Suter v. Commonwealth

• Decision Date: 21 February 2017
• Docket Number: Record No. 1937-15-1
• Citation: Suter v. Commonwealth, 67 Va.App. 311, 796 S.E.2d 416 (Va. App. 2017)
• Parties: Chezmin Brittany SUTER v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

67 Va.App. 311

796 S.E.2d 416

Chezmin Brittany SUTER

v.COMMONWEALTH of Virginia

Record No. 1937-15-1

Court of Appeals of Virginia, Norfolk.

FEBRUARY 21, 2017

Melissa I. Bray, Assistant Public Defender, for appellant.

Stephen L. Forster, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Beales and O'Brien

OPINION BY JUDGE ROBERT J. HUMPHREYS

Chezmin Brittany Suter ("Suter") appeals the November 10, 2015 decision by the Circuit Court of the City of Virginia Beach (the "trial court") convicting her of one count of accessory after the fact to murder, in violation of Code § 18.2–19.¹ Suter's single assignment of error is that the trial court erred in holding that the evidence was sufficient to find Suter guilty of accessory after the fact to a homicide because the evidence did not establish that Suter was aware that a homicide had taken place.

I. Background

At 9:35 p.m. on May 21, 2014, Suter, her cousin, Andrew Roberts ("Roberts"), and a third woman arrived at the Tropical Delights restaurant ("Tropical Delights") in the City of Virginia Beach. The trio arrived in Suter's green BMW sedan and parked in front of Tropical Delights.

Upon entering Tropical Delights, Suter, Roberts, and their compatriot passed Tyrone Martin ("Martin"), a security employee of Tropical Delights, who sat at the restaurant's entrance near a cash register. Shortly thereafter, another Tropical Delights employee asked Martin to approach Suter and ask for her identification in order to ensure that Suter was of the legal age to be served alcohol. Because she did not present her identification when requested, Martin asked Suter to leave. Suter walked to the entrance, but refused to exit.

Martin and Suter had a verbal confrontation and within a couple of minutes Suter exited through Tropical Delights' front door and sat in her green BMW. Approximately one minute later, Martin came outside and the two exchanged words once again. At Suter's trial, William Harper ("Harper"), a Tropical Delights patron who had stepped outside the restaurant moments before Suter and Martin came outside, testified that Suter and Martin were arguing back and forth when Martin turned and walked away from Suter stating, "I don't have to put up with that." Then, Suter spat at Martin. During his trial testimony, Harper identified the defendant, Suter, to be the same woman that spat at Martin outside of Tropical Delights on May 21, 2014.

After re-entering Tropical Delights, Martin returned to his seat by the entrance. Seconds later, Suter barged back into Tropical Delights and yelled to Roberts, who was at the restaurant's bar, that it was time to go. While waiting for Roberts, Suter reengaged in her verbal quarrel with Martin.

At the entrance door, Roberts physically restrained Suter and forced her to exit. Once outside, Suter told Roberts that Martin had spat at her. Roberts turned to immediately confront Martin who stood in the doorway. At this point, two other Tropical Delights employees stood in front of Martin—the three employees made a triangular formation in the doorway. Suter testified that in response to Roberts' inquiry of whether Martin had spat on Suter, Martin stated, "Yeah, I spit on that little B." Instantly, Roberts pulled a gun from his right hip, and fired two shots directly at Martin striking him in the abdomen and right thigh. A security video captured the entire event.

During this altercation between Roberts and Martin, Suter stood behind and to the right of Roberts. Suter's view was unobstructed. After shooting in the direction of Martin, Roberts fled to Suter's BMW. Suter rushed to the driver's seat of the BMW and drove herself, Roberts, and the other woman to the back of Tropical Delights. Roberts and the other woman exited Suter's BMW and fled the scene.² Suter drove away.

Meanwhile, Martin had stumbled back into Tropical Delights and laid on the floor by the cash register holding his abdomen. Two days later, on May 23, 2014, Martin died as a result of the gunshot wounds.³

On July 20, 2015, a grand jury indicted Suter on the following charges: one count of accessory after the fact, in violation of Code § 18.2–19 ; one count of attempt to assault and batter Martin, in violation of Code § 18.2–57 ; one count of obstruction of justice, in violation of Code § 18.2–460(D) ; and one count of driving without an operator's license, in violation of Code § 46.2–300.

On September 23, 2015, Suter was tried in a bench trial. At Suter's trial, Detective Marsolais ("Marsolais") of the Virginia Beach Police Department's homicide unit testified that he made contact with Suter on May 23, 2014. Marsolais had identified Suter as being at the scene of the May 21, 2014 Tropical Delights homicide because the license plate on the green BMW seen in the surveillance video was registered in her name. When first asked about the night of May 21, 2014, Suter told Marsolais that she had come to the area from Maryland, had stayed the night with a friend, and that she had not been at a bar.

When asked about the green BMW, Suter said that it was her car but that her uncle had taken the vehicle away two to three months prior. Suter told Marsolais that she knew Roberts, however she supplied Marsolais with a telephone number that turned out to be "a bad number" when Marsolais later attempted to contact Roberts. At Suter's trial, Marsolais identified Suter as the woman in Tropical Delight's surveillance video taken on the night of May 21, 2014 at 21:35:28. Additionally, while the video was being shown to the trial court, Marsolais testified that Suter got into the driver side of the green BMW and drove away directly after Roberts fired gunshots at Martin.

After the Commonwealth completed its case-in-chief, Suter moved to strike the evidence with respect to all charges against her. The trial court denied her motion to strike except for the charge of attempted assault and battery which the court dismissed.

Testifying in her own defense, Suter claimed to have never seen the gun that night. She stated that she ran to her car because she was afraid and, due to her fear, she drove behind Tropical Delights and let Roberts out of the car. Finally, on direct, Suter responded in the negative as to whether she saw if anybody had been hit by the bullets. On cross-examination, Suter admitted that she was the person in the video and was aware that shots were fired, but that she was not looking at it and did not see Martin get shot.

After viewing the video, the trial court found that Suter was "looking directly at the gun" and Roberts at the moment Roberts fired shots at Martin, that she was present at the scene, and that she drove the getaway car after clearly observing Roberts shoot Martin. Pointedly, the trial court stated, "Except for the shooter and the victim, [Suter] might have had the best view of anyone there. And to say that she didn't see it is incredible and I can't accept that testimony." The trial court found Suter guilty of the Class 6 felony count of accessory after the fact for a Class 1 or 2 felony, in violation of Code § 18.2–19, the misdemeanor count of obstruction of justice, in violation of Code § 18.2–460(D), and the misdemeanor count of driving without an operator's license, in violation of Code § 46.2–300.

On November 10, 2015, the trial court sentenced Suter to five years of imprisonment, with three years suspended for the accessory after the fact conviction. Additionally, the trial court sentenced Suter to twelve months' imprisonment with four months suspended for her obstruction of justice conviction and to a term of six months of imprisonment with two months suspended for her driving without an operator's license conviction.

II. Analysis

A. Standard of Review

On appeal, the only assignment of error presently before us is the sufficiency of the evidence to support Suter's conviction for accessory after the fact to a homicide that is punishable as a Class 1 or Class 2 felony. In analyzing this assignment of error, this Court views the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court, and we must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Doggett v. Commonwealth , 66 Va.App. 219, 224–25, 783 S.E.2d 555, 558 (2016) (quoting Crowder v. Commonwealth , 41 Va.App. 658, 663, 588 S.E.2d 384, 387 (2003) ). "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." Id. at 225, 783 S.E.2d at 558 (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). "When reviewing the sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless the judgment is plainly wrong or without evidence to support it." Bolden v. Commonwealth , 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008).

"If the evidence is sufficient to support the conviction, the reviewing court [will not] substitute its own judgment for that of the trier of fact, even if its opinion might differ from the conclusions reached by the [fact finder]."

Jordan v. Commonwealth , 286 Va. 153, 156–57, 747 S.E.2d 799, 800 (2013). Additionally, "when the sufficiency of the evidence is attacked on appeal, the judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict." Coles v. Commonwealth , 270 Va. 585, 587, 621 S.E.2d 109, 110 (2005).

B. Accessory After the Fact

Suter challenges that, as a matter of law, the trial court erred in finding her guilty as an accessory after the fact to homicide because the Commonwealth failed to prove she had knowledge of the victim's death at the time she aided the principal in fleeing the scene. Put another way, she argues that because Martin did not...