Opinion
Record No. 1872-91-2
May 25, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JAMES M. LUMPKIN, JUDGE.
(Eric D. White; Morchower, Luxton Whaley, on brief), for appellant. Appellant submitting on brief.
Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Melvin Carrington (appellant) appeals his conviction of malicious wounding in violation of Code § 18.2-51. He was convicted by a jury and sentenced to twenty years in the penitentiary. He argues that the trial court erred by failing to give a requested instruction on the lesser included offense of unlawful wounding. We agree, but find this error to be harmless and affirm his conviction.
Because the parties are familiar with the facts of this case, we restate only those facts necessary to explain our holding. Appellant and Ann White, victim, met on May 31, 1991, and agreed to have sex. When the victim refused to perform oral sex, appellant hit her with a pair of pliers and continued to beat her with the pliers and his fists. The victim was beaten so badly that her eyes were swollen shut. Her bed, bedroom, hall and kitchen were blood stained. Maria Allen, a witness in the case, testified that when she looked through the victim's bedroom window, she saw appellant standing over the victim who was bleeding. There was "blood everywhere." Appellant then moved towards Ms. Allen with the pliers in his hand and the victim escaped.
After his arrest, appellant told the police that the victim hit him first; that she removed money from his pocket; that he was "high" and wanted to see a psychiatrist; and that "[i]t seems like when something happen[s] to me, when somebody provoke[s] me or hit[s] me or something like that, you know, I just go out of control."
Appellant contends that the trial court's refusal to instruct the jury on the lesser included offense of unlawful wounding was erroneous because there was more than a "scintilla" of evidence which showed a lack of malicious intent. "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."Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992) (citations omitted). "[T]he appropriate standard of review requires that we view the evidence with respect to the refused instruction in the light most favorable to [appellant]."Id. at 131, 415 S.E.2d at 251. Appellant's statements to the police related, at least in part, to his mental state and his inability to control his actions. We cannot say that this evidence did not rise to the level of "more than a scintilla." The trial judge's rationale that "with all that blood I cannot imagine it being unlawful and not malicious," is not determinative of the intent requirement.
However, we find the failure to give the requested instruction harmless.
In Virginia, non-constitutional error is harmless "[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached." Code § 8.01-678 (emphasis added). "[A] fair trial on the merits and substantial justice" are not achieved if an error at trial has affected the verdict. Consequently, under Code § 8.01-678, a criminal conviction must be reversed unless "it plainly appears from the record and the evidence given at the trial that" the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).
The issue, therefore, is whether the trial court's erroneous refusal to instruct the jury as to the lesser included offense affected the jury's verdict so as to deprive appellant of a fair trial. We hold that it did not. The evidence proved a beating which was so violent and continued for such a long period of time that, when the evidence is viewed as a whole, malice is clearly shown beyond all reasonable doubt. Accordingly, we affirm.
Affirmed.