Gaines v. Commonwealth

COURT OF APPEALS OF VIRGINIA

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

CHRISTOPHER CHARLES GAINES
OPINION BY
v. Record No. 0839-01-1 JUDGE RUDOLPH BUMGARDNER, III
JANUARY 14, 2003
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Joseph Canada, Jr., Judge

Keith Loren Kimball (Colgan, Kimball &
Carnes, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
briefs), for appellee.

A jury convicted Christopher Charles Gaines of manslaughter

on an indictment for first degree murder. It also convicted him

of the use of a firearm while committing murder. The defendant

only appealed his conviction of the firearm charge, which a

divided panel of this Court reversed. Gaines v. Commonwealth,

38 Va. App. 326, 563 S.E.2d 410 (2002). We granted the

Commonwealth a rehearing en banc and stayed the mandate of that

decision. Upon rehearing en banc, we affirm the conviction.

The murder and firearm charges arose from a dispute that

began when the defendant felt cheated in a drug purchase. The

argument with his suppliers ended when the defendant shot the
victim in his back at a distance of 98 feet. The single shot

was lethal. The defendant contends the trial court erred by

refusing an instruction intended to prevent inconsistent

verdicts. 1

The finding instruction on first degree murder followed the

format suggested in Model Jury Instructions - Criminal

Instruction 33.700. It stated the elements of first degree

murder in outline form using a separate numbered clause for each

element. It also defined the lesser-included offenses by

reference to the presence or absence of one of those clauses.

The instruction outlined the elements of both degrees of

manslaughter. The trial court gave separate instructions

1
The court granted Instruction 21, which provided, in part:

The Court instructs the jury that the
defendant is charged with the crime of using
a firearm while committing or attempting to
commit murder. The Commonwealth must prove
beyond a reasonable doubt each of the
following elements of that crime:
(1) That the defendant used a firearm;
and (2) That the use was while committing
or attempting to commit murder [(not
manslaughter)].*
If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the
offense as charged, then you shall find the
defendant guilty . . . .

* The defendant's proposed modification appears in
brackets.

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defining malice and explaining that malice was the difference

between murder and manslaughter.

The finding instruction on use of a firearm while

committing murder also followed the format suggested in Model

Jury Instructions - Criminal. 2 It stated the two elements of the

offense in separate numbered clauses. The offense consists of

two elements: (1) use of a firearm; (2) while committing

murder, rape, robbery, burglary, or abduction. Yarborough v.

Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994);

Davis v. Commonwealth, 4 Va. App. 27, 30, 353 S.E.2d 905, 907

(1987). The instruction must specify one of the designated

felonies. Bundy v. Commonwealth, 220 Va. 485, 488, 259 S.E.2d

826, 828 (1979).

The instruction given to the jury was a correct finding

instruction for the facts of this case. It was an accurate and

precise statement of the law. It specified the burden of proof

and the degree of proof, it listed each element of the offense,

and it defined the verdicts dictated by the possible alternative

findings of fact. The instruction was not misleading or

2
The instruction was crafted from Instruction G18.700.
That format appeared in Johnson v. Commonwealth, 20 Va. App.
547, 549-50, 458 S.E.2d 599, 600 (1995) (en banc). Though that
appeal addressed a situation involving inconsistent verdicts,
the decision never suggested that the pattern instruction was
incorrect or incomplete, nor did it suggest the instruction was
a proper vehicle for instructing about inconsistent findings.

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confusing. The defendant acknowledges the instruction as given

was a correct statement of the law, and he does not contend that

his revision modified its statement of the substantive law.

The instruction given succinctly stated that to convict the

defendant of the firearm offense, the jury must find he was

committing murder. The instruction did not permit inconsistent

verdicts. Instructions should be "simple, impartial, clear and

concise . . . ." Bryant v. Commonwealth, 216 Va. 390, 392, 219

S.E.2d 669, 671 (1975). When they are, they do not need

clarification. Joseph v. Commonwealth, 249 Va. 78, 89-90, 452

S.E.2d 862, 869-70 (1995).

A trial judge does not abuse his discretion by failing to

modify a correct statement of the law on the mere chance that a

jury may not follow clearly written instructions. We presume

the jury will understand, Rinehart & Dennis Co. v. Brown, 137

Va. 670, 680, 120 S.E. 269, 272 (1923), and will follow their

instructions, LeVasseur v. Commonwealth, 225 Va. 564, 589, 304

S.E.2d 644, 657 (1983).

The defendant proffered a minor modification to the

instruction that appended the parenthetical phrase "(not

manslaughter)" to the second element of proof. The defendant

maintained the modification was a clearer statement of the law

because it would prevent the possibility of inconsistent

verdicts.

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 The modification adopted the precise wording of the

original instruction, 3 and only amended it by stating the

antithesis. It appended a negative formulation to the

affirmative statement of an element of proof. While the

modification restated as a negative that which was already

stated in the affirmative, it added no substance, no refinement,

no nuance to the principle of law. Cf. Dowdy v. Commonwealth,

220 Va. 114, 116, 255 S.E.2d 506, 508 (1979) (error to refuse to

instruct on elements of shooting offense); Martin v.

Commonwealth, 218 Va. 4, 7, 235 S.E.2d 304, 305 (1977) (error to

refuse instruction that defendant has no burden of proof when he

raised the defense of accident because Commonwealth has burden

to prove killing not an accident).

The defendant's instruction was no more or less correct

than the instruction given. While it "was a correct statement

of the legal principles involved and the trial court, in its

discretion, could properly have given the instruction, it does

not follow that it was reversible error to refuse it." Lincoln

v. Commonwealth, 217 Va. 370, 375, 228 S.E.2d 688, 692 (1976).

"When granted instructions fully and fairly cover a principle of

law, a trial court does not abuse its discretion in refusing

3
Both instructions referred to an attempt to commit murder
though the facts did not fit that alternative. If the inclusion
of those words was error, it was either invited or objection was
waived.

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another instruction relating to the same legal principle."

Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384

(1984). See also Joseph, 249 Va. at 90, 452 S.E.2d at 870;

Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 396

(1990).

The instructions clearly stated that murder was necessary

to convict for the firearm charge. The defendant chose not to

argue that to the jury. He did not request a separate

cautionary instruction explaining that if the jury acquitted of

murder, it must acquit of the firearm charge. As noted in Wolfe

v. Commonwealth, 6 Va. App. 640, 645, 371 S.E.2d 314, 316

(1988), "there are sound tactical reasons why an accused would

not desire such an instruction and thus permit the jury to show

leniency in convicting him of a lesser included offense of the

primary felony; i.e., in this case voluntary manslaughter rather

than murder."

"The trial judge has broad discretion in giving or denying

instructions requested." John L. Costello, Virginia Criminal

Law and Procedure § 60.6-8, 810 (2d ed. 1995). It was not an

abuse of discretion to fail to give a cautionary instruction sua

sponte in this case because tactically the defendant may not

have wanted the point emphasized. "A reviewing court's

responsibility in reviewing jury instructions is 'to see that

the law has been clearly stated and that the instructions cover

all issues which the evidence fairly raises.'" Darnell v.
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Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)

(quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856,

858 (1982)).

General verdicts permit the existence of inconsistent

verdicts. A jury may acquit of the primary charge, but the

findings necessary to make that decision logically prohibit a

finding of guilt on a secondary charge. When deciding the

primary charge, the jury found something not true that must be

true to establish the secondary charge.

A separate instruction would have been one proper way to

instruct the jury on the problem of inconsistent verdicts. The

instruction needed to compel the logical relationship between

the elements of the primary and the secondary offenses as

defined in the respective finding instructions. The possibility

of inconsistent verdicts would have been avoided with an

instruction that linked the two charges: if you find the

defendant not guilty of murder, then you shall find him not

guilty of use of a firearm while committing murder.

The defendant tried to address the problem by modifying the

finding instruction for the secondary charge. He specified one

possible negative to the preceding affirmative declaration, but

that did not effectively guide the jury. A finding instruction

must be complete in itself. Outlaw v. Pearce, 176 Va. 458, 469,

11 S.E.2d 600, 605 (1940). Such a modification would need to

list every alternative that applied to the case. In this case,
- 7 -
it should have listed the not guilty alternative as well as

lesser-included offenses. Even if the two word modification was

sufficient, that technique would create problems in many cases.

The list of negative alternatives could easily be lengthy and

turn a precise statement of law into a cluttered and confusing

one. The defendant's instruction was not a proper way to

address the problem that he sought to avoid, and he chose not to

request a separate cautionary instruction.

Finally, the defendant contends the trial court erred in

failing to set aside the firearm conviction. 4 He does not

challenge the sufficiency of the evidence, and he acknowledges

that inconsistent verdicts have been approved. He argues that

they cannot be approved in this case because the trial court

erred in not granting his instruction. Because we have

concluded the trial court did not err in refusing the

defendant's instruction, the premise of the argument fails and

cannot form the basis for overturning the verdict.

Consistency in jury verdicts is not required. Dunn v.

United States, 284 U.S. 390, 394 (1932).

Inconsistent verdicts . . . present a
situation where "error," in the sense that
the jury has not followed the court's
instructions, most certainly has occurred,
but it is unclear whose ox has been gored.
Given this uncertainty, and the fact that

4
The panel opinion did not reach this argument since it
found reversible error on the first issue.

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 the [Commonwealth] is precluded from
challenging the acquittal, it is hardly
satisfactory to allow the defendant to
receive a new trial on the conviction as a
matter of course.

United States v. Powell, 469 U.S. 57, 65 (1984). Moreover,

because Virginia is "'more careful than most states to protect

the inviolability and secrecy of jurors' deliberations,' a

court, in a case like this, is unlikely to discover what

motivated the jury." Reed v. Commonwealth, 239 Va. 594, 598,

391 S.E.2d 75, 77 (1990) (affirming conviction of use of firearm

during commission of robbery when defendant is acquitted of

robbery) (quoting Caterpillar Tractor Co. v. Hulvey, 233 Va. 77,

82, 353 S.E.2d 747, 750 (1987)). See also Wolfe, 6 Va. App. at

650, 371 S.E.2d at 319-20 (affirming convictions of voluntary

manslaughter and use of a firearm in the commission of murder);

Gray v. Commonwealth, 28 Va. App. 227, 233, 503 S.E.2d 252, 255

(1998) (affirming convictions of involuntary manslaughter and

use of a firearm in the commission of murder).

We conclude the trial court did not err in refusing the

defendant's instruction or in refusing to set aside the firearm

conviction. Accordingly, we affirm.

Affirmed.

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Fitzpatrick, C.J., with whom Elder and Benton, JJ., join,
dissenting.

I respectfully disagree with the majority and, therefore, I

dissent.

"On appeal, when the issue is a refused jury instruction,

we view the evidence in the light most favorable to the

proponent of the instruction." Lynn v. Commonwealth, 27

Va. App. 336, 344, 499 S.E.2d 1, 4-5 (1998), aff'd, 257 Va. 239,

514 S.E.2d 147 (1999). "A reviewing court's responsibility in

reviewing jury instructions is 'to see that the law has been

clearly stated and that the instructions cover all issues which

the evidence fairly raises.'" Darnell v. Commonwealth, 6

Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (citation

omitted).

Virginia law regarding inconsistent verdicts is well

settled.

As this Court has held, "[t]he fact that
verdicts may, on their face, arguably appear
inconsistent does not provide a basis to
reverse either conviction on appeal,
provided the evidence is sufficient to
support each verdict." Pugliese v.
Commonwealth, 16 Va. App. 82, 96, 428 S.E.2d
16, 26 (1993) (citing United States v.
Powell, 469 U.S. 57, 66 . . . (1984)
(emphasis added)). "Jury verdicts may
appear inconsistent because the jury has
elected through mistake, compromise, or
lenity to acquit or to convict of a lesser
offense for one charged crime that seems in
conflict with the verdict for another
charged offense." Pugliese, 16 Va. App. at
96, 428 S.E.2d at 26.

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Tyler v. Commonwealth, 21 Va. App. 702, 708, 467 S.E.2d 294, 296

(1996) (footnote omitted). A trial court, however, should not

give a jury instruction "which incorrectly states the applicable

law or which would be confusing or misleading to the jury."

Bruce v. Commonwealth, 9 Va. App. 298, 300, 387 S.E.2d 279, 280

(1990) (emphasis added).

Gaines attempted to prevent an inconsistent jury verdict by

including in his proffered instruction a qualification or

modification to the model jury instruction which more clearly

told the jury that in order to find him guilty of use of a

firearm during the commission of murder, it must conclude that

he committed murder and not manslaughter. I agree with the

majority that Gaines's instruction could have been more artfully

drafted as a separate instruction that "linked the two charges"

and specifically stated, "if you find the defendant not guilty

of murder, then you shall find him not guilty of the use of a

firearm charge while committing murder." Gaines's proffered

instruction, however, properly states the law and covers the

factual scenario at bar.

In pertinent part, Code § 18.2-53.1 provides that:

It shall be unlawful for any person to use
or attempt to use any . . . firearm or
display such weapon in a threatening manner
while committing or attempting to commit
murder, rape, forcible sodomy, inanimate or
animate object sexual penetration as defined
in § 18.2-67.2, robbery, carjacking,
burglary, malicious wounding as defined in
§ 18.2-51, malicious bodily injury to a
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 law-enforcement officer as defined in
§ 18.2-51.1, aggravated malicious wounding
as defined in § 18.2-51.2, malicious
wounding by mob as defined in § 18.2-41 or
abduction.

A violation of the statute only occurs when a firearm is used

during the commission of the specified felonies and does not

occur if the predicate felony is manslaughter rather than

murder. See Bundy v. Commonwealth, 220 Va. 485, 488, 259 S.E.2d

826, 828 (1979). By specifically requesting an instruction that

told the jury a violation of the statute would not occur if the

jury believed Gaines had committed manslaughter and not murder,

Gaines stated the applicable law clearly and also attempted to

avoid the confusion that resulted from using the model

instruction in this case.

In Gray v. Commonwealth, 28 Va. App. 227, 503 S.E.2d 252

(1998), we affirmed a similarly inconsistent verdict after the

jury acquitted Gray of murder but found him guilty of the use of

a firearm in the commission of murder. In that case, however,

defense counsel did not object to the use of the model jury

instruction at the guilt phase and did not proffer an

instruction that more precisely stated the law to prevent the

recurring problem of inconsistent verdicts. The question in

Gray was only whether "the trial court erred in refusing to

instruct the jury, while it was deliberating during the

sentencing phase, that if it acquitted [Gray] of murder, it

should not find him guilty of" the firearm charge. Id. at
- 12 -
229-30, 503 S.E.2d at 253. We held that "the jury did not

possess the authority to revisit the findings of guilt" and,

therefore, the trial judge did not err in refusing to instruct

the jury that it could reconsider at the sentencing phase its

prior guilt verdict. Id. at 234, 503 S.E.2d at 255.

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

(1988), we also affirmed the inconsistent jury verdicts of

voluntary manslaughter and use of a firearm in the commission of

murder. In that case we concluded that mere inconsistency of

verdicts did not bar Wolfe's conviction of use of a firearm in

the commission of murder. Id. at 650, 371 S.E.2d at 319. We

also specifically "not[ed] that Wolfe did not seek a cautionary

instruction that if the jury acquitted him of murder, they

should then find him not guilty of use of a firearm in the

commission of murder." Id. at 645, 371 S.E.2d at 316. This

case is distinguishable from both Gray and Wolfe because Gaines

attempted, to no avail, to prevent the same inconsistent result

by proffering an instruction that more accurately stated the law

than the one proffered by the Commonwealth and given by the

trial court.

By refusing Gaines's instruction, the trial court abused

its discretion. Had the trial court granted appellant's

requested instruction, the jury would have been precisely

instructed, consistent with the law, that it could not find

Gaines guilty of use of a firearm in the commission of murder
- 13 -
when it acquitted him of murder and found him guilty of the

offense of manslaughter. Thus, I would reverse and dismiss the

conviction.

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Benton, J., dissenting.

I fully concur in the dissenting opinion. I write

separately only to note that this case dramatically demonstrates

why an instruction offered to prevent inconsistent verdicts

should be granted whenever multiple charges present a realistic

possibility of inconsistent verdicts.

The finding instruction on the firearm charge did not

inform the jury that it is applicable only if the jury convicted

Gaines of murder or attempted murder. Thus, the judge's failure

to instruct the jury, as requested by Gaines, that a finding of

manslaughter required the jury to find Gaines not guilty of the

firearm charge had the effect of creating an ambiguity because

Instruction 18 informed the jury as follows:

The Court instructs the jury that you are
instructed that it is unlawful for any
person to handle recklessly any firearm so
as to endanger the life, limb or property of
any person.

In short, the jury had a basis upon which to infer, contrary to

the provisions of Code § 18.2-53.1, that because Gaines handled

a firearm unlawfully while committing manslaughter, Gaines was

also guilty of the firearm offense.

The overriding purpose of jury instructions is to inform

the jury of the applicable law in a manner that will aid the

jury in reaching a proper verdict. See Cooper v. Commonwealth,

2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986). Thus, the

Supreme Court has "frequently held that the giving of
- 15 -
instructions which are confusing or which tend to mislead the

jury because of ambiguity or for any other reason is reversible

error." State Highway & Transp. Comm'r v. Allmond, 220 Va. 235,

241-42, 257 S.E.2d 832, 836 (1979). See also Simmons v. Adams,

202 Va. 926, 932, 121 S.E.2d 379, 383-84 (1961); Scott's

Executor v. Chesterman, 117 Va. 584, 615, 85 S.E. 502, 512-13

(1915). In addition, "when 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 v.

Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991).

This means the judge has an obligation to amend, if necessary,

the proffered instruction. Bryant v. Commonwealth, 216 Va. 390,

393, 219 S.E.2d 669, 671-72 (1975); Blevens v. Commonwealth, 209

Va. 622, 628, 166 S.E.2d 325, 330 (1969). The trial judge

commits error by not instructing the jury on a matter when, in

the absence of such instruction, the jury may make findings

based upon a mistaken belief of the law. See Martin v.

Commonwealth, 218 Va. 4, 7, 235 S.E.2d 304, 305 (1977) (per

curiam).

Accordingly, I would reverse the conviction and dismiss the

indictment.

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 Tuesday 16th

July, 2002.

Christopher Charles Gaines, Appellant,

against Record No. 0839-01-1
Circuit Court No. CR00-199

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Clements and Agee

On June 4, 2002 came the appellee, by the Attorney

General of Virginia, and filed a petition praying that the Court

set aside the judgment rendered herein on May 21, 2002, and

grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on May 21, 2002

is stayed pending the decision of the Court en banc, and the

appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellee shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. It is further ordered that

- 17 -
the appellee shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia

CHRISTOPHER CHARLES GAINES
OPINION BY
v. Record No. 0839-01-1 JUDGE ROSEMARIE ANNUNZIATA
MAY 21, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Joseph Canada, Jr., Judge

Keith Loren Kimball (Colgan, Kimball &
Carnes, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.

Christopher Charles Gaines appeals his jury trial

convictions for involuntary manslaughter and use of a firearm

during the commission of a felony. He argues that the trial

court erred by 1) refusing his proffered jury instruction

regarding the use of a firearm in the commission of a felony,

and 2) denying his motion to set aside the conviction for use of

a firearm in the commission of a felony. For the reasons that

follow, we agree and reverse his conviction.

BACKGROUND

On October 19, 1999, Gaines arranged to purchase marijuana

from Zachary Kipps. Kipps purchased the marijuana, repackaged

it in a different bag, and kept a portion for himself. Kipps

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then traveled to Gaines' house in a car driven by his friend,

Jerry Torres. When Kipps delivered the marijuana to Gaines,

Gaines realized the amount was less than the amount he had

purchased and he accused Kipps of taking some. Gaines followed

Kipps outside to the car where he began arguing with Torres.

Gaines produced a shotgun, demanded that Kipps and Torres leave

his property, and returned to his house. After Torres had armed

himself with a knife, he confronted Gaines, and attempted to cut

him. Gaines retrieved his gun as Kipps and Torres ran down the

street. Gaines followed the two men to the end of his property

where he fired towards them. The single shot struck Torres in

the back, and he died as a result of the gunshot wound. Gaines

was charged with murder and use of a firearm in the commission

of a felony.

At trial, after the parties rested, the Commonwealth

submitted a jury instruction on the crime of using or displaying

a firearm during the commission of a felony. See Code § 18.2-

53.1. The Commonwealth's proffered instruction was based on the

Model Jury Instructions and stated:

The Court instructs the jury that the
defendant is charged with the crime of using
a firearm while committing or attempting to
commit murder. The Commonwealth must prove
beyond a reasonable doubt each of the
following elements of that crime:

1. That the defendant used a firearm; and

2. that the use was while committing or
attempting to commit murder.
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 If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the
offense as charged, then you shall find the
defendant guilty but you shall not fix the
punishment until your verdict has been
returned and further evidence is heard by
you.

If you find that the Commonwealth has
failed to prove beyond a reasonable doubt
either element of the offense, then you
shall find the defendant not guilty.

Appellant proffered a jury instruction that differed from the

Commonwealth's above proffered instruction only in that it added

the words, "not manslaughter," after the word, "murder," in

stating the second element which the Commonwealth was required

to prove.

Following arguments from counsel, the trial court declined

to add appellant's language to the model instruction, stating

only, "I think we ought to use the model. Take out 'not

manslaughter.'" The jury then convicted appellant of

involuntary manslaughter and use of a firearm during the

commission of a murder, which are inconsistent verdicts.

ANALYSIS

"On appeal, when the issue is a refused jury instruction,

we view the evidence in the light most favorable to the

proponent of the instruction." Lynn v. Commonwealth, 27 Va.

App. 336, 344, 499 S.E.2d 1, 4-5 (1998), aff'd, 257 Va. 239, 514

S.E.2d 147 (1999). "A reviewing court's responsibility in

reviewing jury
- 21 -
instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (citation omitted). A trial court should

not give a jury instruction "which incorrectly states the

applicable law or which would be confusing or misleading to the

jury." Bruce v. Commonwealth, 9 Va. App. 298, 300, 387 S.E.2d

279, 280 (1990). In addition, "[a] proposed jury instruction

submitted by a party, which constitutes an accurate statement of

the law applicable to the case, shall not be withheld from the

jury solely for its nonconformance with model jury

instructions." Code § 19.2-263.2.

Here, the court's rationale for declining to grant Gaines'

proposed instruction violated this statutory dictate. As such,

it constituted error.

Furthermore, this error was not harmless. Had the trial

court given Gaines' proffered instruction, the jury would have

been clearly informed that a manslaughter conviction is legally

insufficient to sustain the charge of use of a firearm during

the commission of a murder. However, under the instruction

given by the trial court, the jury rendered inconsistent

verdicts, finding Gaines guilty of involuntary manslaughter and

murder, the latter in conjunction with the firearm charge. We

acknowledge that a jury's inconsistent verdicts do not, per se,

provide a basis for reversal. See Pugliese v. Commonwealth, 16
- 22 -
Va. App. 82, 96, 428 S.E.2d 16, 26 (1993) (citing United States

v. Powell, 469 U.S. 57, 66 (1984)). However, the focus of this

inquiry is the effect of error in instructing the jury on the

verdict, not on the inconsistency per se. Here, the

inconsistent verdicts serve as evidence that the trial court's

error in refusing an instruction more precisely tailored to the

issue in the case on the ground that it was not the model

instruction, resulted in the jury's misapprehension of the law

and confusion of the issues. Cf. Gray v. Commonwealth, 28 Va.

App. 227, 503 S.E.2d 252 (1998) (inconsistent verdict affirmed

after the jury acquitted defendant of murder but found him

guilty of the use of a firearm in the commission of murder where

defense counsel did not object to the use of the model jury

instruction and did not proffer an instruction that more

precisely stated the law until sentencing); Wolfe v.

Commonwealth, 6 Va. App. 640, 645, 371 S.E.2d 314, 316 (1988)

(inconsistent jury verdicts of voluntary manslaughter and use of

a firearm in the commission of murder affirmed where defendant

"did not seek a cautionary instruction that if the jury

acquitted him of murder, they should then find him not guilty of

use of a firearm in the commission of murder"). As such, we

cannot say, "that the trial court's error in failing to instruct

the jury could not have affected the verdict . . . ." Turner v.

Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504, 507 (1996)

(citations omitted), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997);
- 23 -
accord Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d

619, 620 (1994) (holding that a nonconstitutional error is

harmless if "'it plainly appears from the record and the

evidence given at trial that the error did not affect the

verdict'" (citation omitted)); see also Donkor v. Commonwealth,

26 Va. App. 325, 333, 494 S.E.2d 497, 501 (1998) (reversing

conviction where jury instruction "undermine[d] confidence in

jury's verdict").

We hold, therefore, that the trial court's refusal of the

proffered instruction on the sole ground that it was not the

model instruction is reversible error. Scott, 18 Va. App. at

695, 446 S.E.2d at 620. Accordingly, we reverse and dismiss the

firearm charge. 5

Reversed and dismissed.

5
Because we find the trial court abused its discretion by
denying Gaines' jury instruction, which was not harmless error,
we need not address Gaines' argument that the trial court erred
by denying his motion to set aside the verdict.
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Coleman, J., dissenting.

I respectfully disagree with the majority and, therefore, I

dissent. In my opinion the trial judge did not err by

instructing the jury as he did.

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