Riner v. Com.

• Decision Date: 17 September 2004
• Docket Number: Record No. 031299.
• Citation: 268 Va. 296,601 S.E.2d 555
• Court: Virginia Supreme Court
• Parties: Charles Douglas RINER v. COMMONWEALTH of Virginia.

601 S.E.2d 555

268 Va. 296

Charles Douglas RINER v. COMMONWEALTH of Virginia.

Record No. 031299.

Supreme Court of Virginia.

September 17, 2004.

Roger D. Groot, Buena Vista (Thomas R. Scott, Jr.; Street Law Firm, on briefs), for appellant.

Donald E. Jeffrey, III, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen.; Paul C. Galanides, Asst. Atty. Gen., on brief), for appellee.

Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and COMPTON, S.J.

KINSER, Justice.

Charles Douglas Riner ("Riner") was convicted by a jury of the first degree murder of his wife, Karen Denise Riner ("Denise"), in violation of Code § 18.2-32; of arson, in violation of Code § 18.2-77; and of petit larceny in violation of Code § 18.2-96. The Court of Appeals of Virginia affirmed the convictions and the judgment of the Circuit Court of Wise County ("the trial court"). Riner v. Commonwealth, 40 Va.App. 440, 479, 579 S.E.2d 671, 691 (2003).

We awarded Riner this appeal on six assignments of error.¹ He challenges the denial of his motion for a change of venue, the denial of his motion for a mistrial because of alleged jury misconduct, the use of a "private prosecutor," the admission of double hearsay testimony concerning a threat he made to his wife, the admission of certain business records because the Commonwealth failed to show that the entrant was unavailable to testify, and the sufficiency of the evidence to support the arson conviction. We also awarded an appeal on the Commonwealth's two assignments of cross-error. Finding no error, we will affirm the judgment of the Court of Appeals.

I. RELEVANT FACTS²

In accordance with established principles of appellate review, we state the facts in the light most favorable to the Commonwealth, the prevailing party in the trial court. We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence. Armstrong v. Commonwealth, 263 Va. 573, 576, 562 S.E.2d 139, 140 (2002); Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Circumstantial evidence, when sufficiently convincing, is entitled to the same weight as direct evidence. Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991); Epperly v. Commonwealth, 224 Va. 214, 228, 294 S.E.2d 882, 890 (1982).

A. THE FIRE

In the early morning hours of August 12, 1998, Larry Odle, who lived next to the Riners in the Town of Coeburn in Wise County, saw flames coming from the Riner house. Odle walked outside to investigate the fire and observed a "shadow or reflection ... peek around the [left] corner" of the Riner house three or four times. A person then emerged from that corner and yelled "help, help, my house is on fire." Odle returned to his house and called the "911" emergency number. He then went back to the site of the fire and saw Riner walk from the same left corner of the burning house carrying two of the Riner children.³

One of the first three police officers to arrive at the scene stated that, when he got there, the fire was "basically still in the lower part of the house ... and it was crawling across the [front] porch area and coming out the other side where the top part of the house was on fire." When that officer exited his police vehicle, he observed Riner and two small children coming around the left corner of the house.⁴ The officer approached Riner and asked if anyone else was in the home. Riner did not respond and, in the officer's opinion, "[s]eemed surprised that someone was there." The officer repeated his question, but Riner again did not answer. Only after two of the officers approached the burning house did Riner inform the third officer that his wife was still inside their home. Two of the officers then kicked opened a door on the rear of the house, but they could not go inside more than two or three feet because of the intense smoke and heat.

The fire consumed the second floor and roof of the Riner house as well as the front porch, including the floor and the "uprights" of the porch. There was also extensive damage throughout the interior of the first floor, including the master bedroom where Denise's body was found.⁵ There and elsewhere on the first floor of the house, fire investigators discovered piles of paper that had been torn apart lengthwise. Some of the torn paper came from correspondence or publications belonging to Riner.

According to the forensic pathologist who performed an autopsy on Denise's body, Denise died from smoke inhalation, which is determined by looking in the airways for "soot" and "black material" and measuring the carbon monoxide level in the blood. The forensic pathologist stated that Denise's body had been "incinerated." Her skin, muscles, facial features, scalp, arms and legs had been burned. Because of the extensive burning of her body, the forensic pathologist could not determine whether Denise had suffered other injuries or had been rendered unconscious by some other trauma before her death. However, the forensic pathologist did not find any evidence of blunt force or penetrating injuries to Denise's body. Although a partially burned baseball bat was found near her body, the forensic pathologist could not put that bat "in or on the body."

On the night of the fire, Riner claimed that he was upstairs, asleep in a room with the three Riner children. However, the family's housekeeper testified that she did not remember anytime that all three children had slept upstairs or in the same bed with Riner. Riner also admitted that the children normally slept downstairs in a bed with Denise.

Riner testified that, when he awoke and smelled smoke, he looked toward the rear of the house and saw smoke coming up the steps. He stated that the smoke was so intense that he could barely breathe and that his eyes were burning so badly that he could not see. However, he was able to find the three children, help them out a window onto the rear porch roof, and then lower them to the ground. Although Denise died from smoke inhalation, Riner did not have any symptoms consistent with carbon monoxide intoxication or carbon monoxide poisoning upon examination at a local emergency room on the morning of the fire. The forensic pathologist testified that, if smoke from a fire is very dense, a person could breathe in a lethal level of carbon monoxide within seconds. Additionally, a nurse who checked Riner in the emergency room did not observe any soot on him or smell any smoke about his body. Riner did, however, have a low oxygen level based on an arterial blood gas study, which was consistent with a sudden or acute injury to his airway from inhaling smoke.

B. RINER'S ACTIVITIES PRIOR TO AND AFTER THE FIRE

Two issues caused recurring disagreements between the Riners during their marriage. One of those issues concerned Riner's discipline of Denise's son by her previous marriage. In the early part of August 1998, Denise learned that Riner had choked and slapped her son at a family reunion. That incident exacerbated the Riners' already existing marital difficulties, causing Denise to meet with an attorney on August 4 to obtain information about divorce proceedings. The next day she opened a checking account in her own name. On August 7, she confronted Riner with her knowledge about his abuse of her son and demanded that he move out of the martial residence. Riner apparently agreed to move on the following weekend, which would have been the weekend immediately after the fire. However, he told one of the fire investigators that Tuesday night, August 11, 1998, was to be his last night in the marital home.

The other subject causing disagreement was the couple's financial condition. Within a week after the Riners were married in 1990, Riner quit his job. Throughout the marriage, Denise, a nurse, provided the primary financial support for the family.

By mid-1998, Riner had pressing financial difficulties. He had incurred several substantial debts and was delinquent in some of his financial obligations. In particular, Riner had agreed to make restitution in the amount of approximately $5,400 by October 1998 as a condition of probation in a federal pre-trial diversion program in which he was participating. Due to his failure to pay the restitution as scheduled, Riner still owed about $2,900 as of June 1998 and was therefore facing the possibility of being prosecuted on federal bank fraud charges. In fact, he was scheduled to meet with his federal probation officer on August 12, 1998, the day of the fire. The probation officer had also learned that Riner had two outstanding criminal charges, one a misdemeanor and one a felony, for having issued two checks for which there were insufficient funds to pay the checks.

After Denise's death, Riner collected approximately $8,500 from Denise's employer and then paid the restitution in full. Riner insisted, however, that he paid the federal restitution with money he had received from selling two vehicles. He also paid the indebtedness owed to a local merchant for the two checks that were returned for insufficient funds.

Riner also filed two insurance claims. One was a fire insurance claim in the amount of $186,820.24, of which the sum of $116,453.00 was for personal property. The second claim was on a group life insurance policy provided to Denise by her employer. In anticipation of receiving funds from those claims, Riner purchased a used Mercedes automobile by borrowing $9,000 on a 30-day single payment note. He also relocated himself and the three Riner children to eastern Tennessee and made an offer to purchase a house there for the price of $169,000.

The day before the fire, a neighbor observed Riner storing three trash bags in a building located apart from the Riner house. In March 1999, Riner sold jewelry at a pawn shop located in Bristol, Tennessee. Denise's sisters subsequently accompanied a police officer to the pawn shop and identified three rings found there as belonging to Denise. The...