COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee Argued at Richmond, Virginia
HERBERT GAUSE MEMORANDUM OPINION * BY v. Record No. 2468-00-2 JUDGE LARRY G. ELDER DECEMBER 18, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY Thomas V. Warren, Judge
J. Kevin Clarke for appellant.
Eugene Murphy, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Herbert Gause (appellant) appeals from his jury trial
conviction for second degree murder pursuant to Code § 18.2-32.
On appeal, he contends the evidence (1) supported an involuntary
manslaughter instruction, rendering erroneous the court's
refusal to give such an instruction, and (2) was insufficient to
prove appellant acted with the malice necessary to support his
conviction for second degree murder. We hold that any error in
failing to instruct the jury on involuntary manslaughter was
harmless because the jury's conviction of appellant for second
degree murder, which required proof of malice, and its rejection
of voluntary manslaughter necessarily constituted its rejection
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. of a finding that the killing was done with inadvertence or
criminal negligence. We also hold that the evidence, viewed in
the light most favorable to the Commonwealth, was sufficient to
support the jury's finding that appellant acted with malice.
Thus, we affirm appellant's conviction.
I.
A.
INVOLUNTARY MANSLAUGHTER INSTRUCTION
In reviewing the trial court's refusal to grant a proffered
jury instruction, we view the evidence in the light most
favorable to appellant. See, e.g., Boone v. Commonwealth, 14
Va. App. 130, 131, 415 S.E.2d 250, 251 (1992). "A defendant is
entitled to have the jury instructed . . . on those theories of
the case" that are supported by "more than a scintilla" of
evidence. Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d
267, 280 (1986). As a matter of common law, "[i]t is . . .
error for the trial court to refuse to instruct the jury on the
lesser offenses charged in the indictment if there is any
evidence in the record tending to prove such lesser offenses."
Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908
(1947).
Although failure to give a proffered instruction on a
lesser-included offense is error when the instruction is
supported by the evidence, that error may be harmless. Turner
v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504, 507
- 2 - (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997). An error is
harmless "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). "Such a determination can be made where it is
evident from the verdict that the jury would have necessarily
rejected the lesser-included offense on which it was not
instructed." Turner, 23 Va. App. at 276, 476 S.E.2d at 507.
"[I]f a defendant is charged with offense 'A' of which 'B' is the next immediate lesser-included offense (one step removed) and 'C' is the next below 'B' (two steps removed), then when the jury is instructed on 'B' yet still convicts the accused of 'A' it is logical to assume that the panel would not have found him guilty only of 'C' (that is, would have passed over 'B'), so that the failure to instruct on 'C' is harmless."
State v. Mendez, 599 A.2d 565, 571 (N.J. Super. Ct. App. Div.
1991) (quoting State v. Abreau, 363 So. 2d 1063, 1064 (Fla.
1978)), cited with approval in Turner, 23 Va. App. at 276, 476
S.E.2d at 507.
Applying these principles in Turner, we held that any error
in failing to instruct the jury on voluntary manslaughter in
addition to first and second degree murder was harmless where
the jury convicted Turner for first degree murder. 23 Va. App.
at 276, 476 S.E.2d at 507. Similarly, here, any error in
failing to instruct the jury on involuntary manslaughter in
- 3 - addition to first degree murder, second degree murder and
voluntary manslaughter was harmless because the jury convicted
appellant for second degree murder. See Mendez, 599 A.2d at
570-72.
An analysis of the elements of these offenses makes clear
this result. Second degree murder is defined as a killing
committed with malice aforethought. Turner, 23 Va. App. at 274,
476 S.E.2d at 506.
Malice . . . is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. . . . [Proof of] malice . . . require[s] . . . a wrongful act . . . done "wilfully or purposefully." This requirement of volitional action is inconsistent with inadvertence. Thus, if a killing results from [criminal] negligence, however gross or culpable, and the killing is contrary to the defendant's intention, malice cannot be implied[, and the offense constitutes manslaughter]. In order to elevate the crime to second-degree murder, the defendant must be shown to have willfully or purposefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm.
Essex v. Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216,
219-20 (1984) (citation omitted) (quoting Williamson v.
Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)).
Here, by convicting appellant of second degree murder, the
jury found appellant acted with malice, which indicated it
rejected the notion that appellant acted merely with
inadvertence or criminal negligence. Thus, the conviction for
- 4 - second degree murder, when the jury was instructed on voluntary
manslaughter, necessarily constituted a rejection of involuntary
manslaughter and, therefore, the trial court's error, if any, in
harmless.
B.
SUFFICIENCY OF THE EVIDENCE TO PROVE MALICE
On appellate review of a challenge to the sufficiency of
the evidence to support a criminal conviction, we examine the
evidence in the light most favorable to the Commonwealth, and we
may not disturb the jury's verdict unless it is plainly wrong or
without evidence to support it. See Traverso v. Commonwealth, 6
Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). Whether an
accused acted with malice is a question of fact and may be
proved by circumstantial evidence. See Canipe v. Commonwealth,
25 Va. App.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee Argued at Richmond, Virginia
HERBERT GAUSE MEMORANDUM OPINION * BY v. Record No. 2468-00-2 JUDGE LARRY G. ELDER DECEMBER 18, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY Thomas V. Warren, Judge
J. Kevin Clarke for appellant.
Eugene Murphy, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Herbert Gause (appellant) appeals from his jury trial
conviction for second degree murder pursuant to Code § 18.2-32.
On appeal, he contends the evidence (1) supported an involuntary
manslaughter instruction, rendering erroneous the court's
refusal to give such an instruction, and (2) was insufficient to
prove appellant acted with the malice necessary to support his
conviction for second degree murder. We hold that any error in
failing to instruct the jury on involuntary manslaughter was
harmless because the jury's conviction of appellant for second
degree murder, which required proof of malice, and its rejection
of voluntary manslaughter necessarily constituted its rejection
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. of a finding that the killing was done with inadvertence or
criminal negligence. We also hold that the evidence, viewed in
the light most favorable to the Commonwealth, was sufficient to
support the jury's finding that appellant acted with malice.
Thus, we affirm appellant's conviction.
I.
A.
INVOLUNTARY MANSLAUGHTER INSTRUCTION
In reviewing the trial court's refusal to grant a proffered
jury instruction, we view the evidence in the light most
favorable to appellant. See, e.g., Boone v. Commonwealth, 14
Va. App. 130, 131, 415 S.E.2d 250, 251 (1992). "A defendant is
entitled to have the jury instructed . . . on those theories of
the case" that are supported by "more than a scintilla" of
evidence. Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d
267, 280 (1986). As a matter of common law, "[i]t is . . .
error for the trial court to refuse to instruct the jury on the
lesser offenses charged in the indictment if there is any
evidence in the record tending to prove such lesser offenses."
Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908
(1947).
Although failure to give a proffered instruction on a
lesser-included offense is error when the instruction is
supported by the evidence, that error may be harmless. Turner
v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504, 507
- 2 - (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997). An error is
harmless "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). "Such a determination can be made where it is
evident from the verdict that the jury would have necessarily
rejected the lesser-included offense on which it was not
instructed." Turner, 23 Va. App. at 276, 476 S.E.2d at 507.
"[I]f a defendant is charged with offense 'A' of which 'B' is the next immediate lesser-included offense (one step removed) and 'C' is the next below 'B' (two steps removed), then when the jury is instructed on 'B' yet still convicts the accused of 'A' it is logical to assume that the panel would not have found him guilty only of 'C' (that is, would have passed over 'B'), so that the failure to instruct on 'C' is harmless."
State v. Mendez, 599 A.2d 565, 571 (N.J. Super. Ct. App. Div.
1991) (quoting State v. Abreau, 363 So. 2d 1063, 1064 (Fla.
1978)), cited with approval in Turner, 23 Va. App. at 276, 476
S.E.2d at 507.
Applying these principles in Turner, we held that any error
in failing to instruct the jury on voluntary manslaughter in
addition to first and second degree murder was harmless where
the jury convicted Turner for first degree murder. 23 Va. App.
at 276, 476 S.E.2d at 507. Similarly, here, any error in
failing to instruct the jury on involuntary manslaughter in
- 3 - addition to first degree murder, second degree murder and
voluntary manslaughter was harmless because the jury convicted
appellant for second degree murder. See Mendez, 599 A.2d at
570-72.
An analysis of the elements of these offenses makes clear
this result. Second degree murder is defined as a killing
committed with malice aforethought. Turner, 23 Va. App. at 274,
476 S.E.2d at 506.
Malice . . . is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. . . . [Proof of] malice . . . require[s] . . . a wrongful act . . . done "wilfully or purposefully." This requirement of volitional action is inconsistent with inadvertence. Thus, if a killing results from [criminal] negligence, however gross or culpable, and the killing is contrary to the defendant's intention, malice cannot be implied[, and the offense constitutes manslaughter]. In order to elevate the crime to second-degree murder, the defendant must be shown to have willfully or purposefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm.
Essex v. Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216,
219-20 (1984) (citation omitted) (quoting Williamson v.
Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)).
Here, by convicting appellant of second degree murder, the
jury found appellant acted with malice, which indicated it
rejected the notion that appellant acted merely with
inadvertence or criminal negligence. Thus, the conviction for
- 4 - second degree murder, when the jury was instructed on voluntary
manslaughter, necessarily constituted a rejection of involuntary
manslaughter and, therefore, the trial court's error, if any, in
harmless.
B.
SUFFICIENCY OF THE EVIDENCE TO PROVE MALICE
On appellate review of a challenge to the sufficiency of
the evidence to support a criminal conviction, we examine the
evidence in the light most favorable to the Commonwealth, and we
may not disturb the jury's verdict unless it is plainly wrong or
without evidence to support it. See Traverso v. Commonwealth, 6
Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). Whether an
accused acted with malice is a question of fact and may be
proved by circumstantial evidence. See Canipe v. Commonwealth,
25 Va. App. 629, 642, 491 S.E.2d 747, 753 (1997).
Circumstantial evidence is as competent and is entitled to as
much weight as direct evidence, provided the evidence as a whole
is sufficiently convincing to exclude every reasonable
hypothesis except that of guilt. Coleman v. Commonwealth, 226
Va. 31, 53, 307 S.E.2d 864, 876 (1983).
"'Malice inheres in the doing of a wrongful act
intentionally, or without just cause or excuse, or as a result
of ill will.'" Long v. Commonwealth, 8 Va. App. 194, 198, 379
S.E.2d 473, 475 (1989) (quoting Dawkins v. Commonwealth, 186 Va.
- 5 - 55, 61, 41 S.E.2d 500, 503 (1947)). "Implied malice exists when
any purposeful, cruel act is committed by one individual against
another without any, or without great provocation . . . ." Pugh
v. Commonwealth, 223 Va. 663, 668, 292 S.E.2d 339, 341 (1982).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, established that appellant was significantly
taller and heavier than the "frail" Melvin Morrison. Although
Morrison had been following appellant around that day, as he
often did, and appellant had moved on at least two occasions in
order to try to avoid Morrison, the record contains no evidence
that Morrison did anything significant to provoke appellant.
Employee Harrison said she observed appellant and Morrison
merely passing each other going in opposite directions
immediately prior to the incident in question. With little or
no provocation, appellant grabbed Morrison from behind, placed
him in a bear hug, and picked him up. Although Nurse Bell-Clyde
called out to appellant to stop, appellant ignored her, turned
Morrison so that his head was facing downward, and "banged him
on the floor." Morrison's head struck the ground with such
force that it made a "loud thump that . . . sounded like
somebody's head hitting the pavement," a pool of blood
immediately collected around it, and Morrison died three days
later as a result of blunt head trauma. Thus, the only
reasonable hypothesis flowing from the circumstantial evidence
was that appellant committed a purposeful, cruel act against
- 6 - Morrison with little or no provocation, thereby establishing the
malice necessary to support his conviction for second degree
murder.
II.
For these reasons, we hold that any error in failing to
instruct the jury on involuntary manslaughter was harmless and
that the evidence supported the jury's finding that appellant
acted with malice. Therefore, we affirm appellant's conviction.
Affirmed.
- 7 -