Codi Shawn Dunbar v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Raphael, Lorish and Callins
CODI SHAWN DUNBAR
MEMORANDUM OPINION*
v. Record No. 1107-22-3 PER CURIAM
JUNE 20, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
John T. Cook, Judge
(James D. Fairchild; The Law Office of Fairchild & Yoder, PLLC),
for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Rosemary V. Bourne, Senior
Assistant Attorney General, on brief), for appellee.
Codi Shawn Dunbar challenges the sufficiency of the evidence supporting his convictions
for first-degree murder, in violation of Code § 18.2-32, and use of a firearm in the commission of
a felony, in violation of Code § 18.2-53.1. After examining the briefs and record, the panel
unanimously holds that oral argument is unnecessary because “the appeal is wholly without
merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). Finding that sufficient evidence supports
Dunbar’s convictions, we affirm.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). This
standard requires us to “discard the evidence of the accused in conflict with that of the
*
This opinion is not designated for publication. See Code § 17.1-413.
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn [from that evidence].” Bagley v. Commonwealth, 73 Va. App. 1,
26 (2021) (alteration in original) (quoting Cooper v. Commonwealth, 54 Va. App. 558, 562
(2009)).
Around November 24, 2019, Dunbar, his friend Tristin Landreth, and their girlfriends
were at Dunbar’s residence in Campbell County, celebrating Landreth’s birthday. Over the
course of the weekend, Dunbar and Landreth consumed alcohol, methamphetamine, and acid.
They also went hunting and target shooting. Landreth had brought two rifles and a crossbow to
Dunbar’s house that weekend. According to Landreth’s testimony, on November 24, 2019, he
and Dunbar discovered that methamphetamine “that was supposed to be at [Dunbar’s] house . . .
just came up missing.” Later that day, Landreth invited their friend, Christopher Tench, to join
them “because [they] didn’t have [any more] dope and [they] knew that [Tench] did.” When
asked if he told Dunbar that he had called Tench, Landreth testified that he did not need to tell
Dunbar because Dunbar was “there” when he called Tench, at Dunbar’s request.
Dunbar and his teenage cousin then went hunting on a deer stand on Dunbar’s property,
using Landreth’s 30-06 rifle. When Tench arrived, Landreth shook his hand and greeted him.
As they walked towards Landreth’s truck, a “shot went off.” Landreth heard “gargling” and saw
Tench fall to the ground. Tench had been shot in the head. Landreth believed that Tench was
dead, so he ran into the house to tell the women to hide. He then went back outside and saw
Tench “trying to pick [himself] up” and get help. He also saw Dunbar “coming through the field
from a horse barn” carrying Landreth’s 30-06 rifle. Landreth testified that “not even minutes”
had passed since the first shot and that Dunbar, upon reaching the truck, put the 30-06 rifle in the
truck, retrieved Landreth’s .22 rifle, and shot Tench in the head with the .22 rifle.
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Landreth then went inside in “shock,” smoked a small amount of methamphetamine that
was sitting on a table, and watched Dunbar go in and out of the house collecting cleaning
supplies. Landreth testified that he had no idea how much time passed while he was sitting at the
table. At some point, Dunbar directed Landreth to “take the girls and . . . meet [Dunbar] at
McDonald’s.” When Landreth went outside, Tench’s body and the truck were gone. Landreth
took the women to McDonald’s as instructed. After leaving McDonald’s, Landreth and the
women met Dunbar at a carwash, and they all went back to Dunbar’s house together. Landreth
and his girlfriend left, against Dunbar’s wishes, “as soon as [they] got the chance.” After
leaving, Landreth immediately reported the events to his father and then to the police.
In response to Landreth’s statement, Campbell County Sheriff’s Deputy Sergeant Rea
went to Dunbar’s residence to do a welfare check on Tench. Dunbar told Sergeant Rea that
Tench was not there and that he had never been on the property before. Sergeant Rea testified
that Dunbar appeared nervous. On the driveway, Sergeant Rea saw what appeared to be blood
partially covered with wood shavings. Dunbar told Sergeant Rea that the blood was from a deer
he had hunted and that he covered it to keep his dogs from “getting into the blood.” However,
Sergeant Rea noticed that Dunbar’s dogs were eating a deer carcass on the side of the residence.
Police officers ultimately recovered Landreth’s .22 rifle under a mattress at Dunbar’s residence
and recovered Landreth’s 30-06 rifle from Landreth’s father’s house.
The next day, Campbell County Sheriff’s Major Emmerson spoke with Dunbar. Dunbar
reported that he had been hunting the previous day and as he returned, he saw Landreth shoot
Tench at close range with the 30-06 rifle. Dunbar initially denied knowing anything about the
disposal of Tench’s body, but later said that he helped Landreth wrap Tench’s body in a blanket,
move it in Landreth’s truck, and dump it in a pond in Pittsylvania County. The police found
Tench’s body near the bank of the pond Dunbar identified.
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Through subsequent police interviews, Dunbar’s recitation of the events changed. He
eventually told police officers that $400 worth of methamphetamine had “gone missing” before
the shooting, and Dunbar suspected that Tench had stolen the drugs. Dunbar also told
investigators that he accidentally shot Tench with the 30-06 rifle, admitting that he stood by the
horse barn and pointed it at Tench. However, he claimed that he did not pull the trigger and
instead the gun went off accidentally. Investigating that statement, officers found three cartridge
casings by the horse barn. Dunbar maintained that Landreth fired the fatal shot from the .22
rifle. He also told the police that his DNA would be on both guns, but that Landreth “forced
him” to clean the .22 rifle. Dunbar also eventually told police officers that he was alone when he
moved Tench’s body in a Mitsubishi Eclipse and deposited it in the pond.
A firearms expert examined the two guns that were seized in this case. She did not detect
any abnormalities in the guns or the triggers, and she concluded that the cartridge casings found
near the barn were fired from the 30-06 rifle. Melissa Hypes, a DNA expert, analyzed blood
found on the guns. She found blood on the scope of the .22 rifle that belonged to Tench.
Although she found DNA samples on other parts of the firearm, she could not match the other
DNA samples to any individual, in part because those samples contained multiple mixtures of
DNA. Dunbar was eliminated as a contributor to the identifiable DNA on those other parts of
the .22 rifle, but nobody could be eliminated or included from the DNA mixtures on the firearm.
Katie Adolph of the Virginia Department of Forensic Science also testified for the
Commonwealth. Adolph processed the .22 rifle and the 30-06 rifle; she did not find fingerprints
on either gun. As an expert in fingerprint analysis, she testified that different factors influence
whether a fingerprint is left on a surface and that someone may touch a surface without leaving a
fingerprint behind. She also noted that even if a fingerprint is left behind, fingerprints are very
fragile and easily wiped away.
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Various other items of physical evidence corroborated the testimony from Landreth and
the investigators. Police officers found blood on Dunbar’s property, and the Mitsubishi appeared
to have been “wiped down” and smelled strongly of bleach. The carpet in the car’s trunk had
been cut out and removed. Additionally, the medical examiner testified that Tench suffered two
gunshot wounds to his head and that either wound would have been fatal.
In his motions to strike, Dunbar argued that the Commonwealth failed “to prove
premeditation” and thus both charges must be struck. The trial court denied the motions to
strike, and the jury found Dunbar guilty of first-degree murder and use of a firearm during the
commission of a felony. Dunbar appeals.
ANALYSIS
Dunbar argues that the evidence failed to prove premeditation, that he acted with malice,
or that he used a firearm in the commission of a premeditated murder. “On review of the
sufficiency of the evidence, ‘the judgment of the trial court is presumed correct and will not be
disturbed unless it is plainly wrong or without evidence to support it.’” Ingram v.
Commonwealth, 74 Va. App. 59, 76 (2021) (quoting Smith v. Commonwealth, 296 Va. 450, 460
(2018)). “The question on appeal, is whether ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Yoder v.
Commonwealth, 298 Va. 180, 182 (2019)). “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.’” Chavez v. Commonwealth,
69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
I. Malice
Dunbar claims that the evidence failed to prove he acted with malice, but he failed to
make this argument at trial. “No ruling of the trial court . . . will be considered as a basis for
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reversal unless an objection was stated with reasonable certainty at the time of the ruling, except
for good cause shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “The
purpose of th[e] contemporaneous objection requirement [in Rule 5A:18] is to allow the trial
court a fair opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and
retrials.” Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015). “Not just any objection will
do. It must be both specific and timely—so that the trial judge would know the particular point
being made in time to do something about it.” Bethea v. Commonwealth, 297 Va. 730, 743
(2019) (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)).
Dunbar did not argue to the trial court that the evidence failed to prove he acted with
malice. Instead, he argued only that the Commonwealth did not prove the killing was
premeditated. Nor does he invoke the good cause or ends of justice exceptions to Rule 5A:18,
and the Court will not apply the exceptions sua sponte. Edwards v. Commonwealth, 41 Va. App.
752, 761 (2003) (en banc). Thus, Dunbar failed to preserve this argument for appellate review
and we do not address it.
II. Premeditation
Code § 18.2-32 provides that “[m]urder . . . by . . . willful, deliberate, and premeditated
killing . . . is murder of the first degree . . . .” “To premeditate means to adopt a specific intent to
kill, and that is what distinguishes first[-degree] and second degree murder. The intent to kill
must come into existence at some time before the killing; it need not exist for any particular
length of time.” Avent v. Commonwealth, 279 Va. 175, 208 (2010) (quoting Remington v.
Commonwealth, 262 Va. 333, 352 (2001)). “[E]vidence showing that the premeditation was
only slight or momentary is sufficient to sustain the conviction. This is so because
‘[p]remeditation is an intent to kill that needs to exist only for a moment.’” Jackson v.
Commonwealth, 267 Va. 178, 204 (2004) (quoting Green v. Commonwealth, 266 Va. 81, 104
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(2003)). In determining whether premeditation existed, “the jury may properly consider the
brutality of the attack, . . . whether more than one blow was struck, . . . and the defendant’s lack
of remorse and efforts to avoid detection.” Avent, 279 Va. at 208 (quoting Epperly v.
Commonwealth, 224 Va. 214, 232 (1982)). Circumstances commonly associated with
first-degree murder include shooting the victim “at close, and thus predictably fatal, range,”
Jackson v. Virginia, 443 U.S. 307, 325 (1979), firing a weapon more than once, Chandler v.
Commonwealth, 249 Va. 270, 280 (1995), and the “deliberate use of a deadly weapon,” Morris v.
Commonwealth, 17 Va. App. 575, 578 (1994).
“[I]ntent may be, and most often is, proven by circumstantial evidence and the reasonable
inferences to be drawn from proven facts.” Secret v. Commonwealth, 296 Va. 204, 229 (2018)
(quoting Viney v. Commonwealth, 269 Va. 296, 301 (2005)). Furthermore, “[i]t is permissible
for the [jury] to infer that every person intends the natural, probable consequences of his or her
actions.” Id. (first alteration in original) (quoting Commonwealth v. Perkins, 295 Va. 323, 330
(2018)). “Premeditation is a factual question, reserved for determination by the [jury].”
Martinez v. Commonwealth, 42 Va. App. 9, 22 (2003). “When the sufficiency of the evidence to
prove premeditation is challenged on appeal, ‘it is our duty to look to that evidence which tends
to support the verdict and to permit the verdict to stand unless plainly wrong.’” Id. (quoting
Snyder v. Commonwealth, 202 Va. 1009, 1016 (1961)).
“Determining the credibility of witnesses . . . is within the exclusive province of the jury,
which has the unique opportunity to observe the demeanor of the witnesses as they testify.”
Dalton v. Commonwealth, 64 Va. App. 512, 525 (2015) (alteration in original) (quoting Lea v.
Commonwealth, 16 Va. App. 300, 304 (1993)). “Where credibility issues are resolved by the
jury in favor of the Commonwealth, those findings will not be disturbed on appeal unless plainly
wrong.” Smith v. Commonwealth, 56 Va. App. 711, 718 (2010). Dunbar does not argue that
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Landreth’s testimony was inherently incredible, and the jury was entitled to find that Landreth’s
testimony was credible. Based on Landreth’s testimony and the corroborating evidence, the jury
was not plainly wrong in finding that Dunbar deliberately shot and killed Tench.
Dunbar told the police that he suspected Tench of stealing a substantial amount of drugs
from him, suggesting a motive for killing Tench. He also admitted to the police that as he stood
by the barn, he purposefully pointed the 30-06 rifle towards Tench. The firearms expert testified
that there was nothing abnormal about the gun’s trigger, and the jury was entitled to reject
Dunbar’s claim that the gun fired by accident.
Landreth testified that he saw Dunbar shoot Tench in the head, at close range, with the
.22 rifle. The scope of the rifle had Tench’s blood on it, consistent with a close-range shot.
Additionally, the .22 rifle was found under a mattress at Dunbar’s house. While Landreth
immediately reported his version of the events to the police, Dunbar was nervous when he first
spoke to the police, and he continually changed his recitation of the events, eventually admitting
to the first shot and admitting that he alone moved Tench’s body. Dunbar’s Mitsubishi appeared
to have been “wiped down” and smelled like bleach, consistent with his own admissions and
with Landreth’s testimony. Although Dunbar’s fingerprints and DNA were not found on the .22
rifle, that does not prove that Dunbar did not use the firearm.
Dunbar claims he could not have premeditated Tench’s murder because Landreth did not
tell Dunbar that he invited Tench to the property. But Landreth did not specifically tell Dunbar
that he invited Tench because Landreth called and invited Tench in front of Dunbar, thus Dunbar
knew that Tench was coming to the property. Moreover, “[p]remeditation is an intent to kill that
needs to exist only for a moment.” Jackson, 267 Va. at 204 (alteration in original) (quoting
Green, 266 Va. at 104). In determining whether premeditation existed, “the jury may properly
consider the brutality of the attack, . . . whether more than one blow was struck, . . . and the
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defendant’s lack of remorse and efforts to avoid detection.” Avent, 279 Va. at 208 (quoting
Epperly, 224 Va. at 232). Here, the evidence showed that Dunbar shot Tench twice, once at
close range, then attempted to hide the body and shift the blame to someone else. See Jackson,
443 U.S. at 325 (shooting a person at close range indicates premeditation); Avent, 279 Va. at 208
(the jury may consider the defendant’s efforts to avoid detection in considering whether
premeditation existed).
After considering all the evidence, a reasonable jury could infer that Dunbar intentionally
and deliberately fatally shot Tench. Thus, the Commonwealth met its burden, and the evidence
was sufficient to support Dunbar’s convictions.
CONCLUSION
The Commonwealth’s evidence was sufficient to prove beyond a reasonable doubt that
Dunbar was guilty of first-degree murder and use of a firearm during the commission of murder.
We affirm the trial court’s judgment.
Affirmed.
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