COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank Argued by teleconference
WAYNE R. MARSHALL MEMORANDUM OPINION * BY v. Record No. 0363-99-1 JUDGE DONALD W. LEMONS MARCH 14, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr., Judge
John D. Hooker, Jr. (Hooker & Migliozzi, P.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Wayne R. Marshall appeals his convictions for unlawful
wounding of Ashanti Brown and unlawful wounding of Mishelene
Minott. On appeal, he argues (1) that the trial court erred by
granting the Commonwealth's instruction on transferred intent
and (2) that the trial court erred by denying his motions to
strike the Commonwealth's evidence and set aside the jury's
verdict because of insufficient evidence. We hold that the
court's instruction on transferred intent was not erroneously
given with respect to the unlawful wounding of Minott and that
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the evidence was sufficient to sustain the verdict. However, we
find the evidence insufficient to sustain the verdict of
unlawfully wounding Ashanti Brown.
I. BACKGROUND
On November 28, 1997, Nathaniel Brown ("Brown") and Lemar
Anderson were waiting at Brown's home for Ricardo Minott
("Ricardo"). Brown and Ricardo were planning to go to a car
stereo store. From her bedroom, Brown's girlfriend Mishelene
Minott ("Minott") heard him leave the house. Shortly
thereafter, Minott heard the downstairs door re-open and close.
She recognized the voices of Brown and Anderson and heard a
third voice that she assumed was Ricardo, her sixteen-year-old
brother.
After a few minutes, Rishaad Floyd came into Minott's
bedroom with a gun in his hand and told her "This is an F---ing
stick-up." He then asked where the safe was kept, and Minott
told him that it was in Brown's closet. 1 Floyd took "bundles of
money" from the unlocked safe and ordered Minott downstairs.
Minott and her five-month-old daughter, Ashanti, were forced to
go into the living room. Minott saw Marshall holding a gun and
standing near Brown, who was laying on his stomach with his
1 Brown was allegedly a drug dealer who kept large amounts of money in a safe in his house.
- 2 - hands taped behind his back. Minott was forced to lie down next
to Brown and she placed Ashanti nearby on the floor. Marshall
put tape over Brown's mouth and then taped Minott's hands to her
face, over her mouth and nose. Marshall yelled at Brown,
repeatedly kicking him in the head and back while he lay tied up
on the floor. Meanwhile, Minott heard Floyd and Anderson
searching the upstairs rooms of the house. Ricardo eventually
arrived and was made to lie on the living room floor where
Marshall kicked and "pistol-whipped" him.
Floyd and Anderson came back downstairs and asked where the
guns and the "weed" could be found. Brown shook his head
indicating that there were no drugs or guns in the house. Floyd
and Anderson went into the kitchen, and Floyd returned with a
knife. Floyd told Brown that "[t]his was [his] last day walking
the earth," and then announced to the group, "You're all going
to die-all of you."
Anderson came from the kitchen with plastic bags and told
Minott and Ricardo to put the bags over their heads. Minott
testified that she heard Brown plead for the lives of Minott and
Ashanti. She then heard Brown "yelling, screaming in pain."
Minott heard Floyd repeatedly say, "Oh, you feel it. I got you
good. You're gonna die. You're dying." Brown eventually
stopped yelling. Minott, who was lying face down, then heard
some shots and felt her arm go numb.
- 3 - Floyd, Anderson and Marshall fled. Minott stood up, took
the bag off of her head and attempted to call for help. All of
the phones were missing, however, so she and her brother went to
a neighbor's for help. The neighbor was not there, and she
returned to her house to check on Brown and Ashanti. She pushed
the emergency button on the alarm system and left her house
again to check on her brother who had collapsed outside of the
neighbor's house. Their neighbor soon returned, and the police
were called. Minott returned once again to her house to check
on Brown and found Ashanti sleeping with blood on her forehead
and toes. Ashanti was treated at the hospital for cuts on her
forehead, scalp and thigh. Those wounds were not present prior
to the incident. Minott was shot in the arm, and both Brown and
Ricardo were beaten and shot. Ashanti, Minott and Ricardo
survived. Brown died as a result of his wounds.
Marshall was indicted for the first degree murder of Brown,
use of a firearm in the commission of a felony, two counts of
abduction with intent to extort money from Brown and Minott, two
counts of abduction of Ricardo and Ashanti, two counts of
robbery of Brown and Minott, and three counts of malicious
wounding of Minott, Ricardo and Ashanti. Marshall was tried
jointly with Anderson. At trial, after the Commonwealth's
case-in-chief, Marshall moved to strike the malicious wounding
charge in which Ashanti Brown was the named victim. He argued
- 4 - that there was no direct evidence of how or when the injury had
occurred. The Commonwealth stated that it was relying on the
theory of transferred intent, and the trial court denied the
motion.
Anderson moved to strike the evidence with respect to
malicious wounding of Minott. He argued that mere presence is
insufficient to establish that a defendant aided and abetted a
principal in the commission of a crime. The court denied
Anderson's motion. Marshall noted that "since you've already
addressed the issues on [Anderson's] motion, I was going to have
motions similar to that as far as mere presence." The court
overruled Marshall's motion. Marshall renewed his motions to
strike after presenting evidence on his own behalf. The court
again overruled the motions.
The jury was instructed on the offense of malicious
wounding and the lesser-included offense of unlawful wounding
and assault and battery. Over Marshall's objection that there
was no evidence to support the instructions, the court also
instructed the jury that if it "believed beyond a reasonable
doubt that Wayne Marshall intended to kill Nathaniel Brown, Jr.,
but that he wounded Ashanti Brown by mistake, then that intent
is transferred to the wounding of Ashanti Brown." The jury
found Marshall guilty of unlawful wounding of Ashanti and guilty
of unlawful wounding of Minott. The jury also found Marshall
guilty of first degree murder, use of a firearm in the
- 5 - commission or attempted commission of murder, robbery of Brown,
malicious wounding of Ricardo, abduction with intent to extort
money of Brown, abduction with intent to extort money of Minott
and abduction of Ricardo. He was sentenced to one hundred and
thirty-five years, including one year for the unlawful wounding
of Minott and one year for the unlawful wounding of Ashanti.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank Argued by teleconference
WAYNE R. MARSHALL MEMORANDUM OPINION * BY v. Record No. 0363-99-1 JUDGE DONALD W. LEMONS MARCH 14, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr., Judge
John D. Hooker, Jr. (Hooker & Migliozzi, P.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Wayne R. Marshall appeals his convictions for unlawful
wounding of Ashanti Brown and unlawful wounding of Mishelene
Minott. On appeal, he argues (1) that the trial court erred by
granting the Commonwealth's instruction on transferred intent
and (2) that the trial court erred by denying his motions to
strike the Commonwealth's evidence and set aside the jury's
verdict because of insufficient evidence. We hold that the
court's instruction on transferred intent was not erroneously
given with respect to the unlawful wounding of Minott and that
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the evidence was sufficient to sustain the verdict. However, we
find the evidence insufficient to sustain the verdict of
unlawfully wounding Ashanti Brown.
I. BACKGROUND
On November 28, 1997, Nathaniel Brown ("Brown") and Lemar
Anderson were waiting at Brown's home for Ricardo Minott
("Ricardo"). Brown and Ricardo were planning to go to a car
stereo store. From her bedroom, Brown's girlfriend Mishelene
Minott ("Minott") heard him leave the house. Shortly
thereafter, Minott heard the downstairs door re-open and close.
She recognized the voices of Brown and Anderson and heard a
third voice that she assumed was Ricardo, her sixteen-year-old
brother.
After a few minutes, Rishaad Floyd came into Minott's
bedroom with a gun in his hand and told her "This is an F---ing
stick-up." He then asked where the safe was kept, and Minott
told him that it was in Brown's closet. 1 Floyd took "bundles of
money" from the unlocked safe and ordered Minott downstairs.
Minott and her five-month-old daughter, Ashanti, were forced to
go into the living room. Minott saw Marshall holding a gun and
standing near Brown, who was laying on his stomach with his
1 Brown was allegedly a drug dealer who kept large amounts of money in a safe in his house.
- 2 - hands taped behind his back. Minott was forced to lie down next
to Brown and she placed Ashanti nearby on the floor. Marshall
put tape over Brown's mouth and then taped Minott's hands to her
face, over her mouth and nose. Marshall yelled at Brown,
repeatedly kicking him in the head and back while he lay tied up
on the floor. Meanwhile, Minott heard Floyd and Anderson
searching the upstairs rooms of the house. Ricardo eventually
arrived and was made to lie on the living room floor where
Marshall kicked and "pistol-whipped" him.
Floyd and Anderson came back downstairs and asked where the
guns and the "weed" could be found. Brown shook his head
indicating that there were no drugs or guns in the house. Floyd
and Anderson went into the kitchen, and Floyd returned with a
knife. Floyd told Brown that "[t]his was [his] last day walking
the earth," and then announced to the group, "You're all going
to die-all of you."
Anderson came from the kitchen with plastic bags and told
Minott and Ricardo to put the bags over their heads. Minott
testified that she heard Brown plead for the lives of Minott and
Ashanti. She then heard Brown "yelling, screaming in pain."
Minott heard Floyd repeatedly say, "Oh, you feel it. I got you
good. You're gonna die. You're dying." Brown eventually
stopped yelling. Minott, who was lying face down, then heard
some shots and felt her arm go numb.
- 3 - Floyd, Anderson and Marshall fled. Minott stood up, took
the bag off of her head and attempted to call for help. All of
the phones were missing, however, so she and her brother went to
a neighbor's for help. The neighbor was not there, and she
returned to her house to check on Brown and Ashanti. She pushed
the emergency button on the alarm system and left her house
again to check on her brother who had collapsed outside of the
neighbor's house. Their neighbor soon returned, and the police
were called. Minott returned once again to her house to check
on Brown and found Ashanti sleeping with blood on her forehead
and toes. Ashanti was treated at the hospital for cuts on her
forehead, scalp and thigh. Those wounds were not present prior
to the incident. Minott was shot in the arm, and both Brown and
Ricardo were beaten and shot. Ashanti, Minott and Ricardo
survived. Brown died as a result of his wounds.
Marshall was indicted for the first degree murder of Brown,
use of a firearm in the commission of a felony, two counts of
abduction with intent to extort money from Brown and Minott, two
counts of abduction of Ricardo and Ashanti, two counts of
robbery of Brown and Minott, and three counts of malicious
wounding of Minott, Ricardo and Ashanti. Marshall was tried
jointly with Anderson. At trial, after the Commonwealth's
case-in-chief, Marshall moved to strike the malicious wounding
charge in which Ashanti Brown was the named victim. He argued
- 4 - that there was no direct evidence of how or when the injury had
occurred. The Commonwealth stated that it was relying on the
theory of transferred intent, and the trial court denied the
motion.
Anderson moved to strike the evidence with respect to
malicious wounding of Minott. He argued that mere presence is
insufficient to establish that a defendant aided and abetted a
principal in the commission of a crime. The court denied
Anderson's motion. Marshall noted that "since you've already
addressed the issues on [Anderson's] motion, I was going to have
motions similar to that as far as mere presence." The court
overruled Marshall's motion. Marshall renewed his motions to
strike after presenting evidence on his own behalf. The court
again overruled the motions.
The jury was instructed on the offense of malicious
wounding and the lesser-included offense of unlawful wounding
and assault and battery. Over Marshall's objection that there
was no evidence to support the instructions, the court also
instructed the jury that if it "believed beyond a reasonable
doubt that Wayne Marshall intended to kill Nathaniel Brown, Jr.,
but that he wounded Ashanti Brown by mistake, then that intent
is transferred to the wounding of Ashanti Brown." The jury
found Marshall guilty of unlawful wounding of Ashanti and guilty
of unlawful wounding of Minott. The jury also found Marshall
guilty of first degree murder, use of a firearm in the
- 5 - commission or attempted commission of murder, robbery of Brown,
malicious wounding of Ricardo, abduction with intent to extort
money of Brown, abduction with intent to extort money of Minott
and abduction of Ricardo. He was sentenced to one hundred and
thirty-five years, including one year for the unlawful wounding
of Minott and one year for the unlawful wounding of Ashanti.
II. UNLAWFUL WOUNDING OF MISHELENE MINOTT
"Both the Commonwealth and the defendant are entitled to
appropriate instructions to the jury of the law applicable to
each version of the case, provided such instructions are based
upon the evidence adduced." Wilson v. Commonwealth, 25 Va. App.
263, 274, 487 S.E.2d 857, 863 (1997) (citation and quotation
marks omitted). An instruction that is not supported by the
evidence should be refused. See id. More than "a mere
scintilla of evidence" is required to support a jury
instruction, and the amount of evidence that satisfies that
standard is determined on a case-by-case basis. Boone v.
Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992);
see also Brandau v. Commonwealth, 16 Va. App. 408, 411, 430
S.E.2d 563, 564 (1993).
Under the doctrine of transferred intent, "if an accused
attempts to injure one person and an unintended victim is
injured because of the act, the accused's intent to injure the
intended victim is transferred to the injury of the unintended
victim, even though this wounding was accidental or
- 6 - unintentional." Crawley v. Commonwealth, 25 Va. App. 768,
773-74, 492 S.E.2d 503, 505 (1997) (citations omitted).
The evidence clearly established the Commonwealth's theory
of transferred intent with respect to the wounding of Minott.
Marshall and two other men, acting in concert, forced Brown,
Ashanti, Minott and her brother Ricardo at gunpoint to lie on
the floor with their hands bound. Floyd said they were "all
going to die, all of [them]." Minott heard several gunshots and
felt her arm go numb. She subsequently discovered that she had
been shot in the arm.
"Due to the concert of action, defendant is deemed to have
shared [the shooter's] intent." Riddick v. Commonwealth, 226
Va. 244, 248, 308 S.E.2d 117, 119 (1983). Thus, even if Floyd
or Anderson fired the shot that wounded Minott, Marshall "was
criminally responsible for the acts of the gun[men], . . . as a
principal in the second degree. And every principal in the
second degree may be indicted, tried, convicted and punished,
with certain exceptions not applicable here, as if
a principal in the first degree." Id. (citing Code § 18.2-18)
(other citations omitted). Here, the intent to harm Brown was
manifested through the act of shooting a gun at him. The
shooting resulted in the wounding of Minott. Thus, the intent
to harm Brown was transferred to Minott. Accordingly, we find
the evidence supported the transferred intent instruction and
- 7 - the evidence was sufficient to sustain the conviction of
unlawful wounding of Minott.
III. UNLAWFUL WOUNDING OF ASHANTI BROWN
On appeal, when challenging the sufficiency of the
evidence, we view the evidence in the light most favorable to
the Commonwealth, affording to it all reasonable inferences
fairly deducible therefrom. See Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The trial court's
judgment will not be set aside unless it appears that it is
plainly wrong or without supporting evidence. See Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc).
We find no evidence in this record demonstrating any act by
Marshall or his cohorts causing the glass table to break. There
is no evidence that glass was heard breaking immediately after
the gunshots were fired, nor is there evidence that the table
was kicked over on top of the child during the ensuing melee.
Furthermore, we find no evidence as to how Ashanti was injured
by the glass. Without evidence of an act causing the glass
table to break or evidence of an act that directly or indirectly
caused the injuries to Ashanti, the intent inspiring those acts
cannot be identified and, as a result, cannot be transferred to
Ashanti's injuries. Consequently, the evidence was insufficient
to support Marshall's conviction for the unlawful wounding of
Ashanti Brown.
- 8 - IV. CONCLUSION
In conclusion, we affirm Marshall's conviction of unlawful
wounding of Minott but reverse and dismiss the conviction for
unlawful wounding of Ashanti Brown.
Affirmed in part, reversed and dismissed in part.
- 9 -