Marrow v. Commonwealth

DWAYNE DEMARIO MARROW v. COMMONWEALTH OF VIRGINIA

Record No. 1041-16-1

COURT OF APPEALS OF VIRGINIA

APRIL 25, 2017

UNPUBLISHED

Present: Judges Humphreys, Petty and AtLee

Argued at Norfolk, Virginia

MEMORANDUM OPINION^* BY JUDGE WILLIAM G. PETTY

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

H. Vincent Conway Jr., Judge Designate

Charles E. Haden for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Dwayne Demario Marrow was convicted, after a bench trial, of aggravated malicious wounding in violation of Code § 18.2-51.2(A)¹ and the use of a firearm in the commission of a felony in violation of Code § 18.2-53.1. He argues that the trial court erred in denying his motion to strike the evidence and his motion to set aside the verdict for two reasons. First, Marrow argues that the Commonwealth failed to prove beyond a reasonable doubt the criminal agent element as required by both statutes. Second, Marrow argues that the Commonwealth failed to prove beyond a reasonable doubt that the victim sustained "permanent and significant physical impairment" as required by the aggravated malicious wounding statute. For thefollowing reasons we conclude that there was sufficient evidence to establish Marrow's identity as the criminal agent and therefore we affirm his conviction of the use of a firearm in the commission of a felony. However, we also conclude that the evidence was insufficient for the trial court to find that the victim sustained "permanent and significant physical impairment" as required by the aggravated malicious wounding statute; accordingly, we reverse Marrow's conviction of aggravated malicious wounding and remand for a new trial on the lesser-included offense of malicious wounding.

I. BACKGROUND

Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal. "On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Wells v. Commonwealth, 65 Va. App. 722, 725, 781 S.E.2d 362, 364 (2016) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

On June 15, 2014, Newport News police officers responded to a shooting at an apartment complex on Adams Drive. When officers arrived at the scene, they saw a woman (the victim) covered in blood, sitting in an apartment corridor, with her hands around her throat. The victim had what appeared to be a gunshot wound to the side of her neck and an exit wound to her back. The victim's sister (the witness) was also at the scene of the shooting when the officers arrived. A few hours later, the witness gave a statement to a Newport News detective at police headquarters that was audiotaped and later transcribed. While at police headquarters, the witness was shown a photographic lineup that included Marrow. The witness selected Marrow by marking her initials beside Marrow's photograph.

On July 17, 2014, the detective took photographs of the victim in the hospital showing the victim with bandages on her neck and on her back. Sometime after July 17, 2014, the detective saw the victim again but this time with the victim's neck bandages removed. At that time the victim had what appeared to be stitches or staples where the neck bandages had been. The victim failed to appear at Marrow's trial.

At Marrow's trial, the Commonwealth called the witness to testify and began to question the witness regarding her statement to the detective the night of the shooting. When the witness consistently responded that she did not know or could not recall what she said to the detective the night of the shooting, the Commonwealth asked, without objection, to play an audio recording of her statement.² The transcript of the witness' statement was subsequently admitted into evidence by the trial court.³ The witness also denied initialing Marrow's photograph in the photographic lineup.

II. STANDARD OF REVIEW

When considering the sufficiency of the evidence presented below, "we presume the judgment of the trial court to be correct." Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002) (quoting Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 90, 94 (1992)). Indeed, "[i]n our review of the sufficiency of the evidence, we must affirm the conviction unless the trial court was plainly wrong or the conviction lacked evidence to support it." Parham v. Commonwealth, 64 Va. App. 560, 565, 770 S.E.2d 204, 207 (2015); Code § 8.01-680.

Furthermore, we will not "substitute our judgment for that of the trier of fact." Beshah v. Commonwealth, 60 Va. App. 161, 168, 725 S.E.2d 144, 147 (2012) (quoting Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)). Instead, we ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

III. ANALYSIS

A. THE IDENTITY OF THE GUNMAN

Marrow's assignment of error challenges both his conviction for aggravated malicious wounding and use of a firearm in the commission of a felony, alleging that "with regard to both charges, the Commonwealth failed to prove beyond a reasonable doubt that Marrow shot [the victim]." Marrow argues that absent any eyewitness testimony at trial that he shot the victim and the fact that the witness entirely repudiated her earlier, uncorroborated statement to police, Marrow's identity as the gunman, i.e., the criminal agent, was not proven beyond a reasonable doubt. We disagree.⁴

"[T]he standard for judging the sufficiency of the evidence to prove identity . . . in a criminal case . . . [is] the Commonwealth must prove that fact beyond a reasonable doubt." Wells v. Commonwealth, 65 Va. App. 722, 728, 781 S.E.2d 362, 365 (2016) (quoting Crawley v. Commonwealth, 29 Va. App. 372, 377-78, 512 S.E.2d 169, 172 (1999)). Under this standard, each piece of evidence is not viewed in isolation but rather, "we review the totality of the evidence to determine whether it was sufficient to prove the offense." Id. at 729, 781 S.E.2d at 365 (quoting Bowling v. Commonwealth, 51 Va. App. 102, 107, 654 S.E.2d 354, 356 (2007)). Identity may be proven by circumstantial evidence. Snead v. Commonwealth, 4 Va. App. 493, 496, 358 S.E.2d 750, 752 (1987).

Furthermore, it is well-established that it "is the function of a [fact finder] to determine the credibility of witnesses and the weight of the evidence and to resolve all conflicts in the evidence." Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 57, 419 S.E.2d 627, 630-31 (1992). This Court does not revisit such conflicts on appeal unless reasonable people, "after weighing the evidence and drawing all just inferences therefrom, could reach but one conclusion." Towler v. Commonwealth, 59 Va. App. 284, 292, 718 S.E.2d 463, 467 (2011) (quoting Molina v. Commonwealth, 47 Va. App. 338, 369, 624 S.E.2d 83, 98 (2006)).

At trial, the detective testified that she developed Marrow as a suspect and included him in a photographic lineup that she presented to the witness the night of the shooting. The witness then selected Marrow by marking her initials beside his photograph. A transcript of the witness' statement to the detective was also entered into evidence without a hearsay objection by Marrow. In that statement, the witness told the detective that she went to Adams Drive to fight with another woman over Marrow. The witness told the detective,

She [the victim] broke up the fight. He [Marrow] said y'all get the fuck from around here. I ain't forget. I'll shoot you. You think I won't shoot you. My sister [the victim] starts swiping and trying to get him to move the gun out of her face. And he shot in the air. Then my sister was moving the gun trying to move it telling him I'm on your side. I'm out here with you bro. Why you doing this? What you talking about? And then he just started shooting. And then that's when my sister grabbed her neck and started gasping for air.

At trial, the witness' testimony was inconsistent with her statement to the detective. She testified that she knew Marrow as a "friend" and at the time of the shooting they were romantically involved, that she did not remember what she told the detective the night of the shooting because she was drunk and high on drugs at the time, that there were a lot of people on Adams Drive that night with guns, including Marrow, and that she did not see Marrow raise or fire a gun but rather had been coerced by family members into falsely implicating Marrow in theshooting. The witness denied that she marked her initials beside Marrow's picture in the photographic lineup.

Here, the trial court credited the witness' statement to the detective the night of the shooting and rejected her trial testimony to the extent it was inconsistent with her statement. The trial court stated, "I think the statement by [the witness] in proximity to the event is more believable than her testimony in chief today." Regarding the witness' testimony that she was drunk and high on drugs when she gave her statement to the detective, the court noted,

I do think she was sufficiently aware that night, she was sufficiently lucid to make an intelligent statement and she explained why this happened . . . . I think she told the most correct story to the officer within hours of the incident, and I think the Commonwealth has sufficiently impeached her change of story today.

In rejecting the witness' testimony that family members coerced her into making her statement to the detective, the court noted, "Now she said my mother made me do it,...