Nelson Ray Lamb, Jr v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Humphreys and Kelsey
Argued at Richmond, Virginia
NELSON RAY LAMB, JR.
MEMORANDUM OPINION* BY
v. Record No. 1262-02-2 JUDGE D. ARTHUR KELSEY
APRIL 29, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
C. David Whaley (Morchower, Luxton & Whaley,
on brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Nelson Ray Lamb, Jr., challenges the sufficiency of the
evidence for his conviction under Code § 18.2-154 for throwing a
missile at an occupied vehicle. He also argues that the trial
court erroneously sentenced him for intentional vandalism (a
Class 1 misdemeanor under Code § 18.2-137(B)) on a charge for
unlawful vandalism (a Class 3 misdemeanor under Code
§ 18.2-137(A)). Finding these arguments without merit, we
affirm the trial court.
____________________
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
On appeal, we review the evidence "in the light most
favorable to the Commonwealth." Morrisette v. Commonwealth, 264
Va. 386, 389, 569 S.E.2d 47, 50 (2002). That principle 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
that may be drawn therefrom." Holsapple v. Commonwealth, 39
Va. App. 522, 528, 574 S.E.2d 756, 758-59 (2003) (en banc)
(citation omitted); see also Wactor v. Commonwealth, 38 Va. App.
375, 380, 564 S.E.2d 160, 162 (2002).
Nelson Ray Lamb, Jr., and Lisa Michelle Hood lived together
in March 2001. Hood had two children from a prior relationship,
ages 11 and 9, and one child with Lamb, age 3. The couple
cohabited in a home that they leased from Hood's mother.
On March 23, 2001, Hood decided to go to the store and
called Lamb on his cell phone to let him know her intentions.
Lamb, who happened to be in the front yard of their residence at
the time, told Hood to take all three children with her. By his
demeanor, Lamb appeared to Hood to be intoxicated. Hood took
the three children outside and put them in a van. She placed
her three-year-old child in the back seat of the van. As she
did so, she saw Lamb and another man, Mike Creighton, "sitting
out in the yard, drinking by [Creighton's] car." Hood got in
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the van and "got ready to back up" when she noticed Lamb
"standing behind the van." She placed the van in park and was
about to exit the van when her "11-year-old son said, Watch
out." Still in the van with the children, Hood turned around
and saw Lamb "throwing rocks at the back window." The rocks
"busted the back window" of the van. Hood jumped out and ran to
the back of the van saying, "Ray-Ray, stop it, the baby is in
the truck." Hood then removed the children from the van, went
inside the house, and called the police.
After the incident with the van, Hood and Lamb had an "'on
and off' relationship" during which Lamb "lived with her at
times and at others Hood prohibited the defendant from residing
at the home with her and the children." On August 28, 2001,
during a period when Lamb was not living in the home, Hood left
the children with Kimberly Smith, who baby-sat the children in
the home while Hood went to the store. Smith was in the living
room with the youngest child when she heard what sounded like
breaking glass coming from the direction of the front door.
Lamb appeared in the living room, went straight to the youngest
child (his natural son) and said, "Daddy's here, you're coming
with me." He picked up the child and departed. Photographs
introduced at trial revealed that the front door frame had been
broken through by force.
At Hood's request, a magistrate issued two arrest warrants
against Lamb. The first charged him with throwing a "missile at
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or against an occupied motor vehicle" in violation of Code
§ 18.2-154 (a felony), while the second charged him with
vandalism in violation of Code § 18.2-137 (a misdemeanor).
The misdemeanor vandalism charge went to trial in the
juvenile and domestic relations district court. The court found
Lamb "guilty as charged" and issued an active thirty-day jail
sentence. Seeking a de novo trial in circuit court, Lamb
appealed. The district court also certified the felony charge
to the grand jury, which later returned an indictment.
At a bench trial in circuit court, the trial court
convicted Lamb of both charges. After reviewing a presentence
report, the court issued a five-year prison term (all suspended)
for the felony and a twelve-month jail term (all but thirty days
suspended) for the misdemeanor. At no time in the trial court
did Lamb object to any alleged inconsistency between his
misdemeanor arrest warrant and the sentence issued on that
charge.
II.
A.
Lamb contends that the evidence was insufficient to sustain
a conviction under Code § 18.2-154. That statute provides:
Any person who maliciously shoots at, or
maliciously throws any missile at or
against, any train or cars on any railroad
or other transportation company or any
vessel or other watercraft, or any motor
vehicle or other vehicles when occupied by
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one or more persons, whereby the life of any
person on such train, car, vessel, or other
watercraft, or in such motor vehicle or
other vehicle, may be put in peril, shall be
guilty of a Class 4 felony.
The facts of this case, Lamb argues, "did not establish beyond a
reasonable doubt that the life of any person in the van . . .
may have been put in peril." We disagree.
Virginia appellate courts "presume the judgment of the
trial court to be correct" and reverse on sufficiency grounds
only if the trial court's decision is "plainly wrong or without
evidence to support it." Wright v. Commonwealth, 39 Va. App.
698, 703, 576 S.E.2d 242, 244 (2003) (citations omitted); see
also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d
259, 261 (1997) (en banc).
When faced with a challenge to the sufficiency of the
evidence, a reviewing court does not "ask itself whether it
believes that the evidence at the trial established guilt beyond
a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19
(1979) (emphasis in original and citation omitted). Rather,
"the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt." Id. at 319.
Under this standard, the evidence supports the trial
court's finding that Lamb violated Code § 18.2-154. A violation
of this code section occurs whenever the lives of persons in the
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vehicle "may be put in peril." Code § 18.2-154 (emphasis
added). As Hood testified, Lamb deliberately threw rocks with
sufficient force to break out the rear window of the van.
Photographs admitted into evidence reveal a gaping hole, almost
two feet in diameter, in the van's left rear window. Given the
size of the hole and the throwing velocity necessary to produce
it, a rational fact finder could infer that the rocks penetrated
the passenger compartment with sufficient violence to spray both
rocks and glass in the direction of the three-year-old child in
the back seat.
Lamb claims the trial court's conclusion rests on a
speculative "presumption." On the contrary, it is a rational
inference well within the fact finder's discretion either to
accept or reject. Inferences are among the "elemental
ingredients of the fact finding process." Carfagno v.
Commonwealth, 39 Va. App. 718, 727, 576 S.E.2d 765, 769 (2003)
(citations omitted). If reasonable, inferences permit a fact
finder "to conclude the existence of one fact from the proof of
one or more other facts." Id. Given the evidence before the
trial court and the reasonable inferences deducible from it, we
reject Lamb's assertion that the risk of harm created by his
conduct did not satisfy the statutory peril requirement of
§ 18.2-154 as a matter of law. Cf. Kirby v. Commonwealth, 264
Va. 440, 445, 570 S.E.2d 832, 835 (2002) (shooting near, but not
necessarily at, intended victim satisfies the analogous "may be
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put in peril" standard of Code § 18.2-279, which governs
discharging a firearm at an occupied dwelling); Dowdy v.
Commonwealth, 220 Va. 114, 117, 255 S.E.2d 506, 508 (1979)
(Peril standard of Code § 18.2-279 does not require the
prosecution to prove that "human life was, in fact,
endangered."); Strickland v. Commonwealth, 16 Va. App. 180, 182,
428 S.E.2d 507, 508 (1993) (shooting a firearm into the ceiling
of occupied room created the "possibility" of ricochet, thereby
satisfying peril requirement of Code § 18.2-279).
B.
Lamb also contests the vandalism conviction, arguing that
the trial court improperly sentenced him under Code
§ 18.2-137(B) for intentional vandalism, a Class 1 misdemeanor,
instead of § 18.2-137(A) for unlawful vandalism, a Class 3
misdemeanor. The arrest warrant, Lamb argues, did not charge
him with a Class 1 misdemeanor. We disagree.
Under Rule 3A:4, an arrest warrant must describe the
offense charged. Greenwalt v. Commonwealth, 224 Va. 498, 501,
297 S.E.2d 709, 710 (1982). "This description must comply with
Rule 3A:7(a), which deals with the description of the charge
that must be contained in an indictment." Id. at 501, 297
S.E.2d at 710-11. An indictment must "give an accused notice of
the nature and character of the offense." Id. (citing Wilder v.
Commonwealth, 217 Va. 145, 225 S.E.2d 411 (1976)). "The same,
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therefore, is true of warrants." Id.; see also Williams v.
Commonwealth, 5 Va. App. 514, 516, 365 S.E.2d 340, 341 (1988)
(same principles govern a summons).
Notice ensures that the accused "can adequately prepare to
defend against his accuser." King v. Commonwealth, 40 Va. App.
___, 2003 Va. App. LEXIS 61, at *6 (2003) (citations omitted).
Mere "matters of form," however, do not require reversal "where
no injury could have resulted therefrom to the accused." Id.;
see also Boggs v. Commonwealth, 229 Va. 501, 519, 331 S.E.2d
407, 420 (1985) (A written charge "need not be drafted in the
exact words of the applicable statute so long as the accused is
given notice of the nature and character of the offense
charged.").
In this case, the arrest warrant served on Lamb was a
standard, preprinted form. In bold capital letters, it
identified itself in this manner:
____________________________________
Commonwealth of Virginia
WARRANT OF ARREST
1
CLASS _____ MISDEMEANOR
___________________________________
The narrative portion of the warrant included preprinted
language and blanks for the magistrate to insert the date of the
offense, the relevant statutory provision, and a brief
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description of the charge. This portion of Lamb's warrant, with
the inserted portions in bold, stated:
TO ANY AUTHORIZED OFFICER:
You are hereby commanded in the name of the
Commonwealth of Virginia forthwith to arrest and
bring the Accused before this Court to answer
the charge that the Accused, within this city or
county, on or about 08/28/2001_ _ did
unlawfully in violation of Section 18.2-137 ,
Code of Virginia: ____________________________
destroy, deface, or damage property belonging to
Lisa Michelle Hood (Child in Common), with the
value of, or damage to, such property being less
than $1,000.00.
As Lamb points out, the preprinted language included the word
"unlawfully" before identifying the statute allegedly violated.
He also correctly notes that the inserted language did not
include the adverb "intentionally" before the phrase "destroy,
deface, or damage property." Several other facts, however,
confirm that the arrest warrant sufficiently notified Lamb that
he had been charged with the Class 1 misdemeanor of intentional
vandalism.
First, the title of the arrest warrant prominently
identified the charge as a Class 1 misdemeanor. The magistrate
underscored this point by stating on the face of the warrant:
"Execution by summons not permitted." Had Lamb been charged
under § 18.2-137(A), a Class 3 misdemeanor requiring the use of
a summons, the officers would have had no authority to take him
into custody on an arrest warrant. See Code § 19.2-74(A)(2);
Farrow v. Commonwealth, 31 Va. App. 517, 521, 525 S.E.2d 11, 13
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(2000) (Officer "was authorized by Code § 19.2-74(A)(2) only to
issue defendant a summons for a Class 3 misdemeanor.").
Second, the juvenile and domestic relations district court
imposed an active jail term —— a sentence that would be
authorized for a Class 1, but not a Class 3, misdemeanor. See
Code § 18.2-11(c) ($500 fine maximum punishment for Class 3
misdemeanor). When he appeared for trial de novo in circuit
court, therefore, Lamb had ample notice of the nature of the
Class 1 misdemeanor charge against him.
Third, in the context of the preprinted form used for all
misdemeanors, the "unlawfully" adverb simply identifies what
follows as a charge of illegality. This boilerplate language,
given the other information on the warrant, does not limit the
scope of the specific charge or alter the elements of the
offense.
Fourth, in the narrative portion describing the specific
offense, the magistrate inserted language that qualified the
charge by specifying "the value of, or damage to, such property
being less than $1,000.00." The magistrate drew this language
from Code § 18.2-137(B)(i). This qualification has no relevance
to subsection (A) and could be read only to confirm the nature
of the charge as a Class 1 misdemeanor for intentional vandalism
under subsection (B).
Finally, an ambiguity in a charging document, if it falls
short of rendering the charge void or prejudicially misleading,
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must be addressed by a pretrial motion under Rule 3A:9(b)(1)
pointing out the defect in the "written charge" upon which the
accused is to be tried. See Harris v. Commonwealth, 39 Va. App.
670, 674, 576 S.E.2d 228, 230 (2003) (en banc). Cf. Livingston
v. Commonwealth, 184 Va. 830, 840, 36 S.E.2d 561, 566 (1946)
("If the accused was not satisfied with the indictment he should
have demurred or called for a bill of particulars at the proper
time."). Having failed to file such a motion and, indeed,
having not raised the issue at all, Lamb waived any challenge to
the warrant's alleged ambiguity. See Rules 3A:9(b)(1) and
5A:18.
In sum, we hold that the arrest warrant sufficiently
notified Lamb that he faced a Class 1 misdemeanor charge of
intentional vandalism and did not prejudicially mislead him into
believing he faced a Class 3 misdemeanor charge of unlawful
vandalism. Lamb's failure to object to the active jail
sentence, either at the district court or the circuit court
level, confirms that Lamb understood the nature and character of
the charge against him.
III.
The trial judge did not err in finding that Lamb violated
Code § 18.2-154 by hurling rocks at an occupied van. Nor did
the trial court err by sentencing Lamb on a conviction for
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intentional vandalism, a Class 1 misdemeanor. We thus affirm
Lamb's convictions.
Affirmed.
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