COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judges Willis and Bray* Argued at Alexandria, Virginia
CHRISTOPHER A. U-THASOONTHORN MEMORANDUM OPINION ** BY v. Record No. 1879-01-4 JUDGE ROSEMARIE ANNUNZIATA OCTOBER 8, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jane Marum Roush, Judge
James G. Connell, III (Michael F. Devine; Devine & Connell, on briefs), for appellant.
Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
On April 24, 2001, a jury convicted Christopher A.
U-Thasoonthorn of aggravated malicious wounding, in violation of
Code § 18.2-51.2, and sentenced him to twenty years in prison.
On June 29, 2001, the trial court denied U-Thasoonthorn's motion
to set aside the jury's verdict and imposed the sentence
determined by the jury, to wit, twenty years with eight years
suspended. U-Thasoonthorn appeals his conviction on two
* Judges Willis and Bray participated in the hearing and decision of this case prior to the effective date of their retirement on September 1, 2002 and thereafter by their designation as a senior judge pursuant to Code § 17.1-401.
** Pursuant to Code § 17.1-413, this opinion is not designated for publication. grounds: (1) the trial court erroneously refused his proffered
jury instruction; and (2) the evidence was insufficient to
sustain his conviction. For the reasons that follow, we reverse
and remand.
I. Background
On the evening of October 26, 2000, Jeffrey Putman, Melissa
Steele, and Tess Wenger, U-Thasoonthorn's girlfriend, went out
drinking and returned to Steele's home between 3:00 and
4:00 a.m. on October 27, 2000. When they returned, Putman and
Wenger engaged in sexual foreplay and went to sleep on a
"hide-a-bed" in Steele's living room.
At approximately 6:00 a.m. Steele left the house to go to
the airport. At 6:37 a.m., U-Thasoonthorn used his cell phone
to call Steele on her mobile phone. Steele testified that he
aggressively asked, "Where's my girlfriend?" She told him that
Wenger was at her house sleeping and that she was fine.
U-Thasoonthorn told Steele he was going to work. He did not
arrive at work until about 8:30 a.m. that morning.
At approximately 7:00 a.m., Steele's neighbor observed a
man fitting U-Thasoonthorn's description walking back and forth
down the middle of the street, looking at the houses.
U-Thasoonthorn subsequently entered Steele's apartment without
permission and walked through the house until he reached the
living room. He found Putman and Wenger asleep on the
hide-a-bed. He observed that Putman was wearing only his boxer
- 2 - shorts and Wenger was wearing the clothes she wore the night
before.
U-Thasoonthorn unsuccessfully attempted to awaken Wenger.
Putman awoke, however, whereupon U-Thasoonthorn hit him "a lot
of times." "[He] hit him over and over and over."
U-Thasoonthorn then went to the kitchen and washed blood from
his hands. He left the house, leaving his cell phone behind.
U-Thasoonthorn beat Putman so forcefully that he had at
least ten separate fractures of his facial bones, including
multiple fractures of the bones of his eye socket and his
cheekbones. U-Thasoonthorn also broke Putman's jaw. Dr. Steven
P. Davidson testified that these injuries were not consistent
with the use of fists or a blunt object. He noted that Putman's
injuries required "a substantial amount of point impact," caused
by an instrument such as a tool or crowbar.
After the beating, at approximately 7:20 a.m., another
neighbor observed a man fitting U-Thasoonthorn's description get
into his car and rapidly drive away. U-Thasoonthorn arrived at
his place of employment at approximately 8:30 a.m. and left at
approximately 11:30 a.m. Later that evening, he drove from
Fairfax to Blacksburg, Virginia.
He arrived in Blacksburg at about midnight and met his
friend and fellow Marine, Ray Marotta. He told Marotta that
"his girlfriend had cheated on him and the guy that . . . she
cheated on him with got beat up when they were together at some
- 3 - apartment." He told his friend he was scared because he thought
he would be the prime suspect. He told his friend, "I'm
innocent, I didn't do it." His friend noticed a cut on the
inside of his hand, which he admitted at trial occurred while he
beat Putman. Yet, he told Marotta, "I cut my hand at work."
U-Thasoonthorn knew the police were looking for him. He
left his car in Blacksburg with Marotta and drove Marotta's car
back to northern Virginia. Marotta testified that he noticed a
bloodstain on the seatbelt of U-Thasoonthorn's car when they
exchanged cars. Several days later, U-Thasoonthorn returned to
Blacksburg and cut the bloodstained seatbelt out of his car.
When Marotta asked why there was no seatbelt in the car,
U-Thasoonthorn did not explain. Rather, he told Marotta that if
he wanted to get a new seatbelt, he would pay for it.
At trial, the court instructed the jury, in part, as
follows:
If a person acts upon reflection or deliberation, or after his passion has cooled or there has been a reasonable time or opportunity for cooling, then the act is not attributable to the heat of passion.
The court overruled U-Thasoonthorn's objection to this
instruction and declined to give his proffered instruction,
which did not include reference to "cooling off."
- 4 - II. Analysis
A. Jury Instruction
U-Thasoonthorn contends that the trial court erred by
giving an instruction that included reference to a "cooling off"
period related to U-Thasoonthorn's heat of passion defense and
by refusing his proffered instruction excluding that principle.
He contends that the evidence did not support the instruction
given. We agree.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (citation omitted). In determining
whether a jury instruction should have been refused, we view the
evidence in the light most favorable to the proponent of the
instruction. Lynn v. Commonwealth, 27 Va. App. 336, 344, 499
S.E.2d 1, 4-5 (1998) (citation omitted), aff'd, 257 Va. 239, 514
S.E.2d 147 (1999).
"Although an instruction correctly states the law, if it is
not applicable to the facts and circumstances of the case, it
should not be given." Hatcher v. Commonwealth, 218 Va. 811,
813-14, 241 S.E.2d 756, 758 (1978) (citation omitted). "No
instruction should be given unless it is supported by evidence,
and such evidence must be more than a scintilla." Carter v.
Commonwealth, 232 Va. 122, 128, 348 S.E.2d 265, 269 (1986)
- 5 - (citation omitted); accord Goodson v. Commonwealth, 22 Va. App.
61, 78, 467 S.E.2d 848, 857 (1996) ("'[T]he trial court should
instruct the jury only on those theories of the case which find
support in the evidence.'" (citation omitted)).
The Virginia appellate courts have not defined the term "scintilla." Although this term has a generally accepted meaning of "a spark" or "the least particle," the precise limitations of this term must necessarily be determined in the factual context of a particular case. The determination whether the minimum quantum of credible evidence supports a particular proposition is largely a factor of determining the weight of that evidence in comparison to the weight of the other credible evidence that negates the proposition in question.
Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430 S.E.2d
563, 565 (1993); see also Winston v. Commonwealth, 16 Va. App.
901, 905, 434 S.E.2d 4, 6 (1993). Moreover, the jury's possible
rejection of evidence is not a substitute for affirmative
evidence to support a jury instruction. See Commonwealth v.
Donkor, 256 Va. 443, 446-47, 507 S.E.2d 75, 76 (1998).
"Generally, a 'cooling off' instruction is sought by the
Commonwealth to enable the jury to find that an accused's
passion kindled by an act of provocation has 'cooled' so as to
enable the accused to regain his or her reason before committing
the [act of violence]." Lynn, 27 Va. App. at 345, 499 S.E.2d at
5. "Heat of passion is determined by the nature and degree of
the provocation, and may be founded upon rage, fear, or a
combination of both." Barrett v. Commonwealth, 231 Va. 102,
- 6 - 106, 411 S.E.2d 190, 192 (1986) (citations omitted). In
assessing the cooling of passion, "the time to be considered is
the interval between the provocation and the act, not the time
during which the furor brevis controls." Potter v.
Commonwealth, 222 Va. 606, 610, 283 S.E.2d 448, 450 (1998).
The evidence at trial, viewed in the light most favorable
to the Commonwealth, does not support the trial court's cooling
off instruction to the jury. It is beyond dispute that
U-Thasoonthorn was enraged and thus provoked when he found his
girlfriend of eight years, wearing the clothes she wore the
previous night, in bed with another man who wore only his
underwear. The Commonwealth's evidence suggests that after this
provocation, U-Thasoonthorn tried unsuccessfully to wake Wenger,
obtained a weapon, and beat Putman. It further contends that
while U-Thasoonthorn attempted to wake Wenger and obtained a
weapon with which to beat Putman, sufficient time elapsed for
his passion to subside and reason to return. The evidence,
however, fails to support this contention.
The Commonwealth offered no evidence to prove that
U-Thasoonthorn's passion cooled between the time he was
provoked, obtained a weapon, and beat Putman. Indeed, nothing
in the record disputes the conclusion that his furor brevis
controlled his actions during this brief period. See Potter,
222 Va. at 610, 283 S.E.2d at 450 ("While the sufficiency of
time for cooling is a question of fact to be decided by the
- 7 - jury, the time to be considered is the interval between the
provocation and the act, not the time during which the furor
brevis controls."). Accordingly, "[n]o version of the evidence
established a period elapsed [between the provocation and the
assault during] which reasonably could have been viewed by the
jury as a 'cooling off' period," and an instruction to that
effect was error. Lynn, 27 Va. App. at 346, 499 S.E.2d at 6.
Moreover, the trial court's erroneous instruction is not
harmless. A nonconstitutional error is harmless if "it plainly
appears from the record and the evidence given at trial that the
error did not affect the verdict." Scott v. Commonwealth, 18
Va. App. 692, 695, 446 S.E.2d 619, 620 (1994) (quoting Lavinder
v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911
(1991) (en banc)). "'An error does not affect a verdict if a
reviewing court can conclude, without usurping the [fact
finder's] function, that had the error not occurred, the verdict
would have been the same.'" Id. (citation omitted).
A conviction for malicious wounding, and thus for
aggravated malicious wounding, requires a finding that the
accused acted with malice and not in the heat of passion.
See Code § 18.2-51. Under a proper instruction, the jury in
this case may have found that U-Thasoonthorn acted in the heat
of passion and thus was not guilty of aggravated malicious
wounding. See Miller v. Commonwealth, 5 Va. App. 22, 25, 359
- 8 - S.E.2d 841, 842 (1987) (noting that malice and passion cannot
co-exist).
Indeed, whether U-Thasoonthorn acted in the heat of passion
or with malice was the key issue at trial. U-Thasoonthorn
acknowledged that he committed violence against Putman, but
contended that he acted in the heat of passion. In addition,
the Commonwealth emphasized to the jury that U-Thasoonthorn did
not act in the heat of passion, because he had an opportunity to
cool but "did not want [his passion] to cool." In short, we
cannot conclude that the jury would have found U-Thasoonthorn
guilty of aggravated malicious wounding if they had not received
the improper instruction regarding "cooling off." Therefore,
the trial court's instruction constitutes reversible error. See
Scott, 18 Va. App. at 695, 446 S.E.2d at 620.
B. Sufficiency of the Evidence
Notwithstanding the fact that we reverse on the ground that
the trial court erroneously instructed the jury, "we address
appellant's sufficiency of the evidence argument because the
Commonwealth would be barred on double jeopardy grounds from
retrying appellant if we were to reverse for insufficiency of
the evidence." Timbers v. Commonwealth, 28 Va. App. 187, 202,
503 S.E.2d 233, 240 (1998); see also Hargraves v. Commonwealth,
37 Va. App. 299, 312, 557 S.E.2d 737, 743 (2002); Parsons v.
Commonwealth, 32 Va. App. 576, 581, 529 S.E.2d 810, 812 (2000)
(citing Burks v. United States, 437 U.S. 1, 98 (1978)).
- 9 - U-Thasoonthorn contends that the evidence at trial was
insufficient to prove beyond a reasonable doubt that he intended
to maim, disfigure, disable, or kill Putman and that he acted
with malice. For the reasons that follow, we disagree.
When the sufficiency of the evidence is challenged on
appeal, "[w]e view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible from the evidence." Cooper v. Commonwealth, 31
Va. App. 643, 646, 525 S.E.2d 72, 73 (2000); accord Hargraves,
37 Va. App. at 312, 557 S.E.2d at 743. The appellate court
must, therefore, "discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all
the credible evidence favorable to the Commonwealth and all fair
inferences that may be drawn" from the credible evidence.
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
866 (1998). The credibility of the witnesses and the weight of
the evidence are matters to be determined solely by the trier of
fact. Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382
S.E.2d 258, 259 (1989). In addition, the inferences drawn from
the evidence, so long as they are reasonable, are within the
province of the jury. See Johnson v. Commonwealth, 209 Va. 291,
295, 163 S.E.2d 570, 574 (1968). Furthermore, the decision of
the trial court will not be disturbed unless plainly wrong or
without evidence to support it. McGee v. Commonwealth, 25
Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). "If
- 10 - there is evidence to support the conviction," an appellate court
will not substitute its judgment for that of the trier of fact,
even were its opinion to differ. Commonwealth v. Presley, 256
Va. 465, 466, 507 S.E.2d 72, 72 (1998).
To support a conviction for aggravated malicious wounding
under Code § 18.2-51.2, the Commonwealth must prove that the
defendant inflicted the victim's injuries with the intent to
maim, disfigure, disable or kill. See Robertson v.
Commonwealth, 31 Va. App. 814, 823, 525 S.E.2d 640, 645 (2000)
(citing Campbell v. Commonwealth, 12 Va. App. 476, 483, 405
S.E.2d 1, 4 (1991) (en banc)). "'Intent is the purpose formed
in a person's mind which may, and often must, be inferred from
the facts and circumstances in a particular case.'" David v.
Commonwealth, 2 Va. App. 1, 3, 340 S.E.2d 576, 577 (1986)
(quoting Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d
313, 314 (1979)). "[T]he fact finder is often allowed broad
latitude in determining specific intent of the actor." Fortune
v. Commonwealth, 14 Va. App. 225, 229, 416 S.E.2d 25, 27 (1992).
However, when the Commonwealth relies on circumstantial evidence
to prove guilt beyond a reasonable doubt, "all necessary
circumstances proved must exclude every reasonable hypothesis of
innocence." Bishop v. Commonwealth, 227 Va. 164, 169, 313
S.E.2d 390, 393 (1984).
Malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will. It may
- 11 - be directly evidenced by words, or inferred from acts and conduct which necessarily result in injury. Whether malice existed is a question for the fact finder.
Robertson, 31 Va. App. at 823, 525 S.E.2d at 645 (quotations and
citations omitted).
U-Thasoonthorn contends that the evidence at trial is
equally susceptible to two interpretations and therefore does
not exclude the reasonable hypothesis that he acted in the heat
of passion and without intent or malice. He claims that the
jury "arbitrarily adopt[ed] that interpretation which
incriminates him." Corbett v. Commonwealth, 210 Va. 304, 307,
171 S.E.2d 251, 253 (1969).
To the contrary, the circumstantial evidence offered by the
Commonwealth, viewed in the light most favorable to its
position, proved that U-Thasoonthorn beat Putman "with the
intent to maim, disfigure, disable or kill [him]," Campbell, 12
Va. App. at 483, 405 S.E.2d at 4, as well as with malice.
First, the brutal nature of the attack supports the jury's
finding of malice and intent. See Epperly v. Commonwealth, 224
Va. 214, 231, 294 S.E.2d 882, 892 (1982) (evidence demonstrating
savage beating supports finding of malice); Flemming v.
Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991)
("The fact finder may infer that a person intends the immediate,
direct, and necessary consequences of his voluntary acts."
(citation omitted)). Second, U-Thasoonthorn's actions in
- 12 - covering up the crime indicate that he acted with specific
intent and malice. See Epperly, 224 Va. at 232, 294 S.E.2d at
893 (holding that defendant's efforts to conceal his crime and
avoid detection support jury's finding that defendant acted
willfully and with malice). Finally, the jurors disbelieved
U-Thasoonthorn's testimony, the only evidence supporting
U-Thasoonthorn's claim that he acted in the heat of passion, and
were entitled to consider his testimony to be perjured and,
thus, affirmative evidence of his guilt. See Wright v. West,
505 U.S. 277, 296 (1992); see also Black v. Commonwealth, 222
Va. 838, 842, 284 S.E.2d 608, 610 (1981) ("The fact finder need
not believe the accused's explanation and may infer that he is
trying to conceal his guilt." (citation omitted)). While no
single piece of evidence is sufficient to sustain
U-Thasoonthorn's conviction, the totality of the evidence proves
beyond a reasonable doubt that he maliciously beat Putman with
intent to kill, maim, disable or disfigure him. See Stamper v.
Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979).
Therefore, we hold that U-Thasoonthorn may be retried without
violating double jeopardy principles.
In summary, we reverse U-Thasoonthorn's conviction because
the trial court committed reversible error by instructing the
jury on "cooling off," when the evidence did not support that
- 13 - instruction, and we remand the matter for retrial if the
Commonwealth be so advised.
Reversed and remanded.
- 14 -