Commonwealth v. Flythe

COMMONWEALTH OF VIRGINIA v. FRANK INNES FLYTHE, A/K/A FRANK INNES ROOKS

Record No. 0592-15-4

COURT OF APPEALS OF VIRGINIA

SEPTEMBER 1, 2015

UNPUBLISHED

Present: Judges Petty, Decker and Senior Judge Felton

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE WILLIAM G. PETTY

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Lorraine Nordlund, Judge

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Brad Lindsay, Assistant Public Defender (Fairfax County Public Defender's Office, on brief), for appellee.

This case involves an appeal by the Commonwealth of Virginia, pursuant to Code § 19.2-398, of a trial court's order dismissing the indictment against Frank Innes Flythe on double jeopardy grounds. On appeal, the Commonwealth asserts that the court erred in concluding that Flythe was acquitted due to insufficiency of the evidence and therefore cannot be re-tried. The Commonwealth argues that the first trial was terminated due to a fatal variance in the indictment, and thus double jeopardy does not apply. We disagree.

I. BACKGROUND

In an appeal brought by the Commonwealth pursuant to Code § 19.2-398, we view the historical facts that provide the context of our analysis in the light most favorable to theprevailing party below, Flythe, and we grant him all reasonable inferences fairly deducible from that evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

On June 16, 2014, Flythe was indicted for felony grand larceny of United States currency from Sandra Amurrio on or about July 14, 2013. The trial was held before Judge Jan L. Brodie on October 21, 2014 ("the trial"). The Commonwealth alleged that Flythe, a janitor at the Elks Lodge, stole money that had been given as a gift to Maria Linares during her fifteenth birthday party at the lodge on July 13, 2013. Maria Andrade, Linares's cousin, testified that she was in charge of writing down the names of gift givers, collecting all of the envelopes, and putting them in a box. At the party, the guests handed their monetary gifts to Linares or Andrade, who put the gifts into a box. Amurrio, Linares's mother, testified that she never handled the money at the party, but that she intended to deposit the money into an account and use it for Linares's college expenses. Andrade testified that at the end of the night she put the box of money under a table and left it there. On July 14, 2013, Amurrio realized that no one had brought the box of money home. Flythe was the janitor on duty at the Elks Lodge on the morning of July 14, 2013. Amurrio returned to the lodge and found the box in a trash bag, however there was no money in the box. Flythe was arrested twelve days later with $1400 cash in his possession.

At the close of the Commonwealth's evidence, Flythe made a motion to strike. First, Flythe argued that there was a fatal variance in the indictment because while the indictment stated that he stole money from Sandra Amurrio, the Commonwealth's evidence proved that the money at issue belonged to Maria Linares. Flythe then made numerous arguments regarding the sufficiency of the evidence. The judge denied the motion to strike on all grounds.

The defense rested without presenting any evidence. Flythe then renewed his motion to strike and repeated the same arguments he made for his first motion. Judge Brodie took themotion under advisement. Both parties gave closing arguments, and the jury was sent to deliberate. After the court returned from a recess, Judge Brodie ruled on the motion to strike:

The issue before the Court is whether or not one of the elements can possibly be met based on the evidence and that is the ownership by Sandra Amurrio.

I reviewed the cases and it is clear that in order to sustain an indictment for larceny, the allegation of ownership of stolen property is sustained by the proof of any legal interest or special ownership which may be less than absolute title of the property.

In this case, we are looking at the ownership of the gifts that were given at the party. In reviewing the evidence, I have no evidence or legal authority to automatically impute a special ownership to a parent.

I have no evidence that the parent ever took control or managed it or held it other one, maybe that it transferred to the child's box [sic]. In light of that, I find that there is a fatal variance existing between the indictment's allegation and the evidence that was presented and I am granting the motion to strike.

At this point, the Commonwealth moved to amend the indictment to change the name of the victim from Sandra Amurrio to Maria Linares, arguing that changing the name of the victim did not create a new offense. Judge Brodie denied the motion to amend, saying, "I have already found and granted the motion to strike at this point. It is the equivalent of the Jury's verdict. . . . I have basically, by my [ruling on the] motion to strike, found the defendant not guilty. And I don't believe I can grant [the motion to amend] at this point." Thereafter, the jury was discharged. On October 28, 2014, Judge Brodie entered an order granting Flythe's motion to strike.

On December 15, 2014, Flythe was indicted for felony grand larceny of United States currency from Maria Linares. On March 23, 2015, Flythe filed a motion to dismiss the indictment on double jeopardy grounds. On March 27, 2015, a hearing on the motion was held before Judge Lorraine Nordlund. Judge Nordlund found that Judge Brodie had granted Flythe's motion to strike because the Commonwealth simply chose an unsuccessful theory of the case, rather than because of a fatal variance. The Commonwealth failed to prove that Amurrio had apossessory interest in the money, and double jeopardy barred the Commonwealth from pursuing a different theory on retrial. Judge Nordlund granted Flythe's motion to dismiss and entered an order to that effect on April 7, 2015. The Commonwealth now appeals.

II. ANALYSIS

"In reviewing a double jeopardy claim, or a claim based on statutory interpretation, this Court shall conduct a de novo review." Davis v. Commonwealth, 57 Va. App. 446, 455, 703 S.E.2d 259, 263 (2011). In making our decision, we "'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter.'" Davis v. Commonwealth, 63 Va. App. 45, 52, 754 S.E.2d 533, 537 (2014) (quoting Jones v. Commonwealth, 217 Va. 231, 233, 228 S.E.2d 127, 129 (1979)) (discussing how to review a motion to dismiss based on collateral estoppel, a species of double jeopardy). Our inquiry is whether Flythe's indictment for grand larceny from Maria Linares, following the granting of a motion to strike for larceny of the same money from Sandra Amurrio, is barred by double jeopardy. Under the facts of this case, we hold that it is.

In part, the Fifth Amendment to the United States Constitution provides that "[no] person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "'This constitutional provision guarantees protection against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.'" Payne v. Commonwealth, 277 Va. 531, 540, 674 S.E.2d 835, 839 (2009) (quoting Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999)).¹ Here, we are concerned with the first of those protections.

The United States Supreme Court has repeatedly held that "'[a] verdict of acquittal . . . [may] not be reviewed . . . without putting [the defendant] twice in jeopardy, and thereby violating the Constitution.'" Sanabria v. United States, 437 U.S. 54, 64 (1978) (alteration in original) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977)). The Court has described this principle as "'the most fundamental rule in the history of double jeopardy jurisprudence.'" Id. (quoting Martin Linen Supply Co., 430 U.S. at 571). Double jeopardy bars retrial after an acquittal because "'[t]o permit a second trial . . . would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that even though innocent he may be found guilty.'" Evans v. Michigan, 133 S. Ct. 1069, 1075 (2013) (alteration in original) (quoting United States v. Scott, 437 U.S. 82, 91 (1978)). And, retrial after acquittal may subject the defendant to "additional 'embarrassment, expense and ordeal' while 'compelling him to live in a continuing state of anxiety and insecurity.'" Id. (quoting Green v. United States, 355 U.S. 184, 187 (1957)). Accordingly, only a single exception to this principle has been recognized by the Court: "When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty." Smith v. Massachusetts, 543 U.S. 462, 467 (2005). However, if the judge enters an acquittal when "the prosecution has not yet obtained a conviction, further proceedings to secure one are impermissible." Id.

In Evans, the United States Supreme Court defined an acquittal as "any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense." 133 S. Ct. at 1074-75. In contrast, procedural rulings are those that dismiss a case due to an error of law or"because of some problem like an error with the indictment." Id. at 1075. Because "no expectation of finality attaches" to a mistrial or dismissal on procedural grounds, the same concerns are not implicated, and the Double Jeopardy Clause does not bar retrial in those instances. Id.

The Commonwealth contends that the granting of the motion to strike was a procedural dismissal that did not amount to an acquittal because "the trial court ultimately only ruled on the fatal variance...