Selph v. Com.

• Decision Date: 18 July 2006
• Docket Number: Record No. 1990-05-2.
• Citation: 48 Va. App. 426,632 S.E.2d 24
• Parties: Ernest Leon SELPH, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

632 S.E.2d 24

48 Va. App. 426

Ernest Leon SELPH, Jr. v. COMMONWEALTH of Virginia.

Record No. 1990-05-2.

Court of Appeals of Virginia, Chesapeake.

July 18, 2006.

Aubrey R. Bowles, IV (Bowles and Bowles, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present FELTON, C.J., ELDER and BEALES, JJ.

ELDER, Judge.

Ernest Leon Selph, Jr., (appellant) appeals from his bench trial conviction for obstruction of justice in violation of Code § 18.2-460(C), a Class 5 felony. The conviction was based on a threat he made toward a witness who testified against him in his trial for robbery. He made this threat after the witness had testified and the jury had returned a verdict of guilty. Thus, he contends, his threat did not constitute obstruction of justice because the witness was not "lawfully engaged in the discharge of his duty" at the time of the threat. He also contends the evidence was insufficient to support his conviction for obstructing justice because it failed to prove he acted with specific intent to intimidate and failed to prove the witness saw or heard the alleged threat. We hold the evidence was sufficient to support appellant's conviction, and we affirm.

I. BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987).

On October 30, 2003, appellant was tried for several offenses including robbery. During the trial for those offenses, appellant's nephew, Barry Selph, testified for the Commonwealth. After the jury returned guilty verdicts and the judge had read the verdicts, appellant turned toward the rear of the courtroom "in the direction of the nephew," Barry Selph, and said, "You're dead." Later, when appellant "stood up with his attorney and proceeded towards the holding area," appellant "turned again" in Barry Selph's direction, put his left hand to his temple, "with [his] left index finger extended touching [his] temple and [his] thumb pointed upwards," and again said, "You're dead."

The Commonwealth subsequently prosecuted appellant for obstructing justice based on the threats he made during his robbery trial on October 30, 2003. The Commonwealth's only witness was Detective J.A. Capocelli, who testified that, at the conclusion of the guilt phase of appellant's robbery trial on October 30, 2003, he was in the rear of the courtroom on the prosecution's side and saw and heard appellant's threat. Capocelli testified that Barry Selph was seated on the defense side of the courtroom about twenty feet from appellant when appellant made these statements. Detective Capocelli did not recall that any witnesses other than Barry Selph were sitting on the defense side of the courtroom when appellant turned around and said, "You're dead." Other witnesses were also present, but they, like Detective Capocelli, were seated behind the prosecution's table on the opposite side of the courtroom from appellant and witness Barry Selph.

Also at appellant's trial for obstructing justice, the Commonwealth asked the trial court "to take cognizance of its own records," including a defense motion for a new trial following appellant's October 30, 2003 conviction for the original offenses. In that motion, appellant alleged Barry Selph's testimony was "a major factor leading the Jury to render a guilty verdict" against him and that Barry Selph "may have perjured himself" in order to gain favor with the Commonwealth regarding an unrelated charge. Accompanying appellant's new trial motion was a subpoena for Barry Selph. The Commonwealth also had a subpoena issued for Barry Selph in regard to that motion. Both subpoenas were returned "not found." Appellant indicated he had no objection to the Commonwealth's request, and the trial court said it would "take judicial notice of its own record in reference to those documents."

In a written memorandum of June 14, 2004, appellant objected to the obstruction charge on both legal and factual grounds. He argued first that he could not be convicted for attempting to intimidate Barry Selph because at the time of the alleged actions, Barry Selph was not a "witness ... lawfully engaged in the discharge of his duty." He also argued his conviction required proof that the witness saw or heard the alleged threat.

The Commonwealth argued that, at the time appellant made the threat, Barry Selph was still a witness within the meaning of the statute because, although the jury had returned a verdict in the guilt phase, the witness "was still in the courtroom in between the guilt and sentencing phases on the day of trial," and, thus, was still "lawfully engaged in his duties." It also pointed out that the record did not indicate Barry Selph had been released as a witness at that time. In addition, appellant himself thereafter sought Barry Selph's ongoing participation as a witness, as shown by the fact that appellant filed "a motion for a new trial predicated upon the claim that Barry Selph had testified untruthfully at [appellant's] trial" and asked that Barry Selph be subpoenaed in regard to that motion. Thus, contended the Commonwealth, the trial court retained jurisdiction over the matter in which Barry Selph was a witness and had an important interest in protecting the right of a witness not to be threatened.

After brief argument on the issue, the trial court found appellant guilty of obstructing justice. Following preparation of a presentence report, the court sentenced appellant to ten years, the statutory maximum, but suspended all but six months for a period of twenty years.

Appellant then noted this appeal.

II. ANALYSIS

Code § 18.2-460 provides in relevant part as follows:

C. If any person by threats of bodily harm or force knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, witness, or any law-enforcement officer, lawfully engaged in the discharge of his duty, or to obstruct or impede the administration of justice in any court relating to a violation of or conspiracy to violate [certain enumerated drug statutes], or relating to the violation of or conspiracy to violate any violent felony offense listed in subsection C of § 17.1-805, he shall be guilty of a Class 5 felony.

This statutory language

provides for two separate methods of violating the subsection: 1) a knowing attempt to intimidate or impede a law enforcement officer [or other specified person, including a witness,] in the performance of his duties; and 2) a knowing attempt to obstruct or impede the administration of justice in any court when the conduct at issue relates in some manner to the specified [drug or felony] offenses.

Garcia v. Commonwealth, 40 Va.App. 184, 192, 578 S.E.2d 97, 101 (2003). Appellant was indicted for violating the first of these provisions and contends the evidence failed, as a matter of law, to prove the witness he was accused of intimidating was "lawfully engaged in the discharge of his duty" at the time. He also contends the evidence was insufficient to support his conviction because it failed to prove he had the specific intent to intimidate or that the witness saw or heard the alleged threat. For the reasons that follow, we disagree.

A.

WITNESS "LAWFULLY ENGAGED IN THE DISCHARGE OF HIS DUTY"

Our holding in Fleming v. Commonwealth, 13 Va.App. 349, 412 S.E.2d 180 (1991), is instructive. In Fleming, we considered the meaning of similar language in a different subsection of Code § 18.2-460. Id. at 355-56, 412 S.E.2d at 184-85. Fleming involved a subsection proscribing, in part, "`knowingly attempt[ing] to intimidate or impede a ... witness ... lawfully engaged in his duties as such.'" Id. at 355, 412 S.E.2d at 184 (quoting former Code § 18.2-460(A), now codified at § 18.2-460(B)). The evidence established that a witness named Nowlin "had been testifying in a drug investigation that was ongoing" and that the defendant believed Nowlin had already "had Fleming's father `locked up'" and "was going to testify against his father." Id. at 351, 412 S.E.2d at 181. In what Fleming admitted was an attempt to scare Nowlin, Fleming and a companion repeatedly fired a gun at Nowlin's home. Id.

The trial court ruled that the statute's prohibition "[did] not include a witness who has already testified" and instructed the jury accordingly. Id. at 356, 412 S.E.2d at 184. The jury convicted the defendant of, inter alia, misdemeanor obstruction, and the defendant appealed, contending the evidence was insufficient, under the law of the case, to support a finding that the witness was expected to testify in some future court proceeding. Id. at 352, 412 S.E.2d at 182.

In affirming the conviction on appeal, we limited our review to "whether the evidence was sufficient to prove [the defendant] intimidated a witness who would be expected to testify." Id. at 356, 412 S.E.2d at 184. In so doing, however, we said that "we [did] not necessarily uphold the trial court's ruling that Code § 18.2-460[ (B) ] protects only witnesses who are expected to testify at a future court proceeding." Id. (emphasis added). Instead, we emphasized, "[t]he statute was enacted for the purpose of deterring those who intimidate any witness lawfully engaged in his duties as such." Id. In so holding, we construed the statute to apply, at a minimum, to attempting to intimidate a witness expected to testify at a future court proceeding.

We then examined the evidence to determine whether it was sufficient to prove "the offense as defined by the trial court." Id. We noted evidence from a member of the Virginia State Police that Nowlin had been testifying in a drug investigation that was ongoing and evidence that the defendant had said Nowlin "`had [the defendant's] old man locked up[ ], and that Nowlin ...