Mitchell v. Commonwealth

1

KEVIN MITCHELL v. COMMONWEALTH OF VIRGINIA

No. 0066-23-2

Court of Appeals of Virginia

July 9, 2024

FROM THE CIRCUIT COURT OF HENRICO COUNTY John Marshall, Judge

John W. Parsons (John W. Parsons, Attorney at Law, on brief), for appellant.

Ken J Baldassari, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Judges Beales, AtLee and Malveaux Argued at Richmond, Virginia

MEMORANDUM OPINION^[*]

RICHARD Y. ATLEE, JR. JUDGE

Appellant Kevin Mitchell appeals his convictions for first-degree murder, use of a firearm in the commission of a murder, aggravated malicious wounding, and use of a firearm in the commission of an aggravated malicious wounding. On appeal, Mitchell challenges the sufficiency of the evidence. He contends that the Commonwealth failed to prove both that he was the person who shot the victims and that the surviving victim suffered a permanent physical impairment. For the following reasons, we disagree and affirm his convictions.

I. Background

On appeal, we recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

Jonathan Lancaster and Ashley Tolliver were in a romantic relationship. On May 4, 2021, they were staying at an Extended Stay America hotel in Henrico County with two friends. Realizing they were locked out of their room, Lancaster and Tolliver went to someone else's room in the same hotel. Later, Lancaster left that room for 10 to 15 minutes and returned to see a small bag in the room that he believed was not there when he left. Lancaster recognized the bag as belonging to Mitchell and accused Tolliver of engaging in sexual activities with him while he was gone.

Tolliver denied Lancaster's allegations and the two argued at length. During the argument, Lancaster dumped out the contents of the bag, including wireless earbuds and fentanyl. Lancaster threw one of the earbuds in the toilet and pocketed the fentanyl. As Tolliver and Lancaster continued to argue, an acquaintance called Mitchell and informed him of Lancaster's belief that Mitchell and Tolliver had been "messing around."

Mitchell and his cousin, Randy Mayo, then came to the room. After Mitchell arrived, he watched Lancaster and Tolliver continue their argument with a "smirk" on his face. Lancaster did not address Mitchell regarding his belief that Mitchell and Tolliver had engaged in sexual activities.

After 20 to 30 minutes, Mitchell took his bag and left. Later that day, Lancaster used fentanyl and went to a nearby convenience store with Tolliver and two friends. At the store, the group encountered Mayo. Lancaster saw that Mayo was carrying a small black handgun in his back pocket. When the group returned to the hotel from the store, Lancaster and Tolliver sat on the outdoor staircase.

Shortly before 9:00 p.m., while Lancaster sat on the staircase, he "felt a gun on the top of [his] head." He turned and saw Mitchell standing above him on the staircase holding the same gun that Lancaster had seen in Mayo's pocket. Although Mitchell was wearing a COVID mask over his mouth, Lancaster saw Mitchell's nose, eyes, ears, and hair, and recognized him because he had "been seeing him all day" and knew "who he [was]." Lancaster asked Mitchell what he was doing. Mitchell did not respond, but he walked to the bottom of the stairs and pointed the firearm "straight at" Tolliver. Lancaster stepped in front of Tolliver, and Mitchell fired multiple shots, hitting Lancaster in the left cheek, chest, and right arm.

Lancaster "kind of fell back" on Tolliver as he tried "to make sure that she was behind [him] so she wouldn't get shot." As Lancaster ran up the stairs, he heard two more shots and saw Tolliver running behind him. After he got "a little way further," he looked back and saw Tolliver on the ground on the upper-level walkway. He saw that she had been shot and sat beside her. Mitchell fled the scene. Immediately after the shooting, Lancaster told bystanders and law enforcement officers who responded to the scene that Mitchell shot him.

Emergency personnel transported Lancaster and Tolliver to the hospital, where Tolliver was pronounced dead. An autopsy confirmed that she died from two bullet wounds to the chest. Lancaster spent five days in the hospital, where he underwent surgery to remove the bullet from his cheek.

The police arrested Mitchell on May 6, 2021. At trial, more than 15 months after the shooting, Lancaster testified that the bullets remained in his right arm and chest.^[1] The bullet was "poking out" of his arm, and "at some point" there would "be a surgery to remove it." He testified that the doctors had decided to leave the bullet in his chest because of its location. He averred that it had become difficult to hold things in his right arm, and, specifically, he could not hold his kids like he used to. If he tried to hold something in his arm "for a while," his hand would shake. He also testified that it was starting to affect his whole arm.

Detective Burroughs, whom the trial court qualified as an expert in cellular records analysis, testified that he obtained the cell site data and call detail records for Mitchell's phone. Burroughs used a software program to "map" Mitchell's phone on May 4, 2021, which made or received four calls between 8:39 and 8:53 p.m. that day. The Extended Stay where the shooting occurred was within the sector of the cell phone tower used for those calls. When Mitchell's phone made a call at 9:02 p.m., it used a different cell tower "facing away from the crime scene."

Mitchell moved to strike the evidence, which the trial court denied. Mitchell then testified in his own defense. On May 4, 2021, he was staying at the Extended Stay with Mayo and another cousin. Mitchell agreed that, as Lancaster testified, he had witnessed Lancaster and Tolliver argue over Lancaster's claim that she and Mitchell had engaged in sexual conduct. Mitchell testified that he had not had "any sexual relationships" with Tolliver and that he had no animosity against Lancaster. Lancaster indicated that he wanted to fight Mitchell but "never came outside," so Mitchell ultimately returned to his room.

Mitchell also testified that a friend picked him up and dropped him off at the Super 8 motel "[u]p the street" from the Extended Stay "later on that night." On cross-examination, he stated that he did not know what time his friend picked him up from the hotel, although he thought it was "early evening." He said she dropped him off after 11:00 p.m. Mitchell further claimed that he gave his phone to Mayo on May 4, 2021, because Mayo did not have a working phone. He claimed he got the phone back after his friend dropped him off. He testified that he was not at the hotel at the time of the shooting.

The trial court denied Mitchell's renewed motion to strike, and the jury convicted him of all charges. Mitchell now appeals.

II. Analysis

"When reviewing the sufficiency of the evidence, '[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" McGowan v. Commonwealth, 72 Va.App. 513, 521 (2020) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)).

A. Identity

"At trial, the Commonwealth bears the burden of proving the identity of the accused as the perpetrator beyond a reasonable doubt." Shahan v. Commonwealth, 76 Va.App. 246, 258 (2022) (quoting Cuffee v. Commonwealth, 61 Va.App. 353, 364 (2013)). As with any element of an offense, identity may be proved by direct or circumstantial evidence. Crawley v. Commonwealth, 29 Va.App. 372, 375 (1999). "We review the fact finder's determination regarding the identity of the perpetrator considering 'the totality of the circumstances.'" Shahan, 76 Va.App. at 258 (quoting Brown v. Commonwealth, 37 Va.App. 507, 523 (2002)).

Lancaster unequivocally identified Mitchell as the shooter at trial. Mitchell first argues that, under the factors enumerated in Neil v. Biggers,^[2] Lancaster's identification was unreliable, and thus was insufficient to establish guilt beyond a reasonable doubt. But Mitchell did not make this argument in the trial court.

"No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice." Rule 5A:18. "The purpose of this contemporaneous objection requirement is to allow the trial court a fair opportunity to resolve the issue at trial thereby preventing unnecessary appeals and retrials." Creamer v. Commonwealth, 64 Va.App. 185, 195 (2015). "Not just any objection will do." Bethea v. Commonwealth, 297 Va. 730, 743 (2019) (quoting Dickerson v. Commonwealth, 58 Va.App. 351, 356 (20...