COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
CARL ANTHONY McKENLEY
MEMORANDUM OPINION * BY
v. Record No. 1910-96-3 CHIEF JUDGE NORMAN K. MOON
OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
Charles J. Strauss (H. Victor Millner, Jr.,
P.C., on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Carl Anthony McKenley appeals his jury trial convictions of
unlawful wounding in violation of Code § 18.2-51 and use of a
firearm in the commission of malicious wounding in violation of
Code § 18.2-53.1. McKenley asserts that (1) the trial court
improperly instructed the jury on the charge of use of a firearm;
(2) the evidence was insufficient to prove unlawful wounding and
use of a firearm in the commission of a malicious wounding; and
(3) the verdict form for unlawful wounding was invalid because it
failed to recite the requisite intent either specifically or by
reference to the indictment. We disagree and affirm.
Keith Harris, defendant Carl McKenley, and several other
people gathered at a private residence to drink and socialize.
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
Harris and McKenley began to argue. McKenley said he was
leaving, but as he walked out the door, Harris grabbed him by the
shirt and pulled him back inside. They began to fight, each
swinging at the other. McKenley then shot Harris twice with a
.38 caliber pistol, injuring him. McKenley testified that he
found the gun in the living room, but other witnesses, including
a defense witness, testified that McKenley took the weapon from
his belt. McKenley went to the hospital, where an officer
searching McKenley's clothing found five .38 caliber bullets.
The officer testified that McKenley twice told him that if Harris
came to the hospital, he would kill him.
McKenley was charged with malicious wounding and use of a
firearm in the commission of a malicious wounding. The court
instructed the jury as to the elements, including the requisite
intent, of the charged crimes, as well as the lesser-included
offenses of unlawful wounding and assault and battery. The jury,
using a verdict form that lacked a recitation of the requisite
intent for conviction of unlawful wounding but contained the
phrase, "We, the jury, on the issue joined," convicted McKenley
of unlawful wounding and use of a firearm in the commission of a
malicious wounding.
JURY INSTRUCTION
McKenley asserts that the trial court improperly instructed
the jury on the charge of use of a firearm in the commission of
malicious wounding. He asserts that the jury's finding that he
committed an unlawful, rather than malicious, wounding is
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inconsistent with its finding of use of a firearm in the
commission of a malicious wounding.
McKenley failed to object to the instruction at trial. Rule
5A:18 provides that "[n]o 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." Moreover, inconsistent
verdicts are permissible if there is sufficient evidence to
support them. See Wolfe v. Commonwealth, 6 Va. App. 640, 371
S.E.2d 314 (1988) (holding that an inconsistency between
verdicts--acquittal of murder but conviction of use of a firearm
in the commission of murder--does not require reversal of the
firearm conviction). Because the record does not show any
obvious miscarriage of justice, neither the ends of justice nor
good cause permits waiver of the Rule 5A:18 bar. Commonwealth v.
Mounce, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).
SUFFICIENCY OF THE EVIDENCE
McKenley also asserts that the evidence was insufficient to
support his convictions for unlawful wounding and use of a
firearm while committing a malicious wounding. "On appeal, we
review the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987).
To convict a defendant of use of a firearm while committing
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a malicious wounding, the fact finder must find beyond a
reasonable doubt that the defendant was guilty of malicious
wounding and used a firearm to commit the wounding. "Intent may,
and most often must, be proven by circumstantial evidence and the
reasonable inferences to be drawn from proven facts are within
the province of the trier of fact." Fleming v. Commonwealth, 13
Va. App. 349, 353, 412 S.E.2d 180, 183 (1991). Witnesses
testified that McKenley pulled the gun from his belt and shot
Harris twice. A police officer testified that at the hospital
McKenley twice said that he would kill Harris if Harris came to
the hospital. The officer also found bullets of the same type
used to shoot Harris in McKenley's shirt pocket. The jury was
entitled to convict McKenley of inconsistent charges. See Wolfe,
6 Va. App. at 650, 371 S.E.2d at 319-20. The Commonwealth's
evidence was competent, was not inherently incredible, and was
sufficient to prove beyond a reasonable doubt that McKenley used
a firearm while maliciously wounding Harris.
To convict a defendant of unlawful wounding, a
lesser-included offense of malicious wounding, the fact finder
must find beyond a reasonable doubt only that the defendant
intended to cause the victim bodily injury and that the victim
suffered bodily injury. Because the Commonwealth's evidence was
sufficient to prove beyond a reasonable doubt that McKenley
maliciously wounded Harris, it follows that the evidence was
sufficient to prove unlawful wounding.
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VALIDITY OF THE VERDICT FORM
Finally, McKenley asserts that the unlawful wounding verdict
form was invalid because it failed to specify that he wounded
Harris with an intent to maim, disfigure, disable, or kill.
In Jackson v. Commonwealth, 218 Va. 490, 237 S.E.2d 791
(1977), the Supreme Court of Virginia upheld verdicts which did
not specify the requisite intent on the verdict form but did
include the phrase, "We, the jury on the issue joined,
unanimously find the defendant . . . guilty . . . ." Id. at
492, 237 S.E.2d at 792 (emphasis added). The Court held that the
requisite intent was "necessarily implied" in the verdict. Id.
at 492, 237 S.E.2d at 793. The Court reasoned that the jury's
finding was based "on the issue joined," which initially was
framed by the indictments containing the necessary intent, and
thus the verdict forms were valid because the jury's finding of
intent could be determined by its verdict. Id.
McKenley's verdict form included the phrase, "on the issue
joined." Additionally, the instructions defining unlawful
wounding included the requisite intent. McKenley's conviction
for unlawful wounding is therefore not invalid merely because the
verdict form lacked recitation of the requisite intent.
Affirmed.
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Benton, J., concurring and dissenting.
I concur in the portions of the opinion styled Sufficiency
of the Evidence and Validity of the Verdict Form, and, therefore,
I would affirm the conviction of unlawful wounding. However, I
would reverse the conviction for use of a firearm in the
commission of malicious wounding.
This Court's ruling that a jury's inconsistent verdicts does
not provide a ground for reversal, see Wolfe v. Commonwealth, 6
Va. App. 640, 649-50, 371 S.E.2d 314, 319-20 (1988), is clearly
subject to the general rule that the jury must be guided by
proper instructions. See Dowdy v. Commonwealth, 220 Va. 114,
116, 255 S.E.2d 506, 508 (1979). A concomitant rule is that
"when a principle of law is vital to a defendant in a criminal
case, a trial [judge] 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). "That principle
applies even when an objection has not been stated . . . [because
the] trial judge's 'imperative duty [to properly instruct the
jury] . . . is one which can neither be evaded nor surrendered.'"
Johnson v. Commonwealth, 20 Va. App. 547, 554, 458 S.E.2d 599,
602 (1995) (citation omitted).
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The jury was given two verdict forms. 1 The record
establishes that the verdict form that the jury was given for the
1
One form gave the following four options:
WE, THE JURY, ON THE ISSUE JOINED, FIND THE
DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF
MALICIOUSLY CAUSING BODILY INJURY, AS CHARGED
IN THE INDICTMENT.
___________________
FOREMAN
WE, THE JURY, ON THE ISSUE JOINED, FIND THE
DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF
UNLAWFUL WOUNDING.
____________________
FOREMAN
WE, THE JURY, ON THE ISSUE JOINED, FIND THE
DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF
ASSAULT AND BATTERY, AND FIX HIS PUNISHMENT
AT _______________________________.
____________________
FOREMAN
WE, THE JURY, ON THE ISSUE JOINED, FIND THE
DEFENDANT, CARL ANTHONY MCKENLEY, NOT GUILTY.
_____________________
FOREMAN
The other form gave the jury the following two options
concerning the gun charge:
WE, THE JURY, ON THE ISSUE JOINED, FIND THE
DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF
USE OF A FIREARM IN THE COMMISSION MALICIOUS
BODILY INJURY, AS CHARGED IN THE INDICTMENT.
_____________________
FOREMAN
WE, THE JURY, ON THE ISSUE JOINED, FIND THE
DEFENDANT, CARL ANTHONY MCKENLEY, NOT GUILTY
OF USE OF A FIREARM.
_____________________
FOREMAN
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firearm charge is patently defective. The jury's request for "an
explanation and relationship to the number of verdicts" confirms
the jury's lack of understanding of the relationship of the
various charges and the corresponding verdict forms.
After the jury began its deliberations, it requested an
explanation of the forms. The following colloquy occurred:
THE JUDGE: Alright, Mr. Foreman, you have
a question?
FOREMAN: Yes sir.
THE JUDGE: Yes sir.
FOREMAN: What I wanted was just an
explanation and relationship
to the number of verdicts, the
two forms. We have two
papers.
THE JUDGE: Right.
FOREMAN: So this one is clear as far as
making a decision one of the
others.
THE JUDGE: Right. That's right. That's
on the use of the firearm.
FOREMAN: Yes sir.
THE JUDGE: Yes sir.
FOREMAN: This one we have four, so
should it be one of the four?
THE JUDGE: Yeah, one out of the four.
It's either not guilty, guilty
of an assault, guilty of
unlawful wounding, or guilty
of malicious wounding, one out
of the four.
FOREMAN: Okay, one out of the two, one
out of the four.
THE JUDGE: Right, that's right. Okay,
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thank you all. Alright, Court
will be recessed.
That colloquy clearly demonstrates that the patent defect in
the firearm verdict likely contributed to the jury finding
McKenley guilty of the use of a firearm in the commission of a
malicious wounding even though the jury found McKenley "guilty of
unlawful wounding." The firearm verdict form does not inform the
jury that McKenley was not guilty of the charged firearm offense
if he did not use a firearm "in the commission of a malicious
bodily injury." The form states "We . . . find the defendant
. . . not guilty of use of a firearm." As worded, the verdict
form conveys to the jury the implication that McKenley could only
be not guilty of the firearm charge if he did not "use . . . a
firearm." Thus, an "obvious void" exists on the face of the
verdict form. Johnson v. Commonwealth, 20 Va. App. 547, 554, 458
S.E.2d 599, 602 (1995).
The verdict form did not sufficiently inform the jury that
proof that McKenley used a firearm was not a sufficient basis to
convict McKenley. The undisputed evidence proved that McKenley
used a firearm. Only if he used the firearm in the commission of
malicious wounding, the charge of which he was acquitted, could
he have been convicted of the firearm charge. See Code
§ 18.2-53.1.
Defense counsel failed to object to the lack of clarity in
the instruction or in the oral explanation. However, I would
hold that the lack of objection does not prevent this Court from
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considering this issue on appeal as an exception to Rule 5A:18,
see Jimenez, 241 Va. at 250, 402 S.E.2d at 681, and I would
reverse the conviction for use of a firearm in the commission of
malicious wounding. I dissent.
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