Kimberly Ann Dragich v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 10, 2024
• Docket: 2204234
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Beales, O’Brien and Fulton

KIMBERLY ANN DRAGICH MEMORANDUM OPINION* v. Record No. 2204-23-4 PER CURIAM DECEMBER 10, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Stephen E. Sincavage, Judge

(Ghislaine M. Storr Burks; Gardner & Burks, P.C., on briefs), for appellant. Appellant submitting on briefs.

(Jason S. Miyares, Attorney General; Liam A. Curry, Assistant Attorney General, on brief), for appellee.

A jury convicted Kimberly Ann Dragich (appellant) of second-degree murder. On

appeal, she argues that the evidence was insufficient to prove that she acted with malice. After

examining the briefs and record, the panel unanimously holds that oral argument is unnecessary

because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).

BACKGROUND

We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing

party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting

Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “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 to be drawn therefrom.”

Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

* This opinion is not designated for publication. See Code § 17.1-413(A). Appellant and Brian Bowles had a sporadic relationship during the 1990s, before

marrying in June 2021. The marriage was tumultuous; the couple often argued. At one point in

July 2021, appellant texted her sister-in-law, Dedra, that Bowles’s “life from this point forward

is nothing but hell” and that she would “make sure he regrets every waking moment.” Dedra

interpreted appellant’s texts as “venting.”

Bowles and appellant were at home drinking alcohol on August 8, when they had another

argument. Appellant demanded that Bowles leave, but he refused. Around 5:00 p.m., appellant

texted Dedra a picture of Bowles asleep in his truck and wrote, “I think I’m going to kill him in

his sleep. I hate him that much.” Dedra also interpreted that text as mere venting.

Around 7:00 p.m., appellant called the sheriff’s department and asked for a deputy to

come to her house. She stated that she was “not very comfortable” with Bowles being in the

home, and although he had not hurt her, she “wanted a presence” before he did so. Fauquier

County Sheriff’s Deputy Cole Masterson responded and saw Bowles in the bed of his truck in

the driveway. Bowles was not acting disorderly. Deputy Masterson talked to Bowles and then

spoke to appellant, who told the deputy that that she “just wanted somebody to come over here

and let him know that his behavior is not appropriate.” Deputy Masterson told appellant to call

the sheriff’s department if there were further issues.

Around 9:00 p.m., appellant got into her car to drive to a convenience store. She backed

out of the driveway and put the car in drive as Bowles walked into the street in front of the car,

where he took pictures of her license plate. A neighbor, Luis Sierra, who was outside, estimated

that Bowles was about three to five feet in front of appellant’s bumper, roughly in the center of

the vehicle. Streetlights and neighborhood porch lights illuminated the street, and it was “not too

dark.” Appellant stepped on the accelerator while Bowles was standing in front of her. Bowles

tried to evade the car, but appellant struck him and knocked him to the ground, where he hit his

-2- head. Sierra ran toward appellant and yelled, “What the hell did you do?” Appellant then

looked toward where Bowles lay on the ground before driving forward and running over

Bowles’s legs. Bowles screamed, but appellant did not stop.

Another neighbor, Matthew Zurlo, heard the accident from his garage and saw appellant

drive away. He chased her, not yet knowing whom she had hit. When he ultimately caught up to

her at a stop sign and told her that she had hit a child, she responded, “I didn’t hit a kid.” Zurlo

convinced appellant to return to the scene.

Zurlo’s wife, Erica, called 911, and told the operator that her neighbor “ran over her

husband” and “just drove off.” Zurlo also called 911 and reported that his neighbor “just ran

over a child.”

Zurlo and Sierra testified that appellant showed no emotion when she returned to the

scene and saw Bowles “[u]nconscious, writhing, and clearly in pain.” Appellant was a registered

nurse, and people standing nearby called out for her to help Bowles. According to Sierra,

appellant checked Bowles’s pulse and remarked, “Oh, he’s fine.” Bowles was lying on his back,

“in the middle of the road” when medical personnel and Sheriff’s Deputy Kelsey Omohundro

arrived. Appellant told Deputy Omohundro that she and Bowles had been arguing all weekend

and that she told him to leave the house. When she tried to drive to a convenience store, Bowles

stood near her car to take pictures of her license plate so he could report that she was driving

under the influence. She admitted that “she hit the gas pedal and hit him, but she didn’t mean to

hit him that hard.” Appellant claimed that she was only trying to scare him away from the

vehicle. She also acknowledged that she knew she had hit him before she left the scene.

Detective Kurt Schlichting interviewed appellant at the sheriff’s department several hours

later. Appellant told Schlichting that Bowles often insulted her and her life with him was

“unbearable.” On August 8, she had asked Bowles to leave and threw some of his clothes out of

-3- the house. Appellant admitted that during the incident, she “stepped on the gas,” but claimed

that she “wasn’t stepping on the gas to hurt [Bowles]” and “was just trying to jump” him. She

denied knowing that she had hit him but acknowledged that she had “heard something” and

“didn’t know what it was.” When Schlichting asked her if she meant to kill Bowles, she

answered, “Sometimes I want to kill him. Sometimes I just want to [w]ring his neck, but I don’t

want to kill him. No, I don’t want to kill him. I couldn’t kill him. I couldn’t even kill a fly.

But, God, yes, he makes me so mad.”

Bowles died of blunt force trauma injuries to the head and legs. He had a head

laceration, a skull fracture, a subdural hemorrhage, a brain contusion, and a fractured left femur.

Appellant’s BAC was 0.10% according to a preliminary breath test taken at the scene,

and 0.08% based on a breath test administered about two hours after the incident. An expert in

forensic toxicology opined that her BAC would have been between 0.09 and 0.15% at the time of

the incident.

Appellant testified on her own behalf and denied that she intentionally hit Bowles or that

she meant to harm him. The court instructed the jury on the elements of second-degree murder,

voluntary manslaughter, and involuntary manslaughter, and the jury convicted appellant of

second-degree murder.

ANALYSIS

“When an appellate court reviews the sufficiency of the evidence underlying a criminal

conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). The

only relevant question for this Court on appeal “is . . . whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id. (alteration in

original) (quoting Sullivan v. Commonwealth, 280 Va. 672, 676 (2010)).

-4- “[T]he factfinder ultimately remains responsible for weighing the evidence” and

“determines which reasonable inferences should be drawn from the evidence, and whether to reject

as unreasonable the hypotheses of innocence advanced by a defendant.” Commonwealth v.

Moseley, 293 Va. 455, 464 (2017). “Whether an alternate hypothesis of innocence is reasonable is a

question of fact and, therefore, is binding on appeal unless plainly wrong.” Fary v. Commonwealth,

77 Va. App. 331, 344 (2023) (en banc) (quoting Lucas v. Commonwealth, 75 Va. App. 334, 348

(2022)).

“If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to

substitute its own judgment, even if its opinion might differ from the conclusions reached by the

finder of fact at the trial.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (quoting

Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)). “The judgment of the trial court is

presumed correct and will not be disturbed unless it is ‘plainly wrong or without evidence to

support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017) (quoting Code § 8.01-680).

“In Virginia, every unlawful homicide is presumed to be murder of the second degree.”

Tizon v. Commonwealth, 60 Va. App. 1, 10-11 (2012) (quoting Pugh v. Commonwealth, 223 Va.

663, 667 (1982)). “Murder at common law is a homicide committed with malice, either express or

implied.” Id. at 11 (quoting Pugh, 223 Va. at 667). “Second-degree murder does not require a

specific intent to kill.” Id.

Appellant does not dispute that she killed Bowles but argues that the Commonwealth failed

to prove that she acted with malice. Malice is “the doing of a wrongful act intentionally, or without

just cause or excuse, or as a result of ill will.” Meade v. Commonwealth, 74 Va. App. 796, 813

(2022) (quoting Watson-Scott v. Commonwealth, 298 Va. 251, 255-56 (2019)). “Whether or not

an accused acted with malice is generally a question of fact and may be proved by circumstantial

evidence.” Palmer v. Commonwealth, 71 Va. App. 225, 237 (2019) (quoting Canipe v.

-5- Commonwealth, 25 Va. App. 629, 642 (1997)). “[M]alice may be either express or implied by

conduct.” Watson-Scott, 298 Va. at 256 (quoting Essex v. Commonwealth, 228 Va. 273, 280

(1984)).

“Malice may also ‘be inferred “from the deliberate use of a deadly weapon.”’” Palmer,

71 Va. App. at 237 (quoting Doss v. Commonwealth, 23 Va. App. 679, 686 (1996)). “A deadly

weapon is one which is likely to produce death or great bodily injury from the manner in which it

is used, and whether a weapon is to be regarded as deadly often depends more on the manner in

which it has been used than on its intrinsic character.” Pannill v. Commonwealth, 185 Va. 244,

254 (1946) (quoting 40 C.J.S. Homicide § 25). “A motor vehicle, wrongfully used, can be a

weapon as deadly as a gun or a knife.” Essex, 228 Va. at 281.

This Court’s opinion in Canipe is particularly instructive. In that case, the defendant and the

victim both stopped in a parking lot after a traffic altercation. Canipe, 25 Va. App. at 636. The

victim exited his vehicle and approached the front of the defendant’s vehicle. Id. at 635. The

defendant accelerated at 15 miles per hour and struck the victim, killing him. Id. at 635-36. We

held that the evidence supported the jury’s finding that the defendant acted maliciously because he

“willfully and deliberately” took an action that was “likely to cause great bodily harm to the

victim.” Id. at 644.

Here, as in Canipe, there was sufficient evidence for the jury to conclude that appellant

acted maliciously. The evidence, in the light most favorable to the Commonwealth, showed that

appellant intentionally applied the accelerator knowing that Bowles was standing three to five feet

in front of her vehicle. “[I]t is permissible for the fact finder to infer that every person intends the

natural, probable consequences of his or her actions.” Commonwealth v. Perkins, 295 Va. 323, 330

(2018) (quoting Ellis v. Commonwealth, 281 Va. 499, 507 (2011)). The natural and probable

consequences of appellant’s act is that she would hit Bowles with a deadly weapon. See Essex, 228

-6- Va. at 281. And although appellant claimed that she did not intend to hit Bowles, the jury “was at

liberty to discount [appellant’s] self-serving statements as little more than lying to conceal [her]

guilt.” Poole v. Commonwealth, 73 Va. App. 357, 369 (2021) (first alteration in original) (quoting

Becker v. Commonwealth, 64 Va. App. 481, 495 (2015)).

By appellant’s own admission, she knew that she had hit something but continued driving.

The jury could conclude that her claim that she did not know she had hit Bowles was incredible,

especially considering Sierra’s testimony that appellant looked at Bowles on the ground before

running over his legs and that Bowles screamed while she did so. Moreover, appellant’s text

messages to Dedra and her statements to the police demonstrated a motive to kill Bowles. See

Archie v. Commonwealth, 14 Va. App. 684, 690 (1992) (“[A]lthough motive is not a necessary

element . . . , ‘it is relevant and often most persuasive upon the question of the actor’s intent.’”

(quoting Epperly v. Commonwealth, 224 Va. 214, 232 (1982))). Finally, the jury could consider

Zurlo and Sierra’s testimony about Bowles’s apparent lack of remorse or emotion at the scene.

Essex, on which appellant relies, does not compel a different result.1 There, the Supreme

Court held that driving while under the influence of alcohol does not by itself establish malice to

support a second-degree murder conviction. See Essex, 228 Va. at 282. But the Court emphasized

that, when “review[ing] a second-degree murder conviction based upon the use of an

automobile, . . . the governing principles are the same as those which apply to any other kind of

second-degree murder.” Id. at 281. And a defendant’s “state of intoxication, however great, will

not repel an inference of malice, implied by the circumstances surrounding [her] conduct.” Id. at

282. Here, the jury could infer malice from the surrounding circumstances other than appellant’s

1 Appellant also relies on Porter v. Commonwealth, 17 Va. App. 58 (1993), in which we reversed a conviction for second-degree murder committed using an automobile because the Commonwealth failed to prove malice. But in Porter, “[n]o evidence established who or what set the car in motion.” Id. at 62. Here, it is undisputed that appellant was driving the car that killed Bowles. -7- possible intoxication. Ultimately, it was the province of the jury to assess whether appellant’s

alternate hypothesis of innocence was reasonable. Fary, 77 Va. App. at 344.

Appellant’s remaining arguments also fail to consider the evidence in the light most

favorable to the Commonwealth and are unavailing. Appellant asserts that she “was

steadfast . . . that her actions were not intentional.” But again, the jury was not required to credit her

self-serving statements. She also cites her “volitional and immediate return to the scene.” But that

claim ignores the fact that she first drove away from the scene despite realizing that she had hit

something and did not return until Zurlo caught and confronted her. See Canipe, 25 Va. App. at 645

(holding that the defendant’s decision to keep driving after hitting the victim supported the

conclusion that he had hit the victim deliberately).2 And although appellant did not ask Bowles to

stand in front of her car, that fact has little relevance to whether appellant acted maliciously in

choosing to run him over once he was there. See id. at 644 (finding malice even though the victim

approached the front of the defendant’s vehicle on his own accord).

Finally, appellant asserts that “a killing committed in the heat of passion and with reasonable

provocation” is voluntary manslaughter, but she provides no argument or legal authority

establishing “reasonable provocation” beyond her bare assertion that Bowles’s decision to take

“pictures of her vehicle as evidence of her driving while under the influence” was “a clear act of

provocation.” Reasonable provocation is that which “renders a [person] deaf to the voice of

reason.” Dandridge v. Commonwealth, 72 Va. App. 669, 681 (2021) (quoting Woods v.

Commonwealth, 66 Va. App. 123, 131 (2016)). “‘As a general rule, whether provocation, shown by

credible evidence, is sufficient . . . to rebut the presumption of malice arising from a homicide is a

2 Appellant attempts to distinguish Canipe on the ground that Canipe also took other steps to hide his crime, such as replacing his damaged windshield. But we cited that as only “further support” of malice. Canipe, 25 Va. App. at 645 (emphasis added). Appellant had no similar opportunity to conceal her involvement because she was promptly confronted by eyewitnesses. That fact alone does not render Canipe inapposite. -8- question of fact’ to be decided by the jury.” Id. at 682 (quoting Woods, 66 Va. App. at 131-32).

Further, “[w]ords alone, however insulting or contemptuous, are never a sufficient provocation” to

negate malice. Canipe, 25 Va. App. at 643 (quoting Read v. Commonwealth, 63 Va. (22 Gratt.)

924, 938 (1872)). Although the jury was instructed on voluntary manslaughter, it convicted

appellant of second-degree murder. Sufficient evidence supports the jury’s conclusion.

CONCLUSION

For these reasons, we affirm the circuit court’s judgment.

Affirmed.

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