COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Norfolk, Virginia 

DAVID ROSS STROHECKER 

 OPINION 

v. Record No. 0844-95-1 BY JUDGE JOSEPH E. BAKER 

 SEPTEMBER 24, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Kenneth N. Whitehurst, Jr., Judge 

 Stephen C. Mahan (Brydges, Mahan & O'Brien, 

on briefs), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 David Ross Strohecker (appellant) appeals from his bench 

trial convictions by the Circuit Court of the City of Virginia 

Beach (trial court) of murder while attempting to commit 

extortion in violation of Code § 18.2-33, attempted extortion in 

violation of Code § 18.2-59, and use of a firearm in the 

commission of murder in violation of Code § 18.2-53.1. Appellant 

contends that the trial court erred (1) in refusing to stay the 

execution of its sentence and in denying bond pending his appeal, 

(2) in admitting hearsay evidence, (3) in refusing to allow 

appellant to elicit certain impeachment testimony, and (4) in 

finding the evidence sufficient to support his convictions. 

 On appeal, we view the evidence "in the light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom." Evans v. Commonwealth, 215 Va. 609, 
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612, 212 S.E.2d 268, 271 (1975). Viewed accordingly, the record 

discloses that on February 14, 1991, upon completing his day's 

work as a night-shift security guard in Cleveland, Ohio, 

appellant joined a friend, Robert Bair (Bair), in Pittsburgh, and 

drove to Virginia Beach to collect a debt alleged to have been 

owed them by Mike Harper (the victim). 

 Appellant and Bair drove all day and arrived at the victim's 

place of employment, Checker's Pizza (the store), on Norfolk 

Avenue in Virginia Beach between 6:00 and 9:00 p.m. 

 Mark Currier (Currier), who owned the store in February 

1991, had known the victim for several years. The victim had 

been employed by Currier for a few weeks, receiving room and 

board at Currier's apartment in payment for his work. On 

February 14, 1991, the victim arrived at work around 4:00 p.m. 

Bair and appellant arrived at the store about 9:00 p.m. for the 

purpose of procuring $1,000 they claimed the victim owed them. 

Currier closed his business around 11:30 p.m. and told the 

victim, who was with appellant and Bair, that he was going home. 

 Currier left the store and went home. 

 At approximately 12:30 a.m., appellant, Bair, and the victim 

entered Currier's apartment. Appellant had Currier's .357 

caliber handgun tucked in the waistband of his pants. Currier 

had last seen the gun in his file cabinet at the restaurant three 

or four days before. Over appellant's hearsay objection, Currier 

testified that the victim stated that he "needed to talk to" 
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Currier and asked him to go upstairs. Bair protested and told 

the victim to talk to Currier downstairs. The victim then told 

Currier, "I need $1,000 or they're going [sic] kill me." At that 

point, "Bair jumped in and said, that's right. [The victim] has 

screwed us over one too many times, and he's not going to get 

away with it." Currier replied that he did not have the money 

and asked the victim where he could get $1,000 at 12:30 a.m. The 

victim wrote down the names and telephone numbers of some friends 

and, because the apartment's telephone service had been 

disconnected, asked Currier to call his friends from a pay phone 

located three-quarters of a mile away. Bair and appellant 

"shoved" Currier out the apartment door and Bair told Currier, 

"Don't take longer than 15 minutes or we're going to kill [the 

victim]. Don't go to the police or we're going to kill him." 

Appellant added, "That's right. We're looking at thirty years 

anyway." 

 Over appellant's objection that it was hearsay and improper 

opinion testimony from a lay witness, Currier testified that when 

he observed the victim in the parking lot as he closed the store 

and went home, the victim "was not very happy" and that the 

victim had indicated that "he was in fear of his life." Currier 

also testified that when he left the apartment to attempt to 

raise the $1,000, the victim was physically shaking. 

 On cross-examination, Currier conceded that although he had 

testified that when he left the store the victim was "not happy" 
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and "in fear of his life," he did not offer the victim his gun, 

offer to call the police, offer to "stick around" so there would 

not be any trouble, or offer to drive the victim home. On 

re-direct, Currier testified over appellant's hearsay objection 

that the victim had told him to call the police if he did not 

return in the morning. 

 Appellant testified in his own behalf. He stated that he 

and the victim were best friends, and that the victim owed him 

"about $500" for unpaid rent on an apartment lease. 

 Appellant further testified that he had agreed to share 

driving duties from Pennsylvania to Virginia Beach with Bair, 

who, himself, had unsuccessfully tried to collect a debt the 

victim owed him. Shortly after arriving at Virginia Beach, the 

victim asked appellant and Bair "what [they] were there for." 

They "smiled at him" and said, "You know why we're here. We want 

the money." 

 Appellant admitted that he, the victim, and Bair went to 

Currier's apartment and, while asserting that he could not hear a 

conversation between Bair, the victim, and Currier while in the 

apartment, he admitted hearing Bair tell Currier and the victim 

not to go upstairs. He also heard Bair tell Currier, as Currier 

was going out to procure money, that he wanted Currier back in 

fifteen minutes because the victim had "screwed [them] over one 

too many times." Appellant denied hearing Bair threaten to kill 

the victim. 
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 Appellant did not deny saying, after Bair threatened to kill 

the victim, that "we're going to do thirty years anyway, we've 

got nothing to lose." He stated only that he could not recall 

having said anything like that. 

 Appellant further admitted hearing Currier say that he 

could not "come up" with $1,000, at which time appellant told 

Currier to get what he could. Currier then left his apartment. 

 Appellant admitted that he had the gun in his jacket pocket 

at this time but that the victim originally had the gun and that 

Bair had taken it from him and given it to appellant. After 

Currier left, appellant went to the bathroom. When he did so, he 

removed the gun from his pocket because it was in his way. He 

then exited the bathroom with the gun in his hand and walked up 

to and leaned on the edge of the couch where the victim was 

seated. Appellant testified that as he turned to walk away, the 

gun fired, and when he turned around, the room was smokey and he 

saw the victim's head roll back. He did not recall pulling the 

trigger. 

 After leaving the apartment, Currier called Colleen Damico 

(Damico), the victim's girlfriend and spoke with Damico and her 

brother, Patrick Dungan (Dungan). Dungan arrived at Currier's 

apartment within twenty minutes of Currier's telephone call and 

found the victim dead, shot in the face at close range. 

Appellant and Bair had left the apartment and driven back to 

Pennsylvania. Later that afternoon, February 15, 1991, they 
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turned themselves in to the Pennsylvania police and gave them 

Currier's .357 revolver. During an interview with Detective 

Michael Smith (Smith), appellant told Smith that he and Bair had 

traveled to Virginia Beach to collect a debt, that the victim had 

pulled a gun, that it went off, and that the victim was shot in 

the head. Later, during a test for powder residue on appellant's 

hand, appellant admitted to the Pennsylvania police that he had 

fired the gun. Appellant then indicated to Smith that the gun 

had discharged accidently. On cross-examination, appellant 

stated that he did not recall telling Smith that the victim 

"pulled the gun and got shot in the head." 

 On rebuttal, Damico testified that she was at the store on 

the night in question and, while there, that she had heard 

appellant and the victim talking about burning the victim's 

yellow Ford pickup truck. Over appellant's hearsay objection, 

Damico testified that the victim had told her that he was afraid 

that the appellant and Bair were going to throw him into a fire, 

that he was going to take Currier's gun, and that, if she did not 

hear from him the next day, to call the police and tell them what 

she knew. 

I. Suspension of Sentence and Bond 

 On August 3, 1992, appellant filed a motion requesting that 

"the [trial c]ourt set bond for [appellant's] release from 

confinement pending action by the Court of Appeals on his appeal, 

or that the execution of the sentence be postponed pending action 
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by the Court of Appeals on said appeal . . . ." Appellant 

contends that Code § 19.2-319 requires the trial court to both 

set bail and suspend execution of a convict's sentence pending 

appeal. We disagree. 

 Code § 19.2-319 grants discretionary authority to the trial 

court to set bail pending such appeal. In this case, no abuse of 

discretion has been shown. Appellant first fled then 

misrepresented to the Pennsylvania police, with conflicting 

accounts, how the gun fired. In the absence of a showing of 

abuse of discretion, the trial court's denial of bail will not be 

disturbed. See Dowell v. Commonwealth, 6 Va. App. 225, 228, 367 

S.E.2d 742, 744 (1988); Ramey v. Commonwealth, 145 Va. 848, 851, 

133 S.E. 755, 756 (1926). 

 Code § 19.2-319 provides for the postponement of the 

execution of a sentence in order to give a defendant "a fair 

opportunity to apply for a writ of error." Ramey, at 851, 133 

S.E. at 756. Here, appellant made no assertion to the trial 

court that he needed additional time to prepare his petition for 

appeal; rather, from appellant's motion it appears that he 

misconstrued the statute, requesting that execution of his 

sentence be postponed "pending action by the Court of Appeals 

. . . ." Code § 19.2-319 provides for no such relief. We find 

no prejudice to appellant by the trial court's refusal to suspend 

execution of this sentence. 

II. Hearsay Evidence 
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 During the course of appellant's trial, the trial court 

allowed the Commonwealth, over appellant's objections, to elicit 

hearsay testimony from Currier as to several out-of-court 

statements made by the victim and Bair. The trial court allowed 

Currier to testify that when the victim entered his apartment, 

the victim told him, "I need to talk to you. Let's go upstairs." 

 Currier then related that they never went upstairs because Bair 

objected, stating, "No, stay down here and talk." Currier then 

was permitted to testify that the victim told him, "I need $1,000 

or they're going [sic] kill me." Currier further testified that, 

in response to what the victim said, Bair stated, "That's right. 

 [The victim] has screwed us over one too many times, and he's 

not going to get away with it." When Currier, at the victim's 

request, was about to leave his apartment to attempt to obtain 

money for the victim, Currier further testified that Bair said, 

"Don't take longer than 15 minutes or we're going to kill [the 

victim]. Don't go to the police or we're going to kill him," and 

appellant corroborated Bair's threat by adding, "That's right. 

We're looking at thirty years anyway." 

 The Commonwealth argues that these statements were 

admissible against appellant as "adoptive admissions."1 

 1Appellant alleges that the Commonwealth is arguing for the 

first time on appeal that the hearsay statements in question were 

admissible as adoptive admissions. We disagree. The record 

clearly indicates that, when appellant challenged the 

introduction of the first of these statements at trial, the 

Commonwealth argued that it was "being offered to show that the 

statement was made and corroborated by the defendant." While 

using the word "corroborated" in place of the term of art, 
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 As a general rule, when a statement that tends to 

incriminate one accused of committing a crime is made in the 

presence and hearing of the accused and such statement is not 

denied, contradicted, or objected to by him, both the statement 

and the fact of the accused's failure to deny the statement are 

admissible in a criminal proceeding against the accused. James 

v. Commonwealth, 192 Va. 713, 718, 66 S.E.2d 513, 516 (1951). 

The accused's conduct may then be considered as evidence of his 

acquiescence in the truth of the statement if the following 

requirements are met: 

 In order that the silence of one accused of 

crime following a statement of a fact tending 

to incriminate him may have the effect of a 

tacit admission, he must have heard the 

statement and have understood that he was 

being accused of complicity in a crime, the 

circumstances under which the statement was 

made must have been such as would afford him 

an opportunity to deny or object, and the 

statement must have been such, and made under 

such circumstances, as would naturally call 

for a reply. The test is whether men 

similarly situated would have felt themselves 

called upon to deny the statements affecting 

them in the event they did not intend to 

express acquiescence by their failure to do 

so. 

Owens v. Commonwealth, 186 Va. 689, 699, 43 S.E.2d 895, 899 

(1947) (citation omitted). The above principle has the universal 

approval of both the courts and text writers.2

 

"adopted," the import of the Commonwealth's argument is clear. 

 2See 4 John Henry Wigmore on Evidence § 1071 (Chadbourn rev. 

1970); 22 C.J.S. Criminal Law § 734 (1961); 3 Jones, Commentaries 

on Evidence § 1044, at 1923 (2d ed. 1926); S. Greenleaf, A 

Treatise on the Law of Evidence § 197 (16th ed. 1899); Note, 
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 Hearsay evidence is testimony given by a witness who 

relates, not what he knows personally, but what others have told 

him or what he has heard said by others. Cross v. Commonwealth, 

195 Va. 62, 74, 77 S.E.2d 447, 453 (1953). When offered for the 

truth of the matters asserted, unless the statement falls within 

one of the many exceptions, such evidence is not admissible. 

This has been the law in Virginia since 1795. See Claiborne v. 

Parish, 2 Va. (2 Wash.) 146 (1795). A person seeking to have 

hearsay declarations admitted must clearly show that they are 

within an exception. Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 

382, 386 (1984); Foley v. Commonwealth, 8 Va. App. 149, 161, 379 

S.E.2d 915, 921 (1989). 

 Here, Currier testified that appellant was present when the 

victim told Currier that he needed $1,000 or "they're going [sic] 

kill me." Currier then testified that Bair responded, "[t]hat's 

right." Clearly, these statements accused appellant of 

complicity in a crime and would naturally call for a reply if 

they were not true. Appellant admitted at trial that he heard 

 

Evidence of Statements Made in the Presence of a Party, 43 Harv. 

L. Rev. 289 (1929); Note, Evidence-Defendant's Refusal to Speak as 

Tending to Incriminate, 24 Mich. L. Rev. 508 (1926); Note, 

Evidence-Implied Admissions-Determination of Whether Accusation 

Calls for Answer, 23 Mich. L. Rev. 413 (1925); Note, 

Evidence-Implied Admission From Silence to Accusation, 21 Mich. L. 

Rev. 806 (1923). Numerous cases on the subject are collected in 

the following annotations: H.D.W., Ann., Admissibility of 

Inculpatory Statements Made in the Presence of Accused, and Not 

Denied or Contradicted By Him, 115 A.L.R. 1510 (1938); 

H. Rockwell, Ann., Admissibility of Inculpatory Statements Made in 

the Presence of Accused, and Not Denied or Contradicted By Him, 80 

A.L.R. 1235 (1932). 
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statements made by Bair just prior to and after the victim's 

declaration that Bair and appellant would kill him if they were 

not paid $1,000. Thus, the statement of the victim that, "I need 

$1,000 or they're going [sic] kill me," Bair's reply of, "That's 

right. [The victim] has screwed us over one too many times, and 

he's not going to get away with it," and appellant's affirmance 

of Bair's statement that they would kill the victim if Currier 

failed to return within fifteen minutes or if Currier sought 

police help, were admissible against appellant as tacit or 

adoptive admissions. While the statement of the victim to the 

effect that he needed to talk to Currier upstairs, and Bair's 

subsequent protest to them doing so, were hearsay, not admissible 

as adoptive admissions, they were of marginal evidentiary value 

and their introduction constitutes harmless error. 

 For the adoptive admission exception to apply, a direct 

accusation is not essential. 

 Under the adoptive admission exception to 

the rule against hearsay, a declarant's 

accusatory or incriminating statements are 

not admitted to prove the truth of matters 

asserted. Such statements are admissible 

because they lay the foundation to show that 

the defendant acquiesced or admitted to the 

statement. An adoptive admission avoids the 

confrontation problem because the words of 

the hearsay become the words of the 

defendant. 

29A Am. Jur. 2d Evidence § 802 (1994); see Owens, 186 Va. at 

698-99, 43 S.E.2d at 899. While the hearsay statement merely 

lays the foundation, the conduct of the accused, by remaining 
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silent and failing to deny it, is admissible as substantive 

evidence to prove the accused's acquiescence in its truth. Id.

at 698, 43 S.E.2d at 899. 

 The trial court did not err in admitting the above-described 

hearsay evidence. 

 III. State of Mind Evidence 

 Appellant further contends that Currier's testimony 

purportedly describing the victim's state of mind on the night 

before he was killed was erroneously admitted. We disagree. 

 Appellant challenges the introduction of Currier's testimony 

that the victim "was not very happy," that he had told Currier 

that he was "in fear of his life," that he "needed $1,000 or they 

are going [sic] kill me," and that the victim asked Currier "to 

call the police if he did not return in the morning." He also 

challenges the admission of Damico's testimony that the victim 

told her that he "was afraid they were going to throw him into 

[a] fire," that he "was going to take [Currier's] gun," and that 

if she "didn't hear from him the next day, . . . to call the 

police and tell them everything that [she] knew." 

 The Commonwealth argues that the objected to evidence was 

admissible to show the victim's state of mind and further 

contends that even if the evidence was inadmissible, appellant 

may not be heard to complain on appeal because, after objecting 

and being overruled, appellant himself introduced evidence of the 

same character. 
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 On cross-examination of the witness who testified concerning 

the victim's fears, appellant appeared to concede that the victim 

may have been in fear at the time indicated. By his questions, 

appellant attempted to show that the victim's fearful state of 

mind was the result of "a fight at a bar a couple of days 

beforehand." Having introduced evidence of the same character, 

appellant is confronted by a substantive rule of law which 

renders irreversible the action of the trial court in permitting 

the Commonwealth to introduce evidence of the victim's state of 

mind. Hubbard v. Commonwealth, 243 Va. 1, 9, 413 S.E.2d 875, 879 

(1992). "The rule is that 'where an accused unsuccessfully 

objects to evidence which he considers improper and then on his 

own behalf introduces evidence of the same character, he thereby 

waives his objection, and we cannot reverse for the alleged 

error.'" Id. See also Saunders v. Commonwealth, 211 Va. 399, 

400, 177 S.E.2d 637, 638 (1970). 

 Moreover, we disagree with appellant's contention that the 

trial court erred when it permitted the introduction of the 

objected to evidence. If relevant to an issue at trial, evidence 

of a person's state of mind may be admitted as an exception to 

the hearsay rule. Johnson v. Commonwealth, 2 Va. App. 598, 602, 

347 S.E.2d 163, 165 (1986). 

 It would be vain to attempt to reconcile 

all of the conflicting cases as to when such 

statements can be admitted. Much must be 

left to the discretion of the trial judge, 

but where the proper determination of a fact 

depends upon circumstantial evidence, the 

safe practical rule to follow is that in no 
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case is evidence to be excluded of facts or 

circumstances connected with the principal 

transaction, from which an inference can be 

reasonably drawn as to the truth of a 

disputed fact. The modern doctrine in this 

connection is extremely liberal in the 

admission of any circumstance which may throw 

light upon the matter being investigated, and 

while a single circumstance, standing alone, 

may appear to be entirely immaterial and 

irrelevant, it frequently happens that the 

combined force of many concurrent and related 

circumstances, each insufficient in itself, 

may lead a reasonable mind irresistibly to a 

conclusion. Where the inquiry is as to the 

state of one's mind at a particular time, his 

statements and declarations indicating his 

state of mind are generally admissible. . . . 

Whether called part of the res gestae or not 

is immaterial. Instead of withholding any 

available information by the application of 

rigid rules of exclusion, the "more excellent 

way" is to admit all testimony which will 

enlighten the triers of fact in their quest 

for the truth. The better view is, not how 

little, but how much logically competent 

evidence is admissible. 

Karnes v. Commonwealth, 125 Va. 758, 764-65, 99 S.E. 562, 564-65 

(1919) (emphasis added). Here, the Commonwealth was required to 

prove that appellant had attempted to extort monies from the 

victim by threatening that he would kill him, and that in the 

course of that attempt, he murdered him. We hold that the 

evidence was relevant, admissible and related to an issue before 

the trial court. 

IV. Sufficiency of the Evidence 

A. Attempted Extortion and Felony Murder 

 Appellant asserts that because he had a bona fide claim of 

right to the money he was seeking to collect from the victim he 
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could not be convicted of extortion. We disagree. See United 

States v. Teplin, 775 F.2d 1261 (4th Cir. 1985) (a claim of right 

is not a defense to extortion in Virginia). 

 In Virginia, extortion has been defined as follows: 

"To gain by wrongful methods; to obtain in an 

unlawful manner, as to compel payments by 

means of threats of injury to person, 

property, or reputation. To exact something 

wrongfully by threats or putting in fear." 

Stein v. Commonwealth, 12 Va. App. 65, 69, 402 S.E.2d 238, 241 

(1991) (quoting Black's Law Dictionary 525 (6th ed. 1990)). As 

the above definition demonstrates, the gravamen of extortion is 

wrongfully obtaining a benefit through coercion. 

A person whose property has been stolen[, or 

wrongfully withheld,] cannot claim the right 

to punish the [wrongdoer] himself without 

process of law, and to make him compensate 

him for the loss of his property by 

maliciously threatening to . . . do an injury 

to his person or property with intent to 

extort property from him. 

Woodward v. Alaska, 855 P.2d 423, 425 (Alaska 1993) (citing State 

v. Bruce, 24 Me. 71 (1844)). 

 While a bona fide claim of right may be a valid defense to a 

charge of robbery or larceny in Virginia, Pierce v. Commonwealth, 

205 Va. 528, 533, 138 S.E.2d 28, 31-32 (1964); Butts v. 

Commonwealth, 145 Va. 800, 811-13, 135 S.E. 764, 767-68 (1926), 

the same is not true for extortion. With respect to the crimes 

of robbery and larceny, a bona fide claim of right could be a 

defense because it negates the criminal intent necessary to 

sustain those offenses, that is, the intent to steal. Id. An 
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intent to steal is not, however, an element of extortion. Thus, 

appellant's alleged claim of right to the money he sought to 

obtain from the victim provides no defense. Accordingly, we hold 

that the evidence is sufficient to support the judgment of the 

trial court. 

B. Use of a Firearm 

 On August 5, 1991, two indictments were presented against 

appellant. Count I of the first indictment charged appellant 

with first degree murder, in violation of Code § 18.2-32. Count 

II of that indictment charged appellant with use of a firearm 

while committing or attempting to commit murder, in violation of 

Code § 18.2-53.1. The second indictment brought that day charged 

appellant with attempted extortion and felony murder but did not 

include a count for use of a firearm. After hearing all of the 

evidence, the trial court acquitted appellant of murder in 

violation of Code § 18.2-32, as alleged in Count I of the first 

indictment, but found appellant guilty of use of a firearm in the 

commission of a felony. In making that finding, the trial court 

said: 

What I'm going to do today, Mr. Strohecker, 

is find you guilty of murder while attempting 

to commit extortion, felony murder, murder in 

the second degree. 

Appellant argues that because the trial court acquitted him of 

the murder charge used as the predicate offense in the first 

indictment to support the use of a firearm charge, it erred when 

it used the murder charge in the second indictment as the 
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predicate offense to support the firearm charge. We disagree. 

The cases cited by appellant are inapposite. 

 As in Wolfe v. Commonwealth, 6 Va. App. 640, 371 S.E.2d 314 

(1988), this case must be analyzed and resolved in the procedural 

context in which the issue arose. Here, as in Wolfe, appellant 

was tried without objection on both indictments in a single 

criminal trial on two distinct murder charges together with use 

of a firearm in the commission of murder. Nothing in the record 

shows that any evidence presented was limited to a particular 

indictment. 

 In Davis v. Commonwealth, 4 Va. App. 27, 353 S.E.2d 905 

(1987), the defendant was tried and convicted on a single 

indictment that charged only that he used a firearm in the 

commission of murder. We held that indictment, standing alone, 

was sufficient so long as the proof of a predicate murder was 

made to support the conviction. In the case before us, there is 

sufficient evidence of the necessary predicate offense, to wit, 

that appellant did kill and murder the victim while attempting to 

unlawfully extort money from him. For that reason, we affirm the 

firearm conviction. 

V. Impeachment Testimony 

 At trial, appellant sought to elicit testimony concerning 

the victim's reputation for truthfulness. The Commonwealth 

objected on the ground of relevance. The trial court sustained 

the objection. Because appellant's counsel made no proffer of 
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the excluded testimony, we are unable to consider his argument. 

See O'Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491 (1988). 

 Accordingly, for the reasons stated, we affirm appellant's 

convictions. 

 Affirmed.