Howard v. Commonwealth

74 Va.App. 739

872 S.E.2d 212

Jeffery Dale HOWARD

v.COMMONWEALTH of Virginia

Record No. 0495-21-4

Court of Appeals of Virginia, Fairfax.

MAY 10, 2022

J. Austin Timberlake, Senior Assistant Public Defender, for appellant.

Liam A. Curry, Assistant Attorney General (Jason S. Miyares, Attorney General; Leah A. Darron, Senior Assistant Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Ortiz and Causey

OPINION BY JUDGE DANIEL E. ORTIZ

Jeffery Dale Howard ("Howard") appeals his conviction in the Stafford County Circuit Court of threatening to burn or bomb a means of transportation under Code § 18.2-83(A). On appeal, Howard assigns error on four grounds: (I) the circuit court erred in joining the assault and battery charge with the threatening to burn or bomb charge; (II) the circuit court erred in admitting evidence of the assault and battery following Howard's no contest plea; (III) the circuit court erred in finding Howard guilty of threatening to burn or bomb because no reasonable juror could have found Wendy Howard ("Wendy") reasonably feared Howard's threat; and (IV) the circuit court erred in applying Code § 18.2-83 to Howard's threat to blow up his own property. As Howard waived his objection to the joinder of charges, and the circuit court did not abuse its discretion or err as a matter of law as to the remaining assignments of error, we affirm.

BACKGROUND

The Howard family planned to spend January 6, 2019, together in celebration of the Howards’ wedding anniversary. Instead, the day was filled with conflict and argument, culminating in Howard's arrest. That morning, Howard awoke in a foul mood and began yelling at the Howard children, A.H. and R.H. Howard yelled at Wendy, "get the ‘F’ out of [the] house, you and the kids just leave then." Wendy, A.H., and R.H. went to the mall and returned home later that day. Once home, A.H. and R.H. began watching television, while Wendy began washing dishes in the kitchen nearby.

At 5:40 p.m., Wendy called Howard and put him on speakerphone so she could continue doing the dishes. She asked him where he was, and Howard replied, "mind your own F'ing business." Wendy responded, "well, just don't come home if you're going to act like that." Howard answered, "I'll come home if I want to and I'll blow your car up with you in it or not if you try to leave." The car Wendy used was leased solely in Howard's name. At that point, Wendy hung up because her children were within earshot, and she did not want the conversation to escalate. Wendy claimed she felt scared because Howard, who was on active duty with the United States Marine Corp, "has blown up things ... on base" and "knows how to work on vehicles and he builds guns for a living." Moreover, Howard "always kept his word when he said things in the past, so [she] didn't want to take the chance" and "[e]very time he says something, he always sticks to it."

A.H., who was ten years old at the time of trial, overheard this initial phone call and characterized Howard's tone as "[y]elling, mean, and angry." A.H. recalled that Howard said, "I will blow your car with you in it or without you in it." A.H. testified that she felt scared for her mother and did not know if Howard would follow through on his threat. Following the threat, Wendy went up to her bedroom.

At approximately 7:00 or 8:00 p.m., Wendy put the children to bed and barricaded the front door. She did not call the police because she "didn't want to know what the repercussions would be," and she was "too afraid to call." Wendy thought the repercussion would be Howard blowing up the car.

Later that night, Howard returned home, crashing his vehicle into trash cans and holding down his car horn. He attempted to enter the house but became enraged when he encountered the barricaded door and began pounding and beating on the door. Howard called Wendy, who testified that she felt "[t]errified." Eventually, Howard entered the home and went up to the third floor screaming at Wendy. Howard yelled, "Why the ‘F’ did you lock me out? What is your problem? I can't believe you're acting like this. You're nothing but a peel ass white trash ...." Howard then spat on Wendy.¹ At that point, Wendy went to the laundry room where Howard's guns and ammunition were located and sat with her back to the door.

Howard and Wendy's yelling woke up A.H. She overheard Howard "being very mean with [her] mom." A.H. texted Wendy, asking if everything was ok and if she should call the police. Wendy responded, "[d]o what you think is best" because she "was terrified." A.H. said to Howard, "I'll give you a warning to leave and if you don't leave, I'll call the cops ...." A.H. then called 911 from her parents’ bathroom.

Following the 911 call, Stafford County Sheriff's Deputy Evan R. Houde arrived at the Howards’ home in Stafford County. Deputy Houde observed Howard's vehicle in the driveway. Upon reaching the home, Deputy Houde noticed that Howard had red glassy eyes and smelled of alcohol. Deputy Houde entered the house and saw multiple ammunition boxes and crates piled behind the front door. He spoke to Wendy, who was "shaking uncontrollably and her bottom lip was trembling." After interviewing the parties, Deputy Houde arrested Howard.

A few weeks after Howard's arrest, the Howards exchanged text messages about the incident. Wendy testified that the messages meant she "wanted the court just to hurry up and get everything done with" but did not reflect that she wanted to "drop[ ] the charges." The messages themselves were not offered into evidence.

Howard was indicted for threatening to burn or bomb and assault and battery in July 2019, and he initially pled not guilty to both charges. Howard filed a motion to sever the charges against him, while the Commonwealth filed a competing motion for joinder. On January 16, 2020, the circuit court granted the Commonwealth's motion for joinder over Howard's objection.

On January 26, 2021, Howard changed his plea regarding the domestic assault and battery charge from not guilty to no contest. After changing Howard's plea, defense counsel moved to exclude evidence following the initial phone call between the Howards, including the 911 phone call made by A.H., on the basis that "[w]hat happened three to four hours later" does not pertain to the threat. Howard argued that evidence surrounding the 911 call was "not a permissible use of other acts of prior—of other crimes." The circuit court excluded the 911 call and discussion of the actual assault—the spitting. The court further limited the witnesses’ testimony to "what happened up to this point" and stated that the witnesses could "discuss they called 911 if there was an altercation." Howard made a continuing objection to any testimony after the actual threat. However, on cross-examination, Howard elicited testimony from Wendy about the text messages sent three weeks after the event.

At trial, the court heard testimony from A.H., Wendy, and Deputy Houde. At the close of the Commonwealth's evidence, Howard made a motion to strike, arguing that he could not be found guilty of threatening to burn or bomb his own property. The circuit court denied the motion to strike because Howard leased the vehicle and did not own it.

Howard offered no evidence in his case-in-chief. The jury found him guilty of threatening to burn or bomb. The circuit court imposed the jury's recommended sentence of eighteen months and imposed additional terms for the charge of domestic assault and battery. Howard timely appealed.

ANALYSIS

I. Joinder of Offenses

Howard first assigns error to the circuit court's decision to join the charges against him. However, because he pleaded no contest to the charge of misdemeanor domestic assault and battery, Howard waived his objection to the circuit court's decision on that charge. Furthermore, because joinder definitionally requires more than one offense, and he obtained a separate trial on the charge of threatening to burn or bomb, Howard's appeal on that charge is moot.

A. Waiver - Domestic Assault and Battery

Howard objected to the circuit court's joinder of the charges of threatening to burn or bomb and domestic assault and battery. However, following the circuit court's decision to join the charges, Howard pleaded no contest to the domestic assault and battery charge. "A guilty plea waives all objections to non-jurisdictional defects that occurred before the plea." Williams v. Commonwealth , 33 Va. App. 725, 728, 536 S.E.2d 916 (2000). Likewise, when an accused enters a plea of no contest, he waives all objections to non-jurisdictional defects that occurred before the plea. Clauson v. Commonwealth , 29 Va. App. 282, 294, 511 S.E.2d 449 (1999). Therefore, in addressing whether Howard waived his objection to the joinder, this Court must determine whether, assuming arguendo that the court's decision to join the charges was a defect, that defect was non-jurisdictional.

A circuit court's decision to join two charges is non-jurisdictional in nature. "Jurisdiction ... is the power to adjudicate a case upon the merits and dispose of it as justice may require." Pure Presbyterian Church of Washington v. Grace of God Presbyterian Church , 296 Va. 42, 49, 817 S.E.2d 547 (2018) (alteration in original) (quoting Shelton v. Sydnor , 126 Va. 625, 629, 102 S.E. 83 (1920) ). In order to "adjudicate a particular case upon the merits," a court must have active jurisdiction. Riddick v. Commonwealth , 72 Va. App. 132, 142, 842 S.E.2d 419 (2020) (quoting Pure Presbyterian Church of Washington , 296 Va. at 49, 817 S.E.2d 547 ). Active jurisdiction includes

subject matter jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of cases or controversies; territorial jurisdiction, that is, authority over persons, things, or occurrences located in a defined geographic area; notice jurisdiction, or effective notice to a party or if the proceeding is in rem seizure of a res ;

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