Akers v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia

CHARLES RICHARD AKERS
OPINION BY
v. Record No. 2675-98-3 JUDGE LARRY G. ELDER
FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
A. Dow Owens, Judge Designate

Thomas P. Kratman (Kratman, Swindell &
Crenshaw, on brief), for appellant.

Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Charles Richard Akers (appellant) appeals his bench trial

conviction pursuant to Code § 18.2-53.1 for use of a firearm in

the commission or attempted commission of a malicious wounding.

Appellant originally also was charged with malicious wounding in

violation of Code § 18.2-51 but was convicted of the lesser

offense of unlawful wounding. On appeal, appellant contends his

conviction for use of a firearm in the commission of a malicious

wounding was inconsistent with his conviction for unlawful

wounding arising out of the same incident. Conceding the

inconsistency of the verdicts, the Commonwealth contends under

Rule 5A:18 that appellant waived his right to contest this

inconsistency by failing to present this argument to the trial
judge. In the alternative, it contends the trial court's

inconsistent verdicts do not constitute reversible error. We hold

that appellant sufficiently preserved this objection for our

review and that a trial court's truly inconsistent verdicts

constitute reversible error on direct appeal. Therefore, we

reverse and dismiss the challenged firearm conviction. 1

I.

BACKGROUND

On January 14, 1998, appellant went to the home of Josh

Berkheimer to collect money Berkheimer owed him. When appellant

was unable to collect the money, he became angry and later

returned to Berkheimer's residence with Donald Teaster. Appellant

and Teaster donned ski masks and hid in Berkheimer's backyard.

When Matthew Oliveira, Berkheimer's roommate, exited the house,

appellant and Teaster attacked him and chased him back into the

house. Appellant held Oliveira while Teaster sprayed him with

pepper spray. Teaster had a gun and the men said "they were going

to kill [Oliveira] or something like that." Oliveira was "very

afraid." Appellant and Oliveira exchanged several punches and one

or both of the assailants held Oliveira down and continued to beat

him, striking him a total of ten to twenty times. Oliveira then

heard a very loud bang next to his ear, and the men fled.

1
In addition to the unlawful wounding and firearm
convictions, appellant also was convicted of breaking and
entering and malicious release of a chemical mixture. On
appeal, he challenges only the firearm conviction.

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Oliveira sustained burns to that ear and the side of his head and

could not hear out of that ear for about a week. He also

sustained a black eye and a cut across his nose which resulted in

a scar, and he required three stitches in the back of his head.

Detective Glenn Richardson questioned appellant about the

incident. Appellant admitted his involvement. He originally

denied knowing Teaster had a gun but later said he knew Teaster

usually carried a weapon for protection. Appellant said that when

the gun went off, he realized he had been shot in the foot, and

the two men left to obtain medical attention.

Appellant was charged with breaking and entering, malicious

release of a chemical mixture, malicious wounding, and "use . . .

or display [of a firearm] in a threatening manner while committing

or attempting to commit malicious wounding."

In closing argument, the prosecutor argued that the doctrine

of concert of action permitted appellant to be convicted of the

firearm and pepper spray charges. Counsel for appellant argued

that this doctrine was inapplicable to the firearm offense because

appellant was the victim of the shooting and could not "transfer

intent to himself." When the trial court referenced the burns the

victim sustained on his ear, counsel for appellant responded, "if

it was from the discharge of the weapon . . . [b]ut that would be

maliciously wounding, not use of a firearm." Counsel for

appellant also argued that the evidence was insufficient to prove

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malice for the malicious wounding charge and asked that it be

reduced to assault and battery.

The trial court said it was "convinced beyond a reasonable

doubt that there was a concert of action and that the evidence is

sufficient to convict and it's a question of degree and what." It

then convicted appellant for breaking and entering and malicious

release of a chemical mixture. It also convicted him for unlawful

rather than malicious wounding and for "the use, or attempted use

of a pistol in a threatening manner." (Emphasis added).

At the sentencing hearing, counsel for appellant moved to set

aside the verdict on the firearm charge. When the prosecutor

noted during argument that the court had reduced the malicious

wounding charge to unlawful wounding, counsel for appellant agreed

and reminded the court that "the [firearm] charge was . . . [u]se

of a firearm to maliciously wound." He also argued the evidence

was insufficient to prove that the requisite wounding occurred

from the firearm because appellant was the only person shot and

the victim's only injury from the firearm was a burn. The trial

court denied the motion.

II.

ANALYSIS

A.

PROCEDURAL BAR

Rule 5A:18 provides that "[n]o ruling of the trial court

. . . will be considered as a basis for reversal unless the

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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." An objection

presented via a motion to set aside the verdict is sufficiently

timely to satisfy the rule. See Lee v. Lee, 12 Va. App. 512,

515, 404 S.E.2d 736, 738 (1991) (en banc). The Commonwealth

contends that appellant failed to object to the inconsistent

verdicts in the trial court, thereby failing to preserve the

issue of inconsistent verdicts for appeal. We disagree.

Counsel for appellant challenged the firearm conviction at

the sentencing hearing by moving the trial court to set it

aside. The bulk of appellant's argument was based on his

contention that the evidence was insufficient to establish the

victim's wounds resulted from the firearm. However, in response

to the prosecutor's statement that the court had reduced the

malicious wounding charge to unlawful wounding, counsel for

appellant agreed and reminded the court that "the [firearm] charge

was . . . [u]se of a firearm to maliciously wound." (Emphasis

added). We hold that this exchange, although brief, was

sufficient to inform the trial court of appellant's belief that

the convictions for unlawful wounding and use of a firearm in the

commission of a malicious wounding were inconsistent. 2

2
Even if we were to hold this exchange insufficient to
preserve the issue for appeal, we nevertheless would apply the
ends of justice exception to consider the issue on the merits.

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 B.

INCONSISTENT CONVICTIONS BY A TRIAL COURT

Whether it is error for a trial court to render

inconsistent verdicts 3 is a question of first impression in

Application of the ends of justice exception requires proof
of an error that was "clear, substantial and material." Brown
v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989).
The record "must affirmatively show that a miscarriage of
justice has occurred, not that a miscarriage might have
occurred." Redman v. Commonwealth, 25 Va. App. 215, 221, 487
S.E.2d 269, 272 (1997). Application of the ends of justice
exception is appropriate where "[the accused] was convicted for
conduct that was not a criminal offense" or "the record . . .
affirmatively prove[s] that an element of the offense did not
occur." Id. at 221-22, 487 S.E.2d at 272-73; see Johnson v.
Commonwealth, 20 Va. App. 547, 553-54, 458 S.E.2d 599, 602
(1995) (en banc) (holding that trial court has affirmative duty
properly to instruct jury on elements of offense and that ends
of justice exception permits defendant to raise issue for first
time on appeal).
Here, whether the ends of justice exception would apply is
inextricably linked to the merits determination. Under
appellant's theory of the case, the trial court's rendering of
inconsistent verdicts was reversible error. In essence, he
argues either (1) that he was convicted for use of a firearm in
the commission of an unlawful wounding, a non-existent offense,
or (2) that, by finding him guilty of unlawful rather than
malicious wounding, the trial court found an element of the
firearm offense, malicious intent, did not exist.
As we hold infra, in Section II.B., appellant's bench trial
conviction for use of a firearm in the commission of a malicious
wounding after his acquittal for malicious wounding arising out
of the same incident was inconsistent and constituted reversible
error. Therefore, it was error that was "clear, substantial and
material," which would justify our review under the ends of
justice exception. Brown, 8 Va. App. at 132, 380 S.E.2d at 11.
3
Verdicts or convictions are inconsistent when "'the
essential elements in the count wherein the accused is acquitted
are identical and necessary to proof of conviction on the guilt
count.'" State v. Meyer, 832 P.2d 357, 362 (Kan. Ct. App. 1992)
(citation omitted); see Wolfe v. Commonwealth, 6 Va. App. 640,
648, 371 S.E.2d 314, 318 (1988) (holding that conviction for
voluntary manslaughter constituted acquittal on murder charge

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Virginia. We previously have held that inconsistent verdicts

rendered by a jury do not constitute reversible error. See,

e.g., Tyler v. Commonwealth, 21 Va. App. 702, 707-09, 467 S.E.2d

294, 296-97 (1996).

"'The most that can be said in such cases is
that the verdict shows that either in the
acquittal or the conviction the jury did not
speak their real conclusions, but that does
not show that they were not convinced of the
defendant's guilt. We interpret the
acquittal as no more than their assumption
of a power which they had no right to
exercise, but to which they were disposed
through lenity.'" . . . [J]uries may reach
inconsistent verdicts through mistake,
compromise, or lenity, but in such instances
it is "unclear whose ox has been gored," the
government's or the defendant's. For this
reason and the fact that the government is
precluded from appealing the acquittal
verdict, the Court concluded that
inconsistent verdicts should not provide the
basis for an appeal by the defendant.

such that conviction for use of firearm in commission of murder
was "palpabl[y]" inconsistent). Compare Wolfe, 6 Va. App. at
648, 371 S.E.2d at 318 (acknowledging elemental inconsistency),
with United States v. Maybury, 274 F.2d 899, 903-04 (2d Cir.
1960) (applying broader approach to find inconsistency where
elements of offenses are distinct but evidence proving each
offense is the same or significantly overlaps, suggesting that
fact finder interpreted evidence one way in convicting of one
offense and in an entirely different and inconsistent way in
acquitting of the other). The evidence here supports
appellant's argument and the Commonwealth's concession that
appellant's bench trial convictions for unlawful wounding and
use of a firearm in the commission of malicious wounding are, in
fact, elementally inconsistent. See Banner v. Commonwealth, 204
Va. 640, 645, 133 S.E.2d 305, 309 (1963) (holding that
conviction for lesser offense of unlawful wounding constitutes
acquittal for greater offense of malicious wounding arising from
same conduct).

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Wolfe v. Commonwealth, 6 Va. App. 640, 647-48, 371 S.E.2d 314,

318 (1988) (quoting United States v. Powell, 469 U.S. 57, 63,

65, 66, 105 S. Ct. 471, 475, 477, 477, 83 L. Ed. 2d 461 (1984)

(quoting Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct.

189, 190, 76 L. Ed. 2d 356 (1932))).

The issue of inconsistent verdicts implicates no

constitutional guarantee. See id. at 648, 371 S.E.2d at 318.

Where a jury renders inconsistent verdicts, "a search of the

trial record in an attempt to reconcile such inconsistency is

neither appropriate nor required." Id. at 650, 371 S.E.2d at

319. As long as the evidence supports both verdicts, they "will

be upheld, despite the apparent inconsistency." Pugliese v.

Commonwealth, 16 Va. App. 82, 96, 428 S.E.2d 16, 26 (1993).

Although we have not previously addressed the issue of

inconsistent bench trial verdicts, we have commented on the

issue in dicta on at least two occasions. In Wolfe, 6 Va. App.

at 650 n.3, 371 S.E.2d at 319 n.3, we noted that nothing in our

opinion was "intended to address inconsistent verdicts rendered

by a trial judge in a single criminal trial." Citing Shell v.

State, 512 A.2d 358 (Md. 1986), we indicated our belief that

"the principles stated [in Wolfe] are [not] applicable to such

cases." Wolfe, 6 Va. App. at 650 n.3, 371 S.E.2d at 319 n.3.

More recently, in Elmore v. Commonwealth, 22 Va. App. 424, 427

n.1, 470 S.E.2d 588, 589 n.1 (1996), we assumed without deciding

"that inconsistent verdicts in a bench trial are grounds for

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reversal in Virginia." We again cited the decision of

Maryland's highest court in Shell as representative of the

decisions of other jurisdictions that "the considerations that

may justify inconsistent jury verdicts do not apply in a bench

trial." Id. (citing United States v. Maybury, 274 F.2d 899, 903

(2d Cir. 1960); Shell, 512 A.2d at 363; Haynesworth v. United

States, 473 A.2d 366, 368 (D.C. 1984)).

We now expressly adopt, as applicable to elemental

inconsistency in bench trial verdicts, the basic rationale

applied by Maryland's highest court in Shell. 4 Shell involved

facts almost identical in relevant respects to those at issue

here. Shell was charged, inter alia, with attempted murder and

use of a handgun in the commission of a "crime of violence,"

defined by statute to include attempted murder. See 512 A.2d at

359, 361 n.4. The trial court found the defendant's voluntary

intoxication negated the intent to commit any of the underlying

"crime[s] of violence" but nevertheless convicted him of use of

4
In Shell, the court noted its prior holding "that 'a trial
court in a criminal case must, if requested by the accused,
instruct a jury that an accused cannot be found guilty of use of
a handgun in the commission of a crime of violence under . . .
Art. 27, § 36B(d) if found not guilty of a crime of violence as
defined in . . . Art. 27, § 441(e).'" 512 A.2d at 362 (quoting
Mack v. State, 479 A.2d 1344 (1984)). We have not previously
addressed a defendant's entitlement to such an instruction in
Virginia, see Gray v. Commonwealth, 28 Va. App. 227, 235, 503
S.E.2d 252, 256 (1998), and we find it unnecessary to do so in
this opinion.

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a handgun in the commission of a crime of violence. See id. at

360. The Maryland Court of Appeals concluded that the

convictions were inconsistent and that the principles which

supported affirmance of inconsistent jury verdicts did not apply

in bench trials. See id. at 362.

It observed as follows:

[C]onvictions based on inconsistent jury
verdicts are tolerated because of the
singular role of the jury in the criminal
justice system. . . . [T]here is a
"reluctance to interfere with the results of
unknown jury interplay," at least without
proof of "actual irregularity." . . .
[I]nconsistencies may be the product of
lenity, mistake, or a compromise to reach
unanimity, and . . . the continual
correction of such matters would undermine
the historic role of the jury as arbiter of
questions put to it. In the present case,
however, the inconsistent verdicts were
rendered by a judge, not by a jury. [The
above rationale] does not justify
inconsistent verdicts from the trial judge.

Id. at 362 (citations omitted). Quoting Maybury, 274 F.2d at

903, 905, the Maryland Court of Appeals further observed:

"There is no need to permit inconsistency
. . . so that the judge may reach unanimity
with himself; on the contrary, he should be
forbidden this easy method for resolving
doubts. . . . We do not believe we would
enhance respect for the law or for the
courts by recognizing for a judge the same
right to indulge in 'vagaries' in the
disposition of criminal charges that, for
historic reasons, has been granted the jury.

* * * * * * *

We reverse for inconsistency . . .
because we can have no confidence in a

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 judgment convicting Maybury of one crime
when the judge, by his acquittal of another,
appears to have rejected the only evidence
that would support the conviction here."

Shell, 512 A.2d at 362-63. 5 Under these circumstances, "an

apparent inconsistency in judgments is more likely the result of

confusion . . . , [and] there is a danger that the defendant was

not proved guilty beyond a reasonable doubt . . . ."

Haynesworth, 473 A.2d at 372. 6

For these reasons, we hold that appellant's bench trial

conviction for use of a firearm in the commission of a malicious

5
The Maryland Court of Appeals noted its previous ruling
that "where a trial judge on the record explains an apparent
inconsistency in the verdicts, and where the explanation shows
that the trial court's action was 'proper' and that there was no
'unfairness,' the verdicts would be sustained." 512 A.2d at 363
(quoting Johnson v. State, 209 A.2d 765, 773 (1965)). We need
not reach this issue in appellant's case because specific
findings of fact are not required under Virginia law and the
trial court gave no explanation for the inconsistent verdicts.
See also Wolfe, 6 Va. App. at 650, 371 S.E.2d at 319 (stating
that where a jury renders inconsistent verdicts, "a search of
the trial record in an attempt to reconcile such inconsistency
is neither appropriate nor required" (emphasis added)).
6
We are cognizant of the ruling of the United States
Supreme Court in Harris v. Rivera, 454 U.S. 339, 102 S. Ct. 460,
70 L. Ed. 2d 530 (1981), cited by the Commonwealth, in which the
Court held that inconsistent verdicts in a nonjury criminal
trial are constitutional. We take little guidance from Rivera,
however, because it involved a collateral attack in a habeas
corpus proceeding under 28 U.S.C. § 2254 based on the argument
that Rivera's conviction was inconsistent with the acquittal of
a codefendant. See id. at 341-43, 102 S. Ct. at 462-63.
Further, the Court stated explicitly that "[t]his case does not
raise any question concerning the significance that an appellate
court may attach to an apparent inconsistency in a verdict that
is subject to review on direct appeal." Id. at 343, 102 S. Ct.
at 462-63; see also Shell, 512 A.2d at 363 & n.6.

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wounding after his implied acquittal for malicious wounding

arising out of the same incident constituted error, and we

reverse and dismiss the challenged firearm conviction.

Reversed and dismissed.

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