Opinion
Record No. 1048-92-1
January 11, 1994
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY WESTBROOK J. PARKER, JUDGE.
(Patricia A. Cannon for appellant). Appellant submitting on brief.
(Stephen D. Rosenthal, Attorney General; Eugene Murphy, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Baker, Coleman and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Willie Herman Miller (appellant) appeals from a judgment of the Circuit Court of Southampton County (trial court) that approved a jury verdict convicting him of unlawfully causing bodily injury to his wife, Carol Miller (victim). The sole issue presented for our review is whether the trial court erred in refusing appellant's request to instruct the jury on assault and battery as a lesser included offense of maliciously causing bodily injury. If the issue related only to the sufficiency of the evidence, we would view the evidence in the light most favorable to the Commonwealth and find it sufficient to sustain appellant's conviction. However, because the question relates to a refused instruction, "the appropriate standard of review requires that we view the evidence with respect to the refused instruction in the light most favorable to the [appellant]."Boone v. Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992) (citations omitted).
Viewed in that light, we find that on January 3, 1992, during the late evening hours, appellant warned the victim that he was going to report to the police that the victim and several of her friends and relatives were using crack cocaine at appellant's house. In addition, appellant told the victim "that she could be prosecuted for using SSI funds illegally . . . and she knew what the consequences were."
The following recitation is taken from appellant's testimony at trial.
Appellant went next door to Jerry Lee Beale's house and the police were called. The victim and the others left appellant's house at approximately 10:00 p.m. Appellant remained in the house and when he saw lights inside one of his cars in the back yard, he loaded his pistol. Appellant went out to investigate what he believed might be an attempt to steal items from his cars. Appellant discovered the victim and others in or at the cars and believed they were consuming drugs. He ordered them out of the car and thereafter the victim and two of her relatives began "tussling." One of them was "intoxicated times two." Appellant attempted to separate them and explained to the victim why he had called the police. The victim did not "appreciate that" and "confront[ed] [appellant] physically." At that time, "[t]he handgun fell out of [appellant's] jacket . . . on the ground."
As the victim entered the house, appellant followed. In the house, the victim obtained a knife causing appellant to back down the driveway. Appellant warned her not to cut him. The victim said, "I'm going to kill you." She kept coming toward appellant, who continued to "back up," warning her that he would shoot her if she came near him with the knife. When the victim "started moving up on [him] fast," he fired a shot into the air, but "she kept coming" at him. Appellant then shot down at her feet, but "the projectile hit her in the knee cap" causing the victim to drop the knife which was found near the scene of the shooting.
"Assault and battery and unlawful wounding are lesser included offenses of malicious wounding." Brown v. Commonwealth, 222 Va. 111, 116, 279 S.E.2d 142, 145 (1981). The jury was instructed only that "the Commonwealth must prove beyond a reasonable doubt" that appellant caused bodily harm to the victim "with intent to maim, disfigure, disable or kill," and if not committed maliciously then they should find appellant guilty of unlawfully causing bodily injury.
Although the Commonwealth presented substantial evidence to support the verdict, the jury rejected the charge that appellant acted with malice. If the jury chose to believe appellant, they reasonably could have inferred from his testimony that he intended to shoot into the ground in front of the victim and had no intent to shoot the victim or to maim, disfigure, disable or kill her. We cannot say as a matter of law that if the jury had been instructed on the lesser included offense of assault and battery, they would not have found appellant guilty of that charge rather than the felony. "It is immaterial that the jury might have rejected the lesser-included offense; if there is evidence tending to support the lesser offense, a trial court errs in refusing an instruction thereon." Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986). "Only when the trial court, giving the defendant the benefit of every reasonable inference from the evidence, can say that the minds of reasonable men could not differ does the question become a question of law." McClung v. Commonwealth, 215 Va. 654, 656, 212 S.E.2d 290, 292 (1975). We cannot say as a matter of law that if properly instructed on assault and battery, the jury would not have also rejected the unlawful wounding charge.
For the reasons stated, the judgment of the trial court is reversed and this case remanded for such further action as the Commonwealth may be advised.
Reversed and remanded.