Objection to joinder of charges denied

Where appellant was convicted of threatening to burn or bomb a means of transportation, the circuit court properly joined this offense with an assault and battery charge.

Overview

The charges in this case arose from a day-long conflict between appellant Howard and Wendy, his wife. Howard began yelling at Wendy and their children, A.H. and R.H. He told Wendy to take the children and leave the house.

She returned later in the day. At 5:40 pm., she “called Howard and put him on speakerphone[.] … She asked him where he was, and Howard replied, ‘mind your own F’ing business.’

“Wendy responded, ‘well, just don’t come home if you’re going to act like that.’ Howard answered, ‘I’ll come home if I want to and I’ll blow your car up with you in it or not if you try to leave.’” Wendy hung up because the children were nearby.

A.H. overheard this call and heard Howard’s threat to blow up the car.

“Wendy put the children to bed and barricaded the front door.” Howard returned and was “enraged” when his discovered he had been locked out. Howard called Wendy and eventually entered the house. He went up the stairs, yelling at Wendy. He spit on her.

“Wendy went to the laundry room where Howard’s guns and ammunition were located and sat with her back to the door.”

A.H. woke up, texted Wendy to see if she was ok and called 911. The police arrived and arrested Howard.

Howard was indicted for threatening to burn or bomb. An assault and battery charge was based on Howard’s spitting on Wendy. He pleaded not guilty to charges. The trial court granted the commonwealth’s motion to join charges. Howard changed his plea on the assault charge to “no contest.”

Howard appeals the jury’s guilty verdict on the threat to burn or bomb charge.

Waiver

“Howard objected to the circuit court’s joinder of the charges[.] … However, following the circuit court’s decision to join the charges, Howard pleaded no contest to the domestic assault and battery charge.

“‘A guilty plea waives all objections to non-jurisdictional defects that occurred before the plea.’ …

“Therefore, in addressing whether Howard waived his objection to the joinder, this Court must determine whether, assuming arguendo that the court’s decision to join the charges was a defect, that defect was non-jurisdictional. …

“‘A circuit court’s determination whether a defendant may be tried for multiple offenses in a single trial is a matter submitted to that court’s sound discretion.’ … Necessarily, the decision to join charges cannot be jurisdictional if the decision is in the trial judge’s discretion. …

“By pleading no contest, Howard thus waived his objection to the joinder ruling with respect to the charge of domestic assault and battery. … Rules 3A:10 and 3A:6 presume a trial for more than one offense[.] … Howard’s plea necessarily mooted his objection to the joinder with respect to the charge of threatening to burn or bomb. …

“Any joinder ruling rendered by the circuit court applies to both charges. When Howard pleaded no contest to the charge of assault and battery, he cured his own objection and gave himself the relief he sought from the circuit court – a separate trial on the charge of threatening to burn or bomb.”

Evidence challenged

Howard argues that certain evidence “should have been excluded because they (A) are temporally too far removed from the initial threat, (B) are evidence of other bad acts, and (C) are overly prejudicial.

“Howard objected to the admission of the following: evidence of A.H.’s 911 telephone call; Wendy’s testimony about the evening argument with Howard; Wendy’s testimony about her fear and reactions to Howard’s behavior; Wendy’s testimony about Howard’s gun ownership; A.H.’s testimony about the evening argument between her parents; and A.H.’s testimony about her belief about and reactions to Howard’s behavior.”

Timeliness

“The four-hour separation in time [between Howard’s threat and his return to the house] does not render the evidence offered irrelevant. The evidence offered was part of a continuous, day-long domestic dispute.

“‘Where a course of criminal conduct is continuous and interwoven, consisting of a series of related crimes, the perpetrator has no right to have the evidence “sanitized” so as to deny the jury knowledge of all but the immediate crime for which he is on trial.’”

In another case, there was a three-month gap between an initial threating call and a separate threatening call. The separate call was ruled admissible.

“Here, the time gap is not three months, but four hours. Because the caselaw does not support the proposition that a four-hour time period renders evidence irrelevant, the circuit court did not abuse its discretion on this basis.”

Bad acts

“[T]he evidence at issue is not a bad act or other crime, but evidence of the surrounding events, which likewise relate to the threatening to burn or bomb charge. …

“Because Howard is not entitled to present a sanitized version of the facts, and the day’s events are interconnected, a reasonable jurist could find that the prejudice did not substantially outweigh the testimony’s probative value.”

Sufficiency

“[T]here was sufficient evidence that Wendy reasonably feared that Howard would follow through on his threat[.] …

“Wendy testified that she believed Howard would follow through on his threat because of his military training and his history of following through on promises. She asserted that he used guns and explosives at work and was familiar with automobiles.

“Wendy testified that Howard made the threat when he was agitated. When Wendy returned home and Howard was not there, she barricaded the front door to prevent him from entering. Once Howard entered the house and they began arguing, Wendy locked herself in the room with his guns and ammunition.

“Wendy’s testimony and reaction to Howard’s threat demonstrated her belief that he would follow through on his threat. A.H.’s testimony corroborated the reasonableness of Wendy’s belief.

“Moreover, the testimony about Howard’s training, knowledge, and past behavior provided a basis to conclude that such belief was reasonable. Therefore, as there was sufficient evidence for the jury to convict Howard of threatening to burn or bomb.”

Affirmed.

Howard v. Commonwealth., Record No. 0495-21-4, May 10, 2022. CAV (Ortiz). From the Circuit Court of Stafford County (Strickland). J. Austin Timberlake for appellant, Liam A. Curry for appellee. VLW 022-7-124, 15 pp.