COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia
ERIC DONNELL SAUNDERS
OPINION BY
v. Record No. 1929-98-2 JUDGE RICHARD S. BRAY
JANUARY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
(Andrew E. Weaver; Traylor, Morris & Wornom,
on brief), for appellant. Appellant
submitting on brief.
(Mark L. Earley, Attorney General; Eugene
Murphy, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Eric Donnell Saunders (defendant) was convicted by a jury for
"writ[ing] or compos[ing] and send[ing]" a letter to another
"containing a threat to kill or do bodily injury" to such person,
a violation of Code § 18.2-60(A). On appeal, he complains that
the trial court erroneously refused to instruct the jury on the
element of malice. We disagree and affirm the conviction.
Code § 18.2-60(A) provides, in pertinent part:
If any person write or compose and also
send or procure the sending of any letter
. . . , so written or composed, . . . to any
person, containing a threat to kill or do
bodily injury to the person to whom such
letter or communication was sent or to kill
or do bodily injury to any member of his or
her family, the person so writing or
composing and sending or procuring the
sending of such letter or communication
shall be guilty of a Class 6 felony.
Accordingly, the court instructed the jury, in pertinent
part:
The defendant is charged with the crime
of threatening bodily injury to another
person. The Commonwealth must prove beyond
a reasonable doubt the following elements of
that crime: (1) That the defendant wrote or
composed a letter or written communication
signed or unsigned to [another]; and
(2) That the letter or written communication
contained a threat to do bodily harm to
[such other] or his family; and (3) That the
defendant sent such letter or written
communication to [him].
Arguing that malice was indispensable to the "unlawful
mens rea" implicit in the statutory offense, defendant proffered
an instruction which required the Commonwealth to prove that he
committed the proscribed acts "with malice," together with a
companion instruction defining malice. In refusing both
instructions, the court noted that the statute did not "contain
. . . the word malicious."
"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 the issues which the evidence
fairly raises.' It is elementary that a jury must be informed as
to the essential elements of the offense; a correct statement of
the law is one of the 'essentials of a fair trial.'" Darnell v.
Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)
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(citations omitted). "An instruction should not be given 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) (citation omitted).
Malice is "that state of mind which results in the
intentional doing of a wrongful act to another without legal
excuse or justification, at a time when the mind of the actor is
under the control of reason." Lynn v. Commonwealth, 27 Va. App.
336, 344-45 n.1, 499 S.E.2d 1, 5-6 n.1 (1998); see also 1 Virginia
Model Jury Instructions – Criminal 33.220 (1998 repl. ed. with
1999 Supp.). Thus, "[m]alice is evidenced either when the accused
acted with a sedate, deliberate mind, and formed design, or
committed any purposeful and cruel act without any or without
great provocation." Branch v. Commonwealth, 14 Va. App. 836, 841,
419 S.E.2d 422, 426 (1992). The legislature has expressly
required malice as an element of numerous statutory offenses.
See, e.g., Code §§ 18.2-77, -79, -80, -86, -127, -152.7(B), -212,
and -279.
In contrast, mens rea or scienter is simply the unlawful
intent or design necessary to any criminal act that is not a
strict liability offense. See Reed v. Commonwealth, 15 Va. App.
467, 424 S.E.2d 718 (1992); 1 Wayne R. LaFave, Substantive
Criminal Law § 3.4 (1986); Livingston v. Commonwealth, 184 Va.
830, 36 S.E.2d 561 (1946). Thus, although malice is a species
of mens rea, see Christian v. Commonwealth, 221 Va. 1078, 227
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S.E.2d 205 (1981); Berkley v. Commonwealth, 19 Va. App. 279, 451
S.E.2d 41 (1994), mens rea does not always evince malice. See
e.g., Mosby v. Commonwealth, 23 Va. App. 53, 473 S.E.2d 732
(1996) (criminal negligence); Fortune v. Commonwealth, 12 Va.
App. 643, 406 S.E.2d 47 (1991) (unlawful behavior). Hence, a
wrongful act done intentionally is not always malicious. See
Mason v. Commonwealth, 7 Va. App. 339, 373 S.E.2d 603 (1988).
Although Code § 18.2-60(A) makes no mention of malice,
defendant, nevertheless, relies on Perkins v. Commonwealth, 12
Va. App. 7, 402 S.E.2d 229 (1991), to infer malice as an element
of the offense. In Perkins, the accused challenged Code
§ 18.2-83(A) 1 as unconstitutionally overbroad because it required
no mens rea to complete the crime. We disagreed, reasoning
that:
In Maye v. Commonwealth, 213 Va. 48, 189
S.E.2d 350 (1972) the Supreme Court of
Virginia stated:
A claim that a statute on its face
contains no requirement of mens rea
or scienter is no ground for
holding the statute
unconstitutional since such
requirement will be read into the
statute by the court when it
appears the legislature implicitly
intended that it must be proved.
213 Va. 48, 49, 189 S.E.2d 350, 351
(1972). . . . Therefore, § 18.2-83 can be
read as requiring mens rea. Such a narrowing
construction of this statute prevents
1
Code § 18.2-83(A) prohibits any person from "mak[ing] or
communicat[ing] to another by any means any threat to bomb,
burn, destroy or in any manner damage any place of assembly,
building or other structure."
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overbreadth. Only an individual who
maliciously "makes and communicates . . . any
threat" prohibited by the statute will be
punished.
Id. at 15, 402 S.E.2d at 234 (emphasis added).
Defendant acknowledges that Perkins clearly instructs that
mens rea or scienter "will be read into a [criminal] statute" to
satisfy constitutional imperatives. Additionally, however, he
construes dicta in Perkins, "[o]nly an individual who maliciously"
engages in conduct "prohibited by [Code § 18.2-83(A)] will be
punished," to also graft the element of malice onto the subject
Code § 18.2-60(A), a statute similar to Code § 18.2-83(A).
Perkins, 12 Va. App. at 15, 402 S.E.2d at 234 (emphasis added).
We are not persuaded that this Court in Perkins intended to
equate mens rea with malice, a concept clearly at odds with
well-established jurisprudence, and, therefore, decline
defendant's invitation to imply both mens rea and malice as
elements of Code § 18.2-60(A). "We may not add to a statute
language which the legislature has chosen not to include." County
of Amherst Bd. of Supervisors v. Brockman, 224 Va. 391, 397, 297
S.E.2d 805, 808 (1992) (citations omitted).
Accordingly, we affirm the conviction.
Affirmed.
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