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HENRY v. COMMONWEALTH OF VIRGINIA


HENRY v. COMMONWEALTH OF
VIRGINIA

(unpublished)


JUNE 17, 1997
Record No. 0520-96-4

JAMES BILLY HENRY

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE JAMES W. BENTON, JR.
FROM THE CIRCUIT COURT OF WARREN COUNTY

Dennis L. Hupp, Judge
Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia

Thomas D. Logie for appellant.

Kathleen B. Martin, Assistant Attorney General (James S. Gilmore,
III, Attorney General, on brief), for appellee.


James Billy Henry was convicted of threatening to burn a home
in violation of Code ?
18.2-83. On this appeal he raises the following nine issues:

1. Was the evidence sufficient as a matter of
law to sustain the guilty verdict of the jury?

2. Was the evidence sufficient as a matter of
law to prove that [Henry] uttered a threat containing his present
intention to burn the trailer?

3. Was the evidence sufficient as a matter of
law to prove that the complaining witness was actually put in
fear that [Henry] would burn the trailer as a result of the
alleged threat, and was any such fear reasonable, under the
doctrine of Perkins v. Commonwealth, 12 Va. App. 7, 402
S.E.2d 229 (1991)?

4. Should the trial [judge] have permitted
the Commonwealth to introduce evidence in its case in chief that
[Henry] had been convicted of misdemeanor offenses which did not
involve moral turpitude which occurred after the alleged incident
in this case?

5. Assuming that the Commonwealth should have
been permitted to introduce any evidence of subsequent criminal
acts on the part of [Henry], should the Commonwealth have been
permitted to introduce the verdicts of the General District
Court? If so, should the Commonwealth have had to first establish
the alleged incidents so as to expose its complaining witness to
cross-examination concerning the alleged incidents?

6. In these circumstances, should the
Commonwealth have been permitted to introduce any evidence at all
concerning other alleged criminal acts against the complaining
witness of which [Henry] had been accused? If so, were some of
the alleged incidents too far afield to be relevant or to have
their probative value outweigh their prejudicial effect?

7. Should the [trial judge] have given a
cautionary instruction to the jury concerning the limited use of
the "other offenses" evidence in this case, assuming
that such evidence was properly admitted in the first place?

8. Did the trial [judge] err in failing to
find that the probative value of the evidence outweighs its
prejudicial effect, or in the alternative did the [trial judge] err in making such a finding if in fact one was made?

9. Did the Commonwealth prove that the
trailer which [Henry] was accused of threatening to burn was a
"house" within . . . Code Section 18.2-83?

For the reasons that follow, we affirm the conviction.

Facts

Henry was indicted for threatening to burn Lisa Mathews’
trailer home. The evidence at trial proved that Henry and Mathews
were cousins. Mathews often drove Henry to places. In return,
Henry gave her money for gas and other incidental expenditures.

Mathews testified that a dispute arose between them in 1994
when he asked her to lend him money and she refused. On November
26, 1994, she received a telephone call from Henry. Henry asked
Mathews if she had the money he needed for his court costs. When
Mathews told Henry that she did not have money to give him, Henry
stated, "either you get the money, or I’m going to burn your
. . . house down, with you and the baby in it." He
immediately hung up the phone.

Mathews testified that Henry’s telephone call caused her to
become "[s]cared, afraid, [and] frightened." She was
afraid "[t]hat he was going to come and burn [her] house
down, because [she] didn’t have the money to give him."
Mathews did not immediately report the threat.

Mathews testified that over the next several months, Henry
threatened her, assaulted her, and damaged her vehicle. Between
November and March, Mathews reported those other threats and
obtained warrants for his arrest. Following those other threats,
Mathews went to the magistrate on March 15, 1995 and reported
Henry’s threat to burn her residence. Mathews testified that she
did not immediately report the threat to burn her house
"because [she] didn’t really feel, at the time, that he was
going to do anything."

Henry testified and denied making the threat. He further
testified that Mathews became hostile and sought to punish him
because he stopped giving her money.

The jury convicted Henry of threatening to burn Mathews’
residence and recommended a sentence of twelve months in jail and
a fine of $1,500. The trial judge imposed the jury’s sentence.

Other Crimes Evidence (Issues 4, 5,
6, 7, and 8)

Over Henry’s objection, the judge ruled that the prosecutor
would be permitted to introduce redacted warrants showing Henry’s
convictions for offenses against Mathews between November 26,
1994 and March 15, 1995. In addition, the judge ruled that Henry
would be permitted to introduce evidence of the number and nature
of the charges brought by Mathews against Henry and to prove the
acquittals.

At trial, Mathews testified that although Henry threatened to
burn down her trailer on November 26, 1994, she did not obtain
the warrant for the threat to burn until March 15, 1995. She
testified, however, that the threat frightened her. The
Commonwealth introduced warrants showing that Henry was convicted
of making obscene phone calls to Mathews on December 7, 1994 and
February 22, 1995, of assault and battery against Mathews on
December 9, 1994, and of damaging her vehicle on February 21,
1995. Mathews testified that Henry’s conduct after November
enhanced her concern about his November threat to burn her
trailer. Henry’s counsel cross-examined Mathews as to the dates
she went to the magistrate to obtain the several warrants.
Henry’s counsel introduced evidence that Henry was acquitted of
some charges Mathews brought against him during that time period.

Generally, evidence of an accused’s other bad acts is
inadmissible to prove that the accused committed the crime for
which the accused is on trial. See Rodriguez v.
Commonwealth
, 249 Va. 203, 206, 454 S.E.2d 725, 727 (1995).

Well established exceptions to the general rule of exclusion
of other bad acts evidence apply where the evidence is relevant
to show some element of the crime charged. To be admissible as an
exception, evidence of other bad acts must be relevant to an
issue or element in the present case.

Morse v. Commonwealth, 17 Va. App. 627, 631, 440 S.E.2d
145, 148 (1994). The other bad acts may have occurred either
before or after the offense for which the accused is on trial. See
Stockton v. Commonwealth, 227 Va. 124, 142, 314 S.E.2d
371, 383 (1984).

The relevance of other bad acts evidence to prove an issue or
element must outweigh the inherent prejudice of proving that the
accused has committed such other acts. See Lafon v.
Commonwealth
, 17 Va. App. 411, 418, 438 S.E.2d 279, 283
(1993). However, the principle is well established that the
balancing of probative value and prejudice "is committed to
the sound discretion of the trial judge and will not be
overturned on appeal absent an abuse of discretion." Id.

The trial judge did not abuse his discretion in admitting the
evidence of the other crimes. The evidence concerned events
occurring within the weeks and months following Henry’s threat to
burn Mathews’ house. The evidence of the other bad acts showed
Henry’s feelings toward Mathews and negated any suggestion that
his statements were hyperbole. The trial judge properly found
that the evidence was relevant to show Henry’s conduct and
attitude toward Mathews. See Moore v. Commonwealth,
222 Va. 72, 76, 278 S.E.2d 822, 824 (1981); see also
Smith v. Commonwealth, 239 Va. 243, 256, 389 S.E.2d 871,
878 (1990) (upholding the admission of evidence of other offenses
when offered to prove premeditation, motive or intent, conduct
and feelings of accused toward victim, and absence of accident or
mistake). The evidence was also relevant to explain why Mathews
delayed in reporting the incident. Mathews testified that the
threat frightened her. The evidence of other crimes tended to
prove that subsequent events intensified Mathews’ fear over the
original threat. Thus, the evidence was connected to the crime
for which Henry was on trial and tended to prove facts in issue. See
Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572,
577 (1984).

Henry argues that the trial judge failed to find that the
probative value of the evidence outweighed its prejudicial
effect. Henry failed to raise this issue in the trial court.
Therefore, he is barred from raising that issue now on appeal. See
Rule 5A:18.

The trial judge also did not abuse his discretion by allowing
the conviction to be proved through the general district court
judgment orders. See Essex v. Commonwealth, 18 Va.
App. 168, 171, 442 S.E.2d 707, 709 (1994). Moreover, the trial
judge allowed Henry to cross-examine Mathews about the number and
nature of the charges of the other crimes. Thus, Henry was
allowed to prove acquittals. The trial judge’s limitation on
Henry’s cross-examination on this issue was not an abuse of
discretion.

In addition, Henry failed to raise an objection in the trial
court that the judgments should not have been used because they
were rendered by a court not of record. He may not raise that
claim on appeal. See Rule 5A:18.

Furthermore, any possible error was harmless. The trial judge
only allowed evidence of offenses that explicitly involved
Mathews and only allowed redacted portions of the records,
excluding any reference to the punishments. In addition, the
trial judge allowed Henry to provide an explanation of the
events. During Henry’s testimony, his counsel admitted into
evidence arrest warrants for other charges brought by Mathews
against Henry in the past.

Finally, contrary to Henry’s assertion that the trial judge
refused to instruct the jury, the judge gave the following
limiting instructions to the jury:

Instruction No. 6

You have heard evidence concerning other incidents between
Lisa Mathews and the Defendant. Some of these are the subject
of the warrants which have been placed in evidence, and the
Defendant was acquitted on some charges and convicted on
others. You may consider these incidents as they may bear on
the possible motives and bias on the part of Lisa Mathews,
the Defendant, or both, and for no other purpose except as
may be permitted under Instruction No. 8.

Instruction No. 8

You may consider evidence that the defendant was convicted
of offenses against Lisa Mathews other than the offense for
which he is on trial only as evidence of the defendant’s
conduct and feeling toward the victim and relations between
them, in connection with the offense for which he is on trial
and for no other purpose.

These instructions properly limited the jury’s consideration
of the other crimes evidence. Thus, the judge did not err in
denying Henry’s proposed Instruction A on the matter. See Joseph
v. Commonwealth
, 249 Va. 78, 90, 452 S.E.2d 862, 870 (stating
that if principles set forth in a proposed instruction are
"fully and fairly covered" in other granted
instructions, the trial judge does not abuse discretion in
refusing to grant the proposed instruction), cert. denied,
116 S. Ct. 204 (1995).

The Trailer (Issue 9)

Mathews testified that she was living in a "trailer . . .
a mobile home." Mathews further testified that the trailer
is "affixed to the ground" and that the trailer is
"in the ground." The evidence further proved that the
trailer is 60 feet long and 12 feet wide.

Henry testified that the trailer does not have running water
and that the water runs off the gutter into a cistern. Henry made
a motion to strike the evidence because "we do not have a
building that is within the specific statute that’s
charged." The trial judge overruled the motion.

Code ? 18.2-83
requires that the threat to burn be directed toward "any
place of assembly, building or other structure, or any means of
transportation." It does not require that the threat to burn
be directed toward a "house." The evidence proved that
the trailer rested on cinder blocks, had walls, and was Mathews’
place of dwelling. The evidence proved beyond a reasonable doubt
that the trailer was a structure covered by the statute. Cf.
Rooney v. Commonwealth, 16 Va. App. 738, 432 S.E.2d 525
(1993). Accordingly, Henry’s argument that the evidence was
insufficient to convict him because the Commonwealth failed to
prove that Mathews’ trailer was a "house" is without
merit.

Sufficiency of the Evidence (Issues
1, 2, and 3)

To establish the threat to burn under Code ? 18.2-83, the Commonwealth
was required to prove that Henry made and communicated to Mathews
a "threat to bomb, burn, destroy or in any manner damage any
place of assembly, building or other structure, or any means of
transportation."

A threat, in the criminal context, is recognized to be a
communication avowing an intent to injure another’s person or
property. The communication, taken in its particular context,
must reasonably cause the receiver to believe that the speaker
will act according to his expression of intent.

Perkins v. Commonwealth, 12 Va. App. 7, 16, 402 S.E.2d
229, 234 (1991).

"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v.
Commonwealth
, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). So viewed, the evidence proved that when Mathews told
Henry that she did not have money to give him, Henry responded,
"either you get the money, or I’m going to burn your . . .
house down, with you and the baby in it." Mathews testified
that appellant’s words frightened her. Mathews also testified
that Henry’s subsequent conduct lent credence to his earlier
threat. Thus, she became motivated to obtain an arrest warrant
for Henry’s threat to burn her home.

Henry’s warning was a communication that "reasonably
cause[d] the receiver to believe" that he would act on his
expression of intent. Perkins, 12 Va. App. at 16, 402
S.E.2d at 234. The fact that Henry conditioned his threat upon
Mathews’ failure to give him money for court costs does not
render his warning any less a threat. Code ? 18.2-83 is not limited to
unconditional threats. Even if it were, the evidence proved that
Mathews told Henry that she did not have the money he needed;
thus, Mathews had put herself within the terms of the condition. See
Duncan v. Commonwealth, 2 Va. App. 717, 723-24, 347 S.E.2d
539, 543 (1986). Therefore, the trial judge properly refused
Henry’s proposed Instruction B, which defined threat as a
statement of an "unconditional intent to burn."

The evidence also proved that, although initially not
motivated to seek a warrant for Henry’s arrest, Mathews
ultimately did so because Henry’s later conduct represented an
escalation of Henry’s hostility toward her. Indeed, Henry’s
subsequent conduct rendered reasonable Mathews’ initial fear.

Accordingly, we affirm the conviction.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

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