*1 Richmond WOOD SARAH MACGUFFY OF VIRGINIA COMMONWEALTH No. 1458-87-2 15, 1989 August Decided *2 Counsel brief), S.
Craig (Brown appellant. on Cooley Cooley, Condon, Robert B. Sue (Mary Terry, Assistant General Attorney General, Attorney brief), on for appellee.
Opinion
BARROW, conviction, J. we con In this of an extortion appeal clude the fal Commonwealth was not required prove of an victim’s char sity allegation injure a threat to a underlying acter. in The crime of extortion addresses the malice found obtaining or other value to harm another’s money by threatening character; accusation, it is by not concerned with whether the threatened, which the harm is is true or false.
At trial there was evidence to ex- that the defendant tort he had threatening to claim that by her if raped he did not The de- give sought. her the fendant and the de- Kubacki had in sexual intercourse at engaged fendant’s alone. Ku- late one while were evening they consensual, backi contends that it was but the defendant contends that it was not. The the victim next the defendant asked and, did, to return to her when he Kubacki discovered apartment, the defendant in the individuals. Two of four other company men, bat, them were one who blocked the armed a baseball door so that Kubacki could not leave. The defendant then accused Kubacki of her and told him was no he was raping way there going to get out of the When Kubacki asked what he apartment. leave, could do in order to the defendant told him that she needed $700. Kubacki defend- was then allowed to leave after he told the would to borrow attempt he did not have
ant that it. Later, incident to the police. immediately reported po- while a from the defendant call telephone
Kubacki returned
During
telephone
an extension.
on
lice detective
$700 and
conversation,
demand for
repeated
the defendant
that,
call the
she would
money,
if she did not
told Kubacki
for rape.
and have him arrested
threatening “in-
the defendant for
The Commonwealth indicted
in an
of Kubacki
jury to the character”
threatening
of extortion includes
from him. The
offense
statutory
character,
person.”
another
property
to the
“injury
person,
resulting
is in addition to an offense
This
Code
18.2-59.
§
Id.
“of
offense.”
accusing
person
any
indict her for
choosing
The defendant contends
for ac-
of Kubacki rather than
to the character
threatening injury
*3
offense,”
had a greater
of
the Commonwealth
cusing
“any
him
charged with
that had she been
burden of
She concedes
proof.
the Com-
an “offense”
accusing Kubacki of
extorting money by
of
falsity
to
required
prove
monwealth would not have been
856,
862
accusation, see
v.
Mitchell
however,
her
(1880);
charge
since the Commonwealth elected
character,
argues
threatening
instead with
injure
was
the accusation
the Commonwealth had
prove
the Com-
false. We
it is not
disagree
necessary
and hold that
is
a threat
monwealth to
that an accusation underlying
prove
false,
of a
is
even
threatened
to the character
though
injury
offense.
an accusation of an
person
does not constitute
charged
was
statutory
The
offense with which the defendant
injure
(1) threatening
contains
is
two elements. The first
either
character,
(2)
“the
or
ac
of another person”
person
property
sec
The
cusing another
“of
offense.” Code
18.2-59.
person
any
§
valua
ond
of
or other
any money
element consists of the extortion
Id. The offense
ble
the other person.
or benefit from
property
with an extortion
consists of a threat or accusation coupled
or other benefit.
obtaining money
The
element of extortion is
decisive
Mitchell,
disclo-
563
sure or even
is not extortion unless cou-
disclosure
proposed public
vic-
with an effort to obtain
or other value from the
pled
and,
tim. Code
victim
18.2-59. The character
§
the truthfulness of the threat are immaterial.
consequently,
Mitchell,
Other courts which have considered whether truth of the threatened is disclosure a defense to extortion or like crimes have Fox, also v. 157 Cal. generally People concluded that it is not. 426,_, 103, 2d App. 321 P.2d 106 v. (1958); People Downey, 456, 460, 160, 120 Ill. 458 N.E.2d Eacock v. App. (1983); 163 State, 488, 500-01, 1039, 169 Ind. 82 N.E. 1044-45 State (1907); Coleman, 5, v. (1906); 99 Minn. 110 N.W. 7 Wilson v. State, 717, (Okla. 1956); 306 P.2d 731 Crim. see also An App. not. 39 (1985). A.L.R. 4th 1011 The reaching contrary opinions 598, results are not v. 104 N.Y. persuasive. People Wightman, 602, (1887); N.E. v. 280 F. Landry Daley, Supp. nom, (N.D.Ill. 1968), rev’d on other sub grounds Boyle Landry, U.S. 77
Therefore, we conclude that it Com- was not for the necessary monwealth to prove that the did not occur. It alleged rape actually was sufficient that the defendant used the threat of disclosing alleged rape to obtain from Kubacki.
The defendant also contends that the evidence failed to estab- lish beyond a reasonable doubt that she attempted that, instead, Kubacki. She argues the evidence proves that Kubacki bribe her to refrain from assert- ing the allegation of Her testi- rape. theory supported by and the mony of two of testimony the four in the persons apart- ment However, at the time the money was first discussed. *4 Kubacki’s testimony the supported Commonwealth’s contention that she had attempted to extort from him.
We may not the weigh evidence as the was to jury required Rather, do. we must “look to the whole view it with evidence and the conflicts . . . and the fair inferences . . . settled as deter 251, mined Commonwealth, 252, the Russo v. jury.” 148 S.E.2d (1966). We are view the required to evidence in the light most favorable to the Commonwealth. See Higginbot- 218 S.E.2d Va.
ham v. evidence, conflict- although in this the light When viewed ex- attempted that the defendant to establish ing, was sufficient Kubacki. tort reasons, is affirmed. of conviction judgment the
For these
Affirmed. Keenan, J., concurred. J.,
Benton, dissenting. by Gregory an negate attempt not Because the evidence does her withdrawing Wood into Sarah MacGuffy bribe beyond did not proved the Commonwealth criminal complaint, attempted that Wood reasonable doubt fact, was case, that it in established evidence in this Kubacki. The unlawful who was the victim of the defendant Wood for seven Kubacki, Wood had known whom to bribe her. and with Wood one Wood’s late apartment was in years, leave, in early began her friends friends of Wood. As other be- to leave friends not two of her female morning, Wood asked beer, still in Kubacki, who had consumed a lot cause left Wood in then stayed for a while but They apartment. left after her friends Wood testified that with Kubacki. who boyfriend, about her she talked with Kubacki her apartment kiss jail. was in She further testified that rebuffed him. Kubacki her and her after she raped in sexual intercourse. they engaged consensual left, talked to hot line and Wood called the rape After Kubacki to a counselor twice more she talked day counselor. Later Wood testified that and then called the report rape. A patrol- officer. to a detective or female requested speak man, Stevens, Wood about spoke William arrived have to her “that she would details of the incident. Stevens told ex- describe happened, what testify exactly in court and up the defense Wood about what After he told happened.” actly consent, to talk to father. she wanted Wood told him that to speak send a detective Stevens also testified that he offered to to Wood. *5 friend, Wood tele-
Later that at the of a male evening, urging to her apartment. Kubacki and asked him to come phoned with a Wood’s thereafter apartment shortly Kubacki arrived at arrived, Wood, when Kubacki According in his hand. paper bag to call the her and asked her not having raped he apologized Wood testified that had.” already Wood “told him police. [she] and asked the again Kubacki asked her not to call the police that that she told amount of the bail for her Wood testified boyfriend. $700 her that give the bail was and he offered that him Kubacki, in the amount. Wood accused him of According rape door, friends, who the and she of two of her male blocked presence $700 out of jail. stated she needed get boyfriend When Wood called the police Kubacki left the apartment, leaving a formal Wood’s complaint. Upon make Kubacki was two of Wood’s male friends. pursued that he stick off. One of Wood’s used a to ward them the and bag male a from pulled gun friends testified threatened when he reached to shoot. Kubacki called the police home and Later that Brightwell. spoke patrolman Stevens, call Brightwell and who had received a of Wood’s report file With a formal went to residence. complaint, extension, on Kubacki called Wood. Brightwell an testified as of the conversation: Brightwell to the substance At first he told her until he get that he couldn’t the boss, could see his I and borrow Monday, it was on believe the to Mr. Kubacki writing *6 every exclude reasonable It must a reasonable doubt.
yond is not guilt The guilt. party that of hypothesis except guilt, with his facts are consistent be because the inferred his innocence. be inconsistent with must they 110-11, S.E.2d Cameron omitted). (1970) (citations rise to the does not of extortion Based on this evidence proof dis- Although Kubacki a reasonable doubt. beyond level of proof when he with Wood subject that he initiated the putes other Wood and two at her request, returned her apartment oc- when the conversation in the apartment who were persons offered Wood that Kubacki curred testified unequivocally also denied contact the police. and asked that not of- police while the anything told Wood about the that he He with Wood. conversation ficer was to his telephone didn’t ... I stated, money. about the nothing “I did not tell her However, officer get I it I wouldn’t it.” would say conversation who during telephone listened concerning money. that Kubacki initiated the conversation Accord- innocence. with Wood’s These facts are not inconsistent I would reverse the conviction. ingly, I was notes him. him telling what to ask her and what to tell her the during I conversation. wrote him a note to ask her what she wanted for. He asked her that. She said to her boy- out of Then Mr. her what she jail. friend Kubacki asked would do if he wouldn’t her the He said that’s a money. pay And, said, well, lot of what if I can’t it. money, pay officer is or going still to be until 2:00 o’clock working 3:00 o’clock and I will him call back and make a report. The indictment unlaw- charged that Wood “did feloniously fully threaten to the of E. Kubacki injury Gregory character did thereby E. Kubacki.” Gregory several hy- “Whenever evidence leaves indifferent which of true, is potheses or establishes some finite merely probability only to proof does not amount such evidence of one hypothesis, in favor Sutphin a doubt.” reasonable guilt beyond of 337 S.E.2d Va. App. crime, it . conviction . . that to justify It is well settled guilt, suspicion probability to create is not sufficient be- of an accused guilt evidence must establish