it presents a pure question of law, subject to de novo review. See Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925 (2006).

When interpreting statutes, courts ascertain and give effect to the intention of the legislature. That intent is usually self-evident from the words used in the statute. Consequently, courts apply the plain language of a statute unless the terms are ambiguous, or applying the plain language would lead to an absurd result.

Id. at 227, 623 S.E.2d at 925-26 (internal quotations and citations omitted).

Code § 18.2-67.5:2 requires a court to impose enhanced penalties in certain situations. Code § 18.2-67.5:2 dictates that the sentence imposed for certain sex crimes be the maximum authorized by statute for anyone who commits an enumerated sex crime, becomes "at liberty as defined in [Code] § 53.1-151," and proceeds to commit another enumerated sex crime while at liberty. See Code § 18.2-67.5:2.

Appellant contends that "postrelease supervision" is excluded from the definition of "at liberty" because it is not specifically enumerated in Code § 53.1-151. Code § 53.1-151 provides, in pertinent part, that "'[a]t liberty'. . . shall include not only freedom without any legal restraints, but shall also include release pending trial, sentencing or appeal, or release on probation or parole or escape."

Appellant argues that Code § 53.1-151 provides an exhaustive list of the circumstances under which an individual is "at liberty." This interpretation, however, ignores the plain language of the statute. By specifying "at liberty" includes certain situations, the statute implies that the condition of being "at liberty" is not limited to these situations. See Code § 1-218 ("'Includes' means includes, but not limited to.").

The term "at liberty," as used in Code § 53.1-151, includes many degrees of legal restraint. Each listed status - probation, parole, and escape - involves a lack of actual incarceration combined with a continuing duty to the criminal justice system. Reading this list as exhaustive and excluding postrelease supervision under Code § 19.2-295.2 would lead to an absurd result.

Postrelease supervision was fashioned to fill a hole that was left following the abolition of parole in Virginia.¹

Prior to the abolition of parole, a felon who was paroled from prison into the community would be under the supervision of parole authorities for a specified period of time. See Code § 53.1-159. The obvious purpose of both the amendment to Code § 18.2-10 and Code § 19.2-295.2 is to provide for a period of at least six months' supervision after parole was abolished for felons upon their release from active incarceration. Except for Code §§ 18.2-10 (1995 amendment) and 19.2-295.2, a felon who wouldhave served a term of incarceration after the abolition of parole, perhaps a lengthy term, would have been released into the community without any supervision.

Lamb v. Commonwealth, 40 Va. App. 52, 57, 577 S.E.2d 530, 532 (2003). Postrelease supervision provides recently released offenders with supervision and a chance to gradually transition into society. See Alston v. Commonwealth, 49 Va. App. 115, 124, 637 S.E.2d 344, 348 (2006), aff'd, 274 Va. 759, 652 S.E.2d 456 (2007).

No meaningful difference exists between the legal restraint inherent in postrelease supervision, probation, or parole. All three programs are administered through the same probation and parole districts. Code §§...