Summerlin v. Com.

• Decision Date: 15 January 2002
• Docket Number: Record No. 2071-00-1.
• Citation: 557 S.E.2d 731,37 Va. App. 288
• Parties: James C. SUMMERLIN v. COMMONWEALTH of Virginia,
• Court: Virginia Court of Appeals

557 S.E.2d 731

37 Va. App. 288

James C. SUMMERLIN v. COMMONWEALTH of Virginia,

Record No. 2071-00-1.

Court of Appeals of Virginia, Chesapeake.

January 15, 2002.

Schoen R. Parnell, Assistant Public Defender, for appellant.

Kathleen B. Martin, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: BRAY, FRANK and CLEMENTS, JJ.

CLEMENTS, Judge.

James C. Summerlin was convicted in a bench trial of threatening to bomb a building, in violation of Code § 18.2-83. On appeal, he contends the trial court erred (1) in admitting evidence regarding a voice-mail message left by him three days before the purported threat was made and (2) in finding the evidence sufficient to convict him of the charged crime although the purported threat communicated neither malice nor an intent to make a threat. Finding no error, we affirm the conviction.

I. BACKGROUND

Under well-settled principles of appellate review, we view the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party below. Burlile v. Commonwealth, 32 Va.App. 796, 798, 531 S.E.2d 26, 27 (2000), aff'd, 261 Va. 501, 544 S.E.2d 360 (2001). So viewed, the evidence established that, on April 10, 2000, Clarissa McAdoo, the executive director of the Suffolk Redevelopment and Housing Authority (SRHA), received a voice-mail message from Summerlin, for whom the authority was attempting to obtain housing. According to McAdoo, Summerlin indicated in the message that he was "sick and tired of all the lies [SRHA was] telling," that SRHA was "not providing for [him] and [his] wife," and that "something [was] going to happen."

On April 13, 2000, at approximately 1:30 p.m., Summerlin called SRHA, asking to speak to Ms. Williams, an SRHA employee. When told by the receptionist, Patricia Riddick, that Williams was in a meeting, Summerlin became angry. In a tone of voice that Riddick described as "yelling," Summerlin accused Riddick of being a racist. He added that, based on his previous experience with Riddick's coworkers, all of the people at SRHA were racists and that SRHA had given his home to an African-American couple. When told again that Williams was in a meeting, Summerlin said "he would hate to have to blow the building up to get [SRHA's] attention." Scared by Summerlin's remark, Riddick attempted to get the attention of her supervisor.

At that point, Mary Fortner, another receptionist, noting from Riddick's facial expression that she was scared, told her to put the caller on hold. After Riddick told her about the caller, Fortner picked up the phone and spoke with Summerlin. He asked for Williams and then told Fortner he had received a card in the mail regarding a meeting SRHA was having. Fortner informed him that the meeting was for "people in Section 8. . . to get together and have a discussion" and was not mandatory. Summerlin said he would not be attending the meeting and "was going to be discriminated against." He added that, if he came to the meeting, "things [would] be popping and a-rocking." When informed by Fortner that she would need to put him on hold to answer another call, Summerlin replied that would not be necessary and slammed down the phone. Fortner described Summerlin's tone of voice as being "[v]ery loud and angry ."

Based on Summerlin's threatening phone call, the SRHA building was evacuated at approximately 1:40 p.m. and the fire department was called to the scene.

At trial, Summerlin objected to the admission of McAdoo's testimony concerning his April 10, 2000 voice-mail message, arguing that it was "not relevant to a charge that happened on the 13th of April." The trial court overruled the objection, finding that the evidence went to Summerlin's "state of mind." The trial court subsequently found that Summerlin, on April 13, 2000, threatened to bomb a building, as proscribed by Code § 18.2-83, and convicted Summerlin under that statute.

II. RELEVANCE OF TESTIMONY REGARDING VOICE-MAIL MESAGE

On appeal, Summerlin contends the trial court erred in allowing McAdoo to testify regarding the voice-mail message he left for her on April 10, 2000. That message, Summerlin argues, having been received three days before the purported bomb threat was made, was not relevant to the charged offense. We disagree.

"The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988). "Evidence which `tends to cast any light upon the subject of the inquiry' is relevant." Cash v. Commonwealth, 5 Va.App. 506, 510, 364 S.E.2d 769, 771 (1988) (quoting McNeir v. Greer-Hale Chinchilla Ranch, 194 Va. 623, 629, 74 S.E.2d 165, 169 (1953) (internal quotations omitted)).

In this case, Summerlin's intent at the time he made the alleged threat was clearly in dispute. The Commonwealth claimed that Summerlin's statement to Riddick that he "would hate to have to blow the building up to get [SRHA's] attention" constituted a threat to bomb a building, in violation of Code § 18.2-83. Summerlin argued that, in making that statement, he was merely expressing an opinion and had no intent to make a threat to bomb the SRHA building. Therefore, any evidence of Summerlin's state of mind at the time he made the alleged threat would be relevant to a subject of inquiry before the trial court.

As the trial judge correctly determined, Summerlin's statements in his April 10, 2000 message to McAdoo that he was "sick and tired of all the lies [SRHA was] telling," that SRHA was "not providing for [him] and [his] wife," and that "something [was] going to happen" reflected Summerlin's state of mind as to SRHA. Plainly, the challenged evidence demonstrated Summerlin's discontent with and animosity toward SRHA and his related intention to take some future action against SRHA. Furthermore, the evidence concerned a message that was left a mere three days before the subject bomb threat was made and was not, therefore, so far removed in time from the charged offense as to render it irrelevant. See Lafon v. Commonwealth, 17 Va.App. 411, 419, 438 S.E.2d 279, 284 (1993)

(noting that, while remoteness is a factor that maziatibe considered in determining the relevance of evidence of defendant's prior acts, such evidence should not be withheld "solely on the basis of remoteness unless the expanse of time has truly obliterated all probative value").

We find, therefore, that McAdoo's testimony concerning Summerlin's April 10, 2000 voice-mail message was relevant to the resolution of the issue of Summerlin's state of mind at the time of the charged offense. See Parnell v. Commonwealth, 15 Va.App. 342, 348, 423 S.E.2d 834, 838 (1992)

(holding that defendant's statement to police after his arrest, in which he again threatened victim, was admissible to prove his state of mind and corroborated evidence of his hostility toward victim). Accordingly, we hold the trial court did not abuse its discretion in allowing the challenged testimony. Hence, the trial court's ruling will not be disturbed.¹

III. SUFFICIENCY OF THE EVIDENCE

Summerlin further contends the evidence admitted at trial was insufficient as a matter of law to convict him of the charged offense. The Commonwealth, he argues, failed to prove beyond a reasonable doubt that his statement to Riddick that "he would hate to have to blow the building up to get [SRHA's] attention" was made maliciously or communicated an intent to make a threat.

As noted, we review the evidence "in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Bright v. Commonweath, 4 Va.App. 248, 250, 356 S.E.2d 443, 444 (1987). "In so doing, we must .. regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (internal quotations omitted)). We will not disturb the conviction unless it is plainly wrong or unsupported by the evidence. Sutphin v. Commonwealth, 1 Va.App. 241, 243, 337 S.E.2d 897, 898 (1985). We are further mindful that the "credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters solely for the factfinder's determination." Keyes v. City of Virginia Beach, 16 Va.App. 198, 199, 428 S.E.2d 766, 767 (1993).

A. MALICE

Summerlin argues the evidence was insufficient to sustain his conviction because the Commonwealth did not prove malice. This argument presumes, in reliance on Perkins v. Commonwealth, 12 Va.App. 7, 402 S.E.2d 229 (1991), that malice is a required element of Code § 18.2-83. We hold that it is not.

In Perkins, we addressed, inter alia, the defendant's claim that Code § 18.2-83 was unconstitutionally overbroad because it did not "require any criminal mens rea, thus punishing one who `jokingly' threaten[ed] such behavior." Id. at 15, 402 S.E.2d at 234. In finding the statute constitutional, we reasoned as follows:

In Maye v. Commonwealth, the Supreme Court of Virginia stated:

A claim that a statute on its face contains no requirement of mens rea or scienter is no ground for holding the statute unconstitutional since such requirement will be read into the statute by the court when it appears the legislature implicitly intended that it must be proved.

213 Va. 48, 49, 189 S.E.2d 350, 351 (1972). Therefore, Code § 18.2-83 can be read as requiring a criminal mens rea. Such a narrowing construction of this statute prevents overbreadth. Only an individual who maliciously "makes and communicates . any threat" prohibited by the statute will be punished.

Perkins, 12 Va.App. at 15, 402 S.E.2d at 234 (emphasis added) (additional citations omitted).

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