IN THE SUPREME COURT OF VIRGINIA AT RICHMOND TIMOTHY WAYNE WRIGHT, JR., Appellant, COMMONWEALTH OF VIRGINIA, Appellee. On Petition for Appeal from the Court of Appeals of Virginia PETITION FOR APPEAL Grady W. Donaldson, Jr. Virginia State Bar No.: 20250 Schenkel & Donaldson, PC P.0, Box 11315 1602 Graves Mill Road Lynchburg, VA 24506-1315 (434) 385-0174 Fax: (434) 385-9088 Counsel for AppellantSUBJECT/INDEX TABLE OF CITATIONS .... STATEMENT OF THE CASE STATEMENT REQUIRED BY RULE 5:17 QUESTION PRESENTED... 3 STATEMENT OF FACTS ... 3 ARGUMENT .. 10 CONCLUSION ... 13 CERTIFICATE... 14TABLE OF CITATIONS CASES: PAGE Black v. Commonwealth, 222 Va. 838, 284 S.E.2d 608 (1981) ........... Cantrell v. Commonwealth, 7 Va. App. 269, 373 S.E.2d 328 ee (cert. denied, 496, U.S. 911 (1990) it George vy. Commonwealth, 242 Va. 264, 411 S.E.2d 12 (1991) ..... iL Harward v. Commonwealth, 5 Va. App. 468, 364 S.E.2d 511 (1988)........ Higginbotham v. Commonwealth, 216 Va. 349, 218 S.E. 2d 534 (1975) . 10 Raliston v. Commonwealth, 11 Va, App. 535, 339 S.E.2d 823 (1991) Sandoval v. Commonwealth, 20 Va. App. 133, 455 S.E, 2d 730 (1995) wees LL Spangler v. Commonwealth, 188 Va. 436, 50 S.E. 2d 265 (1984) . 10 Sutphin v. Commonwealth, 1 Va. App. 241, 337 S.E. 2d 897 (1985) woonssesee LL Yellardy v. Commonwealth, 38 Va. App. 19, 561 S.E. 2d 739 (2002) ut ‘ATUTES: Virginia Code §18.2-32 ..... Virginia Code §18.2-53.1 Virginia Code §18,2-154 Virginia Code §18.2-286. 1. Virginia Code §8,01-680 . NNNIN THE SUPREME COURT OF VIRGINIA AT RICHMOND TIMOTHY WAYNE WRIGHT, JR., Appellant, COMMONWEALTH OF VIRGINIA, Appellee. PETITION FOR APPEAL TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF VIRGINIA: This Petition for Appeal is respectfully submitted regarding the final judgment of the Court of Appeals of Virginia, dated August 13, 2009. The Appellant, TIMOTHY WAYNE WRIGHT, JR., will be referred to as the “Defendant.” Any reference to the trial transcripts of October 1, 2008, October 2, 2008, October 3, 2008 and October 4, 2008 will be referred to as “T1., at__,"T2., at__,"73., at__," and T4., at ," respectively, Any reference to the sentencing transcript of December 10, 2008, will be designated as “S, at____.”‘STATEMENT OF THE CASE On October 4, 2008, following a four (4)-day jury trial before the Circuit Court for the County of Amherst, Virginia, the Defendant was found guilty of first degree murder, use of a firearm in the commission of murder, shooting into an occupied motor vehicle, and discharging a weapon from a motor vehicle in violation of §§18.2- 32, 18.2-53.1, 18.2-154 and 18.2-286.1, respectively, of the Code of Virginia (1950), as amended. T., at 138. On December 10, 2008, the Defendant was sentenced in accordance with the recommendations of the jury in these matters to incarceration within the Virginia Department of Corrections to a total term of sixty-three (63) years upon his convictions. S., at 44. The Defendant was sentenced as follows: 1. First Degree Murder: 50 years 2. Use of a Firearm: 3 years 3. Shooting into an Occupied Vehicle: 5 years; and 4, Discharging a Weapon from a Vehicle: 5 years. ‘A Notice of Appeal to the Court of Appeals was timely field herein. On August 13, 2009, the Court of Appeals issued a decision holding that because the appellant did not make a motion to strike the evidence at the conclusion of the evidence or a motion to set aside the verdict to the trial court, Rule 5A:18 bars the Court from consideration of the question of whether there was sufficiency of the evidence to find the defendant guilty beyond a reasonable doubt. ‘A Notice of Appeal to the Supreme Court of Virginia was timely filed on or about September 3, 2009.STATEMENT REQUIRED BY RULE 5:17 The decision of the Court of Appeals involves matter of significant precedential value to this appellant and others before the Court, for without this Court's consideration, such appellants are without recourse, and this appellant has instructed counsel to proceed with this petition before this Court. QUESTION PRESENTED WHETHER THIS COURT SHOULD CONSIDER ON APPEAL THE QUESTION OF THE SUFFICIENCY OF THE EVIDENCE WHEN NO MOTION TO STRIKE WAS MADE AT TRIAL. 14 at 75, STATEMENTS OF FACTS Emily Nicole Turpin and Timothy Wayne Wright, Jr. began spending a great deal of time together during April of 2008. T1., at 311. Ms. Turpin was seventeen (17) years old at the time, T1., at 308. Mr. Wright was twenty-one (21) years old. T3., at 273. They began a romantic relationship according to Ms. Turpin. T1., at 313. Even though they talked with each other every day, Mr. Wright denied any romantic relationship with Nicole Turpin. T3., at 306. Ms. Turpin testified that she would frequently see the Defendant after high school, T1., at 318. Furthermore, she sent a number of photographs she had taken of herself on her cell phone to the Defendant's cell phone. T1., at 322. It was not unusual for the two of them to have cell phone contacted as many as thirty to forty times a day. T1., at 313. Ms, Turpin had previously been in a romantic relationship with the victim, Justin Baumgardner. T1., at 310. Nicole Turpin admitted to having a sexualrelationship with Justin Baumgardner. T1., at 313, According to Ms. Turpin’s testimony, she had not had any contact with the victim for three or four months prior to the night of his murder on May 3, 2008. T1., at 310. Nicole Turpin explained that she had gotten together with Mr. Baumgardner on the evening of May 3, 2008 at Monacan Park. T., at 334, Ms. Turpin testified that she had told the Defendant that she planned to get together that night with Justin Baumgardner at Monacan Park. T1., at 335. Nicole Turpin decided to get together with the victim that night despite the Defendant's prior comments that Justin Baumgardner needed to leave her alone or he was going to kill him. T1., at 328, Furthermore, Nicole Turpin testified that she was aware that the Defendant had a gun belonging to Justin Davis in the glove compartment of his truck a day prior to the murder. T1., at 329. Ms, Turpin testified that she saw the Defendant drive through Monacan Park that evening, T1., at 336. And, then the Defendant returned to Monacan Park some thirty to forty minutes later on. T1., at 339. Apparently, Nicole Turpin was sitting with Justin Baumgardner when the Defendant returned. T1., at 339. She admitted that she and the victim had hugged and kissed in Monacan Park that evening. T1., at 342. Ms. Turpin further testified that the Defendant began arguing with the victim, T1,, at 343, She testified that Timothy Wright pushed the victim, but she got between them and told the Defendant to leave. T1., at 343. According to Nicole Turpin, the Defendant responded with, “I'll fuckin’ kill you” to Justin Baumgardner.TL., at 344, Nicole Turpin testified that she told Justin Baumgardner to go home. Furthermore, she testified that she pushed the Defendant to his truck. T., at 344, According to Nicole Turpin, the Defendant was “really angry” and left Monacan Park “really fast." T1., at 347, Despite her numerous attempts with her cell phone, she never had any further contact ever again with the victim. T1., at 349. The next day at approximately 6:00 p.m. she learned that Justin Baumgardner was dead. T., at 352, She continued to see the Defendant as usual until his arrest. T1., at 356. Upon cross-examination, Nicole Turpin admitted that she had previously testified during the preliminary hearings of these matters that Justin Davis not only was with the Defendant on the night of the murder, but that he was playing with a gun while in the passenger seat of the Defendant's truck. T2., at 42, She admitted that such testimony was not truthful because she could not identify the black object held by Justin Davis to be a gun. T2., at 46, Justin Davis, Timothy Wright’s codefendant in these matters, testified that he had met the Defendant approximately one month prior to the murder of Justin Baumgardner. T2., at 136. Even through they did not know each other very well, they spent almost every day together during that month. 12., at 137. Furthermore, Justin Davis testified that he saw the Defendant and Nicole Turpin together on a daily basis. 72., at 142. According to Justin Davis, the Defendant requested that he ride with him to Monacan Park on the evening of May 3, 2008. T2., at 148. Justin Davis testified that the Defendant became enraged upon seeing Nicole Turpin and JustinBaumgardner together that night in Monacan Park. T2., at 152. The Defendant asked Nicole Turpin why she was in the park with the victim. T2., at 158. And, he testified that it was necessary for Nicole Turpin to get Mr. Wright back to his truck. T2., at 157, Justin Davis further testified that the Defendant drove out of Monacan Park at a fast rate of speed. 2, at 159. Even though they had left some time after the victim had left, they saw a pair of tail lights ahead of them on Route 130, T2., at 161. At this time, the Defendant pulled out a pistol which appeared to belong to Justin Davis out from under the driver's seat. T2., at 162. Now as the passenger in his truck, the Defendant rolled down his window and fired two (2) shots at Justin Baumgardner's truck. T2., at 163. According to Justin Davis, he never put his pistol in the Defendant's truck. T2., at 186, Furthermore, Justin Davis did not recall seeing his gun since the Wednesday before the murder. 72., at 206. Mr. Davis testified that he stored his gun in a drawer of a coat closet in the camper he lived in with his father. T2., at 140, Justin Davis did testify that Wednesday before the murder he and the Defendant had been at the campground’s range firing the pistol. T2., at 183. But he had not seen the gun since that Wednesday. T2., at 206. Justin Davis further testified that he called his father, Steve Davis, a road deputy with the Amherst County Sheriff's Office, that night after the murder, but that his father was too busy to talk to him that evening, T2., at 210. Nevertheless, Justin Davis called the Defendant at 8:00 a.m. the next day. T2., at 213. He neverspoke with his father that Sunday. 12., at 216. According to Justin Davis, he was ‘not able to speak with his father until that Monday. T2., at 216. Even though he testified that he was afraid for his life and that of his father, he spent the entire day with the Defendant on the Sunday after the murder. T2., at 222. On that Monday, May 5, 2008, Justin Davis along with his father, Steve Davis, reported Justin’s gun as stolen to Investigator Eric Elliott of the Amherst County Sheriff's Office. T2., at 226. The very next day, Justin Davis was interviewed by Investigator Elliott and Captain C.D. Doss of the Amherst County Sheriff's Office. T2., at 229, At that time, Justin Davis made up a story that the Defendant had kidnapped him on the night of the murder. T2,. at 229, Justin Davis remained free for twelve days after the murder. T2., at 242. A friend of the Defendant's, Shane Bailey, testified that he had seen a black firearm in the Defendant's glove compartment of his truck on the Friday before Justin Baumgardner’s murder. 72., at 389-390. According to Shane, the Defendant said that the firearm belonged to Justin Davis. 72., at 390. During a later interview of Shane Bailey, he informed the Virginia State Police that the Defendant had said to him that he and Justin Davis had done it, meaning that they had committed the murder, when seen by Shane Balley the day after the murder. T2., at 390. Aaron Sprouse also testified to seeing a firearm in the glove compartment of the Defendant's truck on May 2, 2008 at Hardee's, T2., at 414, Furthermore, Aaron ‘Sprouse testified that the Defendant said it was Justin Davis’ gun. 72., at 415.Robert Coffman testified to being at Hardee's on May 2, 2008 and seeing the Defendant with a black gun. 2., at 429. It should be noted that counsel for the Defendant stipulated that the .38 pistol belonging to Justin Davis was the murder weapon, T2., at 560, An Amherst County Jail inmate, James E. Finney, testified that the Defendant told him that he had "shot a punk on Elon Road.” T3., at 18. He further testified that the Defendant said that he used a .38 handgun, T3., at 18. Another jail inmate, Brandon Stanley, testified that the Defendant told him that he had "shot the dude.” 73., at 36. Stanley also testified that the Defendant stated that he had shot into his truck four or five times. T3., at 37. Finally, Stanley sald that the Defendant admitted that the shooting was all over a girl named Nicole, 73., at 37. Another jail inmate, Donnie C, Seamster, Jr., testified that while the Defendant was beating him up in the jail, he said that he should kill him like he killed the other guy. T3., at 61. Finally, still another inmate, Ernest Turner, testified that the Defendant tried to hire him to kill Justin Davis. T3., at 80. According to Turner, the Defendant gave him a very detalled map of where to find Justin Davis. T3., at 82. Turner testified that the Defendant said that Justin Davis was the only witness and he could not have him testifying to the murder. 3., at 82. Still another inmate, Raymond Todd Hudson, testified on behalf of the Defendant that Justin Davis told him that he had framed Timothy Wright for the murder of Justin Baumgardner. T3., at 235. According to Hudson, Justin Davisadmitted to shooting Justin Baumgardner and planting one of Timothy Wright's hats at the scene, T3,, at 243, Eleanor Seawell had found a hat matching that description at the scene. T1., at 303. During his testimony, Timothy Wright denied ‘owning Commonwealth's Exhibit Number 60, the hat found by Ms. Seawell. T3., at 343. Christy Wilcox testified that she had seen the Defendant on that Saturday, May 3, 2008, and that the Defendant was wearing a white hat that day. T3. at 249. The Defendant testified on his own behalf, and he denied any romantic relationship with Nicole Turpin. T3., at 306. He further denied telling Aaron Sprouse or Robbie Coffman about any firearm belonging to Justin Davis being in his truck the Friday before the murder of Justin Baumgardner, T3., at 349. Furthermore, the Defendant admitted to going to Monacan Park on May 3, 2008 with Justin Davis, but he testified that Justin Davis was driving when he first saw Nicole Turpin that evening. T3., at 292. Wright admitted to texting Nicole Turpin after they left the park the first time. 3., at 293, They returned to Monacan Park believing that Nicole Turpin and the victim had left the park. T3., at 294, The Defendant testified that Justin Davis parked the truck directly behind Justin Baumgardner's truck, T3., at 294. He further testified to talking with Nicole Turpin, 73., at 294, But the Defendant testified that it was Justin Davis who got into a confrontation with Justin Baumgardner. T3., at 295. Nicole Turpin stepped between them and asked them to leave, T3., at 295, After Justin Baumgardner backed his truck out, the Defendant testified that he told Nicole Turpin that he was going to take Justin Davis home. T3., at 296. Hefurther testified that he then drove Justin Davis back to his car at Shane Bailey's home. T3., at 296, The Defendant further testified that he then drove home. T3., at 297. According to the Defendant, he got back together with Justin Davis later that. evening and went to McDonald's. T3., at 298. They later returned to Justin Davis’ camper according to the Defendant's testimony. T3., at 299. ARGUMENT THE COMMONWEALTH FAILED TO PRESENT SUFFICIENT EVIDENCE TO FIND ‘THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT. Because the sufficiency of the evidence is challenged by this appeal, the Court must consider the evidence in the light most favorable to the Commonwealth, giving the Commonwealth all reasonable inferences fairly deducible from the evidence. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E. 2d 534, 537 (1975). When reviewing a challenge to a conviction based on sufficiency of the evidence, this Honorable Court reviews the evidence in the light most favorable to the Commonwealth, after giving it all reasonable inferences that flow from all evidence produced at trial. Harward v. Commonwealth, 5 Va. App. 468, 479, 364 S.E. 2d 511, 516 (1988), Finally, because the Defendant chose to introduce evidence on his own behalf after the Commonwealth rested its case, the sufficiency of the evidence must be judged by the evidence presented by the Defendant as well as by the evidence presented by the Commonwealth. Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E. 2d 265, 266 (1984).It Is well settled that the “credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E. 2d 730, 732 (1995). This Court cannot reverse a conviction unless “it appears from the evidence that itis plainly wrong or without evidence to support it.” Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337, S.E. 2d 897, 898 (1985). It has long been held by this Court that the weight which should be given to evidence and whether the testimony of a witness is credible are questions committed to the sound discretion of the trial court fact finder. Yellardy v. Commonwealth, 38 Va. App. 19, 21-22, 561 S.E. 2d 739, 741 (2002), The jury’s findings of fact and determinations concerning the credibility of the witnesses are presumed correct, and will not be overturned on appeal unless they are plainly wrong, and the jury verdicts will be affirmed unless they are without any evidence to support them. Va. Code §8.01-680; Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 610 (1981). Furthermore, when the Defendant challenges the sufficiency of the evidence, this Honorable Court should not overrule the verdicts of the jury and substitute its ‘own judgment, even If its opinion might differ from that of the jury if there is evidence to sustain the jury's verdicts. George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991). The Commonwealth was not required to disprove every remote possibility of the Defendant's innocence. Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373,S.E.2d 328, 338 (1988), cert, denied, 496 U.S. 911 (1990). But the evidence must exclude all reasonable theories of the Defendant's innocence. In this case, the jury believed the Commonwealth's witnesses despite the fact that Nicole Turpin admitted to testifying falsely before the General District Court during the preliminary hearing. T2., at 46, During her testimony before the jury, she admitted that she had lied about seeing Justin Davis playing with a gun when she saw him and the Defendant there just before the murder of Justin Baumgardner. T2., at 42. She further admitted to being fired by her employer and that her mother had to pay that employer $6,000.00 in a dispute of certain funds. T2., at 129. Justin Davis testified to being afraid of Timothy Wright after the murder, but he spent the entire next day with him. T2., at 222. Even though he tried to call his father right after the murder because he was so upset, he did not try to talk with his father again until that Monday, May 5, 2008, 72., at 215. He testified that he did not want to wake up his father that Sunday. 72., at 220. Justin Davis admitted to lying to the police on more than one occasion, the first on May 5, 2008 when he reported his pistol stolen. T2., at 226, And again the next day when he claimed to have been kidnapped by the Defendant on the night of the murder. 72., at 229. Despite James E, Finney’s six (6) felony convictions and his career of being a paid informant, the jury believed this Commonwealth's witness. Brandon Stanley admitted to waiting until the middle of August to report the Defendant's conversation with him which he claimed to have taken place during very early May of 2008. 73., at 48. Furthermore, Shane Bailey admitted to speaking with the police on severaldifferent occasions prior to supplying the police with the Defendant's statement that he and Justin had done it. T3., at 401. He also admitted that he had contact with Justin Davis’ father after his first interviews with the police. T3., at 407. Lieutenant Linda Brizendine of the Amherst County Sheriff's Office testified that on July 24, 2008, Timothy Wright's cell block did not attend church with James Finney. T., at 410. James Finney had claimed his conversation with the Defendant had taken place in church within the Amherst County Jail on July 24, 2008. 73., at 17. Even though the jury saw the witnesses and heard the evidence, the jury accepted such testimony as presented by the Commonwealth and the jury disregarded such inconsistencies of the Commonwealth’s witnesses. The trier of fact is free to believe or disbelieve, in part or in whole, the testimony of witnesses. Rollston v. Commonwealth, 11 Va. App. 535, 547, 339 S.E.2d 823, 850 (1991). Nevertheless, the evidence fails to support the jury's findings of guilt in these matters in light of such incredible witnesses presented by the Commonwealth; therefore, the appellant desires this Court to grant his petition even though trial counsel did not make @ motion to strike the Commonwealth's evidence at trial. CONCLUSION For the foregoing reasons, It is respectfully requested that the Defendant's petition be granted and that his convictions be reversed.Respectfully submitted, TIMOTHY WAYNE WRIGHT, JR. By:. = Grady W. Donaldson, Jr. Virginia State Bar No.: 20250 Schenkel & Donaldson, PC P.O. Box 11315 1602 Graves Mill Road Lynchburg, VA 24506-1315 (434) 385-0174 Fax: (434) 385-9088 Counsel for Appellant ERTIFICATE OF COUNSEL 1, Grady W. Donaldson, Jr., counsel for the Appellant, TIMOTHY WAYNE WRIGHT, hereby certify that: 1. A true copy of the foregoing Petition for Appeal was mailed to Marsha L. Garst, Esq., the Commonwealth's Attorney and Counsel of Record for the Commonwealth on this 11" day of September, 2009; Counsel for the Appellant was appointed in this case; and Counsel for the Appellant waives his right to oral argument on the Petition for Appeal. wnIN THE SUPREME COURT OF VIRGINIA CASE NO. 091863 TIMOTHY WAYNE WRIGHT, JR., Appellant, v. COMMONWEALTH OF VIRGINIA, Appellee. BRIEF IN OPPOSITION TO THE PETITION FOR APPEAL On Appeal From The Virginia Court of Appeals Christopher L. Miller, Esquire Deputy Commonwealth's Attorney, VSB #45660 Office of the Commonwealth's Attorney For Harrisonburg and Rockingham County 53 Court Square, Suite 210 Harrisonburg, Virginia 22801 540,564,3350, Fax: 540.433.9161 Counsel for the AppelleeTABLE OF CONTENTS TABLE OF AUTHORITIES....... STATEMENT OF THE CASE.......0.---s0seeee0000 QUESTIONS PRESENTED... STATEMENT OF THE FACTS... ARGUMENT A) WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO FIND THE DEFENDANT GUIILTY BEYOND A REASONABLE See cere CONCLUSION CERTIFICATE ..TABLE OF AUTHORITIES CASES: Black v. Commonwealth, 222 Va. 838, 841, 284 S.E. 2d 608, 610 (1981).........14 Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E. 2d 328, 338 (1988), cert. denied, 496 U.S. 911 (1990)...... ee cero 14) Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E. 2d 263, 265 (1998)......13 George v. Commonwealth, 242 Va. 264, 278, 411 S.E. 2d 12, 20 (1991)......... 14 Robertson v. Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)... Sandoval v. Commonwealth, 20 Va. App. 1 133, 138, 455 S.E. 2d 730, 732 (1998). ‘Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E. 2d 265, 266 (1984).....13 Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337, S.E.2d 897, 898 (1985)..13 Yellardy v. Commonwealth, 38 Va. App. 19, 21-22, 561 S.E. 2d 739, 741 (2002). 13 STATUTES: Virginia Code §8.01 -680..... 4,14 Virginia Code §18.2-32...... Virginia Code §18.2-53.1 Virginia Code § 18.2-154..... Virginia Code §18.2-286.1.......secsecseseeecsn ieee tmiesermesensnimmeeessassannd RULES OF THE VIRGINIA SUPREME COURT: Rule 5A:18........+- 4,12IN THE SUPREME COURT OF VIRGINIA Case No. 091863 THOMAS WAYNE WRIGHT, JR., Appellant v. COMMONWEALTH OF VIRGINIA, Appeliee. BRIEF IN OPPOSITION TO THE PETITION FOR APPEAL TO THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF VIRGINIA, comes now the Appellee, the Commonwealth of Virginia, by Counsel, and respectfully presents the following Brief in Opposition to the Appeliant’s Petition for Appeal regarding the final judgments of the Circuit Court of the County of Amherst, Virginia, of December 10, 2008. For purposes of this appeal, the Appeliee adopts the Appellant's references to the appellant, Timothy Wayne Wright, Jr., as the "Defendant", and any reference to the trial transcripts of October 1, 2008, October 2, 2008, October 3, 2008, and October 4, 2008 as “T1., at eal2aet, 3., at and T4., at respectively; and any reference to the sentencing transcript of December 10, 2008, as “S. at :L STATEMENT OF THE CASE The statement of the case by the Appellant is adopted for the purposes of this appeal. As the Appellant has noted in his brief: On October 4, 2008, following a four (4)-day jury trial in the Circuit Court for the County of Amherst, Virginia, the Defendant was found guilty of first degree murder , use of a firearm in the commission of murder, shooting into an occupied motor vehicle, and discharging a weapon from a motor vehicle in violation of Virginia §§18.2-32, 18.2-53.1, 18.2-154, and 18,2-286.1, respectively, of the Code of Virginia (1950), as amended, T.4, at 138. On December 10, 2008, the Defendant was sentencing in accordance with the recommendations of the jury in these matters to incarceration within the Virginia Department of Corrections to a total term of sixty-three (63) years upon his convictions. S., at 44, The Defendant was sentenced as follows: 1, First Degree Murder: 50 Years; 2. Use of a Firearm: 3 Years; 3. Shooting into an Occupied Vehicle: 5 Years; and 4. Discharging a Weapon from a Vehicle: 5 Years. On December 18, 2008, a Notice of Appeal was filed with the Amherst County Circuit Court. On August 13, 2009, the Virginia Court of Appeals denied the Appellant's Petition for Appeal and the Appeliant noted an appeal to this Court, noting, pursuant to Rule 5:18, the Court was barred from considering the Defendant's argument regarding sufficiency of the evidence because he failed tomove to strike the evidence at the end of the trial and failed move to set aside the verdict of the trial court. ML QUESTIONS PRESENTED A) WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO FIND THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT. mM, STATEMENT OF THE FACTS On May 3, 2008, Justin Baumgardner was brutally hunted down and murdered by the Defendant, Timothy Wayne Wright, Jr., while the victim was driving his truck and then the Defendant left to him die by the side of the road in ‘Amherst County, Virginia. The Defendant had created a “myspace” personal webpage that was titled “Tim, the Ultimate Physco, Physco or Psycho Killer, Master of Death,...", and stating “...! want to be with the love of my life, Nicole...”. T.3, 132 On the night of the murder, Justin Michae! Davis, a friend of the Defendant, was with him; Davis had known the Defendant for about a month. T.2, 136. On the night of the murder the Defendant drove Davis to Monacan Park. T.2, 149, The Defendant told Davis that he saw Emily Nicole Turpin with some other guy and was enraged. T. 2, 152. Emily Nicole Turpin had dated and had a sexual relationship with the victim, Justin Baumgardner, in 2007. T.1, 310-311. Turpin had met the Defendant, Timothy Wayne Wright, Jr., in April of 2008 and was dating him at the time of the murder. T.1, 311,312. Turpin denied having a romantic relationship with Justin Davis. 7.1, 358. The Defendant and Turpin talked and saw each other every day. T.1,318. The Defendant found out about Turpin's sexual relationshipwith the victim, Baumgardner, and expressed his anger by saying, on more than one occasion, that the victim needed to leave Turpin alone or he was “going to fuckin’ kill him", T.1, 328, Right before the murder, Turpin saw the Defendant with Justin Davis’ black gun. T.1, 329. Shane Bailey, a friend of the Defendant's for four years, saw Justin Davis’ black gun in the glove compartment of the Defendant's vehicle before the murder. T.2, 390, On May 2, 2008, the Defendant showed Robert Lee Coffman, Jr. a black .38 caliber gun, a man he had only recently met, 1.2, 429. The Defendant showed Cofiman that the gun was loaded. T.2, 433. On May 3, 2008, Turpin was with the Defendant, and Davis, when the victim contacted her by texting her on her phone that evening around 6 p.m. T.1, 330-331, Turpin and the victim decided to meet and this made the Defendant mad; Turpin met with the victim at Monacan Park at 7:47 p.m... 7.1, 33. Tim Wright arrived about 30 to 40 minutes later at Monacan park. T.1, 336, 339. The Defendant was with Davis, and the Defendant was driving first, but switched with Justin Davis. T.1, 340,341. Turpin kissed and hugged the victim after the Defendant was thought to be out of sight. T.1, 342. The Defendant drove back to the park and argues and pushes the victim. T.1, 343. The Defendant told the victim “ you need to leave Nicole alone or I'l fuckin kill you....”. T.1, 344, Davis, who was with the Defendant, remained in the vehicle during the fight. T.1, 345. Davis witnessed a physical altercation between the Defendant and the victim, Justin Baumgardner. T.2, 155. Davis left in his truck going right towards Elon Road. T.1, 348, The Defendant drove out the park quickly, about 30 to 45 seconds after the victim left, and tumed right, headed to 130 (Elon Road). T.1, 347. The Defendantchased after the victim towards Elon Road with Davis as a passenger and when the Defendant sees a pair of taillights he says “kill Justin.” T.2, 161. The Defendant retrieved Davis’ gun from undemeath the seat and switched position with Davis so that Davis was driving and the Defendant was in the passenger seat. T.2, 162. ‘The victim's pick-up truck was identified and the Defendant ordered Davis to pass the victim. T.2, 163. It is at this point that the Defendant shot at the victim, multiple times with Davis’ .38 caliber pistol, T.2, 163. The Defendant, at trial, stipulated that Davis’ .38 caliber pistol was the murder weapon. T.2, 560. Dr. Amy Tharp, Assistant Chief Medical Examiner for the Commonwealth of Virginia, performed a full pathological examination and autopsy of Justin Baumgardner. T.3, 196. The cause of the victim's death was a gunshot wound to his chest. T.3, 196. After the murder, the Defendant made the comment to Davis that dead witnesses don't talk. T.2, 164, Davis called the Defendant the next morning and spent the day with the Defendant, but did not report the murder at first. T.2, 210, 214, The day after the murder, the Defendant told Shane Bailey that he and Justin Dvis had ° id it” (referring to the murder of the victim). T.2, 391. Bailey when asked on three prior occasions denied having heard the Defendant say anything about the murder. T.2, 401. Itwas only when he talked with his mother, and after his mother had summonsed the police back to their house, that Bailey told the officer of the Defendant's admission. 1.2, 402. Bailey's mother was involved ina romantic relationship with Justin Davis' father. .2, 403. On May 5, 2008, Davis reported the murder weapon, his gun, missing and insinuated that the Defendanthad taken it, which he admitted was a false story. T.2, 226. On May 6, 2008, Davis told the police that he had been kidnapped by the Defendant which he also admitted was a false story. T.2, 172-173. He finally told law-enforcement the true story and said the reason he did not tell the truth at first was because he was scared his father would lose his job with the Amherst County Sheriff's Office and his general fear of the Defendant. T.2, 173. In particular, the Defendant had previously commented on several occasions to Davis that while the Defendant was in Iraq he had raped and killed pregnant women and children. 7.2, 257. Davis had no previous criminal history. T.2, 173. Ashley Michele Seawell testified that at around 9:15 p.m. she heard multiple gun shots on Elon Road . T.1, 136, Anthony Dylan Seawell at 3411 Elon Road also heard multiple gun shots the evening of May 3, 2008. T.1, 146-147. Greg Moorman from Alltel! Wireless testified that he was able to determine that the Defendant's cell phone was used to communicate with Turpin's cell phone, numerous times, during the evening of the murder. T.2, 287-297. Moorman testified that during a certain period of time on the evening of the murder, the Defendant's cell phone utilized three cell phone towers close to Monacan Park to complete the calls to Turpin's phone. T.2, 301. Cary McConnell of 3465 Elon Road found the victim in is in his vehicle that was full of bullet shots. T.1, 153. Lieutenant Craig Davis of the Amherst County Sheriff's Office responded to the crime scene at 3465 Elon Road in the County of Amherst, Virginia on May 4, 2008. T.1,160. Lt. Davis located a cartridge casing (Commonwealth's Exhibit 5) near where the victim's truck was found and othercartridge casings (Commonwealth's Exhibit 7). T.1, 166, 170. An additional cartridge casing was also found by Sergeant James Ingram of the Amherst county Sheriff's department. 7.1, 187-188. These casings were believed to be .38 caliber semi-automatic casings. T.2, 501 Investigator John Tetterton of the Amherst County Sherrif's Office responded to the crime scene to collect evidence on May 4, 2008. T.1, 197. Inv. Tetterton took several photographs of the crime scene including the truck, the victim's body in the vehicle and the bullet holes. Commonwealth's Exhibit 21. Inv. Tetterton observed and photographed a gunshot wound on the victim's body. T.1., 217.(Commonwealth's Exhibit 28). He also collected two bullet jackets (Commonweaith’s Exhibits 33, 35), a bullet fragment (Commonwealth's Exhibits 34), and a bullet recovered from the victim (Commonwealth's Exhibit 45). The Defendant shot five bullet holes into the victim's vehicle. T.1, 298 Richard Van Roberts, a firearms examiner with the Virginia Department of Forensic Science, testified that the cartridge cases recovered at the scene and the bullet were of the same caliber, and that the three recovered cartridge cases were fired from the same gun. T.2, 562. On July 24, 2008, James Eric Finney, a convicted felon and former paid informant, was incarcerated at the Amherst County Jail for failure to pay child support. 7.3, 16. While at the jail church, the Defendant told Finney that he had “shot a punk on Elon Road”, and that he had shot him with a.38 handgun which he said was in the James River. T.3, 18. Finney was not from Amherst County and was not familiar with Elon Road. T.3, 18.Brandon Stanley, a convicted felon who had plead guilty to robbery and firearm charges, testified at trial came to know the Defendant when he was incarcerated at the Amherst County Jail, T. T.3, 35. According to Stanley, the Defendant admitted that he had shot the victim and he said it was over a girl named Nicole, 1.2, 36, 37. He also admitted to Stanley that he use .38 that belonged to Steven Davis, Justin Davis’ father. T.2, 40. Stanley heard the Defendant discuss a map with Ernest Tumer. T.3, 42. Stanley had this information on May 5, 2008, but did not tell authorities until the middle of August. T.3, 48. Ernest Tumer was a co- defendant along with Stanley and was willing to testify against Stanley. T.3, 49. Donnie Calvin Seamster, Jr., who was incarcerated in the Amherst County Jail for a felony charge of third offense domestic assault and battery, was assaulted by the Defendant in the jail, T.3, 60. The Defendant told him that he should kill him just ike he killed the other guy. 1.3, 61. The Defendant on cross-examination denied knowing Donnie Seamster. T.3, 338. Ernest Tumer, a convicted felon and former cooperating witness, was one of the Defendant's cellmates at the Amherst County Jail. T.3, 79, The Defendant gave Tumer a map so that he could get someone to murder Justin Davis because he was the only witness to Justin Baumgardner's murder. T.3, 82. The map was of the area where Justin Davis lived. T.3, 82-83. The Defendant told Turner that he enjoyed killing pregnant women and children when he was in Iraq. 1.3, 84. The Defendant told Tumer that he had killed the victim with a.38 Cobra that he got from Justin Davis. T.3, 85, The Defendant told Tumer that he had a stolen bobcat and that the gun was near the bobcat and wanted someone to get rid of the gun. T.3,88. Tumer gave the map of Steven Davis and Justin Davis’ residence that the Defendant drew to Captain Clarence Duval Doss of the Amherst County Sherriffs Office. 7.2, 504, Special Agent Dino Capuzzo of the Virginia State Police used the map to recover the bobcat and returned it to the business owner, Blue Ridge Conerete. 7.3, 122 Kenneth Walter Gill, an expert in finger print analysis from the Virginia Department of Forensic Science, testified that he was able to compare the palm prints and fingerprints of the Defendant with latent fingerprints and latent palm prints that were found on the map. T.2, 573. Gill determined that all of the latent prints of value on the map were in fact the Defendants prints. T.2, 580. Raymond Hudson testified on behalf of the Defendant, that he was incarcerated with Davis at the Lynchburg City Jail and that Davis told Hudson that he had framed the Defendant for the murder. T.3, 235. Hudson testified that he told the Defendant what Davis had told him when he came to the Amherst County Jail T.3, 236 Lisa Wisebrick, student at Sweet Briar College, testified that she had met the Defendant and Davis in April of 2008, and that she had seen Davis with a gun 7.3, 270, The Defendant denied that he had ever admitted to killing the victim while the Defendant had been incarcerated. T.3, 278-279. The Defendant testified that on May 3, 2008, he spent the beginning of the day with Davis and also Turpin using Davis' vehicle. T.3. 281. According to the Defendant, Davis and he spent the aftemoon of May 3, 2008 together and he saw Davis’ gun in his glove box.According to the Defendant, Turpin called to let him know she was meeting the victim and he stated he had no problem with that. T.3, 287. The Defendant testified that he and Davis decided to drive some back roads and drove to Monacan Park. T.3, 290. According to the Defendant, Davis was driving the Defendants’ vehicle when they noticed Turpin at the park and kept on driving. The Defendant testified that he and Davis retumed to the park and saw the victim's vehicle and parked behind it. 7.3, 294, The Defendant testified that Davis had an argument with the victim while he, the Defendant, spoke with Turpin in a separate conversation. 1.3, 295, The Defendant testified that the victim left and then he drove Davis and dropped him off and drove to his house. T.3, 296-297. The Defendant denied being in a romantic relationship with Turpin despite the photos of them together and provocative photos sent by her to him. T.3, 308. Defendant admitted to drawing the map. T.3, 325, The Defendant testified that, while he was incarcerated, he drew a map to Justin Davis' home to assist a law enforcement investigation, T.3, 327. He testified that it came up missing when Emest Turner shared his cell. 7.3, 327-328. N. ARGUMENT A) THE EVIDENCE WAS SUFFICIENT FOR THE JURY TO FIND THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT. Pursuant to Rule 5A:18 of the Rules of the Virginia Supreme Court, this Court should not consider the Defendant's argument regarding sufficiency of the evidence because he failed to move to strike the evidence at the end of the trial and failed move to set aside the verdict of the trial court. 2“On review of a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, the prevailing party, and grant to it all reasonable inferences fairly deducible therefrom." Robertson v Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000), see Commonwealth v. Jenkins, 255 Va, 516, 521, 499 S.E.2d 263, 265 (1998). Additionally, as the Appellant notes, because the Defendant chose to introduce evidence on his own behalf after the Commonwealth rested its case, the sufficiency of the evidence must be judged by the evidence presented by the Defendant as well as by the evidence presented by the Commonwealth Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1984). Also, as the Defendant notes: It is well settled that the “credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E. 2d 730, 732 (1995). This Court cannot reverse a conviction unless “it appears from the evidence that is plainly wrong or without evidence to support It.: Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337, S.E.2d 897, 898 (1985). ‘Also, as the Defendant notes it has long been held by this Court that the weight which should be given to evidence and whether the testimony of a witness is credible are questions committed to the sound discretion of the trial court fact finder. Yellardy v. Commonwealth, 38 Va. App. 19, 21-22, 561 S.E. 2d 739, 741 (2002). BAdditionally, the Defendant notes that the jury's findings of fact and determinations concerning the credibility of the witnesses are presumed correct, and will not be overturned on appeal unless they are plainly wrong, and the jury verdicts will be affirmed unless they are without any evidence to support them. Va, Code §8.01-680; Black v. Commonwealth, 222 Va. 838, 841, 264 S.E. 2d 608, 610 (1981). Furthermore, the Defendant notes that when the Defendant challenges the sufficiency of the evidence, this Court should not overrule the verdicts of the jury and substitute its own judgment, even if its opinion might differ from that of the jury if there is evidence to sustain the jury's verdicts. George v. Commonwealth, 242 Va. 264, 278, 411 S.E. 2d 12, 20 (1991). And the Commonwealth was not required to disprove every remote possibility of the Defendant's innocence. Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E. 2d 328, 338 (1988), cert. denied, 496 U.S. 911 (1990). The evidence, when viewed in the light most favorable to the Commonwealth, is more than sufficient for the jury to find that the Defendant hunted down and brutally murdered Justin Baumgardner by shooting him and leaving him to die beside the road with no assistance. The jury verdict was not plainly wrong nor without evidence to support it. The jury had an opportunity to personally hear and observe the witnesses and weigh their credibility and determine their veracity. The jury also had an opportunity to personally hear and observe the Defendant and weigh his credibility and determine his veracity. 4There is both direct and circumstantial evidence of the Defendant's guilt in the record. There was clear evidence of his anger towards the victim and his motive to kill the victim. The Defendant was jealous and angry because Emily Nicole Turpin decided to meet Justin Davis the evening of the murder. The Defendant became involved in a physical altercation with the victim at Monacan Park. Justin Davis witnessed the Defendant shoot at the vehicle driven by the victim, The Defendant placed himself near the crime scene the evening of the murder and the evidence regarding his cell phone calls that night confirms his presence at Monacan Park and near the crime scene. The Defendant admitted his guilt to a third party, Shane Bailey, right after the murder. The Defendant admitted his guilt to others while he was incarcerated. The Defendant also attempted to get someone to kill Justin Davis, the eyewitness. It is clear that the Defendant was an angry and violent man before the events of May 3, 2008, The Defendant murdered Justin Baumgardner in a jealous rage. The jury had an opportunity to determine the credibility and veracity of the witnesses. No one else, but eh Defendant, had a motive to kill Baumgardner that evening. The Defendant's guilt was proven beyond a reasonable doubt. 1sv. CONCLUSION ‘The Defendant hunted down and brutally murdered Justin Baumgardner by shooting him and leaving him to die beside the road with no assistance. The Commonwealth presented credible eyewitness testimony of these events, along with testimony regarding the Defendant's murderous motive of jealousy and anger. The Defendant admitted to others that he had shot the victim Furthermore, there was testimonial and circumstantial evidence to prove his guilt beyond a reasonable doubt. The jury rightly found the defendant guilty of all of the charges. WHEREFORE, the Commonwealth respectfully requests that this Honorable Court deny the Defendant's Petition for Appeal for the reasons stated in the Commonwealth's Brief in Opposition Respectfully Submitted, OIONWEALTH F VIRGINIA ate sen C) stopher L. Miller, Esquire Defiuty Commonwealth's Attomey, VSB#45660 Office of the Commonwealth's Attorney's For Harrisonburg and Rockingham County 53 Court Square, Suite 210 Harrisonburg, Virginia 22801 540.564.3360 16CERTIFICATE I hereby certify that, pursuant to Rule 5:18 of the Rules of the Supreme Court of Virginia, seven copies of the foregoing Brief in Opposition were mailed by certified mail postage prepaid to the Clerk of the Supreme Court of Virginia, a copy was e-mailed to scvbriefs@courts.state.va.us, and a copy of the foregoing was mailed, first-class to opposing counsel: Grady W. Donaldson, Jr., Esquire Schenkel & Donaldson, P.C. P.O, Box 11315 1601 Graves Mill Road Lynchburg, Virginia 24506-1348 Counsel for Appellant Miller, Esquire ‘Commonwealth's Attorney Office of Commonwealth's Attorney's ‘or Harrisonburg and Rockingham County VSB#45660 53 Court Square, Suite 210 Harrisonburg, Virginia 22801 540.564.3350, Fax: 540.433-9161 wVIRGINIA: In the Supreme Court of Vinginia held at the Supreme Court Building in the bity of Richmondon Friday the 13th dayof November, 2009. ‘Timothy Wayne Wright, Jr., Appellant, against Record No. 091863 Court of Appeals No. 3029-08-3 Commonwealth of Virginia, Appellee. From the Court of Appeals of Virginia A Copy, Teste: Patricia L. Harrington, Clerk By: Ems