Via v. Commonwealth
| Decision Date | 28 March 2023 |
| Docket Number | 0539-22-3 |
| Parties | PAUL DOUGLAS VIA v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON Anne F. Reed, Judge
Jennifer T. Stanton, Senior Appellate Counsel (Indigent Defense Commission, on briefs), for appellant.
William K. Hamilton, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Judges Humphreys, O'Brien and Chaney Argued at Lexington, Virginia
The circuit court convicted Paul Douglas Via of felony threat to bomb or burn, felony violation of a protective order, and nine counts of misdemeanor violation of a protective order. Via challenges the sufficiency of the evidence supporting his two felony convictions and one of his misdemeanor protective order violation convictions.[1] He also challenges the circuit court's admission of an officer's body-worn camera footage.
On appeal, we recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
On July 25, 2021, Via had an altercation with his girlfriend, Teresa Taylor, after Taylor allowed a male friend, Ricky Fender, to move into her home. Although Taylor denied any romantic involvement with Fender, Via believed their relationship was sexual. During the argument, Via "exploded," pushing Taylor onto a sofa and grabbing her by the hair. He told her he was going to "kill her" and "burn [her] house down." Fender, who witnessed the altercation, feared for Taylor's safety and urged her to leave the house. Taylor agreed; she left the house telling Via her car needed repairs. As soon as she left, however, Taylor called 911 and asked the police to remove Via from her house. At some point on July 25, 2021, Via called Taylor and threatened again to burn down her house and kill her.[2]
Via's threats prompted Taylor to obtain a preliminary protective order on July 30, 2021. Via was served with the protective order at 4:47 p.m. on July 30, 2021. Although the protective order prohibited Via from having any contact with Taylor, he continued to call and message her. Within two hours of being served with the protective order, Via texted Taylor twice. Between July 30, 2021, and August 9, 2021, Via sent Taylor more than fifty messages. He also drove past her house constantly, spinning the wheels on his truck and screaming at her. On August 9, 2021, Taylor was taking a shower when she heard Via's "very loud" truck outside. She heard him "scream" and "try[] to come around to the back . . . of the house." That same day, Via texted Taylor, threatening to "fuck [Fender] up." Taylor testified that Via also called her on August 9, 2021, threatening again to burn down her house.
When Officer J. Kyle spoke with Via on August 9, 2021, Via smelled of alcohol and was "screaming obscenities." Via threatened to beat Fender and to burn down Taylor's house. Kyle met Taylor at the police station on August 9, 2021, and reviewed Via's call history and messages on her cell phone. Kyle saw a phone call on Taylor's history on the morning of July 25, 2021. The entries on Taylor's phone were captured on the officer's body-worn camera as he examined the phone.[3] Based on Taylor's report, as well as Fender's statement that Via had threatened to burn down the house "several times," Kyle arrested Via for threat to burn.
At trial, Fender confirmed that he had heard Via threaten to kill Taylor and burn down her house, but he could not recall the precise dates of the threats. He convinced Taylor to take her dogs and leave the house in July when Via "had her on the couch" because he was concerned Via would hurt her.
At the conclusion of the evidence, Via conceded that he had violated the protective order. But he contested the threat to burn charge, stressing that, although he was charged with making that threat on July 25, 2021, no one testified "that he did that on that date." Although Via admitted that "later into August he might have said something to an officer," he emphasized that "nobody heard or saw actual physical evidence that he had any intention other than talking trash." He asserted that the evidence failed "to show that he actually made that threat on the day with which he is charged."
The circuit court convicted Via of threatening to burn down Taylor's home on July 25, 2021. It found that Via's threats on other dates to burn her home, as well as his "disposition" and communications with Taylor during that time frame, corroborated Taylor's testimony that he threatened to burn down her home on July 25, 2021. The circuit court also convicted Via of felony violation of the protective order on August 9, 2021. The circuit court found that the August 9, 2021 violation constituted Via's third offense and involved a threat of violence.[4]Finally, the circuit court convicted Via of multiple misdemeanor violations of the protective order based on his "repeated contacts" and communications with Taylor. Via appeals.
"When reviewing the sufficiency of the evidence, '[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" McGowan v. Commonwealth, 72 Va.App. 513, 521 (2020) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). "If there is evidentiary support for the conviction, 'the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.'" McGowan, 72 Va.App. at 521 (quoting Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018)).
Via asserts that the evidence failed to prove that, on July 25, 2021, the date specified in the indictment, he "ma[d]e" or "communicated" a threat to burn to Taylor. He asserts that Taylor's testimony recounting such threats on July 25, 2021, was uncorroborated and unworthy of belief. Via emphasizes that Officer Kyle denied observing "any calls, texts or Facebook messages from [him] stating he would burn [Taylor's] house." He notes that Fender did not recall Via making "threats of any kind" other than on July 20, 2021. Even assuming that he had threatened to burn down Taylor's house, however, Via contends that Taylor did not take the threats seriously, considering them "idle talk." He notes that Taylor admitted to Kyle in Kyle's body camera footage that she did not read Via's messages to her; moreover, he emphasizes that, if the threats had put Taylor in fear, she would not have waited fifteen days to report them. We disagree.
"The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Elliott v. Commonwealth, 277 Va. 457, 462 (2009). This Court gives "deference to the fact finder who, having seen and heard the witnesses, assesses their credibility and weighs their testimony." Id. Thus, this Court must accept "the trial court's determination of the credibility of witness testimony unless, 'as a matter of law, the testimony is inherently incredible.'" Nobrega v. Commonwealth, 271 Va. 508, 518 (2006) (quoting Walker v. Commonwealth, 258 Va. 54, 71 (1999)). "Evidence is not 'incredible' unless it is 'so manifestly false that reasonable men ought not to believe it' or 'shown to be false by objects or things as to the existence and meaning of which reasonable men should not differ.'" Gerald v. Commonwealth, 295 Va. 469, 487 (2018) (quoting Juniper v. Commonwealth, 271 Va. 362, 415 (2006)).
Taylor testified that Via threatened to burn her home on July 25, 2021, and her testimony was corroborated by uncontested evidence that Via made similar threats at other times, including directly to Officer Kyle. Moreover, as the circuit court found, the threatening tenor of Via's messages to Taylor corroborated Taylor's testimony that Via threatened to burn down her house on July 25, 2021. The circuit court was entitled to rely on Taylor's testimony in reaching its verdict. "When the law says that it is for triers of the facts to judge the credibility of a witness, the issue is not a matter of degree." Towler v. Commonwealth, 59 Va.App. 284, 291 (2011) (quoting Swanson v. Commonwealth, 8 Va.App. 376, 379 (1989)). "So long as a witness deposes as to facts[,] which, if true, are sufficient to maintain their verdict," and "the trier of the facts sees fit to base the verdict upon that testimony[,] there can be no relief in the appellate court." Id. () (quoting Swanson, 8 Va.App. at 379). Accordingly, based on Taylor's testimony, the record reasonably supports the circuit court's finding that Via threatened on July 25, 2021, to burn down Taylor's home on July 25, 2021.[5]
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