Sharp v. Commonwealth
| Decision Date | 08 March 2016 |
| Docket Number | Record No. 0500-15-2 |
| Court | Virginia Court of Appeals |
| Parties | CHARLES LAMAAR SHARP v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Beales, Decker and AtLee
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
1
Dorian Dalton, Senior Assistant Public Defender, for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Charles Lamaar Sharp appeals his conviction for identity theft, second offense, in violation of Code § 18.2-186.3. He contends that the evidence was insufficient to support his conviction because the Commonwealth failed to prove that his purpose when he provided a false name was to avoid summons, arrest, or prosecution, or to impede a criminal investigation. He also suggests that the trial court erred when it found that the Commonwealth proved venue in the City of Richmond. We hold that the evidence, viewed under the proper legal standard, proves identity theft. However, we also hold that the trial court erred when it found that the Commonwealth proved venue. Consequently, we reverse the conviction and remand the case for further proceedings consistent with this opinion should the Commonwealth be so advised.
On August 9, 2014, at about 4:30 p.m., Officer Randy Hager of the City of Richmond Police Department was in his "police vehicle" in his assigned sector. Officer Hager saw a man, whom he believed to be Charles Sharp, walking a dog in the 1700 block of Clarkson Road. Hager believed that there was a warrant for Sharp's arrest but did not approach him because Sharp had fled from the officer in the past. Instead, Hager radioed for backup to assist him.
Once additional officers arrived, Officer Hager "drove to where [the appellant] was walking" and approached him. Officer Hager greeted him and asked him his name. The appellant said that his name was "Demontrae (phonetic) Smith." Hager remarked, "[Y]ou just gave me the same fake name you gave me five years ago when you were wanted." He also asked the appellant for his date of birth, but the appellant did not answer the question.
Because he was closer to the appellant when this exchange took place than when he first spotted the appellant on the street that day, Officer Hager was more convinced that the appellant was Charles Sharp. He reached for the appellant's arm, but the appellant stepped through a gate at the Southwood Properties and closed the gate behind him. A second officer grabbed the appellant's arm while a third officer took the dog's leash from the appellant's hand. According to Hager, the appellant "physically resisted." Nonetheless, the three officers were able to handcuff and detain him. Officer Hager again asked the appellant his name. This time the appellant responded, "Handcuffs." He said, "[S]ince you put me in handcuffs, my name is Handcuffs." Hager asked the appellant several other questions: whether he was Charles Sharp, where he lived, and what his date of birth and social security number were. However, the appellant did not answer "a single question throughout the rest of [the encounter] on the way to lockup." He also remained silent when he was taken before the magistrate to be processed.
Officer Hager testified at trial regarding his history with the appellant. About five years earlier, Hager had a brief interaction with Sharp that was similar in nature to the one in August of 2014. The appellant was walking, and Hager was in his police car. Hager had a second encounter with Sharp, about a year before the 2014 incident. In that instance, Hager chased Sharp but did not catch him.
The Commonwealth also offered into evidence a prior conviction of the appellant for the first-offense misdemeanor version of the same crime, committed in 2013. The trial court admitted the exhibit without objection from the appellant.
After the Commonwealth's presentation of this evidence at trial, the appellant made a motion to strike, arguing that the Commonwealth had not proven that he used the false identity to avoid summons, arrest, or prosecution, or to impede a criminal investigation. He also contended that the prosecution had not established venue within the City of Richmond. The trial court denied the motion to strike and found the appellant guilty of identity theft, in violation of Code § 18.2-186.3. He was sentenced to five years in prison with four years nine months suspended.
The appellant challenges the sufficiency of the evidence to support his conviction for identity theft. He also argues that the Commonwealth failed to establish venue within the City of Richmond. We first consider the sufficiency of the evidence, because if the evidence is not sufficient to support the conviction the case must be reversed and dismissed, and the matter of venue is irrelevant. See, e.g., Timbers v. Commonwealth, 28 Va. App. 187, 202, 503 S.E.2d 233, 240 (1998) (); see also Pollard v. Commonwealth, 220 Va. 723, 726, 261 S.E.2d 328, 330 (1980) ().
"When the sufficiency of the evidence is challenged on appeal," this Court reviews "the evidence in the light most favorable to the prevailing party at trial, in this case the Commonwealth," and accords to that party "all inferences fairly drawn from the evidence." E.g., Grimes v. Commonwealth, 288 Va. 314, 318, 764 S.E.2d 262, 264 (2014). "[T]he relevant question is whether," viewing the evidence under this standard, "any rational trier of fact could have found" that "the essential elements of the crime [were] proved beyond a reasonable doubt." Wright v. Commonwealth, 49 Va. App. 312, 317, 641 S.E.2d 119, 121 (2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard of review "gives full play to the responsibility of the trier of fact fairly to resolve [any] conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. (quoting Jackson, 443 U.S. at 319). We simply do not substitute our own judgment for that of the trier of fact. Burkeen v. Commonwealth, 286 Va. 255, 258, 749 S.E.2d 172, 174 (2013). The appellate court will not set aside the trial court's judgment unless, viewed under this standard, the judgment is "plainly wrong or without evidence to support it." Grimes, 288 Va. at 318, 764 S.E.2d at 264 (quoting Code § 8.01-680).
The appellant was convicted under Code § 18.2-186.3, which states in pertinent part that: "[i]t shall be unlawful for any person to use . . . identifying information of another person, . . . or of a false or fictitious person, to avoid summons, arrest, prosecution, or to impede a criminal investigation." Code § 18.2-186.3(B1). A second or subsequent conviction under this section is punishable as a Class 6 felony. Code § 18.2-186.3(D). The appellant does not dispute that he provided a false name. Nor does he contest that he was previously convicted of this offense. Hisonly sufficiency challenge relates to proof that he used the false name in order to avoid summons, arrest, or prosecution, or to impede a criminal investigation. Our analysis of this issue rests directly on proof of the appellant's intent when he provided the false name to the officer.
Intent is a question of fact. See McEachern v. Commonwealth, 52 Va. App. 679, 684, 667 S.E.2d 343, 345 (2008). It is "the purpose formed in a person's mind at the time an act is committed." Carter v. Commonwealth, 280 Va. 100, 105, 694 S.E.2d 590, 594 (2010) (quoting Commonwealth v. Taylor, 256 Va. 514, 519, 506 S.E.2d 312, 314 (1998)). A defendant's intent, due to its very nature, "may, and most often must, be proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts." Austin v. Commonwealth, 60 Va. App. 60, 66, 723 S.E.2d 633, 636 (2012) (quoting Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991)). Statements and conduct of the defendant after the charged offense may also circumstantially demonstrate his intent. Simon v. Commonwealth, 58 Va. App. 194, 206, 708 S.E.2d 245, 251 (2011).
It is well established that "circumstantial evidence is as competent and is entitled to as much weight as direct evidence[,] provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Finney v. Commonwealth, 277 Va. 83, 89, 671 S.E.2d 169, 173 (2009) (alteration in original) (quoting Dowden v. Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 441 (2000)). "When facts are equally susceptible to more than one interpretation, one which is consistent with the innocence of the accused, the trier of fact cannot arbitrarily adopt an inculpatory interpretation." Moody v. Commonwealth, 28 Va. App. 702, 706, 508 S.E.2d 354, 356 (1998) (emphasis added). However, "[t]he hypotheses of innocence that must be excluded by the Commonwealth are 'those which flow from the evidence itself, and not from the imagination[]'" of the appellant. Bright v. Commonwealth, 4 Va. App. 248, 252, 356 S.E.2d 443, 445 (1987) (quoting Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983)). Whether a hypothesis ofinnocence is reasonable, like a finding of intent, is a "question of fact." E.g., Burton v. Commonwealth, 58 Va. App. 274, 285, 708 S.E.2d 444, 450 (2011) (quoting Clanton v. Commonwealth, 53 Va. App. 561, 572, 673 S.E.2d 904, 910 (2009) (en banc)). Consequently, such a finding may be set aside on appeal only if it is plainly wrong or without evidence to support it. Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832 (1997).
In other words, "[t]he statement that...
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