Sheng Jie Jin v. Commonwealth

• Citation: 795 S.E.2d 918,67 Va.App. 294
• Decision Date: 14 February 2017
• Docket Number: Record No. 0457-16-2
• Parties: SHENG JIE JIN v. COMMONWEALTH of Virginia
• Court: Court of Appeals of Virginia

67 Va.App. 294

795 S.E.2d 918

SHENG JIE JIN

v.COMMONWEALTH of Virginia

Record No. 0457-16-2

Court of Appeals of Virginia, Richmond.

FEBRUARY 14, 2017

Kelsey Peregoy (Jonathan P. Sheldon ; Sheldon, Flood & Haywood, P.L.C., Alexandria, on brief), for appellant.

Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General; Susan Baumgartner, Assistant Attorney General, on brief), for appellee.

Present: Judges Petty, Russell and Malveaux

OPINION BY JUDGE WILLIAM G. PETTY

Sheng Jie Jin was convicted, after a bench trial, of two counts of attempted first-degree murder in violation of Code §§ 18.2–32 and 18.2–26 and two counts of aggravated malicious wounding in violation of Code § 18.2–51.2. He argues that his convictions should be reversed for two reasons. First, Jin argues the trial court violated his double jeopardy rights by convicting him of two counts of attempted murder when his acts were part of one continuing offense. Second, Jin argues that the trial court erred when it limited his cross-examination, which was intended to show bias on the part of the Commonwealth's witness. We conclude that the evidence supported the trial court's factual finding that the two attacks constituted two separate offenses and that Jin's double jeopardy rights were therefore not implicated. We further conclude that the trial court did not abuse its discretion when it sustained the Commonwealth's objection on relevancy grounds to one question that was, at most, only marginally relevant. Accordingly, we affirm the convictions.

I. BACKGROUND

"Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party in the circuit court." Porter v. Commonwealth, 276 Va. 203, 215–16, 661 S.E.2d 415, 419 (2008).¹

Jin and his wife, Y.Y.Z., married in China in 1993. In roughly 2009, Jin and Y.Y.Z. started a restaurant together in New Kent County. The couple separated in 2011, and Jin moved to Northern Virginia to establish a new restaurant. In 2012, Y.Y.Z. obtained a divorce decree from a Nevada court, but Jin successfully had the decree set aside in 2014. During this time, Y.Y.Z. continued to live in New Kent County and continued to run the restaurant there. Y.Y.Z.'s brother (the brother) and his wife worked in Y.Y.Z.'s restaurant. Additionally, the brother, his family, and another restaurant worker lived with Y.Y.Z. and her children. Jin stayed at the house on occasion and had some contact with the couple's children.

On the evening of January 20, 2015, Jin entered the restaurant in New Kent County and began arguing with Y.Y.Z. in the kitchen area. When Jin and Y.Y.Z. began arguing, the brother was not present, but his spouse heard the argument and testified that the argument included the topics of money and divorce. The brother testified that when he returned he saw Jin holding a knife in the kitchen and heard Jin say to Y.Y.Z., "I will kill you." When the brother told Y.Y.Z. to flee out the back door of the restaurant, she did. She then walked around the side of the building, hoping to see or call a police officer.

Jin followed Y.Y.Z. out the back door. A few moments later, the brother also left through the back door and followed Y.Y.Z. to the side of the building, where there was a wide driveway. At that point, Jin had entered his car, which was parked behind the building, and began accelerating towards Y.Y.Z. as she walked in the wide driveway. The brother pulled Y.Y.Z. out of the way, but the side mirror of Jin's car struck Y.Y.Z. in the face. The brother testified that if he had not pulled Y.Y.Z. out of the way, "she would have been dead." Jin continued driving his car toward the front of the building; Y.Y.Z. and her brother fled to the back of the building. Within a few minutes, Jin returned to the area, drove behind the building, and struck both Y.Y.Z. and the brother with his vehicle. Jin then drove his car into four one-hundred-pound propane tanks, which were connected and in use behind the building; the dislodged and scattered tanks began leaking and created a vapor cloud that engulfed the entire back half of the restaurant. Jin removed a hammer from the hatchback area of the car and entered the back door of an adjoining restaurant where Y.Y.Z. was lying injured on the floor. Jin hit Y.Y.Z. multiple times in the head with the hammer and continued to try to strike her while he was being restrained.

At trial, the brother testified he heard Jin threaten to kill Y.Y.Z. and he saw Jin attempt to run over Y.Y.Z. while she was in the driveway. He testified that he and Y.Y.Z. were struck by Jin's car, that he moved the injured Y.Y.Z. into an adjoining restaurant, and that he attempted to restrain Jin while Jin attacked Y.Y.Z. with a hammer and yelled "I'm going to kill you." The brother also testified without objection that he was Y.Y.Z.'s sibling, that he and his family lived with Y.Y.Z. in her house, that another worker in the restaurant also lived in the house, and that Jin came back to the house "off and on" during the three years preceding the January 20, 2015 events.

During a lengthy cross-examination, Jin's counsel asked the brother, "And does your sister charge you any rent for your family to live in [her] home?" The Commonwealth objected to the question on relevancy grounds. Jin's counsel responded,

Well, we established he's her brother. He's also an alleged victim of the same crime. Now, if the [c]ourt allows the question, now he's living in his sister's house for free and just gives him more incentive to put Mr. Jin away for as long as possible because that's a free place to live.

The court sustained the objection. Jin made no subsequent proffer and argued no other basis for admissibility of the question. In addition to Y.Y.Z. and the brother, the Commonwealth presented testimony from the brother's wife, a paramedic, a doctor, four law enforcement officers, and two bystanders.

Jin does not dispute the evidence that he struck Y.Y.Z. and the brother with his vehicle and that he struck Y.Y.Z. with a hammer. Nevertheless, he argues on appeal that the trial court violated his "constitutional double jeopardy rights" when it convicted him of two counts of attempted murder and violated his "constitutional rights when it improperly limited [his] cross-examination of [the brother] for bias."

II. ANALYSIS

A. JIN'S DOUBLE JEOPARDY RIGHTS WERE NOT VIOLATED BY HIS CONVICTION ON TWO COUNTS OF ATTEMPTED MURDER

Jin argues that conviction on two counts of the attempted murder of Y.Y.Z. violated his double jeopardy rights because the two attempts were part of one continuing offense. He argues that he was thereby improperly punished twice for the same offense. We disagree.

"The Double Jeopardy Clause of the United States Constitution provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ " Johnson v. Commonwealth, 292 Va. 738, 741, 793 S.E.2d 321, 322 (2016) (quoting U.S. Const. amend. V ). "Subjecting an accused to multiple punishments for the same offense violates both state and federal constitutional protections against double jeopardy." Roach v. Commonwealth, 51 Va.App. 741, 748, 660 S.E.2d 348, 351 (2008) ; Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 230 (2002). However, "[t]he Double Jeopardy Clause is not abridged if an accused is subjected to punishment for two offenses that are supported by separate and distinct acts." Roach, 51 Va.App. at 748, 660 S.E.2d at 351 ; Hodnett v. Commonwealth, 56 Va.App. 234, 237, 692 S.E.2d 647, 648 (2010) ("A defendant may be convicted of multiple counts if he commits separate and distinct acts."). Consequently, the issue here is whether the trial court erred in finding that Jin's acts constituted two attempts on Y.Y.Z.'s life rather than one continuing offense.²

"A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy." Hodnett, 56 Va.App. at 237, 692 S.E.2d at 648 (quoting Thomas v. Commonwealth, 38 Va.App. 319, 324–25, 563 S.E.2d 406, 409 (2002) ). "In determining whether the conduct underlying the convictions is based upon the ‘same act,’ the particular criminal transaction must be examined to determine whether the acts are the same in terms of time, situs, victim, and the nature of the act itself." Hall v. Commonwealth, 14 Va.App. 892, 898, 421 S.E.2d 455, 459 (1992) ; see also Carter v. Commonwealth, 16 Va.App. 118, 128, 428 S.E.2d 34, 42 (1993) (focusing on "factors such as the: nature of the act or acts; time; place; intent; possibility of cumulative punishment; and, number of victims" but cautioning that the list "is not exhaustive and the [fact finder] may properly consider the victim's subjective understanding of the circumstances, along with all the other evidence presented, in making this critical determination" of "whether the conduct constituted a single offense or multiple offenses").

"It is well established that an attempt is composed of two elements: the intention to commit the crime, and the doing of some direct act towards its consummation which is more than mere preparation but falls short of execution of the ultimate purpose." Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213 (1978). "There must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature." Parsons v. Commonwealth, 32 Va.App. 576, 583, 529 S.E.2d 810, 814 (2000) (quoting Lewis v. Commonwealth, 15 Va.App. 337, 340, 423 S.E.2d 371, 373 (1992) ). "What constitutes an attempt is often ... difficult to determine, and ... no general rule can be laid down which will serve as a test in all cases. Each must be determined on its own facts." Id. at 582, 529 S.E.2d at...