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Commonwealth v. Herring

Supreme Court of Virginia

June 5, 2014

COMMONWEALTH OF VIRGINIA
v.
TONY MARK HERRING, JR. TONY MARK HERRING, JR.
v.
COMMONWEALTH OF VIRGINIA

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[Copyrighted Material Omitted]

Page 227

FROM THE COURT OF APPEALS OF VIRGINIA.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

John I. Hill (Poindexter, Schorsch, Jones & Hill, on brief), for appellee.

John I. Hill (Poindexter, Schorsch, Jones & Hill, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

OPINION BY JUSTICE LEROY F. MILLETTE, JR. JUSTICE POWELL, with whom JUSTICE McCLANAHAN joins, concurring in part and dissenting in part.

OPINION

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Present: All the Justices

LEROY F. MILLETTE, JR, JUSTICE.

In these appeals we consider the sufficiency of assignments of error and whether evidence supported the defendant's convictions for abduction, attempted murder, and use of a firearm during the course of an attempted felony.

I. Facts and Proceedings

In December 2010, Tony Mark Herring, Jr., lived with his wife Heather Renee Herring and their three children in Greenville, Augusta County, Virginia. Tony's father, grandfather to the three children, lived with the family. Although Heather's mother also lived with the Herrings, only Tony, Heather, the three children, and the grandfather were present in the house at the time of the incident giving rise to these appeals.

On December 14, 2010, Heather confronted Tony with her suspicions of Tony having an affair, which began a lengthy dispute between Heather and Tony. Although Tony and Heather initially only engaged in a verbal argument, the dispute escalated to the point of physical violence and Tony brandishing two different weapons while verbally threatening Heather's life.

Based on these events, Tony was indicted for attempted first degree murder of Heather pursuant to Code § § 18.2-26 and 18.2-32, abduction of the grandfather and each of Tony's three children pursuant to Code § 18.2-47, and use of a firearm while attempting to murder Heather pursuant to Code § 18.2-53.1. Tony pled not guilty to each of the charges and waived a jury trial. At the conclusion of the bench trial, the circuit court found Tony guilty of each offense. After considering a pre-sentence report, the circuit court sentenced Tony to (1) ten years for the attempted murder conviction with two years suspended, (2) five years for each abduction conviction with all five years of each conviction suspended, and (3) three years for the use of a firearm conviction.

Tony timely appealed to the Court of Appeals, arguing that the evidence was insufficient to support his convictions. In an unpublished opinion, the Court of Appeals affirmed Tony's convictions for attempted first degree murder of Heather and use of a firearm during the commission of an attempted felony, but reversed Tony's convictions for abduction of the grandfather and Tony's three children. Herring v. Commonwealth, Record No. 1430-12-3, (April 16, 2013). The Court

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of Appeals denied both Tony's and the Commonwealth's petitions for rehearing en banc. Herring v. Commonwealth, Record No. 1430-12-3 (May 29, 2013).

Tony and the Commonwealth timely filed petitions for appeal with this Court. We combine these appeals, and address the assignments of error and the arguments of the parties to the extent they direct us to resolve the following:

1. Should Tony's appeal to the Court of Appeals have been dismissed under Rule 5A:12(c)(1)(ii), and Tony's appeal to the Supreme Court of Virginia be dismissed under Rule 5:17(c)(1)(iii), because Tony's assignment of error in each court is insufficient?
2. Did the Court of Appeals err in holding that the evidence was not sufficient to support the circuit court's judgment in finding Tony guilty of abduction of the grandfather and Tony's three children?
3. Did the Court of Appeals err in holding that the evidence was sufficient to support the circuit court's judgment in finding Tony guilty of attempted first degree murder of Heather and guilty of use of a firearm during the commission of that attempted felony?

II. Discussion

A. Standard of Review

" When reviewing a defendant's challenge to the sufficiency of the evidence to sustain a conviction, this Court reviews the evidence in the light most favorable to the Commonwealth, as the prevailing party at trial, and considers all inferences fairly deducible from that evidence." Allen v. Commonwealth, 287 Va. 68, 72, 752 S.E.2d 856, 858-59 (2014) (alterations omitted). " The lower court will be reversed only if that court's judgment is plainly wrong or without evidence to support it." Id. at 72, 752 S.E.2d at 859 (internal quotation marks omitted).

" To the extent we interpret a statute or the Rules of the Supreme Court, these are questions of law that we review de novo." Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d 309, 311 (2014).

B. Tony's Assignments of Error

The Commonwealth contends that Tony's assignments of error contain four separate insufficiencies which require us to reverse the judgment of the Court of Appeals reversing Tony's abduction convictions, and to dismiss Tony's appeal to this Court.

1. Tony's Assignment of Error in the Court of Appeals as Set Forth in Tony's Petition for Appeal to the Court of Appeals

The Court of Appeals held that Tony's assignment of error was sufficient to invoke its appellate jurisdiction. Rule 5A:12(c)(1)(ii) governs the sufficiency of assignments of error in the Court of Appeals. That Rule provides that " [a]n assignment of error which does not address the findings or rulings in the trial court . . ., or which merely states that the judgment or award is contrary to the law and the evidence[,] is not sufficient." Rule 5A:12(c)(1)(ii). Tony's single assignment of error in his petition for appeal to the Court of Appeals reads:

1. The trial court erred by failing to grant the defendant[']s motion to strike the Commonwealth's evidence as being insufficient as a matter of law to sustain his convictions for attempted murder, abduction[,] and the use of a firearm in the commission of a felony.

a. The Assignment of Error Addresses the Circuit Court's Findings or Rulings

The Commonwealth argues that this assignment of error is insufficient because it " does not address the findings or rulings in the trial court" because Tony never made a motion to strike the evidence. Rule 5A:12(c)(1)(ii).

" In the context of a bench trial, we have previously recognized that a challenge to the sufficiency of [the] evidence may be preserved for appeal when made in closing argument." Preferred Sys. Solutions, Inc. v. GP Consulting, LLC, 284 Va. 382, 394-95, 732 S.E.2d 676, 682-83 (2012); see also Little v. Cooke, 274 Va. 697, 718, 652 S.E.2d 129, 141-42 (2007). Tony waived his right to a jury and was tried in a bench trial. During closing argument, Tony's counsel asserted that

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the Commonwealth's evidence was insufficient to find that Tony was guilty beyond a reasonable doubt, and specifically moved to strike the Commonwealth's case:

I would make that . . . motion to strike the Commonwealth's case with respect to the attempted murder charge as well as all of the abduction charges. With respect to the firearm charge in the commission of a felony, I would say that fails as well, Judge.

(Emphasis added.) It is clear that this was a motion to strike the Commonwealth's evidence made during closing argument in a bench trial, which sufficiently preserved Tony's insufficiency of the evidence argument. Thus, Tony's assignment of error in the Court ...


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