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Wright v. Commonwealth

Supreme Court of Virginia

August 18, 2016

MARK O'HARA WRIGHT
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

          Present: Lemons, C.J., Goodwyn, Mims, McClanahan, and Powell, JJ., and Lacy and Millette, S.JJ.

          OPINION

          ELIZABETH B. LACY, SENIOR JUSTICE

         In this appeal, Mark O'Hara Wright challenges his convictions by a Rockingham County jury on the charges of felony malicious bodily injury by means of a caustic substance in violation of Code § 18.2-52, felony assault and battery of a law enforcement officer in violation of Code § 18.2-57, obstruction of justice in violation of Code § 18.2-460, and grand larceny from the person in violation of Code § 18.2-95.[*]

         FACTS AND PROCEEDINGS

         Garrett Atkins worked at a Martin's grocery store in Harrisonburg, Virginia as an asset protection store detective. On March 25, 2012, he was dressed in a "hoodie" and jeans when he saw Mark Wright and Robert Wright leave the beer aisle in the store, each carrying a case of beer and some deli sandwiches. They left the store without paying for the merchandise. Atkins followed the two men into the parking lot and identified himself as a Martin's employee. Atkins asked Robert, who was standing on the passenger side of a green Dodge Caravan van, for the receipt for the items. Robert said he had a receipt but did not offer it to Atkins. Atkins then took the case of beer from Robert. At that point, Robert's 15 year-old stepson got out of the van, took a "fighting stance" and threatened Atkins. Robert took the beer back from Atkins. Mark, who was on the other side of the van, said "let's go, let's just go, let's go." Atkins stepped forward and saw Mark Wright throw the case of beer he was holding into the van. Robert also threw his case of beer into the van. The three men got into the van and drove off. Atkins then wrote down the van's license plate number, as well as the make and model of the van. Soon after, he called the police.

         Deputy Christopher Greathead of the Rockingham County Sheriff's Department contacted the registered owner of the Dodge Caravan and learned that he had sold the van to his brother who lived at 1732 Boyers Road "out of" Harrisonburg. When Greathead arrived at that address at 7:00 p.m. he saw a green Dodge Caravan, with the license plates removed, parked south of the residence in the grass. A woman and teenaged boy were walking from the van to the rear of the residence. Deputy Greathead knocked on a back door of the residence, which was a basement door, but received no answer. He also knocked on the front door and rang the doorbell, but received no response. He returned to his patrol car to report his findings to the Harrisonburg Police Department when a male and female arrived in a car. While talking with them, a woman came out of the house. She said she must have been sleeping and did not hear the doorbell or Greathead's knocking. Greathead asked her if someone was in the basement. The woman and the other two individuals said that no one should be in the basement but that Mark Wright stayed there from time to time. At that point, Greathead received word that a warrant had been issued based on the vehicle's location at the house. Deputy Greathead, along with an officer from the Harrisonburg Police Department who had arrived, watched the perimeter of the property to make sure that no one else "came or went."

         While waiting for the officers to arrive with the search warrant, one of the women stepped out of the house and said someone was crying in the basement. Soon afterward, the woman and the teenager, whom Deputy Greathead had seen enter the house from the backyard, came out of the front door and asked if the police had "gassed" the house. Deputy Greathead replied that he had no reason to gas the house and asked to come inside. He was given permission to enter the house and once inside, he noticed a strong odor "like chlorine" which caused a burning sensation to the eyes and coughing. He told the two women and the teenager to leave the house for their safety. Deputy Greathead returned to his patrol car, advised dispatch of the chlorine odor at the residence and retrieved a gas mask from his car. He obtained consent to go back into the house where he heard some "coughing and commotion" in the basement.

         Wearing the gas mask, Deputy Greathead went down the hallway, announced his presence and asked if anyone was there. He did not receive a reply. He proceeded down the basement steps, repeated his inquiry and heard a male voice say "what are you doing here, get out." Greathead, with his patrol light on, proceeded around a series of corners in the basement reaching a small room where he confronted Robert Wright. Robert was standing approximately 12 feet in front of Greathead to his left. Robert raised his hands in response to Greathead's command. He was holding a beer bottle in his left hand and his right hand was empty. Greathead directed Robert to put down the beer bottle and to get down on the ground. Robert moved toward Greathead until he reached a water heater about "a couple of feet" in front of Greathead. Greathead testified that as Robert set the beer bottle on the water heater, he dropped his left arm, which was partly hidden from Greathead's view, in one continuous motion. Within "a second or two" after he set the beer bottle down, Greathead testified that Robert was "looking at me and I was still yelling commands" when a reddish-orange cloud came floating toward him from Robert's direction. According to Greathead, the cloud probably originated "right beside" Robert – "It just came from the area behind the water heater and [was] floating my way." As the cloud reached Greathead, his arms, the area around his gas mask, his neck, and forehead began burning. The substance, later determined to be a bear deterrent, also reached his eyes. Greathead left the basement room. Although Greathead and another officer reentered the house, the fumes were overwhelming and the officers ultimately had to retreat. At that point, other city and county law enforcement personnel along with a SWAT team surrounded the house and attempted to negotiate with Robert. About two hours after Greathead was exposed to the bear deterrent, the police broke a window in the basement and entered the basement where they found Robert and Mark Wright. They were placed in custody. No other persons were found in the basement or other rooms in the house. Mark and Robert were physically placed on the ground and arrested.

         Mark Wright was indicted for felony malicious bodily injury by means of a caustic substance, robbery as a principal in the second degree, assault and battery of a law enforcement officer, obstruction of justice by threats or force, contributing to the delinquency of a minor and petit larceny. Prior to submission of the case to the jury, the Commonwealth offered an instruction adding to the definition of robbery "a lesser included charge [of] grand larceny from the person." Wright objected saying that the evidence did not support any intimidation or threat of bodily harm to the victim, Garrett Atkins. The trial court overruled Wright's objection. The jury convicted Wright of all the charges except robbery, finding him guilty instead of grand larceny from the person. The trial court denied Wright's motions arguing to strike the evidence and to set aside the jury verdict on all charges except for his conviction of petit larceny.

         Wright appealed to the Court of Appeals, challenging his conviction of grand larceny from the person because it was not a lesser-included offense of any offenses with which he had been charged and because the evidence was insufficient to convict him of that offense and, as relevant here, the other charges. The Court of Appeals, in a per curiam order, held that by operation of Rule 5A:18, Wright had waived his challenge to the conviction of grand larceny from the person because it was not a lesser-included offense of the charged offenses, noting that he had not raised that issue at trial. Wright v. Commonwealth, Record No. 0585-13-3 (December 6, 2013). The Court refused to consider the issue under the "ends of justice" or "good cause" exception to that rule. Wright v. Commonwealth, Record No. 0585-13-3 (February 20, 2014). In an unpublished memorandum opinion, a three-judge panel of the Court of Appeals also refused to consider Wright's argument that the evidence was insufficient to sustain the grand larceny of the person conviction because there was no evidence of the value of the items Wright was charged with taking. Wright v. Commonwealth, Record No. 0585-13-3, 2014 Va. App. LEXIS 376, at *3, n.1 (Nov. 18, 2014). This argument, the Court concluded, was not raised by an assignment of error and therefore, under Rule 5A:12(c), would not be considered. Id. The Court also noted that Rule 5A:12(c) does not contain any exceptions for "the ends of justice" or "good cause." Id. The Court concluded that the evidence was sufficient to sustain all convictions and affirmed the judgment of the trial court.

         We awarded Wright an appeal limited to five assignments of error.

         DISCUSSION

         I. ...


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