Bazemore v. Commonwealth

Tuesday 13th

January, 2004.

Nicko Bazemore, Appellant,

against Record No. 0103-02-1
Circuit Court Nos. CR00M00315 and CR00F00819
through CR00F00821

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner,
Frank, Humphreys, Clements and Felton

For reasons stated in writing and filed with the record, those parts of the opinion

previously rendered by a panel of this Court on May 13, 2003 with regard to appellant’s

convictions of felony eluding the police and second degree murder are withdrawn, those parts of

the mandate entered on that date pertaining to the said convictions are vacated and appellant’s

convictions of grand larceny by receiving stolen property (CR00F00821), felony eluding the

police (CR00F00820) and second degree murder (CR00F00819) are affirmed.

Appellant’s conviction of driving on a suspended license (CR00M00315) was not

challenged on appeal.

This matter is remanded to the trial court to correct the final conviction order by inserting

a reference to Code § 18.2-108.

This order shall be certified to the trial court.

A Copy,

Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
 COURT OF APPEALS OF VIRGINIA

Present Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank,
Humphreys, Clements and Felton
Argued at Richmond, Virginia

NICKO BAZEMORE
OPINION BY
v. Record No. 0103-02-1 JUDGE ROBERT J. HUMPHREYS
JANUARY 13, 2004
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge

Andrew G. Wiggin for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.

This matter comes before the Court on a rehearing en banc from an unpublished panel

decision rendered May 13, 2003. See Bazemore v. Commonwealth, 03 Vap UNP 0103021

(2003). In that decision, a divided panel of this Court affirmed Nicko Bazemore’s conviction for

grand larceny, but reversed his convictions for feloniously eluding police and second degree

murder. By order dated June 12, 2003, we granted the Commonwealth’s petition for a rehearing

en banc, stayed the mandate of that decision, and reinstated the appeal. Upon rehearing this case

en banc, we affirm each of Bazemore’s convictions.

I. Background

“When an appellant challenges the sufficiency of the evidence to sustain his conviction,

we review the evidence in the light most favorable to the Commonwealth and grant to it ‘all

reasonable inferences fairly deducible therefrom.’” Kelley v. Commonwealth, 17 Va. App. 540,

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548, 439 S.E.2d 616, 621 (1994) (citation omitted). So viewed, the evidence presented during

Bazemore’s trial proved that on the morning of August 4, 2000, Officer M.C. Marshall noticed a

broken rear window on a green minivan in the City of Suffolk and received information that the

license plates on the minivan were registered to another vehicle. When Officer Marshall

activated the siren and lights on his police car, the driver of the green minivan continued to drive.

During Officer Marshall’s pursuit of the green minivan, which covered a little more than

a mile in relatively heavy traffic, the driver of the minivan failed to heed two stop signs,

accelerated to 50 miles per hour, and later decreased his speed “to . . . 10 miles an hour.” The

green minivan made a series of turns, failed to heed another stop sign, and struck another

minivan after entering the intersection. Officer Marshall could not estimate the vehicle’s speed;

however, he testified that his own speed was “approximately 15 to 20 miles an hour” when the

green minivan entered the intersection. A witness described the green minivan as “shooting

across the intersection.”

After the green minivan hit the other minivan, yet another vehicle hit the other minivan.

A passenger in the minivan that was hit sustained a fractured cervical spine and died. After the

collision, the green minivan spun off the road and crashed into a nearby house.

As Officer Marshall approached the green minivan, he observed Greg Shorter leave the

van through the front passenger door. Officer Marshall also observed Bazemore moving from

the driver’s seat and attempting to exit through the front passenger door. Officer Marshall then

arrested Shorter and Bazemore. Denise Byron, another passenger in the green minivan, was

found lying on the ground, after having been thrown from the van when it hit the house.

When the rescue squad arrived, Bazemore complained of pain and told officers

responding to the scene that he was driving the green minivan when it crashed. Officers

observed that Bazemore was wearing one shoe. Inside the green minivan, officers found

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Bazemore’s other shoe under the brake pedal. They also found a 9-mm handgun, a screwdriver,

and a Florida license plate. The minivan’s ignition had been damaged, and a rag was covering

the steering column. The evidence proved that the green minivan had been stolen two days

earlier in the City of Norfolk and that broken glass was found on the pavement after it had been

stolen.

Several hours after police arrested Bazemore, he waived his Miranda rights. Bazemore

initially told the police that a friend, whom he only knew as “Malik,” and Shorter offered him a

ride at 9:00 p.m. on the night before the accident. Bazemore said that he noticed the screwdriver

on the floor and the broken window and that Malik told him he had gotten the van from Norfolk.

Bazemore also said he learned within two hours that the van had been stolen. Later, Byron

joined them and sat in the rear area of the van.

Bazemore told police he began driving the vehicle at 3:00 a.m. He also said that after the

officer attempted to stop the vehicle, he believed the vehicle might be stolen. When asked “Why

didn’t you stop the vehicle?,” he responded “I was scared.” As the interview progressed,

Bazemore said that Malik did not exist and that when he entered the minivan, Shorter was the

driver and sole occupant. Bazemore admitted he was driving the van when the accident occurred

and could not recall his speed because “it happened so quick.”

On October 25, 2000, the grand jury for the City of Suffolk indicted Bazemore on

charges of grand larceny, “in violation of [Code]§ 18.2-95,” felony eluding police, in violation of

Code §§ 46.2-817 and 18.2-10, and second degree murder. The indictment for second degree

murder stated that Bazemore “unlawfully and feloniously while in the prosecution of a felonious

act, accidentally, contrary to the intention of the parties, did kill and murder . . . in violation of

[Code] §§ 18.2-33, 18.2-32, and 18.2-26.”

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 During his trial, after the trial judge had denied Bazemore’s motion to strike the evidence,

Bazemore testified that Shorter, who is also called “Malik,” was driving the green minivan when

he entered it. They spent the hours before the incident driving to various places. Bazemore

testified he was driving when Byron joined them at 5:30 or 6:00 in the morning, but he denied

seeing the broken steering column. Although he knew Shorter did not own the minivan and did

not have money to buy a vehicle, he did not ask Shorter where he obtained it or who owned it.

Bazemore also testified that, after the police signaled him to stop and began to pursue

him, he and Shorter switched places in the moving vehicle. He said that Shorter was driving

when the vehicle entered the intersection and that he did not remember telling police he was

driving when the collision occurred. Despite his previous statement to police that he had not

seen a gun in the van, Bazemore testified that Shorter displayed the gun, said he was not going

back to prison, and ignored Bazemore’s and Byron’s requests to stop. Bazemore also testified

that after the accident, Shorter crawled across him from the driver seat to get out of the van. He

testified that he lied to the police in the interview to protect Shorter because he “was afraid of

everything that was going on around him” and afraid of Shorter.

The jury convicted Bazemore of “grand larceny by receiving stolen property,” of the

“felony . . . of disregarding the signal of a law enforcement officer,” and of “felony homicide.”

The final conviction order denotes the convictions as “Grand Larceny ([Code] § 18.2-95),”

“Eluding Police-Endangerment (§ 46.2-81[7](B) (Felony),” and “Second Degree Murder

(§ 18.2-32) (Felony).”

II. Analysis

On appeal, Bazemore contends (1) the evidence was insufficient to support the

convictions, (2) the trial judge erred by refusing to give the jury an instruction defining the word

“wanton,” and (3) the trial judge erred by failing to properly instruct the jury on the elements of

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the offense of feloniously eluding the police and, thus, permitted the jury to improperly convict

him of feloniously eluding the police and felony homicide. For the reasons that follow, we

affirm Bazemore’s convictions.

A.

Bazemore first contends the evidence was insufficient to support his conviction for grand

larceny by receiving stolen property. Specifically, he argues the evidence was insufficient to

prove he knew the vehicle was stolen, intended to permanently deprive the owner of the vehicle,

and had dishonest intent.

We first note, in regard to this argument, that Bazemore contends the evidence was

insufficient to convict him of violating Code § 18.2-108. The final conviction order recites,

however, that the conviction was for grand larceny in violation of Code § 18.2-95, which was the

charge specified in the indictment. Although neither Bazemore nor the Commonwealth

addressed this discrepancy, we address it for purposes of clarity.

The record reflects that the trial judge’s instructions permitted the jury to convict

Bazemore of “grand larceny,” which was the offense charged in the indictment, or to convict him

of other lesser offenses, including “grand larceny by receiving stolen property.” The verdict

form establishes that the jury convicted Bazemore of “grand larceny by receiving stolen

property,” which is prohibited by Code § 18.2-108. Following the guilt phase of the trial, the

jury fixed Bazemore’s punishment at one year in prison for “grand larceny by receiving stolen

property.” Consistent with the jury’s findings, the trial judge entered an order reflecting that the

jury convicted Bazemore and fixed his sentence for “grand larceny by receiving stolen property.”

The final conviction order, however, contains no reference to Code § 18.2-108 and recites only

that Bazemore was convicted of “grand larceny ([Code] § 18.2-95).”

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 The Supreme Court has held that “[r]eceiving stolen goods, knowing the same to be

stolen, may be charged as larceny.” Clark v. Commonwealth, 135 Va. 490, 498, 115 S.E. 704,

706 (1923), overruled on other grounds by Chittum v. Commonwealth, 211 Va. 12, 174 S.E.2d

779 (1970). See also Cabbler v. Commonwealth, 212 Va. 520, 524, 184 S.E.2d 781, 783 (1971)

(holding that “[l]arceny by receiving stolen goods is a lesser offense which is included in the

major one of larceny”). In view of these decisions, the jury’s verdict forms, and the trial judge’s

order entered upon the jury’s verdict, we hold that the trial judge’s failure to include a reference

to Code § 18.2-108 on the final conviction order was a mere clerical error. We further remand

this matter to the trial court for the limited purpose of correcting that error.

Turning to the merits of Bazemore’s argument, we recognize that Code § 18.2-108

provides that “[i]f any person buy or receive from another person, or aid in concealing, any

stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of

larceny thereof, and may be proceeded against, although the principal offender be not

convicted.” We have described the elements of the offense as follows:

“To convict a defendant under Code § 18.2-108, the
Commonwealth must prove that property ‘was (1) previously
stolen by another, and (2) received by defendant, (3) with
knowledge of the theft, and (4) a dishonest intent.’ Guilty
knowledge ‘is sufficiently shown if the circumstances proven are
such as must have made or caused the recipient of stolen goods to
believe they were stolen.’” Shaver v. Commonwealth, 30
Va. App. 789, 800-01, 520 S.E.2d 393, 399 (1999). “Guilty
knowledge . . . [a]bsent proof of an admission against
interest, . . . necessarily must be shown by circumstantial
evidence.” Lewis v. Commonwealth, 225 Va. 497, 503, 303
S.E.2d 890, 893 (1983).

Snow v. Commonwealth, 33 Va. App. 766, 775, 537 S.E.2d 6, 11 (2000).

The evidence in the case at bar, when viewed in the light most favorable to the

Commonwealth, proved that Bazemore confessed to police that shortly after he entered the green

minivan, he learned it had been stolen. He also saw the minivan’s broken window and the
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screwdriver on the floor. Thus, by Bazemore’s own admission, he knew he was driving a stolen

vehicle before he failed to heed the officer’s signal. The evidence also proved Bazemore

admitted to an inmate in jail that he knew the vehicle was stolen. Moreover, apart from his own

confession and the testimony of an inmate, the evidence proved Bazemore was driving the

vehicle in daylight and had the opportunity to see the “popped” ignition, the broken steering

column, and a rag covering the steering column.

The jury was not required to accept Bazemore’s trial testimony. Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). It was free to believe or

disbelieve, in part or in whole, the testimony of any witness. Rollston v. Commonwealth, 11

Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). Although Bazemore’s testimony differed from

his confession, “the jury was ‘not obliged to accept’ what it obviously found was an

unreasonable explanation,” Roberts v. Commonwealth, 230 Va. 264, 272, 337 S.E.2d 255, 260

(1985), and was free to believe his confessed participation. We hold the evidence was sufficient

for the jury to find beyond a reasonable doubt that Bazemore knew the vehicle was stolen when

he drove it.

Bazemore also contends the evidence was insufficient to prove he intended to

permanently deprive the owner of the minivan. However, Bazemore’s reliance on Moehring v.

Commonwealth, 223 Va. 564, 290 S.E.2d 891 (1982), to support his defense that he had no

intent to permanently deprive is misplaced. The Supreme Court noted the following in reversing

Moehring’s conviction:

There is no evidence in the record which demonstrates that
Moehring exercised any degree of dominion or control over the
stolen truck, or from which the court could have inferred that
defendant possessed the truck jointly with Faison. . . . The most
that can be said with reasonable certainty is that this
defendant-hitchhiker accepted a ride from the first person who
stopped and that he knew that person was driving a stolen vehicle.

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Id. at 568, 290 S.E.2d at 893. Pertinent to the evidence in this case, the Supreme Court of

Virginia in Moehring restated the well-settled rule that “[b]ecause larceny is a continuing

offense, anyone who knows that personal property is stolen and assists in its transportation or

disposition is guilty of larceny.” Id. The evidence here proved beyond a reasonable doubt that

Bazemore knew the vehicle was stolen and drove it with that knowledge.

Bazemore further argues that the evidence was insufficient to prove he had dishonest

intent. We have consistently held, however, that issues that were not properly preserved at trial

cannot be raised on appeal. Andrews v. Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401,

408 (2002). Bazemore never raised the argument of dishonest intent before the trial court.

Because, on this record, we find no reason to consider this argument pursuant to the “good

cause” or “ends of justice” exceptions to Rule 5A:18, we do not review this issue, raised for the

first time on appeal. See Rule 5A:18.

B.

Bazemore next contends on appeal that the trial judge erred in failing to instruct the jury

on the definition of “wanton.” Bazemore argues that because of this error his convictions for

felony eluding police and felony homicide must be reversed.

To prove a violation of Code § 46.2-817, the Commonwealth had to prove Bazemore

drove the “motor vehicle in a willful and wanton disregard” of the officer’s signal. Nevertheless,

Bazemore did not ask the judge to instruct the jury concerning the definition of “wanton.”

Therefore, we will not review the issue for the first time on appeal. See Rule 5A:18.

Furthermore, we find that this record provides no basis to consider this claim under the

exceptions to Rule 5A:18.

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 C.

In his final arguments on appeal, Bazemore contends the evidence was insufficient to

prove he wantonly disregarded the officer’s signal to stop. He also contends the trial judge

incorrectly instructed the jury concerning the elements of Code § 46.2-817 by placing the

elements of “willfull” and “wanton” in the disjunctive, rather than in the conjunctive.

Consequently, Bazemore argues his felony eluding conviction should be reversed and, because

his felony homicide conviction was contingent upon the felony eluding conviction, that

conviction must also be reversed.

At the close of the Commonwealth’s evidence, Bazemore’s trial attorney made a motion

to strike. He conceded Bazemore operated the minivan. He argued, however, that because

Bazemore did not know the minivan was stolen, the evidence failed to prove grand larceny.

Thus, he argued that grand larceny, which he asserted should have been the predicate offense for

felony homicide, was not proved. He then argued as follows:

I would submit . . . that the eluding is a separate and distinct crime,
that the essence of which is [failure] to heed the police signal to
stop under circumstances that create danger to the motoring or
pedestrian traffic. . . . I would submit, Judge, that that is not a
sufficient predicate for felony murder to apply.

At the conclusion of the evidence, Bazemore’s trial attorney also moved to strike the

evidence concerning the eluding charge, asserting “there [wasn’t] any real clear, intelligent

evidence that [Bazemore] was actually operating the vehicle for any length of time that the

vehicle failed to stop when the blue lights were on and the car was being driven in such fashion

as to endanger.” Bazemore’s attorney argued, that because credible evidence proved Shorter had

switched places with Bazemore, “[t]here’s no evidence to clearly demonstrate that anyone was

endangered at any time for a felony eluding when [Bazemore] was operating the vehicle. And

the evidence before you is that when he wanted to stop, he couldn’t stop because [Shorter] had

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brandished a weapon . . . and said, ‘Drive on.’“ Summarizing, Bazemore’s trial attorney argued

as follows:

[T]hey have to prove for the reckless endangerment element that
the defendant was driving at the time to create a danger to the
motoring or pedestrian public. They can’t do that. We would have
to guess, the Court would have to guess at [the] point that
endangerment occurred. So I would submit, Your Honor, that the
charge of felony eluding, likewise, has to fall because there is
insufficient evidence to support the conclusion that at the relevant
time that the defendant was actually driving a car or this van to
endanger the motoring public.

As to the felony-homicide charge, he argued as follows:

We would also . . . move to strike the Commonwealth’s evidence
as to second degree murder. It’s clear that this was an accident,
that whoever was driving that it was not the intended purpose to do
that, and . . . the evidence before the Court is that the defendant
was not the operator of the vehicle at the time of the collision.

These arguments, which the trial judge rejected, also formed the gist of Bazemore’s

counsel’s closing argument to the jury. Urging the jury to analyze “the elements of the

offenses,” he discussed in detail the elements of the larceny offense. As to “the eluding,” he

posed the question, “where is the evidence that Nicko Bazemore was operating . . . the [vehicle]

at any time that created a danger to the public?” Thus, he argued:

So, if, indeed, you conclude that [Bazemore] was not the driver of
the [vehicle] at the time of the collision, he could not be convicted
of felony murder. If you believe that he was not driving at any
time when the vehicle presented a danger to the motoring public,
he could not be convicted of eluding a felony.

At all stages of the trial, Bazemore contended he was not driving when the vehicle entered the

intersection in disregard of the stop sign and collided with the van. At no point did he object that

the evidence was insufficient to prove the element of “wanton.” The failure to raise these issues

at trial bars our consideration of them on appeal. Rule 5A:18. See Floyd v. Commonwealth, 219

Va. 575, 583-85, 249 S.E.2d 171, 176 (1978) (holding that appellate review of the issue of

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insufficiency to prove a specific element is barred when that issue was not raised at trial).

Moreover, in view of the arguments Bazemore actually advanced at trial and the evidence

produced, we conclude that no basis exists to invoke the exceptions to Rule 5A:18.

We find that we are likewise precluded from considering Bazemore’s final contention

that the trial judge erred in instructing the jury on the elements of the offense of eluding. The

instruction given, read as follows:

The Court instructs the jury that the defendant is charged with a
felony crime of disregarding a signal of a law enforcement officer
to stop. The Commonwealth must prove beyond a reasonable
doubt each of the following elements of a crime. Number 1, that
the defendant was driving a motor vehicle; and Number 2, that he
received a visible and/or audible signal from a law enforcement
officer to bring his motor vehicle to a stop; and Number 3, that he
willfully or wantonly disregarded such signal so as to endanger any
person. . . .

The record reflects that Bazemore did not object to the jury instruction in any manner. Indeed,

Bazemore does not dispute his failure to raise an objection below, but contends that we must

address this issue because it falls within the “ends of justice” exception to Rule 5A:18.

We begin our analysis by recognizing that Code § 46.2-817 provides that

[a]ny person who, having received a visible or audible signal from
any law-enforcement officer to bring his motor vehicle to a stop,
drives such motor vehicle in a willful and wanton disregard of
such signal so as to interfere with or endanger the operation of the
law-enforcement vehicle or endanger a person is guilty of a Class 6
felony.

(Emphasis added). The trial judge instructed the jury that the Commonwealth was required to

“prove beyond a reasonable doubt . . . that [Bazemore] willfully or wantonly disregarded such

signal so as to endanger any person.” (Emphasis added).1 The parties do not dispute the fact that

the instruction, as given, was an incorrect statement of law.

1
The General Assembly amended Code § 46.2-817 in 1999, effective July 1, 2000, and
substituted “and” for “or” preceding the words “wanton disregard.” See 1999 Va. Acts, ch. 720.
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 Nevertheless,

[u]nder Rule 5A:18 we do not notice the trial errors for which no
timely objection was made except in extraordinary situations when
necessary to enable us to attain the ends of justice. The laudatory
purpose behind Rule 5A:18, and its equivalent Supreme Court
Rule 5:25, frequently referred to as the contemporaneous objection
rules, is to require that objections be promptly brought to the
attention of the trial court with sufficient specificity that the
alleged error can be dealt with and timely addressed and corrected
when necessary. The rules promote orderly and efficient justice
and are to be strictly enforced except where the error has resulted
in manifest injustice. Errors can usually be corrected in the trial
court, particularly in a bench trial, without the necessity of appeal.
Because our function is to review the rulings of the trial court,
rather than superintend the proceedings, we will notice error for
which there has been no timely objection only when necessary to
satisfy the ends of justice.

Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989) (citation omitted).

“‘The ends of justice exception is narrow and is to be used sparingly.’” Redman v.

Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997) (quoting Brown, 8 Va. App.

at 132, 380 S.E.2d at 10)). Additionally, the record must “affirmatively show[] that a

miscarriage of justice has occurred not . . . that a miscarriage might have occurred.” Mounce v.

Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987) (emphasis in original). This

requires a defendant “to affirmatively show [that] . . . that the error [was] clear, substantial and

material.” Brown, 8 Va. App. at 132, 380 S.E.2d at 11 (alterations in original).

The Supreme Court of Virginia has held that the “ends of justice” exception applies to

permit review when a “granted instruction omitted some essential elements of the offense” and

“no evidence was produced relating to those elements.” Jimenez v. Commonwealth, 241 Va.

244, 251, 402 S.E.2d 678, 681-82 (1991). In Campbell v. Commonwealth, 14 Va. App. 988,

994, 421 S.E.2d 652, 656 (1992), this Court similarly held that the exception applies to permit

our review of an instruction that “allows a jury to convict a defendant without proof of an

essential and necessary element of the charged offense.”
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 However, neither the Supreme Court of Virginia, nor this Court, has held that we must

always apply the ends of justice exception in cases involving faulty jury instructions to which no

objection was noted below – even where such faulty instructions improperly stated the elements

of an offense. See Phoung v. Commonwealth, 15 Va. App. 457, 464-65, 424 S.E.2d 712, 716

(1992) (refusing to consider, for the first time on appeal, defendant’s contention that the trial

court improperly instructed the jury on the elements of a burglary charge). Indeed, to do so

would require us to raise such failures on the part of counsel to the effective level of a

jurisdictional component. See Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001)

(noting that subject matter jurisdiction is granted by constitution or statute and cannot be waived,

so that any judgment rendered without it is void ab initio, and that lack of subject matter

jurisdiction may be raised at any time, in any manner, before any court, or by the court itself

(citations omitted)). We decline to take such a leap here.

Moreover, the “broad application of the ends of justice exception” suggested by

Bazemore,

would undermine the trial court’s ability to correct errors in the
trial court and thereby frustrate the ends of justice, not prevent a
miscarriage of justice. [S]uch an expansion of the exception would
also encourage trial counsel to stand mute . . . thereby knowingly
inviting the trial judge to commit error without having a sufficient
opportunity to rule upon the issue.

Redman, 25 Va. App. at 221, 487 S.E.2d at 273.

In this context, the Supreme Court of Virginia has recognized that “[i]t is axiomatic that

‘[i]t belongs to the [trial] court to instruct the jury as to the law, whenever they require

instruction, or either of the parties request it to be given.’” Fishback v. Commonwealth, 260 Va.

104, 117, 532 S.E.2d 629, 635 (2000) (quoting Thornton v. Commonwealth, 65 Va. (24 Gratt.)

657, 662 (1874)). The Court has stated that courts of this Commonwealth

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 “adhere to the rule that the trial court is not required to amend or
correct an erroneous instruction, but the rule is subject to the
limitation that when the principle of law is materially vital to a
defendant in a criminal case, it is reversible error for the trial court
to refuse a defective instruction instead of correcting it and giving
it in the proper form.”

[Fishback, 260 Va. at 117, 532 S.E.2d at 635] (quoting Whaley v.
Commonwealth, 214 Va. 353, 355-56, 200 S.E.2d 556, 558
(1973)).

In contrast, a circuit court ordinarily does not have an affirmative
duty to give a jury instruction on a particular legal principle when a
criminal defendant fails to request that the jury be instructed on
that principle. We have regularly applied this rule in criminal
cases.

Commonwealth v. Jerman, 263 Va. 88, 93, 556 S.E.2d 754, 757 (2002).

In view of these principles, it is clear that, when properly understood, the Supreme Court

of Virginia’s decision in Jimenez, as well as our decision in Campbell, demonstrate that this case

does not represent the “extraordinary” circumstance under which we have found it necessary to

overlook a defendant’s failure to object to a defective jury instruction. See Phoung, 15 Va. App.

at 464-65, 424 S.E.2d at 716-17.

In Jimenez, defense counsel failed to object to a jury instruction
that omitted one of the elements of an offense. As a result, the
instruction did not state any offense at all. Moreover, no evidence
was produced at trial relating to the missing element. Finding that
Jimenez was convicted of “a non-offense” and that no evidence
was produced regarding the missing element, the Virginia Supreme
Court held that the error was not waived by Jimenez’s failure to
raise it below. 241 Va. at 251, 402 S.E.2d at 681.

Id. at 465, 424 S.E.2d at 716. Specifically, the Court in Jimenez held,

[w]e also reject the Attorney General’s contention that Jimenez
waived his right to raise this matter on appeal because he failed to
preserve the error at trial. The granted instruction omitted some
essential elements of the offense. Likewise, no evidence was
produced relating to those elements. Jimenez, therefore, was
convicted of a non-offense.

Jimenez, 241 Va. at 251, 402 S.E.2d at 681-82 (emphases added).
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 Campbell involved a trial for forgery of a public document. 14 Va. App. at 990, 421

S.E.2d at 653. Although the issue of intent was adamantly contested by the defendant, id. at

1005-06, 421 S.E.2d at 662 (Moon, J., dissenting), the jury instruction “essentially eliminated

intent to defraud as an element of the offense.” Phoung, 15 Va. App. at 465, 424 S.E.2d at 717.

“We held that a manifest injustice had occurred because the ‘instructions given by the trial court

relieved the Commonwealth of its burden to prove criminal intent,’ and permitted the jury to

convict Campbell ‘for otherwise innocent behavior.’” Id. (quoting Campbell, 14 Va. App. at

992, 995, 421 S.E.2d at 655-56).

Here, no such obvious miscarriage of justice occurred. Unlike the factual scenario in

Jimenez, the evidence that Bazemore “willfully and wantonly” disregarded Officer Marshall’s

signal, so as to “endanger any person” was overwhelming. In the civil context, the Supreme

Court long ago defined willful and wanton conduct as follows:

[W]illfulness and wantonness convey the idea of purpose or
design, actual or constructive. . . . [T]hey are used to signify a
higher degree of neglect than gross negligence. “In order that one
may be held guilty of willful or wanton conduct, it must be shown
that he was conscious of his conduct, and conscious, from his
knowledge of existing conditions, that injury would likely or
probably result from his conduct, and that with reckless
indifference to consequences he consciously and intentionally did
some wrongful act or omitted some known duty which produced
the injurious result.”

Thomas v. Snow, 162 Va. 654, 660, 174 S.E. 837, 839 (1934) (citation omitted). See also Infant

C. v. Boy Scouts of America Inc., 239 Va. 572, 581, 391 S.E.2d 322, 327 (1990). This definition

requires a showing of recklessness plus additional culpability.

“Wanton differs from reckless both as to the actual state of mind
and as to the degree of culpability. One who is acting recklessly is
fully aware of the unreasonable risk he is creating, but may be
trying and hoping to avoid any harm. One acting wantonly may be
creating no greater risk of harm, but he is not trying to avoid it and
is indifferent to whether harm results or not. Wanton conduct has
properly been characterized as ‘vicious’ and rates extreme in the
-16-
 degree of culpability. The two are not mutually exclusive.
Wanton conduct is reckless plus, so to speak.”

Black’s Law Dictionary 1576 (7th ed. 1999) (quoting Rollin M. Perkins & Ronald N. Boyce,

Criminal Law 879-80 (3d ed. 1982)).

We have held that a person violated Code § 46.2-817(B) when he ignored a signal to

stop, operated a vehicle at a high speed in violation of posted limits, passed three cars, crossed a

double solid line, “disregarded a red traffic signal at an intersection with a four-lane highway,”

and then crashed into a tree after losing control of the vehicle. Tucker v. Commonwealth, 38

Va. App. 343, 347, 564 S.E.2d 144, 146-47 (2002). On the other hand, the Supreme Court has

noted “that the intentional violation of a traffic law, without more, will not support a finding of

willful and wanton negligence.” Alfonso v. Robinson, 257 Va. 540, 545, 514 S.E.2d 615, 618

(1999).

The evidence in the present case proved much more than that Bazemore intentionally

violated a traffic law. Bazemore admittedly disregarded the officer’s signal to stop in an effort to

elude police. Furthermore, it is significant to note that because the jury found Bazemore guilty

of felony homicide, it is clear the jury found he was driving the minivan at the time of the fatal

collision. Thus, the evidence established that in his effort to elude police, Bazemore continued to

drive at speeds of up to 50 miles per hour in “relatively heavy” traffic, he failed to heed three

stop signs, and he drove through a busy intersection without yielding. Bazemore’s failure to

yield in that intersection, which was located in a “mostly residential and small businesses area,”

caused the fatal collision. Accordingly, an examination of the record demonstrates that, whether

Bazemore acted because he was “scared” or otherwise, it would have been difficult for a rational

trier of fact to reach any conclusion other than that Bazemore drove the minivan in a manner so

as to willfully and wantonly disregard the police officer’s signal and, therefore, place others in

danger.
-17-
 Moreover, unlike the situation in Campbell, Bazemore never contested the elements of

“willfulness” or “wantoness.” In fact, Bazemore’s only trial strategy was to claim that he was

not driving the green minivan when the fatal collision occurred and/or when the “vehicle

presented a danger to the motoring public.” Bazemore never contested the fact that the minivan

was driven in a willful and wanton manner, so as to elude police and place others in danger.

Further, the erroneous jury instruction, as given, did not allow the jury to convict

Bazemore of “otherwise innocent behavior.” See Campbell, 14 Va. App. at 995, 421 S.E.2d at

656. Indeed, Code § 46.2-852 states that “[i]rrespective of the maximum speeds permitted by

law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so

as to endanger the life, limb, or property of any person shall be guilty of reckless driving.”

(Emphasis added). Whether the jury found, under the instruction as given, that by his driving the

vehicle Bazemore willfully or wantonly disregarded Officer Marshall’s signal, “so as to

endanger any person,” either classification would give rise to a finding that Bazemore committed

conduct that was not “otherwise innocent behavior,” but was a criminal offense. See Campbell,

14 Va. App. at 995, 421 S.E.2d at 656.

Accordingly, finding no miscarriage of justice on this record, we decline Bazemore’s

invitation to consider his argument pursuant to the “ends of justice” exception to Rule 5A:18.

D.

For the above-stated reasons, we find no merit in Bazemore’s arguments on appeal and

we, therefore, affirm his convictions for grand larceny, feloniously eluding police and second

degree murder. However, we remand this matter to the circuit court, solely for purposes of

correcting the final conviction order to reflect that Bazemore’s conviction for grand larceny was

pursuant to Code § 18.2-108.

Affirmed and remanded.

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Benton, J., wit whom Elder, J., joins, concurring, in part, and dissenting, in part.

For the reasons I have previously explained in Bazemore v. Commonwealth, 03 Vap

UNP 0103021 (2003), I would affirm Nicko Bazemore’s conviction for grand larceny. Thus, I

join in Parts I and Parts II(A) of the majority opinion. I also join in Part II(B) of the majority

opinion, for the reasons I previously explained in Bazemore. I do not join in Part II(C) because I

would hold that the trial judge committed reversible error by omitting a significant element of

the offense when he instructed the jury concerning the offense of feloniously eluding a law

enforcement officer. The error was not harmless.

I.

On appeal, Bazemore contends the trial judge erred by omitting a statutory element when

instructing the jury on the elements of the offense of feloniously eluding a law enforcement

officer as proscribed by Code § 46.2-817(B). Although the Commonwealth correctly notes that

Bazemore did not object at trial to the flawed instruction, I would address this issue because

Bazemore’s claim falls within a recognized exception to Rule 5A:18.

The Supreme Court has held that the “ends of justice” exception of Rule 5A:18 applies to

permit review when there has been a failure to object to an instruction that “omitted some

essential element of the offense.” Jimenez v. Commonwealth, 241 Va. 244, 251, 402 S.E.2d

678, 681 (1990). We also have held that Rule 5A:18 will not bar our review of an instruction

that “allows a jury to convict a defendant without proof of an essential and necessary element of

the charged offense.” Campbell v. Commonwealth, 14 Va. App. 988, 994, 421 S.E.2d 652, 656

(1992).

The statute defining the offense for which Bazemore was being tried provides, in

pertinent part, as follows:

Any person who, having received a visible or audible signal
from any law-enforcement officer to bring his motor vehicle to a
-19-
 stop, drives such motor vehicle in a willful and wanton disregard
of such signal so as to interfere with or endanger the operation of
the law-enforcement vehicle or endanger a person is guilty of a
Class 6 felony.

Code § 46.2-817(B) (emphasis added).

The General Assembly amended Code § 46.2-817 to its present form in 1999,

substituting “and” for “or” preceding the words “wanton disregard.” See 1999 Va. Acts, ch. 720.

Although this statutory change involves only one word, we must “assume that the General

Assembly’s amendments to the law are purposeful and not unnecessary or vain.” Virginia-Am.

Water Co. v. Prince Wm. Serv., 246 Va. 509, 517, 436 S.E.2d 618, 623 (1993).

“As a general rule, a presumption exists that a substantive change
in law was intended by an amendment to an existing statute.”
Thus, in construing a statute that has been amended by the General
Assembly, we presume that the legislature acted with full
knowledge of the law as it affected the subject matter.
It is our task . . . to adopt a construction that gives import to
the legislative purpose and the words used.

Commonwealth v. Bruhn, 264 Va. 597, 602, 570 S.E.2d 866, 869 (2002) (citations omitted). By

changing “or” to “and,” the General Assembly significantly increased the prosecution’s burden

of proof. Indeed, both parties agree that the statute in effect on the date of this incident expressly

required evidence to support a finding of “willful and wanton disregard of [the officer’s] signal.”

Code § 46.2-817(B) (emphasis added).

The jury, however, was not required to make such a finding. When the trial judge

instructed the jury that the Commonwealth was required to “prove beyond a reasonable

doubt . . . that [Bazemore] willfully or wantonly disregarded such signal so as to endanger any

person” (emphasis added), the judge’s instruction incorrectly informed the jury of the law.

Simply put, the judge instructed the jury, contrary to the requirements of the amended statute, to

convict Bazemore if it found either “[t]hat he willfully or wantonly disregarded such signal”

(emphasis added), not both.
-20-
 A trial judge, however, “has an affirmative duty properly to instruct a jury about [every

principle of law that is vital to a defendant in a criminal case].” Jimenez, 241 Va. at 250, 402

S.E.2d at 681. The proper description of the elements of the offense is vital to a defendant in a

criminal case because the jury, as the finder of fact, must determine whether the prosecution has

“satisf[ied] the due process requirements of the Federal Constitution . . . [to] bear the burden of

proving all elements of the offense beyond a reasonable doubt.” Stokes v. Warden, 226 Va. 111,

117, 306 S.E.2d 882, 885 (1983) (citing In Re Winship, 397 U.S. 358, 363 (1970)). To assure

this constitutional requirement is satisfied, the judge’s “imperative duty [to properly instruct the

jury as to the law of the particular case] . . . is one which can neither be evaded nor surrendered.”

Williams v. Lynchburg Traction and Light Co., 142 Va. 425, 432, 128 S.E. 732, 734 (1925). In

giving a defective jury instruction in this case, the judge allowed the jury to convict Bazemore if

it found that he willfully or wantonly disregarded the signal of the law enforcement officer. By

posing the elements in the disjunctive, the instruction permitted the jury to convict Bazemore of

an offense that does not exist in Virginia law. See Marshall v. Commonwealth, 26 Va. App. 627,

637, 496 S.E.2d 120, 125 (1998) (noting that “we would be permitted to invoke the ends of

justice exception to reverse . . . a conviction for a non-existent offense”).

For these reasons, I would reject the Commonwealth’s assertion that Rule 5A:18 bars our

consideration of this issue. I would hold, instead, that the trial judge erred in giving the

instruction that permitted the jury to convict Bazemore of a non-existent offense. Therefore, I

would reverse the judgments of convictions for feloniously eluding the law enforcement officer

and for felony homicide, which was predicated upon feloniously eluding the law enforcement

officer.

-21-
 II.

The Commonwealth contends that even if the “ends of justice” exception applies, the

convictions nevertheless should be affirmed because the error was harmless. I disagree.

The trial judge’s error in this case permitted the jury to convict Bazemore of a criminal

offense without finding the evidence proved beyond a reasonable doubt each element of the

offense. “Lest there remain any doubt about the constitutional stature of the reasonable-doubt

standard, [the United States Supreme Court long ago] explicitly [held] that the Due Process

Clause protects the accused against conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is charged.” In Re Winship, 397 U.S.

at 364. Equally important, the Sixth Amendment to the United States Constitution provides that

“[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial

jury.” A necessary corollary to these two principles is that in a jury trial, “[t]he Constitution

gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his

guilt of every element of the crime with which he is charged.” United States v. Gaudin, 515 U.S.

506, 522-23 (1995). By instructing the jury in the disjunctive, the judge violated these principles

and created error of a constitutional magnitude.

“[B]efore a federal constitutional error can be held harmless, the court must be able to

declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386

U.S. 18, 24 (1967). Giving effect to the constitutional right to a trial by jury, the harmless error

test requires courts to examine the basis for the jury verdict.

Consistent with the jury-trial guarantee, the question [Chapman]
instructs the reviewing court to consider is not what effect the
constitutional error might generally be expected to have upon a
reasonable jury, but rather what effect it had upon the guilty
verdict in the case at hand. Harmless-error review looks . . . to the
basis on which “the jury actually rested its verdict.” The inquiry,
in other words, is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but
-22-
 whether the guilty verdict actually rendered in this trial was surely
unattributable to the error. That must be so, because to
hypothesize a guilty verdict that was never in fact rendered -- no
matter how inescapable the findings to support that verdict might
be -- would violate the jury-trial guarantee.

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (citation omitted).

To establish a violation of Code § 46.2-817(B), the Commonwealth must prove,

according to the statute’s express language, that Bazemore operated the vehicle in a “willful and

wanton disregard of [the officer’s] signal so as to interfere with or endanger the operation of the

law-enforcement vehicle or endanger a person.” (Emphasis added). Quoting United States v.

Murdock, 290 U.S. 389, 394 (1933), we have defined willful as follows:

“The word [willful] often denotes an act which is
intentional, or knowing, or voluntary, as distinguished from
accidental. But when used in a criminal statute it generally means
an act done with a bad purpose; without justifiable excuse;
stubbornly, obstinately, perversely. The word is also employed to
characterize a thing done without ground for believing it is
lawful. . . .”

Snead v. Commonwealth, 11 Va. App. 643, 646-47, 400 S.E.2d 806, 807 (1991). More

precisely, the United States Supreme Court has held that to act willfully a criminal defendant

must know that his acts violate the law. Ratzlaf v. United States, 510 U.S. 135, 136-37 (1994).

“[I]n the criminal law [willfull] . . . typically refers to a culpable state of mind.” Bryan v. United

States, 524 U.S. 184, 191 (1998).

To prove the other necessary element of the offense, wanton disregard, the evidence must

show recklessness plus additional culpability. See Town of Big Stone Gap v. Johnson, 184 Va.

375, 379, 35 S.E.2d 71, 73 (1945) (citing Webster’s New International Dictionary, 2d ed.).

“Wanton differs from reckless both as to the actual state of mind
and as to the degree of culpability. One who is acting recklessly is
fully aware of the unreasonable risk he is creating, but may be
trying and hoping to avoid any harm. One acting wantonly may be
creating no greater risk of harm, but he is not trying to avoid it and
is indifferent to whether harm results or not. Wanton conduct has
-23-
 properly been characterized as ‘vicious’ and rates extreme in the
degree of culpability. The two are not mutually exclusive.
Wanton conduct is reckless plus, so to speak.”

Black’s Law Dictionary 1576 (7th ed. 1999) (quoting Rollin M. Perkins & Ronald N. Boyce,

Criminal Law 879-80 (3d ed. 1982)).

Because the trial judge incorrectly instructed the jury by placing the statutory elements of

“willful” and “wanton” in the disjunctive, we cannot have any degree of confidence that the jury

actually found both elements were proved beyond a reasonable doubt.

“The test . . . is not whether laying aside the [error] there was other
evidence sufficient to convict beyond a reasonable doubt . . . , but,
more stringently, ‘whether there is a reasonable possibility that the
[error] complained of might have contributed to the conviction.’”
In other words, even if “the other evidence amply supports the . . .
verdicts, [error is not harmless when it] may well have affected the
. . . decision.”

An “emphasis and perhaps overemphasis, upon the
[concept] of ‘overwhelming evidence’” has the effect of clouding
the relevant question “‘whether there is a reasonable possibility
that the [error] complained of might have contributed to the
conviction.’” As the Supreme Court has stated, “[t]he correct
inquiry is whether, assuming that the damaging potential of the
[error] were fully realized, a reviewing court might nonetheless say
that the error was harmless beyond a reasonable doubt.” Thus, “a
harmless error analysis . . . [is not] simply a sufficiency of the
evidence analysis.”

Williams v. Commonwealth, 32 Va. App. 395, 399-400, 528 S.E.2d 166, 168-69 (2000)

(citations omitted).

Recently, in a civil case where the issue was whether conduct was “so willful or

wanton . . . [to] support an award of punitive damages,” the Supreme Court ruled that the

evidence was insufficient to prove either. Doe v. Isaacs, 265 Va. 531, 535, 579 S.E.2d 174,

176-77 (2003). The Court summarized the lack of evidence as follows:

Clearly, the defendant’s actions, involving violation of
traffic laws and rules of the road, demonstrated a disregard of
prudence to the level that the safety of others was completely
-24-
 neglected. But this conduct amounts to gross negligence, which
shocks fair-minded people; it is less than willful recklessness. The
required “actual or constructive consciousness that injury will
result from the act done or omitted,” is lacking in the proof.

At the most from the plaintiffs’ standpoint, the defendant
did not keep a proper lookout for vehicles nearly stopped ahead of
him, he did not keep his vehicle under proper control, he probably
was intoxicated to some extent, and he feloniously left the scene of
the accident in violation of Code § 46.2-894. There is no evidence
that defendant exceeded the speed limit or a reasonable speed
under the circumstances. He was driving on his proper side of the
street, apparently operating a properly functioning vehicle. In sum,
the defendant’s behavior was not the “egregious” conduct spoken
of in our cases.

Id. at 538, 579 S.E.2d at 178 (citations omitted). Thus, although exemplary damages (see Code

§ 8.01-44.5) are permitted in a civil case upon a showing of “willful or wanton” conduct, Isaacs,

265 Va. at 536, 579 S.E.2d at 174, the evidence the Supreme Court reviewed above proved

neither element, even though the plaintiff only had to prove either by a mere preponderance.

The evidence before the jury in this case, where the prosecution had the burden of

proving “willful and wanton” disregard beyond a reasonable doubt, is equally deficient. It did

not prove Bazemore exceeded any posted speed limits. Although the officer testified that at one

point Bazemore accelerated to fifty miles per hour, the evidence does not establish the posted

speed limit on this road. The evidence strongly suggests, however, that Bazemore was within the

speed limit because the road was a four-lane “thoroughfare that runs . . . from Suffolk to [the

State of North] Carolina.” The officer also testified that after Bazemore left this road,

Bazemore’s speed decreased “to approximately 10 miles an hour when he turned into a

residential area.” No evidence suggests Bazemore was violating the posted speed limit as he left

the residential area and entered the intersection. Indeed, the officer behind Bazemore testified

his own speed was approximately fifteen to twenty miles per hour when Bazemore drove into the

intersection. The severity of the collision in the intersection likely is explained by Bazemore’s

-25-
vehicle hitting a minivan that was travelling on a four-lane divided highway with a greater speed.

In the absence of proof Bazemore was driving at an excessive speed, it is difficult to conclude

that a reasonable jury would have found the necessary mercilessness to justify a finding of

wanton disregard.

The evidence also leaves uncertain whether the jury based its conviction on a finding of

willful conduct. Significantly, the jury accepted Bazemore’s testimony that he did not steal the

vehicle and convicted him of larceny upon his testimony that he knew he was driving a vehicle

Shorter had stolen. The jury also may have believed Bazemore’s testimony that he did not stop

because he was “scared” and that he also was afraid Shorter would have harmed him. However,

even if the jury accepted Bazemore’s testimony and found that he did not intentionally violate

the traffic laws but acted out of fear, see id. at 535, 579 S.E.2d at 176 (reaffirming the long

standing rule that “‘the intentional violation of a traffic law, without more, will not support a

finding of willful and wanton [conduct]’”), the jury still could have applied the defective

instruction and convicted Bazemore.

Simply put, even though the majority opinion concludes that the evidence is perhaps

adequate to support a finding of wanton and willful disregard, it is entirely possible that the jury

convicted Bazemore solely on a finding of either willful or wanton disregard of the officer’s

signal. Indeed, it is highly probable that the jury did so because, without an instruction requiring

the jury to find that both elements were proved beyond a reasonable doubt, we cannot assume the

jury performed a task that was neither necessary nor required under the defective instruction.

When a defendant elects to be tried by a jury “in a criminal case[,] the law assigns [the

factfinding function] solely to the jury.” Sandstrom v. Montana, 442 U.S. 510, 523 (1979).

Therefore, we cannot on appeal supplement the jury’s finding to add an element the jury was not

required to consider. Indeed, to do so, we would, in effect, commit the same error the trial judge

-26-
committed -- we would determine the evidence proved beyond a reasonable doubt the element of

the offense the jury was required to find but was not instructed to find. We would make an

independent determination of the credibility of witnesses and weight of the evidence, both of

which “are matters solely for the fact finder.” Hampton v. Commonwealth, 32 Va. App. 644,

648, 529 S.E.2d 843, 845 (2000). Instead of compounding the error, we can avoid negating the

jury’s fact finding function by giving effect to the well established principle that a harmless error

analysis is entirely distinct from an analysis of the sufficiency of the evidence. See Cartera v.

Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978) (holding that even if “the other

evidence amply supports the . . . verdicts, [error is not harmless when] the [error] may well have

affected the . . . decision”); Hooker v. Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343,

345 (1992) (holding that “a harmless error analysis . . . [is not] simply a sufficiency of the

evidence analysis”).

The jury’s verdict in this case plainly was the result of a finding premised upon

Bazemore acting either wantonly or willfully, but not both.

[T]he United States Constitution requires that the jury, in a
criminal case, determine beyond a reasonable doubt that the
government has proven each element necessary to constitute the
crime charged. Thus, a judge in a criminal case may not direct a
verdict, even a partial verdict, for the government even though the
evidence is overwhelming or even undisputed on the point. When
a judge gives an instruction preventing the jury from considering a
material issue, that instruction is equivalent to an impermissible
directed verdict on the issue.

United States v. Piche, 981 F.2d 706, 716 (4th Cir. 1992) (citations omitted). Certainly, if “a

trial judge is prohibited from entering a judgment of conviction or directing the jury to come

forward with such a verdict . . . , regardless of how overwhelmingly the evidence may point in

that direction,” United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), an

appellate court cannot supplement on appeal the jury’s fact finding function by applying a

-27-
sufficiency analysis to conclude that an element of the offense, not found by the jury, was proved

beyond a reasonable doubt.

For these reasons, I would hold that the error was not harmless.

III.

Lastly, I would note that on several occasions, the Supreme Court has reversed

convictions for non-existent offenses. In Bundy v. Commonwealth, 220 Va. 485, 259 S.E.2d

826 (1979), the Court ruled as follows:

We believe that the weapons verdict in this case . . . plainly
convicts the defendant of the use of a firearm while committing,
not murder, but some undesignated other felony. Under the
weapons statute as it read prior to 1976, such a verdict might have
been proper.

[A]s a result of the 1976 amendment to Code § 18.2-53.1,
the use of a firearm “while committing a felony” no longer is
sufficient to constitute a violation of the statute. Now, a violation
occurs only when a firearm is used with respect to the specified
felonies of murder, rape, robbery, burglary, and abduction.

The offense in this case and the prosecution therefor took
place after the effective date of the amendment to Code
§ 18.2-53.1. Yet, under instructions erroneously framed to permit
such action, the jury was given free rein either to convict the
defendant of the no-longer existing offense of using a firearm in
the commission of a felony or to convict him of using a firearm
while committing murder. The jury convicted the defendant of the
non-existent offense. Clearly, therefore, the defendant’s firearms
conviction must be reversed.

The erroneous instructions which led to the anomalous
result reached below were granted, if not at the Commonwealth’s
request, in the absence of any objection.

Id. at 487-88, 259 S.E.2d at 828. See also Jimenez, 241 Va. at 251, 402 S.E.2d at 681 (holding

that Jimenez’s failure to object at trial did not waive “his right to raise this matter on appeal”

because the judge’s “instruction omitted some essential elements of the offense” and permitted

the jury to convict Jimenez “of a non-offense”); Ball v. Commonwealth, 221 Va. 754, 758-59,

-28-
273 S.E.2d 790, 793 (1981) (reversing a conviction for capital murder because the evidence

proved a homicide during an attempted robbery, which was not then one of the statutorily

defined predicate offenses of capital murder).

In my view, a circuit court lacks the power to convict an accused criminal defendant of a

“non-existent offense.” A conviction of a “non-existent offense” implicates the circuit court’s

subject matter jurisdiction and, thus, is cognizable on a direct appeal from such a conviction.

Indeed, the Supreme Court has held “that ‘[s]ubject matter jurisdiction is granted by constitution

or statute,’ that ‘[i]t cannot be waived,’ that ‘any judgment rendered without it is void ab initio,’

and that ‘lack of subject matter jurisdiction “may be raised at any time, in any manner, before

any court, or by the court itself.’”” Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d 73, 75

(2001) (citation omitted).

Because the jury convicted Bazemore of a non-existent criminal offense, I would hold

that the circuit court exceeded its jurisdictional power when it convicted Bazemore of an offense

that does not exist under the criminal law.

IV.

In summary, I would affirm the grand larceny conviction and remand to the trial judge to

correct that conviction order by inserting a reference to Code § 18.2-108. I would reverse the

convictions for felony eluding a law enforcement officer and felony homicide, and I would

remand for a new trial where the jury may be properly instructed.

-29-
 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia

NICKO BAZEMORE
MEMORANDUM OPINION* BY
v. Record No. 0103-02-1 JUDGE JAMES W. BENTON, JR.
MAY 13, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge

Andrew G. Wiggin for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.

Nicko Bazemore appeals from convictions of grand larceny, feloniously eluding the police,

and second degree murder. He contends (1) the evidence was insufficient to support the

convictions, (2) the trial judge erred by refusing to give the jury an instruction defining the word

"wanton," and (3) the trial judge failed to properly instruct the jury on the elements of the offense of

feloniously eluding the police and, thus, permitted the jury improperly to convict him of feloniously

eluding the police and felony homicide. For the reasons that follow, we hold that the judge erred by

instructing the jury concerning the offense of feloniously eluding the police. Because the error was

not harmless, we reverse the convictions for feloniously eluding the police and second degree

murder. We affirm, however, the conviction for grand larceny.

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.

-30-
 I.

The grand jury's indictment charged that Nicko Bazemore "unlawfully and feloniously while

in the prosecution of a felonious act, accidentally, contrary to the intention of the parties, did kill and

murder . . . in violation of [Code] §§ 18.2-33, 18.2-32, and 18.2-26." The grand jury also indicted

Bazemore for feloniously eluding a police officer in violation of Code "§§ 42.2-817(B); 18.2-10,"

and for grand larceny "in violation of [Code] § 18.2-95."

At trial, the evidence proved that on the morning of August 4, 2000, Officer M.C. Marshall

noticed a broken rear window on a green minivan in the City of Suffolk and received information

that the license plates on the vehicle were registered to another vehicle. When the officer activated

the siren and lights on his police car, the vehicle continued moving. During the pursuit, which

covered a little more than a mile in relatively heavy traffic, the driver failed to heed two stop signs,

accelerated to 50 miles per hour, but later decreased his speed "to . . . 10 miles an hour." The

vehicle made a series of turns, failed to heed another stop sign, and struck a minivan after entering

the intersection. The officer could not estimate the vehicle's speed; however, he testified that his

own speed was "approximately 15 to 20 miles an hour" when the vehicle went into the intersection.

A witness described the vehicle as "shooting across the intersection."

The minivan that the vehicle hit was travelling on "a thoroughfare that . . . [is] a four lane

road." After the vehicle hit the minivan, another van hit the minivan. A passenger in the minivan

sustained a fractured cervical spine and died. After the collision, the vehicle the officer was

pursuing spun off the road and hit a house.

When the officer approached the vehicle, Greg Shorter exited through the front passenger

door. The officer testified that he saw Nicko Bazemore leaving the driver's seat and attempting to

exit through the front passenger door. The officer drew his weapon and arrested Shorter and

-31-
Bazemore. Denise Byron, who was a passenger in the vehicle, had been thrown from the back of

the vehicle when it hit the house.

Later, when the rescue squad arrived, Bazemore complained of pain and told the officer he

was driving the vehicle when it crashed. Bazemore was wearing one shoe. Inside the vehicle, the

officers found Bazemore's other shoe under the brake pedal. They also found a 9-mm handgun, a

screwdriver, and a Florida license plate. The vehicle's ignition had been damaged, and a rag was

covering the steering column. The evidence proved that the vehicle had been stolen two days earlier

in the City of Norfolk and that broken glass was on the pavement after the vehicle had been stolen.

Several hours after the police arrested Bazemore, he waived his Miranda rights. Bazemore

initially told the police that a friend, whom he only knew as Malik, and Shorter offered him a ride at

9:00 p.m. on the night before the accident. Bazemore said that he noticed the screwdriver on the

floor and the broken window and that Malik told him he had gotten the van from Norfolk.

Bazemore also said he learned within two hours that the vehicle had been stolen. Later, Byron

joined them and sat on the rear seat of the vehicle.

Bazemore told the police he began driving the vehicle at 3:00 a.m. He also said that after

the officer attempted to stop the vehicle, he believed the vehicle might be stolen. When asked

"Why didn't you stop the vehicle?," he responded "I was scared." As the interview progressed,

Bazemore said that Malik did not exist and that when he entered the vehicle Shorter was the driver

and sole occupant. Bazemore admitted he was driving the vehicle when the accident occurred and

could not recall his speed because "it happened so quick."

After the trial judge denied Bazemore's motions to strike the evidence, Bazemore testified

that Shorter, who is also called "Malik," was driving the vehicle when he entered it. They spent the

hours before the incident driving to various places. Bazemore testified he was driving when Byron

joined them at 5:30 or 6:00 in the morning, but he denied seeing the broken steering column.

-32-
Although he knew Shorter did not own the vehicle and did not have money to buy a vehicle, he did

not ask Shorter where he obtained it or who owned it.

Bazemore also testified that, after the police signaled him to stop and began to pursue him,

he and Shorter switched places in the moving vehicle. He said that Shorter was driving when the

vehicle entered the intersection and that he did not remember telling the police he was driving when

the collision occurred. Despite his previous statement to the police that he had not seen a gun in the

van, Bazemore testified that Shorter displayed the gun in the vehicle, said he was not going back to

prison, and ignored Bazemore's and Byron's requests to stop. Bazemore also testified that after the

accident, Shorter crawled across him from the driver seat to get out of the van. He testified that he

lied to the police in the interview to protect Shorter because he "was afraid of everything that was

going on around him" and afraid of Shorter.

The jury convicted Bazemore of "grand larceny by receiving stolen property," of the "felony

. . . of disregarding the signal of a law enforcement officer," and of "felony homicide." The final

conviction order denotes the convictions as "Grand Larceny ([Code] § 18.2-95)," "Eluding Police-

Endangerment (§ 46.2-81[7](B) (Felony)," and "Second Degree Murder (§ 18.2-32) (Felony)."

II.

Bazemore contends the evidence was insufficient to prove grand larceny by receiving stolen

property. Specifically, he argues the evidence was insufficient to prove he knew the vehicle was

stolen, intended to permanently deprive the owner of the vehicle, and had dishonest intent.

A.

Bazemore contends on appeal the evidence was insufficient to convict him of violating

Code § 18.2-108. The final conviction order recites, however, that the conviction was for grand

larceny in violation of Code § 18.2-95, which was the charge specified in the indictment. Although

-33-
neither Bazemore nor the Commonwealth addressed this discrepancy, we address it for

completeness of our decision.

The record reflects that the trial judge's instructions permitted the jury to convict

Bazemore of "grand larceny," which was the offense charged in the indictment, or to convict him

of other lesser offenses, including "grand larceny by receiving stolen property." The verdict

form establishes that the jury convicted Bazemore of "grand larceny by receiving stolen

property," which is prohibited by Code § 18.2-108. Following the guilt phase of the trial, the

jury fixed Bazemore's punishment at one year in prison for "grand larceny by receiving stolen

property." Consistent with the jury's findings, the trial judge entered an order reflecting that the

jury convicted Bazemore and fixed his sentence for "grand larceny by receiving stolen property."

The final conviction order, however, contains no reference to Code § 18.2-108 and recites only

that Bazemore was convicted of "grand larceny ([Code] § 18.2-95)."

The Supreme Court has held that "[r]eceiving stolen goods, knowing the same to be

stolen, may be charged as larceny." Clark v. Commonwealth, 135 Va. 490, 498, 115 S.E. 704,

706 (1923). See also Cabbler v. Commonwealth, 212 Va. 520, 524, 184 S.E.2d 781, 783 (1971)

(holding that "[l]arceny by receiving stolen goods is a lesser offense which is included in the

major one of larceny"). In view of these decisions, the jury's verdict forms, and the trial judge's

order entered upon the jury's verdict, we hold that the trial judge's failure to include a reference

to Code § 18.2-108 on the final conviction order was a mere clerical error.

B.

Code § 18.2-108 provides that "[i]f any person buy or receive from another person, or aid

in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be

deemed guilty of larceny thereof, and may be proceeded against, although the principal offender

be not convicted." We have parsed the elements of the offense as follows:

-34-
 "To convict a defendant under Code § 18.2-108, the
Commonwealth must prove that property 'was (1) previously
stolen by another, and (2) received by defendant, (3) with
knowledge of the theft, and (4) a dishonest intent.' Guilty
knowledge 'is sufficiently shown if the circumstances proven are
such as must have made or caused the recipient of stolen goods to
believe they were stolen.'"

Snow v. Commonwealth, 33 Va. App. 766, 775, 537 S.E.2d 6, 11 (2000) (citations omitted).

"When an appellant challenges the sufficiency of the evidence to sustain his conviction,

we review the evidence in the light most favorable to the Commonwealth and grant to it 'all

reasonable inferences fairly deducible therefrom.'" Kelley v. Commonwealth, 17 Va. App. 540,

548, 439 S.E.2d 616, 621 (1994) (citation omitted). So viewed, the evidence proved Bazemore

confessed to the police that shortly after he entered the vehicle, he learned it had been stolen. He

also saw the vehicle's broken window and the screwdriver on the floor. Thus, by Bazemore's

own admission, he knew he was driving a stolen vehicle before he failed to heed the officer's

signal. The evidence also proved Bazemore admitted to an inmate in jail that he knew the

vehicle was stolen. Furthermore, apart from his own confession and the testimony of an inmate,

the evidence proved Bazemore was driving the vehicle in daylight and had the opportunity to see

the "popped" ignition, the broken steering column, and a rag covering the steering column.

Other evidence proved Bazemore knew Shorter did not own the vehicle and Bazemore continued

to drive after the officer signaled him to stop.

The jury was not required to accept Bazemore's trial testimony. Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). It was free to believe or

disbelieve, in part or in whole, the testimony of any witness. Rollston v. Commonwealth, 11 Va.

App. 535, 547, 399 S.E.2d 823, 830 (1991). Although Bazemore's testimony differed from his

confession, "the jury was 'not obliged to accept' what it obviously found was an unreasonable

explanation," Roberts v. Commonwealth, 230 Va. 264, 272, 337 S.E.2d 255, 260 (1985), and

-35-
was free to believe his confessed participation. We hold the evidence was sufficient for the jury

to find beyond a reasonable doubt that Bazemore knew the vehicle was stolen when he drove it.

C.

Bazemore also contends the evidence was insufficient to prove he intended to

permanently deprive the owner of the vehicle. Bazemore argues that the evidence establishes he

only intended to drive for a short while and then return the vehicle to Shorter's control.

The intent to permanently deprive is not an element of receiving stolen property under

Code § 18.2-108. Neither the statute, nor case law requires a showing of an intent to

permanently deprive. Moreover, Bazemore's reliance on Moehring v. Commonwealth, 223 Va.

564, 568 S.E.2d 891 (1982), to support his defense that he had no intent to permanently deprive

is misplaced. The Supreme Court noted the following in reversing Moehring's conviction:

There is no evidence in the record which demonstrates that
Moehring exercised any degree of dominion or control over the
stolen truck, or from which the court could have inferred that
defendant possessed the truck jointly with Faison. . . . The most
that can be said with reasonable certainty is that this defendant-
hitchhiker accepted a ride from the first person who stopped and
that he knew that person was driving a stolen vehicle.

Id. at 568, 568 S.E.2d at 893. Pertinent to the evidence in this case, the Court restated the well-

settled rule that "[b]ecause larceny is a continuing offense, anyone who knows that personal

property is stolen and assists in its transportation or disposition is guilty of larceny." Id. The

evidence proved beyond a reasonable doubt Bazemore knew the vehicle was stolen and drove it

with that knowledge.

D.

Although Bazemore now contends the evidence was insufficient to prove he had

dishonest intent, we have consistently held that issues that were not properly preserved at trial

cannot be raised on appeal. Andrews v. Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401,

-36-
408 (2002). Bazemore never raised the argument of dishonest intent in the trial court.

Therefore, we will not review the issue for the first time on appeal. Rule 5A:18.

In summary, viewed in the light most favorable to the Commonwealth, the evidence

proved beyond a reasonable doubt Bazemore knew the vehicle was stolen. He confessed his

knowledge. Furthermore, he could plainly see the damaged steering column, and he drove the

vehicle without a key in the ignition. Thus, we hold that the evidence was sufficient to prove

beyond a reasonable doubt grand larceny by receiving stolen property.

III.

Bazemore contends that the trial judge failed to instruct the jury on the definition of

wanton. He argues that because of this error his convictions for felony eluding the police and

felony murder should be reversed. We agree with the Commonwealth that Bazemore is barred

from raising this issue on appeal.

To prove a violation of Code § 46.2-817, the Commonwealth had to prove Bazemore

drove the "motor vehicle in a willful and wanton disregard" of the officer's signal. Bazemore did

not request the judge to instruct the jury concerning the definition of "wanton." Therefore, we

will not review the issue for the first time on appeal. Rule 5A:18.

Furthermore, this record provides no basis to consider this claim under the "ends of

justice" exception in Rule 5A:18. As the Supreme Court has ruled, the trial judge is not required

to define for a jury a statutory term that is not ambiguous and has an ordinary meaning. See

Roach v. Commonwealth, 251 Va. 324, 346, 468 S.E.2d 98, 111 (1996); Black v.

Commonwealth, 20 Va. App. 186, 192, 455 S.E.2d 755, 758 (1995). When a statutory term is

commonly used and has an accepted meaning, the mere absence of a definitional instruction is

not reversible error. Clark v. Commonwealth, 220 Va. 201, 211, 257 S.E.2d 784, 790 (1979). In

the absence of a request by Bazemore to give the jury an instruction defining wanton, the trial

-37-
judge did not abuse his discretion in not giving a definition sua sponte. See Coppola v.

Commonwealth, 220 Va. 243, 254-55, 257 S.E.2d 797, 805 (1979).

IV.

Bazemore contends the evidence was insufficient to prove he wantonly disregarded the

officer's signal to stop. He also contends the trial judge incorrectly instructed the jury

concerning the elements of Code § 46.2-817 by placing the elements of "willfull" and "wanton"

in the disjunctive rather than in the conjunctive. Consequently, he argues his felony eluding

conviction should be reversed and, because his felony murder conviction was contingent upon

the felony eluding conviction, it must also be reversed. The Commonwealth contends Bazemore

did not preserve for appeal his objection to the sufficiency issue and he failed to object to the

mistake in the instruction. Bazemore responds that the "ends of justice" exception applies.

A.

Arguing the motions to strike, Bazemore's trial attorney conceded Bazemore was

operating the vehicle. He argued, however, that because Bazemore did not know the vehicle was

stolen, the evidence failed to prove grand larceny. Thus, he argued that grand larceny, which he

asserted should have been the predicate offense for felony murder, was not proved. He then

argued as follows:

I would submit . . . that the eluding is a separate and distinct
crime, that the essence of which is [failure] to heed the police
signal to stop under circumstances that create danger to the
motoring or pedestrian traffic. . . . I would submit, Judge, that that
is not a sufficient predicate for felony murder to apply.

At the conclusion of all the evidence, Bazemore's attorney moved to strike the evidence

concerning the eluding charge, asserting the evidence failed to prove Bazemore was driving the

vehicle. He argued that the credible evidence proved Shorter had switched places with

-38-
Bazemore and was driving the vehicle when the collision occurred. Summarizing, he argued as

follows:

[T]hey have to prove for the reckless endangerment element that
the defendant was driving at the time to create a danger to the
motoring or pedestrian public. They can't do that. We would have
to guess, the Court would have to guess at [the] point that
endangerment occurred. So I would submit, Your Honor, that the
charge of felony eluding, likewise, has to fall because there is
insufficient evidence to support the conclusion that at the relevant
time that the defendant was actually driving a car or this van to
endanger the motoring public.

As to the felony-murder charge, he argued as follows:

We would also . . . move to strike the Commonwealth's evidence
as to second degree murder. It's clear that this was an accident,
that whoever was driving that it was not the intended purpose to do
that, and . . . the evidence before the Court is that the defendant
was not the operator of the vehicle at the time of the collision.

These arguments, which the trial judge rejected, also formed the gist of Bazemore's trial

attorney's argument to the jury. Urging the jury to analyze "the elements of the offenses," he

discussed in detail the elements of the larceny offense. As to "the eluding," he posed the

question, "where is the evidence that Nicko Bazemore was operating . . . the [vehicle] at any time

that created a danger to the public?" Thus, he argued:

So, if, indeed, you conclude that [Bazemore] was not the driver
of the [vehicle] at the time of the collision, he could not be
convicted of felony murder. If you believe that he was not driving
at any time when the vehicle presented a danger to the motoring
public, he could not be convicted of eluding a felony.

At all stages of the trial, Bazemore contended he was not driving when the vehicle

entered the intersection in disregard of the stop sign and collided with the van. At no point, did

he object that the evidence was insufficient to prove the element of "wanton." The failure to

raise these issues at trial bars our consideration of them on appeal. Rule 5A:18. See Floyd v.

Commonwealth, 219 Va. 575, 583-85, 249 S.E.2d 171, 176 (1978) (holding that appellate review

-39-
of the issue of insufficiency to prove a specific element is barred when that issue was not raised

at trial). In view of the arguments Bazemore actually advanced at trial and the evidence

produced, we conclude that no basis exists to invoke the "ends of justice" exception to Rule

5A:18.

B.

Bazemore further contends that the trial judge erred in instructing the jury on the

elements of the offense of eluding. Although the Commonwealth correctly notes that Bazemore

did not object to the flawed instruction, we address this issue because Bazemore's claim falls

within a recognized exception to Rule 5A:18.

Code § 46.2-817 provides in pertinent part as follows:

B. Any person who, having received a visible or audible signal
from any law-enforcement officer to bring his motor vehicle to
a stop, drives such motor vehicle in a willful and wanton disregard
of such signal so as to interfere with or endanger the operation of
the law-enforcement vehicle or endanger a person is guilty of a
Class 6 felony.

(Emphasis added).

The trial judge instructed the jury that the Commonwealth was required to "prove beyond

a reasonable doubt . . . that [Bazemore] willfully or wantonly disregarded such signal so as to

endanger any person." (Emphasis added). This was an incorrect statement of law. The General

Assembly amended Code § 46.2-817 in 1999, effective July 1, 2000, and substituted "and" for

"or" preceding the words "wanton disregard." See 1999 Va. Acts, ch. 720. Thus, the statute in

effect on the date of this incident expressly required a showing of "willful and wanton disregard

of [the officer's] signal." Code § 46.2-817(B) (emphasis added).

The Supreme Court has held that the "ends of justice" exception applies to permit review

when there has been a failure to object to an instruction that "omitted some essential element of

the offense." Jimenez v. Commonwealth, 241 Va. 244, 251, 402 S.E.2d 678, 681 (1991). We
-40-
have also held that Rule 5A:18 will not bar our review of an instruction that "allows a jury to

convict a defendant without proof of an essential and necessary element of the charged offense."

Campbell v. Commonwealth, 14 Va. App. 988, 994, 421 S.E.2d 652, 656 (1992). In this case,

the jury instruction concerning the felony of eluding a police officer was so defective that it

would have allowed the jury to convict Bazemore if it found that his conduct only was willful.

"[W]hen a principle of law is vital to a defendant in a criminal case, a trial court has an

affirmative duty properly to instruct a jury about the matter." Jimenez, 241 Va. at 250, 402

S.E.2d at 681. Obviously, the proper description of the elements of the offense is vital to a

defendant. Accordingly, we hold that the trial judge erred in giving the instruction.

C.

The Commonwealth contends that even if the "ends of justice" exception applies, the

convictions nevertheless should not be reversed because, in this case, the error was harmless.

We disagree.

The Supreme Court has held that the test for nonconstitutional harmless error is as

follows:

If, when all is said and done, the conviction is sure that the error
did not influence the jury, or had but slight effect, the verdict and
the judgment should stand. . . . But if one cannot say, with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected. . . . If so, or if one is left in
grave doubt, the conviction cannot stand.

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001). This decision

"adopt[s] the Kotteakos [v. United States, 328 U.S. 750 (1946),] harmless-error test" for

measuring error under Code § 8.01-678. Clay, 262 Va. at 260, 546 S.E.2d at 732.

Applying that test, the United States Supreme Court recently held that "the principle of

Kotteakos [means] that when an error's natural effect is to prejudice substantial rights and the
-41-
court is in grave doubt about the harmlessness of that error, the error must be treated as if it had a

'substantial and injurious effect' on the verdict." O'Neal v. McAninch, 513 U.S. 432, 444 (1995)

(quoting Kotteakos, 328 U.S. at 764-65, 776). Moreover, when a trial error has been shown on

direct appeal from a conviction, the government bears the burden of proving harmlessness under

this standard. See O'Neal, 513 U.S. at 438. Indeed, the Supreme Court of Virginia has held that

"error will be presumed to be prejudicial unless it plainly appears that it could not have affected

the result." Caldwell v. Commonwealth, 221 Va. 291, 296, 269 S.E.2d 811, 814 (1980).

To establish a violation of Code § 46.2-817(B), the Commonwealth must prove,

according to the statute's express language, that Bazemore operated the vehicle in a "willful and

wanton disregard of [the officer's] signal so as to interfere with or endanger the operation of the

law-enforcement vehicle or endanger a person." (Emphasis added). Because the trial judge

incorrectly instructed the jury concerning the statutory elements by placing the elements of

"willful" and "wanton" in the disjunctive, we cannot have any degree of confidence that the jury

actually found the element of "wanton" disregard, which it must find beyond a reasonable doubt

to sustain the conviction.

In the civil context, the Supreme Court long ago defined willful and wanton conduct as

follows:

[W]illfulness and wantonness convey the idea of purpose or
design, actual or constructive. . . . [T]hey are used to signify a
higher degree of neglect than gross negligence. "In order that one
may be held guilty of willful or wanton conduct, it must be shown
that he was conscious of his conduct, and conscious, from his
knowledge of existing conditions, that injury would likely or
probably result from his conduct, and that with reckless
indifference to consequences he consciously and intentionally did
some wrongful act or omitted some known duty which produced
the injurious result."

Thomas v. Snow, 162 Va. 654, 660, 174 S.E. 837, 839 (1934) (citation omitted). See also Infant

C. v. Boy Scouts of America Inc., 239 Va. 572, 581, 391 S.E.2d 322, 327 (1990). This definition
-42-
requires a showing of recklessness plus additional culpability and is consistent with other general

authority.

"Wanton differs from reckless both as to the actual state of mind
and as to the degree of culpability. One who is acting recklessly is
fully aware of the unreasonable risk he is creating, but may be
trying and hoping to avoid any harm. One acting wantonly may be
creating no greater risk of harm, but he is not trying to avoid it and
is indifferent to whether harm results or not. Wanton conduct has
properly been characterized as 'vicious' and rates extreme in the
degree of culpability. The two are not mutually exclusive.
Wanton conduct is reckless plus, so to speak."

Black's Law Dictionary 1576 (7th ed. 1999) (quoting Rollin M. Perkins & Ronald N. Boyce,

Criminal Law 879-80 (3 ed. 1982)).

Likewise, in the criminal context, the Supreme Court has held that

"[g]ross negligence" is culpable or criminal when accompanied by
acts of commission or omission of a wanton or willful nature,
showing a reckless or indifferent disregard of the rights of others,
under circumstances reasonably calculated to produce injury, or
which make it not improbable that injury will be occasioned, and
the offender knows, or is charged with the knowledge of, the
probable result of his acts.

Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992) (citation omitted). It

follows, therefore, that "'[w]anton negligence' is of even a higher degree than 'gross negligence' .

. . [and is] define[d] . . . as '[m]arked by or manifesting arrogant recklessness of justice, of the

rights or feelings of others, . . . merciless; inhumane.'" Forbes v. Commonwealth, 27 Va. App.

304, 310, 498 S.E.2d 457, 459 (1998) (citations omitted).

We have held that a person violated Code § 46.2-817(B) when he ignored a signal to

stop, operated a vehicle at a high speed in violation of posted limits, passed three cars, crossed a

double solid line, "disregarded a red traffic signal at an intersection with a four-lane highway,"

and then crashed into a tree after losing control of the vehicle. Tucker v. Commonwealth, 38 Va.

App. 343, 347, 564 S.E.2d 144, 146-47 (2002). On the other hand, the Supreme Court has noted

-43-
"that the intentional violation of a traffic law, without more, will not support a finding of willful

and wanton negligence." Alfonso v. Robinson, 257 Va. 540, 545, 514 S.E.2d 615, 618 (1999)

(citing Harris v. Harmon, 253 Va. 336, 341, 486 S.E.2d 99, 102 (1997), and Baker v. Marcus,

201 Va. 905, 910, 114 S.E.2d 617, 621-22 (1960)). The evidence in this case is equivocal

whether the jury found Bazemore's conduct to be other than willful. We hold, therefore, that we

cannot say "the judgment was not substantially swayed by the error." Clay, 262 Va. at 260, 546

S.E.2d at 732.

The evidence proved Bazemore disregarded the officer's signal to stop. He continued to

drive for a mile in relatively heavy traffic and failed to heed three stop signs in the process. The

evidence, however, does not prove Bazemore exceeded any posted speed limits. The officer

testified that at one point, Bazemore accelerated to fifty miles per hour, but the evidence does not

establish the posted speed limit at that point. He also testified that Bazemore's speed then

decreased "to approximately 10 miles an hour."

The evidence does not suggest Bazemore was violating the posted speed limit when he

entered the intersection. Although a witness described the vehicle as "shooting across the

intersection," this testimony does not establish Bazemore was exceeding the posted limit when

he failed to heed the stop sign. Indeed, the officer pursuing Bazemore testified his own speed

was approximately fifteen to twenty miles per hour when Bazemore drove into the intersection.

The severity of the collision likely is explained by Bazemore's vehicle hitting a minivan that was

travelling fast on a four lane divided highway. In the absence of proof Bazemore was driving at

an excessive speed, it is difficult to reasonably conclude that a reasonable jury would have found

the necessary mercilessness to justify a finding of wantonness.

Significantly, the jury accepted Bazemore's testimony that he did not steal the vehicle and

convicted him of larceny upon his testimony that he knew he was driving a vehicle Shorter had

-44-
stolen. Therefore, the jury may also have believed Bazemore's testimony that he did not stop

because he was "scared" and also afraid that Shorter would have harmed him. If so, this

evidence is clearly sufficient to support a finding of willfulness and to support a conviction based

on the limited element in the defective instruction. Thus, even though the evidence is perhaps

adequate to support a finding of wanton disregard, it is entirely possible that the jury convicted

Bazemore solely on a finding of willful disregard of the officer's signal.

The principle is well established that a harmless error analysis is entirely distinct from an

analysis of the sufficiency of the evidence. "The inquiry cannot be merely whether there was

enough to support the result, apart from the phase affected by the error. It is rather, even so,

whether the error itself had substantial influence. If so, or if one is left in grave doubt, the

conviction cannot stand." Kotteakos, 328 U.S. at 765. Consistent with these principles, the

Supreme Court of Virginia has held that even if "the other evidence amply supports the . . .

verdicts, [error is not harmless when] the disputed [evidence] may well have affected the . . .

decision." Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978). See also

Hooker v. Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345 (1992) (holding that "a

harmless error analysis . . . [is not] simply a sufficiency of the evidence analysis").

We cannot say, "'with fair assurance, after pondering all that happened without stripping

the erroneous action from the whole' that it plainly appears that [Bazemore] has had a fair trial

and the verdict and judgment were not substantially affected by . . . [the error]." Clay, 262 Va. at

261, 546 S.E.2d at 732. Accordingly, we hold the error was not harmless.

V.

For these reasons, we affirm the grand larceny conviction and remand to the trial judge to

correct the final conviction order by inserting a reference to Code § 18.2-108. We reverse the

-45-
convictions for felony eluding the police and felony homicide, and we remand for a new trial

where the jury may be properly instructed.

Affirmed, in part, and remanded
and reversed, in part, and remanded.

-46-
Coleman, J., concurring, in part, and dissenting, in part.

I concur with the majority's holdings in (1) Part II affirming Bazemore's grand larceny

conviction, (2) Part III holding that Rule 5A:18 procedurally barred Bazemore's claim that the

trial judge erred by failing to instruct the jury on the definition of "wanton" as to the eluding the

police and felony murder charges, and (3) Part IV A holding that Bazemore's insufficiency

argument to the eluding and felony murder convictions is procedurally barred by Rule 5A:18.

I disagree with the majority's holdings in Part IV B and C reversing the convictions for

felony eluding the police and felony homicide. The majority concludes that the trial judge erred

by failing to sua sponte modify the proffered jury instruction on eluding a police officer to read

that Bazemore "willfully and wantonly" disregarded the police officer's signal to stop, rather than

"willfully or wantonly" disregarded such signal. In my view, Rule 5A:18 bars consideration of

this issue and the trial judge was not required to consider the issue when neither counsel objected

to the proffered instruction. As the majority notes, the instruction was appropriate prior to the

July 1, 2000 amendment to Code § 46.2-817 and, in my opinion, whether the instruction reads in

the disjunctive or conjunctive is not so significant to require us to address that issue under the

ends of justice exception.

Moreover, on these facts the error was harmless, in my opinion. The majority, in

concluding that Bazemore's driving could not be considered "willful and wanton" as a matter of

law focused upon the fact that Bazemore may not have driven in excess of fifty miles per hour

and that the evidence did not prove the posted speed limit. Regardless of the speed at which

Bazemore traveled, the evidence proved he disregarded the police officer's signal to stop, he

continued to elude for a mile in relatively heavy traffic, he failed to heed three stop signs, and he

drove through an intersection onto a busy four lane divided highway. No reasonable juror could

find that Bazemore's driving into the busy intersection without yielding was not both willful and

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wanton. On these uncontradicted facts, Bazemore's driving into the intersection was an act of his

volition and was in disregard of the life and safety and well-being of other motorists. I would

hold that any error by the trial judge in failing to modify the jury instruction on eluding was

harmless on these facts.

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