Seaton v. Com.

• Citation: 42 Va. App. 739,595 S.E.2d 9
• Decision Date: 13 April 2004
• Docket Number: Record No. 2273-02-3.
• Parties: John Milton SEATON v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

595 S.E.2d 9

42 Va. App. 739

John Milton SEATON v. COMMONWEALTH of Virginia.

Record No. 2273-02-3.

Court of Appeals of Virginia, Salem.

April 13, 2004.

John P. Varney (Office of the Public Defender, on brief), for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ANNUNZIATA, CLEMENTS and KELSEY, JJ.

KELSEY, Judge.

A jury found John Milton Seaton guilty of robbing a teller at the First National Exchange Bank in Roanoke. The jury recommended, and the trial court imposed, a thirty-year prison sentence after learning that Seaton had been previously convicted of rape, unlawful wounding, and robbery. Seaton appeals both his conviction and his sentence. Finding no error in either, we affirm.

I.

On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Kelly v. Commonwealth, 41 Va.App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (citation omitted); see also Pollino v. Commonwealth, 42 Va.App. 243, 245-46, 590 S.E.2d 621, 623 (2004).

At about lunchtime on December 28, 2001, Seaton entered the First National Exchange Bank in Roanoke wearing gloves, a hooded sweatshirt, a toboggan cap (with eyeholes cut out of it) pulled down over his face, and work pants. He walked over to one of the bank tellers, Winona Callahan, and put a paper bag on the counter in front of her. Seaton then announced: "This is a bank robbery. Give me all of your money." Callahan replied, "you've got to be kidding." Seaton then conspicuously put one hand in his pocket, "shook" the bag in front of Callahan with the other hand, and warned that she "had ten seconds to put the money in the bag."

Callahan's supervisor, Melissa Hudson, and another employee were standing nearby. They heard Seaton's threats and saw his actions. Hudson described the situation as "very intimidating." After hearing the ten-second threat, Hudsoth was "very anxious" and "concerned for Ms. Callahan's safety." Hudson and Callahan's co-worker both instructed Callahan to "do what he tells you."

Enduring what she described as "probably the longest ten seconds of my life," Callahan began taking the money out of her top drawer and putting it into Seaton's paper bag. She had the presence of mind, however, to include banded "bait" money in the bills stuffed into the bag. Upon realizing what Callahan had done, Seaton "got really irritated" with Callahan. He showed his anger by tearing off the bands and throwing them in Callahan's direction. In response to this escalation, Callahan put the "rest of the money in the bag."

After receiving about $2,417 from Callahan, Seaton left the bank with the bag of money. A bank customer, Christopher Martin, saw Seaton leave. Martin had overheard Seaton make the this-is-a-bank-robbery announcement and issue the ten-second threat to Callahan. Once Seaton was out the door, Martin called 911 and got in his car to follow Seaton. Martin eventually lost sight of Seaton after having followed him for several blocks. Martin returned to the bank to report what he had seen and heard. That afternoon, Seaton went to a convenience store and bought $800 worth of "beer, cigarettes, porno movies, [and] money orders." The police caught up with Seaton the next evening.

The grand jurors charged Seaton with robbery under Code § 18.2-58. At trial, both the Commonwealth and Seaton asked various questions seeking to prompt the eyewitnesses to describe their reactions to the incident. Callahan declared the ten seconds following Seaton's threat to be the "longest" ten seconds of her life. Even so, she testified, she did not feel emotionally "frightened." Callahan also said she did not "start giving" Seaton money until she received her supervisor's warning to do so. For her part, Hudson described the incident as "very intimidating." To put Callahan's frightless resolve in context, Hudson explained, you needed to know that Callahan is a "very outspoken individual."¹

Without objection, the trial judge used a variation of the finding instruction for robbery found in the Virginia Model Jury Instructions, ch. 47, No. G47.100 (1998). Among other things, the instruction informed the jury that the Commonwealth must prove that Seaton took the money "against the will of the owner or possessor" by the use of "violence or intimidation." In a colloquy with the trial court, Seaton's counsel made clear he did not contest that Seaton committed the theft and overcame Callahan's will. "We're not contesting," he conceded, "whether this was against Ms. Callahan's will." "We're not contesting," he added, "that money was taken . ." What Seaton did contest was that he overcame Callahan's will by using violence or intimidation. On this narrow issue, Seaton requested an additional instruction defining "violence" and "intimidation" using selected language lifted from Bivins v. Commonwealth, 19 Va.App. 750, 454 S.E.2d 741 (1995). The trial judge refused the instruction, ruling that it was unnecessary.

During its deliberations, the jury sent a note to the judge asking: "Who had to be afraid? Miss Callahan or anyone in the bank?" With the agreement of Seaton and the Commonwealth, the judge answered: "Element number 5 in instruction number 2 [addressing the violence or intimidation element] refers to Winona Callahan." The jury thereafter found Seaton guilty.

During the sentencing phase, the Commonwealth introduced certified orders showing that Seaton had been previously convicted of rape, unlawful wounding, and robbery. Seaton objected to two orders from the Bedford Circuit Court: the first convicting him of rape, the second sentencing him on that conviction. Both orders bore the certification stamp of the Bedford Clerk of Court, noted the volume and page number of the order book from which they were copied, and reflected the signature of the deputy clerk verifying each order as a "copy teste." Seaton did not dispute that the copies were properly "certified, attested or exemplified" as exact duplicates of the original orders. Nor did he contest that, in fact, he was convicted of rape just as the orders said. The orders were nevertheless inadmissible, Seaton argued, because of the absence of the Bedford trial judge's signature.

The trial court overruled Seaton's objection to the two Bedford orders and imposed the thirty-year prison sentence recommended by the jury.

II.

On appeal, Seaton challenges his robbery conviction and sentence on four grounds. First, he argues that Callahan's comment that she was not "frightened" necessarily precludes the jury from finding intimidation. Second, he argues that the trial judge erred by permitting Hudson to testify about her concerns over Callahan's safety and her characterization of Seaton's conduct as "very intimidating." Third, Seaton claims the trial judge improperly refused to give the proffered instruction from Bivins addressing the "violence or intimidation" element. Finally, Seaton claims he should be resentenced because the trial judge erroneously admitted into evidence the two Bedford orders showing his rape conviction. Finding none of his arguments persuasive, we affirm.

A. Sufficiency of Evidence on Intimidation

When addressing a challenge to the sufficiency of the evidence, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence" to support it. Kelly, 41 Va.App. at 257, 584 S.E.2d at 447 (citations omitted). Practically speaking, this means a jury's decision cannot be disturbed on appeal unless no "rational trier of fact" could have come to the conclusion it did. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)); Pease v. Commonwealth, 39 Va.App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc) ("We let the decision stand unless we conclude no rational juror could have reached that decision."), aff'd, 266 Va. 397, 588 S.E.2d 149 (2003) (per curiam opinion adopting reasoning of en banc Court of Appeals opinion).

Under this standard, a reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789 (emphasis in original and citation omitted). It asks instead whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Kelly, 41 Va.App. at 257, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original)); Crowder v. Commonwealth, 41 Va.App. 658, 663, 588 S.E.2d 384, 387 (2003); Holmes v. Commonwealth, 41 Va.App. 690, 691, 589 S.E.2d 11, 11 (2003).² "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Kelly, 41 Va.App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). It also ensures that we remain faithful to our duty "not to substitute our judgment for that of the trier of fact, even were our opinion to differ." Crowder, 41 Va.App. at 663 n. 1, 588 S.E.2d at 387 n. 1 (citations and internal quotation marks omitted).

In this case, Seaton challenges the sufficiency of the evidence on a very narrow ground. He does not dispute the theft. Nor does Seaton deny that he took the money "against Ms. Callahan's will." What he challenges on appeal is the finding that he took the money against her will through the use of "intimidation."³ In particular, Seaton concludes Callahan's testimony that she was...