VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 9th day of December, 2014.
UNPUBLISHED
LaDawn Shrieves King, Appellant,
against Record No. 1684-13-4
Circuit Court No. FE-2013-175
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On November 7, 2014 came the appellee, by the Attorney General of Virginia, and filed a petition
requesting that the Court set aside the judgment rendered herein on October 28, 2014, and grant a rehearing en
banc on the issue(s) raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s)
raised therein, the mandate entered herein on October 28, 2014 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(b). The appellant 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 the appellee shall file twelve additional copies of the appendix
previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies
of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of
this Court.
The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe
Acrobat Portable Document Format (PDF).1
A Copy,
Teste:
Cynthia L. McCoy, Clerk
original order signed by a deputy clerk of the
By: Court of Appeals of Virginia at the direction
of the Court
Deputy Clerk
1
The guidelines for the creation and submission of a digital brief package can be found at
www.courts.state.va.us, in the Court of Appeals section under “Resources and Reference Materials.”
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COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Huff and Chafin
UNPUBLISHED
Argued at Alexandria, Virginia
LADAWN SHRIEVES KING
MEMORANDUM OPINION* BY
v. Record No. 1684-13-4 JUDGE GLEN A. HUFF
OCTOBER 28, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Brett A. Kassabian, Judge
Amy L. Wilson (Amy L. Wilson, PLC, on briefs), for appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
LaDawn Shrieves King (“appellant”) appeals her convictions for malicious wounding, in
violation of Code § 18.2-51, and use of a firearm in the commission of a felony, in violation of
Code § 18.2-53.1. Following a jury trial in the Circuit Court of Fairfax County (“trial court”),
appellant was sentenced to a total of eight years’ incarceration in the Virginia Department of
Corrections. On appeal, appellant contends that the trial court erred by failing to properly
instruct the jury on the defense of accident. For the following reasons, this Court reverses
appellant’s convictions and remands this matter to the trial court for a new trial, at the discretion
of the Commonwealth.
I. BACKGROUND
On appeal, “‘we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,
the evidence is as follows.
At trial, the Commonwealth and appellant presented two different accounts of the events
that transpired. Dwayne King (“King”), appellant’s husband, testified that he and appellant had
been discussing divorce for a year and a half. On the evening of November 20, 2012, King was
rubbing appellant’s head to provide relief for appellant’s migraine. Appellant fell asleep on King’s
lap and, shortly thereafter, King went to sleep on the other couch in the living room. King next
remembered “waking up to a gunshot.” At first, King did not realize he had been shot in the right
forearm, but he noticed appellant “standing on the other side of the couch” with a “gun in [her]
hand.” King reached for his cell phone, but it was no longer in the location he had left it. Appellant
“immediately ran through the kitchen,” and King followed. Upon entering the kitchen, King seized
the house phone, “locked [himself] into the bathroom on the main level,” and called 911. At the
same moment, appellant ran upstairs. While King was on the phone, he heard appellant “come
down the stairs” and the front door slam. Shortly thereafter, King exited the bathroom and “saw
that [appellant’s] vehicle was gone.”
Appellant testified that on November 20, 2012, she and King were “[i]n over our heads in a
lot of ways.”1 Because of this, appellant decided she “didn’t want to live anymore” and was going
to kill herself using her firearm. Next, appellant explained she loaded her firearm and took King’s
phone so she could leave a message for him. Afterwards, appellant went downstairs into the kitchen
and sent her son a text message saying she loved him. According to appellant, she then put the
phone down and saw King standing in front of her. King then reached for the firearm in appellant’s
1
Appellant stated that she and King were struggling “financially, emotionally, just in
terms of dealing with [their] children.” Appellant indicated she “felt like [she] was worthless,
not performing up to [her] standards.”
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right hand and attempted to pull it away. During the struggle, the firearm discharged and wounded
King in the right forearm.
Unaware that King had been injured, appellant “put the gun to [her] head” and attempted
suicide, however, the firearm failed to discharge. Next, appellant immediately ran up the stairs,
locked herself in a bathroom, and attempted suicide again. After the firearm failed to discharge
again, appellant grew fearful that the police would arrive and take her to a mental institution.
Consequently, appellant hid the firearm in the upstairs linen closet, ran to her vehicle, and drove
away. At the hospital, King was examined by Dr. Michael Pitta (“Pitta”) who indicated in medical
records that King “was shot by his girlfriend accidentally in his right forearm.” Pitta did not testify
at trial.
At trial, the jury was given instructions defining malicious wounding2 and malice.3
Appellant relied on an accident theory in her defense and proffered a modified model jury
instruction (“Instruction L”) on accident. The instruction stated:
Where the defense is that malicious wounding was an accident, the
defendant is not required to prove this fact. The burden is on the
Commonwealth to prove beyond a reasonable doubt that the
2
Instruction No. 4, in relevant part, stated:
The defendant is charged with the crime of malicious wounding.
The Commonwealth must prove beyond a reasonable doubt each
of the following elements of that crime:
(1) That the defendant shot Dwayne King; and
(2) That such shooting was with intent to kill or permanently
maim, disfigure or disable Dwayne King; and
(3) That the act was done with malice.
3
Instruction B, in relevant part, defined malice as “that state of mind which results in the
intentional doing of a wrongful act to another without legal excuse or justification . . . .”
Instruction 6, in pertinent part, instructed, “You may infer malice from the deliberate use of a
deadly weapon unless, from all the evidence, you have a reasonable doubt as to whether malice
existed.”
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malicious wounding was not accidental. If after considering all the
evidence you have a reasonable doubt whether the malicious
wounding was accidental or intentional, then you shall find the
defendant not guilty.4
The trial court rejected the instruction explaining, “My basis for denying L is that I think the other
instructions adequately instruct the jury as to the fact that it has to be an intentional act, whether or
not it is unlawful wounding, a malicious wounding or assault.”
During deliberations the jury asked, in writing, two questions. The first question was, “If a
weapon were discharged during a struggle or accidentally, would this constitute a shooting with
intent to kill, as stated in element two of malicious wounding?” The second jury question was,
“What is the legal definition of an unlawful wounding?” Over the objection of defense counsel the
trial court responded to the jury’s questions by stating, “You must rely upon the instructions
previously provided and give the words in each of the instructions their plain and ordinary
meaning.”
After further deliberations the jury returned its verdict finding appellant guilty of
malicious wounding and use of a firearm in the commission of a felony. This appeal followed.
II. ANALYSIS
A. Standard of Review
“As a general rule, the matter of granting and denying instructions does rest in the sound
discretion of the trial court.” Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187
(2009) (citing Daniels v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008)). On
appeal, “[o]ur ‘sole responsibility in reviewing [jury instructions] is to see that the law has been
4
Appellant’s refused jury instruction is taken from Martin v. Commonwealth, 218 Va. 4,
235 S.E.2d 304 (1977). In Martin, the trial court determined that the refusal to instruct the jury
on accident was error because “[i]n none of the instructions granted by the trial court, however,
was the jury told that the burden was upon the Commonwealth to prove the killing was not
accidental and that the jury should acquit the defendant if it entertained a reasonable doubt
whether the death was accidental or intentional.” Id. at 6-7, 235 S.E.2d at 305.
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clearly stated and that the instructions cover all issues which the evidence fairly raises.’” Molina
v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006) (quoting Swisher v. Swisher,
223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). Moreover, “in deciding whether a particular
instruction is appropriate, we view the facts in the light most favorable to the proponent of the
instruction.” Cooper, 277 Va. at 381, 673 S.E.2d at 187.
Additionally, “an instruction must be supported by more than a scintilla of evidence.”
Hatcher v. Commonwealth, 218 Va. 811, 814, 241 S.E.2d 756, 758 (1978) (citing Gibson v.
Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975)). “‘The weight of the credible
evidence that will amount to more than a mere scintilla . . . is a matter to be resolved on a
case-by-case basis’ by assessing the evidence in support of a proposition against the ‘other
credible evidence that negates’ it.” Woolridge v. Commonwealth, 29 Va. App. 339, 348, 512
S.E.2d 153, 158 (1999) (quoting Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430
S.E.2d 563, 565 (1992)).
B. Accident Jury Instruction
On appeal, appellant contends that the trial court erred by failing to properly instruct the
jury on accident. Specifically, appellant contends that because there was sufficient evidence in
the record supporting appellant’s accident theory in the case, the proffered instruction was proper
and should have been given. The Commonwealth contends that the instructions used at trial
fully and fairly covered the principles of law at issue. The Commonwealth asserts that because
the instructions on malice required an intentional act, the jury had to conclude appellant’s actions
were not accidental.
“‘A defendant is entitled to have the jury instructed only on those theories of the case that
are supported by evidence.’” Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397
(1990) (emphasis added) (quoting Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 257,
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280 (1986)). “When reviewing jury instructions, an appellate court must ensure that the law has
been ‘clearly stated’ and that the ‘instructions cover all issues’ fairly raised by the evidence.”
Mouberry v. Commonwealth, 39 Va. App. 576, 581, 575 S.E.2d 567, 569 (2003) (quoting Tice
v. Commonwealth, 38 Va. App. 332, 339, 563 S.E.2d 412, 416 (2002)). “A trial court should
instruct the jury, when requested to do so, ‘on all principles of law applicable to the pleadings
and the evidence.’” Id. at 582, 575 S.E.2d at 569 (quoting Dowdy v. Commonwealth, 220 Va.
114, 116, 255 S.E.2d 506, 508 (1979)). Indeed, “[i]f a proffered instruction finds any support in
credible evidence, its refusal is reversible error.” McClung v. Commonwealth, 215 Va. 654,
657, 212 S.E.2d 290, 293 (1975) (citing Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d
906, 908 (1947)).
“Where the conflicting evidence tends to sustain either the prosecution’s or defense’s theory
of the case, the trial judge must instruct the jury as to both theories.” Foster v. Commonwealth, 13
Va. App. 380, 383, 412 S.E.2d 198, 200 (1991) (emphasis added) (citing Delacruz v.
Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 105 (1990)). Further, “[i]f there is
evidence in the record to support the defendant’s theory of defense, the trial judge may not refuse to
grant a proper proffered instruction.” Id. Consequently, “the trial court must instruct on both
theories to guide a jury in their deliberations as to the law applicable to the case, depending upon
how the jury decides the facts.” Id. (citing Cooper v. Commonwealth, 2 Va. App. 497, 500, 345
S.E.2d 775, 777 (1986)). Parties are not entitled, however, to duplicative instructions covering the
same principle. Remington v. Commonwealth, 262 Va. 333, 349, 551 S.E.2d 620, 631 (2001).
“[V]iew[ing] the facts in the light most favorable to the proponent of the instruction,” this
Court finds that credible evidence supported appellant’s proffered instruction. Cooper, 277 Va.
at 381, 673 S.E.2d at 187. At trial, King testified in support of the prosecution’s malicious
wounding theory of the case. Specifically, King indicated that he woke up after being
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deliberately shot by appellant. In contrast, appellant offered a strikingly different account of the
incident. Appellant’s testimony indicated that she planned to commit suicide on the night of the
incident; however, King woke before she could complete the act. According to appellant, King
attempted to disarm appellant while appellant was sending a goodbye message to their child.
During the struggle, King reached for appellant’s right arm, which held the firearm, the firearm
accidentally discharged, and King was wounded. Moreover, appellant’s testimony established
that she did not intend to deliberately harm King but wanted to commit suicide.
In the very unique facts of this case and while balancing the relevant standards of review,
this defendant was entitled to the instruction at issue. See Cooper, 277 Va. at 381, 673 S.E.2d at
187. Appellant’s testimony amounts to “more than a scintilla of evidence.” Eaton, 240 Va. at
255, 397 S.E.2d at 297. Additionally, the trial court’s response to the jurors’ question, “You
must rely upon [all of] the instructions previously provided and give the words in each of the
instructions their ordinary and plain meaning” is too simplistic given the circumstance presented.
Rather, “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). From a review of the record, the principle of law
covering “accident” was vital to the appellant in this case.
Accordingly, appellant was entitled to have a properly stated instruction given on her
theory of the case, without the need to rely solely on a negative implication arising from the
Commonwealth’s proffered instructions on the law of malice. As appellant’s theory of the case
was supported by more than a scintilla of evidence, the trial court committed an error of law in
failing to grant appellant’s proffered instruction covering her theory of the case. Consequently,
this Court finds that the trial court abused its discretion in failing to properly instruct the jury on
accident.
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III. CONCLUSION
Based on the foregoing, this Court finds that the trial court erred by failing to properly
instruct the jury on accident and remands the case to the trial court for a new trial, if the
Commonwealth be so advised.
Reversed and remanded.
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