Washington v. Commonwealth
| Decision Date | 18 October 2022 |
| Docket Number | Record No. 1256-21-2 |
| Parties | Anthony Patrick WASHINGTON v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
James Joseph Ilijevich, Fredericksburg, for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judge O'Brien and Senior Judge Haley
OPINION BY CHIEF JUDGE MARLA GRAFF DECKER
Anthony Patrick Washington appeals his convictions for aggravated malicious wounding and the use of a firearm in the commission of a felony, in violation of Code §§ 18.2-51.2 and -53.1.
The appellant argues that the evidence was insufficient to sustain his convictions because he acted in self-defense. Alternatively, he contends that he shot the victim in the heat of passion and therefore without malice. For the following reasons, we affirm the convictions.
In the summer of 2020, Deedra Cook stayed at a hotel in Fredericksburg for several weeks while working in the area. On the evening of June 30, 2020, Cook spent time in the hotel parking lot removing some stickers from her son Cody's car. The parking lot is directly accessible from each hotel room.
As Cook worked in the parking lot with Cody, the appellant and Robert Lynn returned from a trip to the store. After parking, the appellant approached Cody's car, insulted Cook, and told her she did not have to conceal her gun. Cook "guess[ed]" the appellant had previously seen her with a gun concealed under her clothes, but she did not have a gun with her that day. During the heated discussion about gun laws that followed, both the appellant and Cook claimed to own multiple firearms and were "yelling and screaming" at each other. Cook walked from the driver's side around the car to where the appellant was standing, pointed at him, and repeatedly told him to leave. Cody was standing by his car during the incident. The appellant was taller than Cook and stood close to her, almost "towering over" her. As both parties yelled, Cook's other son, Tyler, came outside and "tr[ied] to figure out what was going on."
Cook then called the appellant a racial epithet. The appellant dropped a folder he had been holding, backed up, and removed a gun from a holster on his hip. He pointed the gun toward Cook's head, and she turned slightly away. The appellant then lowered the gun as he moved toward her from behind. Cook heard her sons tell the appellant that he did not "have to do this." Nevertheless, while standing close behind Cook, the appellant fired the gun and shot Cook in the ankle. As Cook staggered forward and collapsed onto the sidewalk, the appellant walked away. The hotel surveillance camera recorded a video of the altercation without sound.
The Commonwealth charged the appellant with aggravated malicious wounding and use of a firearm in the commission of a felony. He was tried by a judge sitting without a jury.
The appellant testified in his defense. He said that when he saw Cook earlier that day, they discussed gun laws and she told him he needed a permit to carry a gun. He contended that at that time she "patt[ed]" her pocket like she had a concealed weapon. The appellant testified that he later decided to "inform" her about the laws in Virginia. In the parking lot, he told her, "Sweetheart, you know, in Virginia, you don't need a permit to open-carry." At that point, Cook "went off," cursing at him. According to the appellant, during the confrontation, Cook patted her pocket again and "said take your [B]lack ass inside and shoot some dope." The appellant testified that, in response, he called her a "bitch" and "walk[ed] away from her," but he stopped when Cook came around the car and demanded "what the fuck did you just say to me." The appellant said that Cook called him a racial epithet and stated that she had "something for [his] [B]lack ass."
While on the witness stand, the appellant explained that he felt "[t]hreatened" by Cook and her sons, who, according to him, were "converging" on him, so he drew his gun with the intent "to fire a warning shot." The incident seemed "very quick," and he represented that he "didn't think" because he "was just reacting." He contended that he did not "know what was going to happen" when he unholstered his gun.
In addition to Cook and the appellant, several witnesses testified at trial. Witnesses to the altercation included Cook's two sons, as well as Robert Lynn and Carolyn Woolfolk.2 The eyewitnesses largely agreed on the course of events, but they contradicted each other on some of the details.
At the close of the Commonwealth's case-in-chief and again after the close of the case, the appellant made motions to strike the evidence. The trial court denied both motions. In closing argument, the appellant contended that he acted in self-defense, did not intend to shoot Cook, and was not pointing the gun at her. Alternatively, he asserted there was reasonable provocation because Cook called him "the most vile thing that she could have called him" and "spit in his face."
The appellant argued that he shot Cook out of "a heat of passion, ... hot blood, rage, and fear."
After argument by counsel, the court, as trier of fact assessing the evidence, found that the appellant and Cook "both ... used ... terrible and ugly words that included slurs that were meant to be offensive, demeaning, [and] to marginalize the other." The court observed that the appellant "chose not to back down" even though he could have walked away without "turn[ing] [his] back" to Cook. After considering the "credible evidence," including the hotel surveillance that captured the entire confrontation through a silent video, the court convicted the appellant of aggravated malicious wounding and the use of a firearm in the commission of a felony.
The appellant made a motion to set aside the verdict, arguing the Commonwealth failed to prove malice because Cook's insulting language constituted reasonable provocation and he acted in the heat of passion. The court denied the motion and sentenced the appellant to twenty-three years in prison, with thirteen years suspended.
The appellant argues that the evidence was insufficient to support his convictions. He suggests that he established that he acted in self-defense or, alternatively, in the heat of passion, either of which would negate the crimes.
"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, 850 S.E.2d 376 (2020) (alteration in original) (quoting Smith v. Commonwealth , 296 Va. 450, 460, 821 S.E.2d 543 (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, 819 S.E.2d 234 (2018) ). Instead, "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, 781 S.E.2d 920 (2016) (quoting Williams v. Commonwealth , 278 Va. 190, 193, 677 S.E.2d 280 (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.’ "3 McGowan , 72 Va. App. at 521, 850 S.E.2d 376 (quoting Chavez v. Commonwealth , 69 Va. App. 149, 161, 817 S.E.2d 330 (2018) ). "These principles apply ‘with equal force’ to bench trials no differently than to jury trials." Commonwealth v. Moseley , 293 Va. 455, 463, 799 S.E.2d 683 (2017) (quoting Vasquez , 291 Va. at 249, 781 S.E.2d 920 ).
In conducting our review, this Court likewise gives deference to the fact finder's assessment of witness credibility. Determining "the ‘credibility of the witnesses and the weight of the evidence’ are tasks left ‘solely [to] the trier of fact’ unless those determinations are ‘plainly wrong or without evidence to support [them].’ " Nelson v. Commonwealth , 73 Va. App. 617, 622, 863 S.E.2d 886 (2021) (alterations in original) (quoting Wactor v. Commonwealth , 38 Va. App. 375, 380, 564 S.E.2d 160 (2002) ). This is so because the fact finder "has the unique opportunity to observe the demeanor of the witnesses as they testify." Dalton v. Commonwealth , 64 Va. App. 512, 525, 769 S.E.2d 698 (2015) (quoting Lea v. Commonwealth , 16 Va. App. 300, 304, 429 S.E.2d 477 (1993) ). The trier of fact is "free to believe or disbelieve, in part or in whole, the testimony of any witness." Bazemore v. Commonwealth , 42 Va. App. 203, 213, 590 S.E.2d 602 (2004) (en banc ); see Rollston v. Commonwealth , 11 Va. App. 535, 547, 399 S.E.2d 823 (1991). Similarly, "[i]n its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt." Flanagan v. Commonwealth , 58 Va. App. 681, 702, 714 S.E.2d 212 (2011) (quoting Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d 233 (1998) ).
It is under this well-established standard of review that we consider the appellant's challenges to his convictions. He raises two distinct contentions. First, the appellant argues that the trial court erred by not finding that he acted in self-defense. Second, he sets forth the alternative theory that the court erroneously rejected his claim that he acted in the heat of passion rather than with malice.
The appellant argues that the trial court should have concluded that he acted in self-defense. He suggests that his "actions were not excessive in terms of the perceived threat of three adults, spewing racial epithets, coming toward him to do him harm, possibly with a firearm."4
The...
To continue reading
Request your trial