Barnes v. Commonwealth

900 S.E.2d 159

80 Va.App. 588

Arturo BARNES

v.COMMONWEALTH of Virginia

Record No. 0991-23-2

Court of Appeals of Virginia, Winchester.

April 23, 2024

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG, Gordon F. Willis, Judge

James Joseph Ilijevich, Fredericksburg, for appellant.

Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Athey, Causey and Callins

OPINION BY JUDGE DOMINIQUE A. CALLINS

₅₉₁A jury convicted Arturo Barnes of two counts of unlawfully shooting into an occupied building and two counts of unlawful destruction of property. The same jury also acquitted Barnes of second-degree murder and use of a firearm in the commission of a murder. Barnes argues that the jury’s verdicts, because inherently inconsistent, constitute an "actual irregularity," and as such, should have been set aside.

BACKGROUND ¹

[1] On June 3, 2021, Yarue Montgomery held a cookout in the parking lot of a strip mall. He set up a grill in a grassy area between two stores known as "the cut," where he served food to people from the neighborhood. Barnes was at the strip mall during the cookout to sell marijuana, and, while there, went inside a store.

Later, Barnes walked to a sedan and sat down in the passenger seat. Tyriek Powell— who had been feuding with Barnes’s brother-arrived at the cookout, armed with a gun concealed in the waistband of his shorts. An individual called ₅₉₂"Little Tay" approached Barnes to warn him that Powell had arrived. Powell approached the cut and stood in front of the sedan in which Barnes was seated; Barnes demanded that Powell "[g]et the f*** out of here." Montgomery saw Barnes, who had by then exited the sedan, "dr[a]w his gun." In response, Powell removed his own firearm from his waistband and "lifted it near his side." According to Montgomery, Barnes then shot at Powell, and Powell returned fire. While running for cover behind a parked car, Barnes continued to exchange fire with Powell. Three of Powell’s bullets struck Barnes. Barnes fired five bullets at Powell, two striking Powell and three striking two stores directly behind where Powell initially stood, shattering the stores’ glass entrances. Powell died from his injuries.

Montgomery drove Barnes to a hospital for treatment. During the drive, Barnes gave his firearm to Montgomery and said, "don’t, don’t," an instruction that "wasn’t clear," but which Montgomery "kind of figured what he was trying to tell me in a sense." Montgomery subsequently threw Barnes’s gun in the trash. When police interviewed Barnes at the hospital, he initially denied shooting Powell, claiming that Powell shot at him and that an unknown third party had returned fire. Barnes later stated, however, that he shot Powell in self-defense after Powell fired first.

Surveillance video shows Barnes minutes before the shooting standing outside of a store in the strip mall, and then sitting in the front passenger seat of a sedan. After Little Tay approaches the vehicle, interacts with Barnes, and walks away, Powell’s lower half appears in frame, walking up the sidewalk, and then stopping in front of the vehicle. At first facing away from Barnes, Powell can be seen turning around toward Barnes, who, by then, is stepping out of the vehicle. Barnes and Powell face each other for several seconds. During this time, the camera’s view is partially obstructed by a column, and Barnes’s hands are not visible to the camera; the video only shows the left side of Powell’s body, below the waistline.

₅₉₃Suddenly, Barnes moves backward, bringing the upper portion of his body into the camera’s frame. At the same time, Powell appears to step backward before running away from Barnes, out of camera view. Meanwhile, Barnes, running to the rear of the sedan, can be seen pointing his gun in Powell’s direction and seeking shelter behind a vehicle parked nearby after dropping to the ground. Barnes hops on one foot in the direction of where Powell had stood before disappearing from camera view.

Barnes was charged with second-degree murder, use of a firearm in the commission of a murder, two counts of maliciously shooting into an occupied building, and two counts of intentional destruction of property. At trial, the jury received instructions defining the elements of the charged offenses, including their lesser-included offenses. The jury also received instructions on heat of passion and self-defense. Following closing arguments, the jury convicted Barnes of the lesser-included offenses of unlawfully shooting into an occupied building and unlawful destruction of property on the malicious shooting and intentional property destruction charges, but acquitted him of second-degree murder and use of a firearm in the commission of murder.

Barnes moved the trial court to set aside the jury’s verdicts as inherently inconsistent. He asserted that the verdicts reflected an implicit finding that he shot Powell in self-defense and that such a finding negated the "unlawful" mens rea required to support his convictions. Such an inconsistency, he argued, constituted an "actual irregularity," requiring the trial court to "set aside and dismiss the remaining four indictments." The trial court denied the motion and declined to "speculate as to why [the jurors] did what they did," noting that "there was a lot of evidence in the case[,] some of it even conflicting about who did what, when[,] and where[,] and it was for the trier of fact to hear all that[,] weigh the credibility[,] and come up with what they thought was a fair and just verdict and they did." Barnes appeals.

₅₉₄ANALYSIS

I. Barnes's first assignment of error is waived.

Barnes first asserts that "[t]he … jury .. erred," and rendered apparently inconsistent verdicts, when it found him guilty of unlawfully shooting into an occupied building and unlawful destruction of property, while simultaneously acquitting him of second-degree murder and use of a firearm in the commission of a murder. (Emphasis added). Since Barnes assigns error to the jury, and not to the trial court, Barnes’s first assignment of error fails to comport with the Rules of the Supreme Court of Virginia and is waived.

[2] We are a "court of limited jurisdiction," with the boundaries of our jurisdiction fixed in place by statute. Tesla, Inc. v. Va. Auto. Dealers Ass’n, 68 Va. App. 509, 512, 809 S.E.2d 695 (2018) (quoting Commonwealth v. Lancaster, 45 Va. App. 723, 730, 613 S.E.2d 828 (2005)). Pertinent here, Code § 17.1-406(A) provides that an "aggrieved party may appeal to the Court of Appeals from any final conviction in a circuit court of … a crime." Although juries render verdicts, they do not enter final orders of conviction. The latter is a function that rests solely in the courts.

Accordingly, Code § 17.1-406(A) gives to this Court jurisdiction to review final convictions entered by trial courts. This general proposition, and limitation, is enshrined in the Rules of the Supreme Court of Virginia, which provide that assignments of error must "identify with specificity the error committed by the trial court." Findlay v. Commonwealth, 287 Va. 111, 115, 752 S.E.2d 868 (2014) (citing Rule 5A:12(c)(l)(ii)). Although our Supreme Court, in Findlay, interpreted Rule 5A:12(c)(1)(ii), its determination that an assignment of error must "identify with specificity the error committed by the trial court," id., applies no less to Rule 5A:20(c)(2), the text of which is near-identical to Rule 5A:12(c)(1)(ii). Compare Rule 5A:12(c)(1)(ii) ("An assignment of error which does not address the findings, rulings, or failures to rule on issues in the trial court . . from which an appeal is taken, … is not sufficient."), with Rule 5A:20(c)(2) ("An assignment of error ₅₉₅that does not address the findings, rulings, or failures to rule on issues in the trial court from which an appeal is taken, is not sufficient."). Likewise, Rule 5A:18 provides that "[n]o ruling of the trial court . . will be considered as a basis for reversal unless .. stated with reasonable certainty at the time of the ruling."

[3] It follows that for an assignment of error to comply with Rule 5A:20(c)(2) and Rule 5A:18, it must identify an erroneous ruling, finding, or failure to rule by the trial court. The Rules of the Supreme Court are not surplusage, nor are they a menu from which litigants may freely pick and choose. They "are rules and not suggestions; we expect litigants before this Court to abide by them." Bartley v. Commonwealth, 67 Va. App. 740, 746, 800 S.E.2d 199 (2017) (quoting Eaton v. Wash. Cty. Dep’t of Soc. Servs., 66 Va. App. 317, 332 n.1, 785 S.E.2d 231 (2016)).

[4] Here, Barnes challenges the findings of the jury, not the trial court. In other words, Barnes fails to state the findings or rulings of the trial court he intends to challenge. Accordingly, Barnes’s first assignment of error does not comply with Rule 5A:20(c)(2) and is waived.²

II. The trial court did not err in denying Barnes's motion to set aside the jury verdicts as inconsistent because consistency in jury verdicts is not required.

Barnes also argues that the trial court erred when it denied his motion to set aside the jury verdicts, failing to hold that the verdicts were inconsistent as a matter of law. The jury acquitted Barnes of second-degree murder and use of a firearm in the commission of a murder, while finding Barnes guilty of unlawfully discharging a firearm into an occupied building and unlawful destruction of property. Barnes contends that these verdicts are inconsistent, since "the jury .. determined that [he] acted lawfully (self defense) when shooting₅₉₆ at the decedent with regard to murder and the related firearms offense,³ but acted unlawfully when the same conduct damaged property around the decedent." (Emphases added). Barnes argues that the inconsistent verdicts constitute an "actual irregularity." In so arguing, Barnes impliedly claims that the apparent inconsistency here...