COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

SHARELLE GRACE DUKE MERRITT 

 MEMORANDUM OPINION* BY 

v. Record No. 1524-97-1 JUDGE JOSEPH E. BAKER 

 JUNE 30, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY 

William L. Wellons, Judge 

 Joseph M. Teefey, Jr., Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

John K. Byrum, Jr., Assistant Attorney 

General, on brief), for appellee. 

 Sharelle Grace Duke Merritt (appellant) appeals from her 

jury trial convictions, approved by the Mecklenburg County 

Circuit Court (trial court), for second-degree murder and use of 

a firearm in the commission of murder. She contends the trial 

court erroneously held the evidence sufficient to support the 

jury's finding that she shot the victim intentionally rather than 

accidentally. In addition, she claims the trial court wrongfully 

instructed the jury that it could consider a witness' prior 

consistent statements as substantive evidence. For the reasons 

that follow, we affirm appellant's convictions. 

 The record shows that on December 20, 1995, appellant shot 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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Roy Lee Gregory (victim) at his home in Mecklenburg County. 

Marcus Coles, who was playing cards with appellant and victim at 

victim's kitchen table, witnessed some of the events. Appellant 

and victim were drinking and argued over whether victim was 

appellant's natural father. According to Coles, at about 

4:00 p.m., appellant retrieved a .410 single-barrel shotgun and 

one shell from the closet. She sat down on the couch and 

repeatedly loaded and unloaded the shell while saying, "I will 

shoot him." Appellant chambered the bullet again, closed the 

barrel, and pulled the hammer back. Coles, fearing for his 

safety, moved away from the table but saw appellant point the gun 

in victim's direction. He then heard the gun discharge and 

appellant exclaim, "Oh my God." Coles saw victim bleeding from 

the nose, mouth and left side of his head. Coles and appellant 

both fled. 

 Sheriff's Deputies Wilson and Claiborne responded to the 

scene, where they found victim bleeding. Appellant returned to 

the scene a few minutes later and said, "It was an accident and I 

didn't mean to do it." Police retrieved the weapon, which Coles 

had discarded away from the scene, and found it to be 

operational. 

 Victim was hospitalized and died about a month later from a 

series of infections resulting from the wound. An autopsy showed 

a seven-inch scar on the left side of victim's head from surgery 

on the shotgun wound. Still present in victim's head at the time 
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of autopsy were three shotgun pellets. 

 Appellant's firearms expert, James Pickelman, testified 

victim was shot with number six lead shot which would come from a 

shell containing one-hundred-fifty-five pellets per shell. Such 

a shot would create a circular pattern, with some "fliers" 

deviating from the pattern, the width of which would grow as the 

distance from the target increased. 

 Investigator Wesley Simmons, who examined the shot pattern 

on the wall behind victim, found several "cast-off" shots 

separated from the main circular shot pattern. 

 At trial, appellant attempted to impeach Coles with portions 

of his statement to police and his testimony at appellant's 

preliminary hearing. Over appellant's hearsay objection, on 

re-direct, the Commonwealth sought to rehabilitate Coles with 

previous consistent statements. The Court overruled the 

objection and admitted the prior consistent statements for that 

limited purpose. Appellant did not ask the court to instruct the 

jury that it could consider the prior statements only for such 

limited purpose and not as substantive evidence. 

 After the jury had retired to consider its verdict, it 

returned to the courtroom and made the following inquiries: 

 THE COURT: Ladies and gentlemen, I 

understand that you have a question to be 

addressed to the Court. Who would like to 

address the question? 

 A JUROR: We would -- was the 

preliminary hearing entered in as evidence? 

 THE COURT: Only to the extent that the 
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statements were read to you in open court. 

 A JUROR: Okay. 

 THE COURT: The transcript itself was not 

admitted in evidence. 

 A JUROR: So, we cannot go over that? 

 THE COURT: You will have to rely on the 

evidence that's been presented to you through 

the testimony which was presented. 

 A JUROR: Okay. No further questions 

then. That's all. 

The trial court did not consult counsel before making these 

statements to the jury. However, appellant raised no objection 

contemporaneously or during the remainder of the jury's 

deliberations. 

 More than two months after trial, appellant moved for a 

mistrial, asserting the trial court erroneously instructed the 

jury it could consider preliminary hearing testimony as 

substantive evidence. The court overruled the motion. 

Sufficiency of the Evidence to Prove Intent

 Appellant contends the evidence was insufficient to prove 

she acted with the requisite intent to commit second-degree 

murder. 

 In reviewing a challenge to the sufficiency of the evidence, 

we view the evidence and any reasonable inferences in the light 

most favorable to the Commonwealth. See, e.g., Traverso v. 

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 

It is within the province of the jury to judge the credibility of 
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the witnesses, see, e.g., Mullis v. Commonwealth, 3 Va. App. 564, 

571, 351 S.E.2d 919, 923 (1987), and "[t]he jury's verdict will 

not be disturbed on appeal unless it is plainly wrong or without 

evidence to support it." Traverso, 6 Va. App. at 176, 366 S.E.2d 

at 721. Whether appellant "acted with the requisite mental state 

is an essential question for the jury." Darnell v. Commonwealth, 

6 Va. App. 485, 492, 370 S.E.2d 717, 720-21 (1988). "The fact 

finder may infer that a person intends the immediate, direct, and 

necessary consequences of his voluntary acts." Bell v. 

Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991). 

 Second-degree murder does not require proof of a specific 

intent to kill. See Rhodes v. Commonwealth, 238 Va. 480, 486, 

384 S.E.2d 95, 98 (1989). It requires proof only of "'a 

malicious purpose to do the deceased a serious personal injury or 

hurt.'" Id. (quoting Dock's Case, 62 Va. (21 Gratt.) 909, 913 

(1872)). Intent or purpose "may, and most often must, be proven 

by circumstantial evidence," Fleming v. Commonwealth, 13 Va. App. 

349, 353, 412 S.E.2d 180, 183 (1991), including the statements 

and conduct of the accused. See Nobles v. Commonwealth, 218 Va. 

548, 551, 238 S.E.2d 808, 810 (1977). 

 Here, Commonwealth's witness Coles testified that, during an 

argument between appellant and victim, appellant retrieved a 

shotgun and shell from a nearby closet and sat on the couch while 

she repeatedly loaded and unloaded the weapon. She was pointing 

the gun in victim's direction and saying, "I will shoot him." 
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Appellant chambered the bullet again, closed the barrel, pulled 

back the hammer, and discharged the gun, shooting appellant in 

the head. 

 Appellant contends that Coles' testimony did not prove 

appellant aimed the gun or purposefully pulled the trigger and 

that the forensic evidence of the shot pattern on the kitchen 

wall and cabinets proved, in fact, she did not aim the gun. We 

disagree. 

 The jury heard Coles' testimony and appellant's attempts at 

impeachment and nevertheless accepted his testimony that 

appellant pointed the shotgun at victim. Evidence that the gun 

was in good operating condition after the shooting belied 

appellant's claim that the gun discharged accidentally. See

Compton v. Commonwealth, 219 Va. 716, 730-31, 250 S.E.2d 749, 758 

(1979). In addition, the shot-pattern evidence did not prove 

appellant lacked intent. Although multiple shotgun pellets hit 

the cabinet and walls, enough pellets hit victim's head to 

require surgery leaving a seven-inch scar. The evidence is 

sufficient to support the finding that appellant intended to 

shoot victim, and the jury was entitled to conclude that the only 

reasonable hypothesis flowing from all the evidence, viewed in 

the light most favorable to the Commonwealth, was that appellant 

acted with the requisite intent. See Cody v. Commonwealth, 

180 Va. 449, 454-55, 23 S.E.2d 122, 124 (1942) (upholding 

first-degree murder conviction of accused who argued with his 
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wife over bringing gun into house, said anyone who crossed the 

threshold to the bedroom "[was] going to get it," and shot his 

wife when she approached that threshold, despite conflicting 

evidence of whether he actually aimed gun). 

Jury's Inquiries

 Appellant asserts the trial court's responses to the jury's 

inquiries constituted an instruction to the jury that Coles' 

prior inconsistent and consistent testimony could be considered 

as "substantive evidence." We disagree. However, even if we 

agreed with appellant's assertion, we will not notice the issue 

on appeal because appellant failed to request a limiting 

instruction or timely to assign the trial court's responses as 

error. See Smith v. Commonwealth, 217 Va. 9, 9 n.*, 225 S.E.2d 

194, 194 n.* (1976); Rule 5A:18. For the first time, more than 

two months after the trial had been concluded with his 

conviction, using the foregoing assertion as a ground, appellant 

moved for a mistrial and here assigns as error the trial court's 

denial of that motion. 

 "Generally, evidence admissible for one purpose, but 

inadmissible for another, should be accompanied by a limiting 

instruction to the jury." Hanson v. Commonwealth, 14 Va. App. 

173, 183, 416 S.E.2d 14, 20 (1992). However, a party entitled to 

a limiting instruction "waive[s] [her] right [to such an 

instruction] by not requesting it." Crider v. Commonwealth, 206 

Va. 574, 578, 145 S.E.2d 222, 225 (1965). The Virginia Supreme 
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Court repeatedly has held that an accused who "wishes to take 

advantage on appeal of some incident he regards as objectionable 

enough to warrant a mistrial . . . must make his motion timely or 

else be deemed to have waived his objection. Making a timely 

motion for mistrial means making the motion 'when the 

objectionable words were spoken.'" Yeatts v. Commonwealth, 242 

Va. 121, 137, 410 S.E.2d 254, 264 (1991) (quoting Reid v. 

Baumgardner, 217 Va. 769, 774, 232 S.E.2d 778, 781 (1977)) 

(citations omitted). 

 Appellant relies on Mason v. Commonwealth, 7 Va. App. 339, 

373 S.E.2d 603 (1988), to justify her failure to make timely 

objections. Although we excused the failure of the accused to 

object to the trial court's response to a jury question in Mason, 

the response of the trial court in that case provided the jury 

with an incomplete definition of an essential element of the 

offense. See id. at 345-47, 373 S.E.2d at 606-07; see also

Jimenez v. Commonwealth, 241 Va. 244, 245-46, 250, 402 S.E.2d 

678, 678, 681 (1991) (holding that trial court has "affirmative 

duty properly to instruct a jury" on principles of law "vital" to 

case and that failure of accused to object does not bar 

consideration of issue on appeal); Johnson v. Commonwealth, 20 

Va. App. 547, 458 S.E.2d 599 (1995) (en banc) (applying Jimenez

ruling to reverse conviction where trial court failed, in 

response to question from jury, to fill "obvious void in 

instructions," thereby permitting jury to convict accused of a 
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nonexistent offense). In this case, by contrast, appellant makes 

no claim that the jury was improperly instructed on an element of 

the offense. Rather, her objection relates only to a rule of 

evidence. Under these facts, we find no reason to excuse her 

failure timely to object or move for mistrial. 

 For these reasons, we affirm appellant's convictions. 

 Affirmed.