Turner v. Commonwealth

67 Va.App. 46

792 S.E.2d 299

Jack Eugene Turner

v.Commonwealth of Virginia

Record No. 2039-15-3

Court of Appeals of Virginia, Lexington.

NOVEMBER 22, 2016

C. Holland Perdue III (Raine & Perdue, PLC, on briefs), for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, AtLee and Senior Judge Clements

OPINION BY JUDGE ROBERT J. HUMPHREYS

Jack Eugene Turner ("Turner") appeals the December 8, 2015 decision of the Circuit Court for the County of Franklin (the "circuit court") convicting Turner of one count of displaying a noose with the intent to intimidate, in violation of Code § 18.2-423.2. Turner's three assignments of error are that the circuit court erred in (1) denying Turner's motion to dismiss because the circuit court failed to find that the displaying of a noose on private property was protected free speech under the Constitution of the United States; (2) denying that Turner lacked a constitutional right to express his freedom of speech by displaying a noose on his own property; and (3) finding Turner guilty of displaying a noose with the intent to intimidate, in violation of Code § 18.2-423.2.

I. Background

On Wednesday, June 17, 2015, around 5:00 p.m., Traze Witcher ("Witcher") was returning home from her job as a nurse at Trinity Mission of Rocky Mount. Shortly after she turned on to her street, Lindsey Lane in Rocky Mount, Franklin County, Virginia, she spotted an all-black, life-size dummy hanging by a noose from a tree in the yard ("the noose display") of the second house, 108 Lindsey Lane.¹ Witcher testified that, to her, it appeared as if a black man was being hanged "from a rope from a tree in [Turner's] yard." Only hanging fifteen to thirty feet from the side of the road, the noose display was visible to anyone traveling on Lindsey Lane.

Turner resides and owns the property at 108 Lindsey Lane. He resides next door to John and Keena Mitchell ("John" or "Keena" or collectively "the Mitchells").² Keena is Witcher's sister; John is Witcher's brother-in-law. The Witchers and the Mitchells are the only African-American families residing on Lindsey Lane. The Mitchells live with their two male children in the first house on Lindsey Lane. The Mitchells' home sits approximately thirty to forty feet from Turner's home, and a fence does not separate the properties.

Immediately after seeing the noose display, Witcher turned around and drove directly to the Mitchells' house. Witcher testified that she was so fearful upon seeing the black dummy hanging from the noose in Turner's yard that all she could do after arriving at the Mitchells' home was blow the car horn until Keena and John came outside. Witcher drove Keena and John to see the noose and black dummy display. Upon seeing the display, John went to the Franklin CountySheriff's Department (the "Sheriff's Department") and reported the sight.

The following day, Captain Paul Caldwell ("Captain Caldwell") of the Sheriff's Department began investigating John's report. Captain Caldwell arrived at Turner's residence around noon on Thursday, June 18, 2015. Captain Caldwell asked Turner about the object hanging from the tree in Turner's yard. Turner stated that it was a "scarecrow." When Captain Caldwell commented that there was no reason for a scarecrow without a garden, Turner implied it was to scare away people. Turner explained that he was a "raciest" and that he "did like blacks but not niggers."³ At this point, Captain Caldwell told Turner that the noose display was a "violation" and would be seized after Captain Caldwell spoke with the Commonwealth's Attorney. Then, Captain Caldwell and another officer photographed the dummy as it hanged in the noose.⁴ After taking photographs, the noose display was removed and taken to the Sheriff's Department.

Prior to this incident, little contact occurred between Turner and the Witchers and the Mitchells. On one occasion, in December 2013, the Mitchells received a letter from Turner apologizing for the type of person he was and for not giving them a chance to let him find out what kind of neighbors they were. On a separate occasion, Turner called the police on the Mitchells to report them for a "humming noise" that he often complained emitted from the Mitchells' property. Yet, prior to June 17, 2015, neither John nor Keena Mitchell feared Turner. As for Witcher, in April 2015 she borrowed Keena's van only to have Turner flip his middle finger at her as she passed his property. Then, Turner said "[you] people are nothing but ignorant" and called Witcher a "stupid B."

At trial, John testified that after seeing the noose display he was especially upset because nine African-Americans had been killed in South Carolina earlier the same day at the "Charleston Church Shooting."⁵ He specified that the noose display caused him to fear for his family's safety. John's wife, Keena, testified that upon seeing the noose display she feared for herself and her children. In the days after seeing the noose display, John stated that before he would leave for work in the morning he would check to make sure no one was standing in his yard. Also, each day he questioned whether he was going to return home from work with something thrown at his house or a message spray painted on his home. John attributed his feelings to seeing the noose display on Turner's property.

After the incident, the Mitchells no longer allow their sons to walk past Turner's house because the Mitchells are uncertain of what Turner is capable of doing. John explained that "if [Turner] can hang a noose I don't know what he is going to do." Although the Mitchells did not directly interact with Turner again after the noose display, Turner continuously hung a confederate flag in a window of his home facing the Mitchells' house.⁶

On August 3, 2015, a Franklin County grand jury issued an indictment against Turner that on or about June 17, 2015, Turner "unlawfully and feloniously did display a noose on a public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death of [sic] bodily injury and with the intent of intimidating a person or group of persons." Turner was arrested for violating Code § 18.2-423.2.

Prior to trial, Turner filed a motion to dismiss arguing that the conduct for which he was charged was protected free speech granted by the First Amendment of the Constitution and that he did not violate Code § 18.2-423.2 because the noose display was exhibited on private property, which is not property of another, a highway, or public place. On August 20, 2015, the circuit court took Turner's motion to dismiss under advisement and continued the case for a bench trial on September 22, 2015.⁷

At trial, Turner pleaded not guilty to the charge against him. The circuit court overruled Turner's motion to dismiss and found that he hanged the noose in a public place because it was up in a tree where it was visible from the road. The circuit court further found the noose display was hanged to specifically intimidate others. Thus, the circuit court found Turner guilty of violating Code § 18.2-423.2. On December 8, 2015, Turner appeared in the trial court for sentencing. Prior to the sentencing hearing, the circuit court heard argument on Turner's motion to reconsider the finding of guilt. This motion was denied. Afterward, the circuit court sentenced Turner to five years' incarceration with four years and six months suspended.

II. Analysis

A. Standard of Review

"Under well-settled principles of appellate review, [this Court] consider[s] the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008) ). "This principle requires this Court 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.’ " Beck v. Commonwealth, 66 Va.App. 259, 262, 784 S.E.2d 310, 311 (2016) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) ). "It is the prerogative of the trier of fact to ‘resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ " Sierra v. Commonwealth, 59 Va.App. 770, 776, 722 S.E.2d 656, 658 (2012) (quoting Brown v. Commonwealth, 56 Va.App. 178, 185, 692 S.E.2d 271, 274 (2010) ).

"A factfinder's resolution of conflicting facts, as well as competing inferences, receives ‘the highest degree of appellate deference.’ " Coleman v. Commonwealth, 52 Va.App. 19, 23 n.2, 660 S.E.2d 687, 689 n.2 (2008) (quoting Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006) ). This Court does "not ask whether we, as appellate judges, believe ‘the evidence at the trial established guilt beyond a reasonable doubt.’ " Thomas, 48 Va.App. at 608, 633 S.E.2d at 231(quoting Stevens v. Commonwealth, 46 Va.App. 234, 249, 616 S.E.2d 754, 761 (2005) (en banc )). Rather, we ask only whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Stevens, 46 Va.App. at 249, 616 S.E.2d at 761. Furthermore, "[t]he judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict, and will not be disturbed on appeal unless plainly wrong or without evidence to support it." Crislip v. Commonwealth, 37 Va.App. 66, 69, 554 S.E.2d 96, 97 (2001) (quoting Beck v. Commonwealth, 2 Va.App. 170, 172, 342 S.E.2d 642, 643 (1986) ). Finally, questions of both constitutional interpretation and statutory construction are reviewed de novo . Lawlor v. Commonwealth, 285 Va. 187, 240, 738 S.E.2d 847, 877 (2013).

B. Whether Turner's actions constitute "True Threats" which are...