Dufresne v. Commonwealth

66 Va.App. 644

791 S.E.2d 335

Victoria Elizabeth Dufresne

v.Commonwealth of Virginia.

Record No. 0281–15–2.

Court of Appeals of Virginia, Richmond.

Oct. 18, 2016.

Dorian Dalton, Senior Assistant Public Defender, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUFF, C.J., HUMPHREYS, PETTY, BEALES, ALSTON, CHAFIN, DECKER, O'BRIEN, RUSSELL, ATLEE and MALVEAUX, JJ.

UPON A REHEARING EN BANC

BEALES, Judge.

Victoria Elizabeth Dufresne was indicted and tried for robbery. At the conclusion of her bench trial, Dufresne asked the trial court to find her guilty of grand larceny.¹ The trial court convicted Dufresne of grand larceny and sentenced her to five years imprisonment with three years suspended. Dufresne appealed her conviction for grand larceny to this Court, arguing that the trial court erred in denying her post-trial motion to set aside the verdict. The majority opinion of a divided three-judge panel reversed the judgment of the trial court and remanded the case for further proceedings in the trial court. Dufresne v. Commonwealth , No. 0281–15–2, 2016 WL 486493, 2016 Va. App. LEXIS 38 (Va. Ct. App. Feb. 9, 2016). This Court granted the Commonwealth's request for a rehearing en banc . Upon rehearing this matter en banc , we hold that Dufresne invited error when she directly asked the trial court to enter a conviction order for grand larceny. Thus, we apply the invited error doctrine and, consequently, affirm the trial court.

I. BACKGROUND

We consider the evidence on appeal “in the light most favorable to the Commonwealth, as we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth , 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth , 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004) ). So viewed, the victim in this case is a quadriplegic confined to a wheelchair or bed whose condition requires twenty-four-hour care. The victim testified that, as of July 9, 2014, he considered Dufresne to have been his friend for the last five years and had even allowed Dufresne to stay at his residence the previous two evenings. On July 9, 2014, Dufresne offered to help the victim in place of his caregiver—who was scheduled to arrive at 5:00 p.m. At Dufresne's behest, the victim called his normal caregiver at approximately 4:30 p.m. to tell her not to come that day. Once the victim had spoken to his caregiver, Dufresne left the victim's home. She later returned with a male friend named Jonathan, whom the victim did not know.

When Dufresne and Jonathan entered the victim's residence, the victim was lying on a bed. After engaging the victim in a brief conversation, Jonathan took the victim's phone from him, which had been resting on the victim's abdomen. The victim begged and pleaded with Dufresne and her friend to return his phone, as it was his sole means of contacting the outside world. After Jonathan had taken the victim's phone, the victim heard Dufresne ask Jonathan, “What would you like to do? Do you want to finish this?” The victim testified that he was in complete shock, that he was very frightened by Dufresne's conduct, and that “[a]t that point, [he understood] what was going on.” Dufresne then reached into a pillowcase behind the victim's head and took the victim's wallet and some pills. The wallet contained approximately $320 to $345 in cash. The victim testified that he was unable to take any action to stop Dufresne, because of his condition as a quadriplegic, except to push his head back against his pillow, where his wallet and pills were. Before leaving with Jonathan, Dufresne also took the victim's bed remote control from him, telling the victim that she needed to take it with her “because there might be a help button on there, or a way for you to get in contact.” Dufresne and Jonathan then left the residence. The victim testified that he screamed for help for a long time and that it was approximately five hours before his roommate returned from work and found him.

Dufresne was indicted and tried for robbery. At the conclusion of the Commonwealth's case-in-chief, Dufresne moved to strike the evidence. During argument, the trial judge asked Dufresne's counsel, “Is it grand larceny, grand larceny from the person, or is it robbery?” Dufresne's counsel replied, “The argument would be larceny.” When then asked by the trial court if Dufresne was guilty of grand larceny, her counsel responded, “They prove value with the cash. So yes. I would say that they have met the burden for grand larceny.” The trial court denied the motion to strike.

Dufresne then put on evidence. After Dufresne rested her case and renewed her motion to strike, the trial court entertained closing argument, stating to both counsel, “We are [at] closing arguments now.” The Commonwealth waived its right to speak first, and Dufresne began her closing argument. During that argument, her counsel reiterated that she was renewing her motion to strike.² The last substantive statement of Dufresne's counsel during the closing argument was a specific and direct request for the trial court to find Dufresne guilty of grand larceny (“For these reasons, I'd ask for the charge to be dropped down to grand larceny.”). After Dufresne asked the trial court to convict her of grand larceny, the Commonwealth continued to strongly argue, “it was a robbery...,” and emphasized that the property Dufresne stole was “taken from his [the victim's] person or his presence against his will by violence or intimidation.” The trial court found Dufresne guilty of grand larceny. In the written conviction order entered December 9, 2014, the trial court stated that it denied Dufresne's renewed motion to strike the evidence on the robbery charge.

On January 26, 2015, nearly seven weeks after the entry of the conviction order, Dufresne filed a motion to set aside her conviction for grand larceny. At a hearing held on February 5, 2015, Dufresne argued that grand larceny is not a lesser-included offense of robbery and that the trial court could only properly convict her of petit larceny. The Commonwealth argued in response that Dufresne had invited error when she specifically asked the court at trial to find her guilty of grand larceny. At the hearing, the trial court addressed Dufresne directly and stated, “Your lawyer did a fine job by getting me ... to get you out from under the robbery conviction.” The court denied the motion to set aside the verdict and sentenced Dufresne to five years imprisonment with three years suspended.

II. ANALYSIS

A. DUFRESNE INVITED THE VERY ERROR ABOUT WHICH SHE COMPLAINS

Dufresne assigns error to the trial court's refusal to set aside her conviction for grand larceny and enter a conviction for petit larceny. At the end of her trial, however, Dufresne directly asked the trial court to convict her of grand larceny. In Rowe v. Commonwealth , 277 Va. 495, 675 S.E.2d 161 (2009), the Supreme Court held that “[a] party may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory. Nor may a party invite error and then attempt to take advantage of the situation created by his own wrong. ” Id. at 502, 675 S.E.2d at 164 (emphasis added) (quoting Cangiano v. LSH Bldg. Co. , 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006) ).

In this matter, Dufresne invited error and subsequently attempted to take advantage of the situation created by her own wrong. During her combined closing argument and second motion to strike the evidence, Dufresne specifically invited the trial court to convict her of a less serious felony by stating, “I'd ask for the charge to be dropped down to grand larceny.”³ At the post-trial hearing on Dufresne's motion to set aside the verdict, she then attempted to take advantage of the situation created by her own wrong by asking the court to set aside her grand larceny conviction and to enter a misdemeanor petit larceny conviction.

The trial court accepted Dufresne's invitation to find her guilty of grand larceny. Dufresne's request is, of course, the key to resolving this appeal. Absent an invitation to err, the invited error doctrine does not apply. If not for Dufresne's specific request that the trial court convict her of grand larceny, the conviction for grand larceny under an unamended indictment for robbery constitutes reversible error.⁴ From these facts, there can be no question that Dufresne invited the error that is the subject of this appeal. Only by ignoring the fact that Dufresne specifically asked the trial court to convict her of grand larceny can she reach the conclusions that (1) she did not invite the very error of which she now complains, and (2) that the invited error doctrine does not bar her requested relief on appeal.⁵

Contrary to any characterization of Dufresne's specific invitation as a mere misstatement or an erroneous concession of law, the record demonstrates that Dufresne never argued that she simply misspoke or made a mistake at trial when she presented the trial court with the option to convict her of grand larceny. In fact, Dufresne's “explanation” for the error was an inaccurate claim that, “[i]f the Court will recall, we never made a request to have her found guilty of grand larceny. We just kept using the term larceny.” Dufresne later stated at the same hearing that the defense “never specifically brought out in the argument to have this found grand larceny.” As noted above, counsel's recollection during the motion to set aside the verdict of what Dufresne actually requested in the prior hearing was mistaken because she had, in fact, specifically requested that the trial court convict her of grand larceny.

B. APPLICATION OF THE INVITED ERROR DOCTRINE

Dufresne argues that the invited error doctrine is applicable only when the error complained of is raised for the first time on appeal. By focusing on...