Gordon v. Commonwealth

JAMES CLYDE GORDON v. COMMONWEALTH OF VIRGINIA

Record No. 1284-19-3

COURT OF APPEALS OF VIRGINIA

NOVEMBER 17, 2020

UNPUBLISHED

Present: Judges Beales, O'Brien and Malveaux

Argued by videoconference

MEMORANDUM OPINION^* BY JUDGE MARY BENNETT MALVEAUX

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY

David B. Carson, Judge Designate

Brandon S. Baker (Brandon S. Baker, PLLC, on brief), for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

James Clyde Gordon ("appellant") was convicted of two counts of taking indecent liberties with a child, in violation of Code § 18.2-370; three counts of aggravated sexual battery, in violation of Code § 18.2-67.3; sodomy, in violation of Code § 18.2-67.1; and object sexual penetration, in violation of Code § 18.2-67.2. During his pre-trial detention for those offenses, appellant was convicted of possession of a deadly weapon by a prisoner, in violation of Code § 53.1-203; attempt to escape from jail by force or violence, in violation of Code § 18.2-478; and three counts of obstruction of justice, in violation of Code § 18.2-460(C). On appeal, appellant argues that the trial court erred in finding the evidence sufficient to convict him of the obstruction charges. He further argues that the trial court abused its discretion when it sustained the Commonwealth's objection to his cross-examination of a witness. For the following reasons, we affirm.

I. BACKGROUND

"On appeal, we review the evidence in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Nelson v. Commonwealth, 71 Va. App. 397, 400 (2020) (quoting Vasquez v. Commonwealth, 291 Va. 232, 236 (2016)). So viewed, the evidence is as follows.

The Jailhouse Offenses and Appellant's First Trial

Upon complaints by appellant's sister-in-law, R.M., a minor, appellant was arrested for a number of sex offenses. Pending trial, he was held in the Rockbridge Regional Jail.

Eldridge Mays testified that he lived in the same jail "pod" as appellant from January to June 2018. Appellant told Mays about his plan to break out of jail. Although Mays initially thought that appellant was joking, he realized over time that appellant was serious about his plan. Mays testified that appellant had sharpened two spoons to create "shank[s]" and explained to him how he planned to incapacitate the guards and escape. Appellant also told Mays that after he escaped, he would pick up a "survival pack" prepared by his wife. Appellant then planned to abduct R.M. and flee to West Virginia, where he would sell R.M. to people he knew would "have fun with her." Mays stated that appellant said of R.M., "she thinks I . . . [had sex with] her before. She ain't seen nothing till on the way to West Virginia."

Appellant explained to Mays that he planned to physically harm certain people after he escaped but before he fled the area. Appellant's intended victims included a Commonwealth's attorney, a judge, and two investigators with the Rockbridge County Sheriff's Office, Andrew Ehrhard and Travis Patterson, who were investigating the sex offenses alleged by R.M.

Mays testified that appellant had written "letters" in which he described himself as lightning and told Investigators Ehrhard and Patterson that they "wouldn't know when he wasgoing to strike." Appellant's writings indicated that he would "eventually get [the investigators] but he would start with their families first." The writings also referred to guns and explosives.

After appellant set a date for his escape, Mays requested to speak with the investigators about appellant's plan. Investigator Ehrhard interviewed Mays. Based upon the information Mays provided, police searched appellant's cell.

Investigator Joshua Berry of the Rockbridge County Sheriff's Office participated in the search. Berry testified that two sharpened plastic utensils were found in appellant's cell, along with numerous handwritten documents including supply lists, maps of various locations, and letters, some of which were labelled as numbered clues. The writings contained various statements, including

Anderw And Traivs . . . I be under your nose for 2 or 3 weeks when someone find's this so you mite look over your shoulder or your love one's close BC I know where yall . . . live and the next time I see yall it will not be good . . . . There will not be a next time For you Anderw to kick me in the back . . . . you will pay for that . . . and Traivs will see how it feels to look down a gun . . . .

* * * *

If you are the one readin this you will never understand how I feel about someon tellin lies on me . . . I will not be locked up for something that I did no do so if you or someone you know or family I mite be havin someone whitchin them or I mite be whitchin them myself . . . . I am like lightin you will never know when I will strike you or someone you love . . . . whitch over your shoulder if you are against me BC I might be whitchin you look for me. Anderw and Travis . . . I know where yall live . . . . . Just rember to look over your shoulder all the time whitchin you! And your day is comin soon

* * * *

rose's are red lier is a peace of shit just like Anderw and Traivs is . . . . I mite be under your ride LOL

* * * *

People whitchin everone that done me wrong so check on your family first Anderw Travis . . . and others

* * * *

If you done me wrong that you will be dealt with . . . . And you will never know when. it will be SOifyoudonemewrong you mite keep lookin over your shoulder . . . . And I will be whitchin you and family's

Based upon the items found in appellant's cell, investigators obtained a search warrant for appellant's home. There, they found letters from appellant to his wife that had been mailed from the jail and which referenced appellant's plans to escape. Investigators also found backpacks containing various items, including boxes of instant macaroni and cheese, cooking oil, shampoo, a hatchet, and a camping stove.

After conducting their searches, investigators interviewed appellant. Investigator Berry testified that appellant initially denied he had been planning an escape. Asked about the backpacks, appellant said that they contained items he intended to be sold to fund his commissary account. Later in the interview, however, appellant told the investigators that he wanted the backpacks to be dropped off where he could "pick them up and use them to survive after escaping."

The investigators also asked appellant about the writings found in his cell, which Berry testified had been "intended to be left behind for investigators to discover." Appellant initially claimed to have been "writing to get [his] anger out." However, he also told investigators that the writings were "a diversion to buy himself time to get to . . . West Virginia" and that "a lot of the threats were used to cause law enforcement to have to focus on themselves." When asked if his plan upon escaping was to retaliate, appellant stated that "karma['s] a bitch" and "whatever happens[,] happens." Appellant indicated that he was upset because he had been accused of lying in the case involving R.M.

Appellant was indicted for possession of a deadly weapon by a prisoner, in violation of Code § 53.1-203; attempt to escape from jail by force or violence, in violation of Code§ 18.2-478; and three counts of obstruction of justice with respect to R.M., Investigator Ehrhard, and Investigator Patterson, in violation of Code § 18.2-460(C).¹

During appellant's jury trial, the Commonwealth introduced the writings found in appellant's cell. Mays testified that he had seen appellant produce some of the writings and specifically denied seeing anyone else produce them. Asked about appellant's use of the word "clue," Mays testified that appellant had told him "he'd leave [the writings] around his [cell] so . . . it would be different clues for . . . them to find."

The Commonwealth also introduced recordings of appellant's jailhouse telephone calls. In a conversation with his mother, appellant discussed the sex offense charges brought against him and stated, "I don't need to get out to have somethin' done, I can call somebody and have somethin' done to the little bitch." When appellant's mother cautioned him, "[n]ow, don't start that," appellant replied, "I don't care if they're listenin' or not. I mean, one damn lie . . . and she's done messed up my life."

After the Commonwealth concluded its case-in-chief, appellant moved to strike the evidence with respect to the obstruction charges. He argued that the evidence was insufficient to prove that he knowingly attempted to intimidate or impede the threatened parties. The trial court denied the motion.

Appellant then testified on his own behalf. He acknowledged creating some of the writings that were found in his cell but denied creating others. Appellant testified that he never did anything to communicate threats to Investigators Patterson and Ehrhard.

During cross-examination, appellant agreed that his jailhouse writings were "just writing [his] thoughts out" as instructed by his anger management counselor. He further agreed that the "clues" and other writings found in his cell were diversionary items to "buy [him] time to get to West Virginia."

Appellant renewed his motion to strike, and the trial court denied the motion. The jury convicted appellant.

Appellant's Subsequent Trial for Sex Offenses

During appellant's jury trial for the offenses committed against R.M., Mays testified about inculpatory statements made by appellant. On direct examination, Mays acknowledged that he was a convicted felon facing pending criminal charges and that he had been released on bond with the agreement of the Commonwealth. However, he denied receiving "any consideration from the Commonwealth" or "anything for [his] testimony" in appellant's trial.

During cross-examination, counsel for appellant asked Mays about the nature of his pending charges. When couns...