COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia
AUBREY THOMAS
MEMORANDUM OPINION * BY
v. Record No. 0507-00-1 JUDGE RICHARD S. BRAY
MAY 29, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Christopher Todd Hedrick (David D.
Dickerson & Associates, on brief), for
appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted Aubrey Thomas (defendant) of "intentionally
[causing] . . . injury" "to property" in violation of Code
§ 18.2-137(B), a Class 1 misdemeanor. On appeal, he contends the
trial court erroneously refused to instruct the jury on the
"lesser offense" of "unlawfully . . . damag[ing] . . . property,"
a Class 3 misdemeanor proscribed by Code § 18.2-137(A). Finding
no error, we affirm the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal. In accordance with well established
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
principles, we consider the evidence in the light most favorable
to the prevailing party below, the Commonwealth in this instance.
I.
Viewed accordingly, the record discloses defendant was
confined in an "isolation cell" at the Virginia Beach jail at the
time of the subject offense and, like all prisoners in isolation,
denied "contact with . . . anybody but deputies." Each isolation
cell was equipped with a surveillance camera that "scan[ned]
through" at intervals of "fifteen to twenty seconds," with the
images televised to and monitored by jail personnel stationed in
"Main Control." Additionally, a "flap" in the doorway of the
cells facilitated a routine "thirty minute [visual] check" of
inmates by deputies.
For fire protection, each cell was equipped with a "sprinkler
head," located in the ceiling, eight feet from the floor and
"eight to twelve inches straight up and over" from the prisoner's
"bunk." Activated either by heat or "impact," the sprinklers
would automatically release "approximately 11,000 gallons" of
water per minute and trigger an audio/visual "alert" at "Main
Control" that indicated the location of an activated sprinkler.
At approximately 5:40 a.m. on August 27, 1999, an "alert"
signaled the operation of the sprinkler in cell C-280, then
occupied by defendant. An immediate "camera check" revealed
"water rushing, water on the floor and water coming out of the
cell," and defendant "standing on his bunk." Scans of the cell
- 2 -
preceding the alarm had disclosed nothing "out of the ordinary."
Deputy P.F. Barnes was promptly dispatched to C-280 and, upon
arrival, observed "water coming out at the cell," defendant
"standing on top of the bed" and water flowing from the "sprinkler
head," "bent like it was struck," "broken." The water, which "had
[then] been running . . . three or four minutes," had flooded the
cell to "about six inches" and "leaked into the hallway,"
blanketing "everything" with a "black . . . oily substance."
Several hours earlier, Deputy Barnes had conducted a search
of C-280, investigating a report that defendant was in possession
of "contraband." When "some pencils," prohibited items in
"restrictive housing," were discovered and removed from the cell,
defendant had protested, "it wasn't right and so forth," and
became "very belligerent, yelling and screaming profanities."
Barnes recalled the "sprinkler head" was "in perfect order" at
that time.
Deputy Donald Stanley, assigned to the maintenance department
of the jail, described the damage resulting from the water and
related "grime and stuff" and the necessary repairs. Stanley,
familiar with the construction and operation of the sprinklers,
testified that none had malfunctioned during his tenure at the
jail, dating from 1993, and opined, without objection, that the
subject "head" had been "opened by impact." Stanley totaled the
water damages to the jail at $430.
- 3 -
Defendant, previously convicted of eleven felonies, testified
he had occupied C-280 for "probably seven months before the"
incident and was "laying on the floor" when, suddenly, "water was
coming down." He claimed "water was running" "about an hour
before" authorities intervened. Although defendant acknowledged
"various problems" during his "stay" in the jail, he denied
tampering with the sprinkler and offered no explanation for the
occurrence.
The trial transcript reflects a "recess" at the conclusion of
the evidence to permit the court "to get together with the lawyers
. . . and look at . . . jury instructions," followed immediately
by the court's inquiry of defendant's counsel, "What [have] you
got for instructions?" The transcript then parenthetically notes
a "sidebar conference . . . by the court and counsel out of the
hearing of the court reporter." The record further reflects a
granted instruction, embracing intentional damage to property,
together with the attendant penalty, and a refused instruction,
offered by defendant, addressing unlawful damage and the lesser
penalty. The jury subsequently convicted defendant for
"Destruction of Property" and fixed a punishment appropriate to
intentional damage. The court subsequently "confirmed" the
verdict and imposed the recommended sentence.
Defendant complains on appeal that "the trial court should
have accepted [his] jury instruction which would have allowed the
jury to consider" a sentence for either intentional or unlawful
- 4 -
damage. In response, the Commonwealth contends defendant failed
to present an adequate record to permit appellate review of the
instruction issue but, nonetheless, the evidence did not support
the instruction on the lesser offense.
II.
Rule 5A:18 provides, in pertinent part:
No ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
The "judgment of the lower court is presumed to be correct and
the burden is on the appellant to present us a sufficient record
from which we can determine whether the lower court has erred in
the respect complained of." Smith v. Commonwealth, 16 Va. App.
630, 635, 432 S.E.2d 2, 6 (1993). Thus, an appellate court
"cannot base its decision upon appellant's petition or brief, or
statements of counsel in open court. We may act only upon facts
contained in the record." Id. (citation omitted).
Here, the record, including the transcript of the
proceedings, fails to set forth the argument advanced by
defendant in support of the proffered instruction or reasons the
trial court refused it. Thus, we have nothing before us to
indicate either the issues presented to the court in compliance
with Rule 5A:18 or attendant rulings. Under such circumstances,
we are unable to properly consider the appeal for error.
- 5 -
Nevertheless, defendant, at oral argument, relied upon
Martin v. Commonwealth, 13 Va. App. 524, 414 S.E.2d 401 (1992),
in support of his contention that submission of the instruction
on the "lesser offense," without more, sufficiently presented
the issue to the trial court. In Martin, an appeal of a
conviction for attempted capital murder, we found that, "[b]y
tendering [an] assault instruction, Martin fully alerted the
trial judge and the Commonwealth that simple assault is a
lesser-included offense of attempted capital murder," together
with the attendant argument that "sufficient evidence supported
granting the instruction." Id. at 530, 414 S.E.2d at 404.
However, even if we assume, without deciding, that defendant
properly raised the lesser-included offense issue by simply
proffering the disputed instruction, his appeal must fail.
"The principles governing our review of a trial court's
decision refusing a jury instruction are well-settled. 'If any
credible evidence in the record supports a proffered instruction
on a lesser included offense, failure to give the instruction is
reversible error.' 'Such an instruction, however, must be
supported by more than a mere scintilla of evidence.'" Brandau
v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563, 564
(1993) (citations omitted). Thus, "'[a] defendant is entitled
to have the jury instructed only on those theories of the case
that are supported by the evidence.'" Connell v. Commonwealth,
34 Va. App. 429, 436, 542 S.E.2d 49, 52 (2001) (citation
- 6 -
omitted) (emphasis added); see Stewart v. Commonwealth, 10 Va.
App. 563, 570, 394 S.E.2d 509, 513 (1990) (accused not entitled
to lesser-included offense instruction inconsistent with theory
of defense); see also Delacruz v. Commonwealth, 11 Va. App. 335,
338, 398 S.E.2d 103, 105 (1990) (court must instruct on
"defendant's theory of defense," if supported by the evidence).
"Although the Commonwealth prevailed at trial, the appropriate
standard of review requires that we view the evidence with respect
to the refused instruction in the light most favorable to the
defendant." Boone v. Commonwealth, 14 Va. App. 130, 131, 415
S.E.2d 250, 251 (1992).
Here, the record is bereft of evidence to support an
instruction on the lesser-included offense of unlawful damage to
property. Uncontradicted credible testimony established that
the sprinkler located in the ceiling of a cell, occupied only by
defendant, was in "perfect working order" until "broken" and
"bent" by "impact." Defendant, angered by jail personnel only
hours before the incident, was observed standing on his bunk
below the damaged sprinkler, moments after the alarm sounded.
Significantly, defendant testified that he had done nothing to
cause the damage, and was resting on the floor when the device
suddenly and inexplicably activated. Such evidence clearly
justified an instruction that defendant "intentionally cause[d]
such injury," as contemplated by Code § 18.2-137(B), while
providing no support for an instruction on unlawful damage, a
- 7 -
theory of the case inconsistent even with defendant's evidence.
Hence, the court correctly refused the disputed instruction.
Accordingly, we affirm the conviction.
Affirmed.
- 8 -
Benton, J., dissenting.
Aubrey Thomas was arraigned and tried by jury on a warrant
charging that he "did unlawfully in violation of [Code] Section
18.2-137 . . . destroy, deface, or damage sprinkler head,
mattress, and paint on walls of [the] jail cell . . . with the
value of, or damage to, such property being less than $1,000."
In pertinent part, the statute provides as follows:
A. If any person unlawfully destroys,
defaces, damages or removes without the
intent to steal any property, real or
personal, not his own, . . . he shall be
guilty of a Class 3 misdemeanor . . . .
B. If any person intentionally causes such
injury, he shall be guilty of (i) a Class 1
misdemeanor if the value of or damage to the
property, . . . is less than $1,000 . . . .
Code § 18.2-137.
At the conclusion of the evidence, the pertinent portions
of which are cited in the majority opinion, Thomas' counsel
offered a jury instruction that addressed both parts of the
statute. I would hold that the trial judge erred in refusing
the instruction.
Among the instructions granted by the trial judge was the
following submitted by the Commonwealth:
The Court instructs the jury that the
defendant is charged with the crime of
damaging property. The Commonwealth must
prove beyond a reasonable doubt each of the
following elements of that crime:
- 9 -
(1) That the defendant intentionally
damaged property which was not his own; and
(2) That the property damaged was of a
value of $1,000.00 or less.
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 and fix his punishment at:
(1) Confinement in jail for a specific time
but not more than twelve (12) months; or
(2) A fine of a specific amount, but not
more than $2,500.00.
(3) Confinement in jail for a specific time
but not more than twelve (12) months, and a
fine of a specific amount but not more than
$2,500.00.
If you find that the Commonwealth has
failed to prove either or both elements of
the offense beyond a reasonable doubt, then
you shall find the defendant not guilty.
The following instruction was tendered by Thomas and
refused by the trial judge:
You have found the defendant guilty of
the misdemeanor of damaging property. Upon
consideration of all the evidence you have
heard, you shall fix the defendant's
punishment accordingly:
1. If you find that the defendant
unlawfully damaged the property, you shall
fix the defendant's punishment at a fine of
a specific amount, but not more than
$500.00.
2. If you find that the defendant
intentionally damaged the property, you
shall fix the defendant's punishment at:
- 10 -
(a) Confinement in jail for a specific
time, but not more than twelve (12) months;
and/or,
(b) A fine of a specific amount, but not
more than $2,500.00.
By tendering this instruction which detailed the alternative
offenses proscribed by Code § 18.2-137, Thomas' counsel
unambiguously alerted the trial judge that he was seeking an
instruction that would have informed the jury of the greater and
the lesser-included offenses of Code § 18.2-137.
We addressed this circumstance in Martin v. Commonwealth,
13 Va. App. 524, 414 S.E.2d 401 (1992). There, we ruled as
follows:
The primary function of Rule 5A:18 is to
alert the trial judge to possible error so
that the judge may consider the issue
intelligently and take any corrective
actions necessary to avoid unnecessary
appeals, reversals and mistrials. Campbell
v. Commonwealth, 12 Va. App. 476, 477, 405
S.E.2d 1, 2 (1991) (en banc). By tendering
the assault instruction, Martin fully
alerted the trial judge and the Commonwealth
that simple assault is a lesser-included
offense of attempted capital murder and
sufficient evidence supported granting the
instruction. At this point in the
proceedings, the trial judge had an
affirmative duty to include the instruction.
See Jimenez v. Commonwealth, 241 Va. 244,
250, 402 S.E.2d 678, 681 (1991).
13 Va. App. at 530, 414 S.E.2d at 404. Significantly, in this
case, unlike in Martin, the record clearly reflects that Thomas'
counsel did object to the trial judge's refusal to give the
instruction. Indeed, the trial judge affirmatively stated that
- 11 -
"exception to the Court's ruling was noted by defense counsel."
In other words, Thomas complied more clearly with the
contemporaneous objection rule than did Martin, whose conviction
we reversed.
Although the Commonwealth argues, and the majority holds,
that Thomas is procedurally barred from arguing on appeal that
the trial judge erred in refusing the instruction, the
Commonwealth concedes the obvious fact that Code § 18.2-137(A)
(proscribing unlawful conduct) is a lesser-included offense of
Code § 18.2-137(B) (proscribing intentional conduct). Moreover,
the record clearly establishes that the warrant charged and the
trial judge arraigned Thomas on the charge of "unlawfully"
acting in violation of Code § 18.2-137. Nevertheless, the trial
judge rejected Thomas' instruction, which included the lesser
offense that was specifically charged in the criminal warrant
and recited at the arraignment. On the other hand, the
Commonwealth's instruction, which the trial judge accepted,
informed the jury only of the greater of the two statutory
offenses, which was not specifically referenced in the warrant.
I would hold that Rule 5A:18 has been satisfied and that this
issue is properly before us for decision.
Viewing the evidence pertinent to the refused instruction
in the light most favorable to Thomas, see Blondel v. Hays, 241
Va. 467, 469, 403 S.E.2d 340, 341 (1991), we can only conclude
that no evidence proved how or under what circumstances the
- 12 -
sprinkler head was damaged. The Commonwealth sought to have the
jury infer from the evidence that Thomas damaged the sprinkler
head intentionally. That same evidence, or lack of evidence, is
reasonably susceptible to the inference that Thomas damaged the
sprinkler head unlawfully and not intentionally. No direct
evidence proved Thomas had been striking or otherwise touching
the shower head. Thus, despite the Commonwealth's contentions,
the evidence provided a basis for a conviction of the
lesser-included offense (unlawful damage) as much as for the
greater offense (intentional damage).
As we noted in Martin:
The Commonwealth argues that because "there
is no factual dispute," the trial judge did
not err in refusing the instruction. We
disagree with the premise that a factual
dispute did not exist. The disputed factual
element in this case was the intent . . . .
Although [Thomas'] words and actions were
not disputed, his mental state was very much
at issue. "The intent required to be proven
in an attempted crime is the specific intent
in the person's mind." The specific intent
in the person's mind may, and often must, be
inferred from that person's conduct and
statements.
* * * * * * *
The inferences that flow from the facts
do not solely favor the Commonwealth's
theory of the case. It is fundamental that:
"[t]he jury is not required to accept, in
toto, either the theory of the Commonwealth
or that of an accused. They have the right
to reject that part of the evidence believed
by them to be untrue and to accept that
found by them to be true. In so doing, they
- 13 -
have broad discretion in applying the law to
the facts and in fixing the degree of guilt,
if any, of a person charged with a crime."
Consequently, "[i]f a proffered instruction
finds any support in credible evidence, its
refusal is reversible error."
13 Va. App. at 527-28, 414 S.E.2d at 402-03 (citations omitted).
The instruction Thomas tendered would have given the jury
an opportunity to apply the law to the evidence proved at trial.
No evidence proved how or under what circumstances the water
sprinkler was damaged. The cameras did not show whether Thomas
was hitting the sprinkler or hanging clothes on it or using it
for an exercise bar. The jury was required to infer from the
damage to the sprinkler and Thomas' sole presence in the room
the means by which the damage occurred. Clearly, the inference
of unlawful conduct is as likely and as reasonable from this
evidence as is the inference of intentional conduct. "If any
credible evidence in the record supports a proffered instruction
on a lesser included offense, failure to give the instruction is
reversible error." Boone v. Commonwealth, 14 Va. App. 130, 132,
415 S.E.2d 250, 251 (1992). The refusal of Thomas' instruction
was plain error.
The instruction Thomas tendered would have informed the
jury of both statutory offenses and the alternative punishments
available. Although Thomas' rejected instruction is premised
upon the jury's finding that Thomas was guilty of damaging
property, it was obviously intended to accompany the general
- 14 -
instructions concerning the elements of the offense. While the
instruction may have required a revision to fit within the
context of the other instructions, it otherwise properly stated
the law. The Supreme Court has consistently ruled, "that when
the principle of law is materially vital to a defendant in a
criminal case, it is reversible error for the trial [judge] to
refuse a defective instruction instead of correcting it and
giving it in the proper form." Whaley v. Commonwealth, 214 Va.
353, 355-56, 200 S.E.2d 556, 558 (1973). Accord Jimenez, 241
Va. at 250-51, 402 S.E.2d at 681; Nelson v. Commonwealth, 143
Va. 579, 589-91, 130 S.E. 389, 392 (1925). The revision of the
instruction was a minor matter that could have been accomplished
by counsel and the trial judge. Thus, I would hold that "it was
not sufficient for the [judge] simply to have refused the
instruction instead of correcting it and giving it in the proper
form." Id.
For these reasons, I would reverse the conviction and
remand for a new trial.
- 15 -