COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bumgardner and Frank 

Argued at Alexandria, Virginia 

MICHAEL JENNINGS MADDOX 

 MEMORANDUM OPINION* BY 

v. Record No. 1129-99-4 JUDGE JERE M. H. WILLIS, JR. 

 AUGUST 1, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CLARKE COUNTY 

John R. Prosser, Judge 

 Alexander N. Levay (Michael D. Sawyer; 

 Moyes & Levay, P.L.L.C., on briefs), for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 On appeal from his conviction of second degree murder, in 

violation of Code § 18.2-32, Michael Jennings Maddox contends 

(1) that the evidence was insufficient to support his conviction 

of murder, (2) that the trial court erred in admitting evidence 

concerning his relationship with the victim, Evelyn Jane 

Tumblin, and (3) that the trial court erred in admitting 

evidence that he refused to take an alkasensor test. We reverse 

the judgment of the trial court and remand the case for further 

proceedings, if the Commonwealth be so advised. 
I. Sufficiency of the Evidence

 Maddox contends that because the Commonwealth did not prove 

that he killed Tumblin maliciously, the evidence failed to 

support his conviction of murder. See Code § 18.2-32. "Where 

the sufficiency of the evidence is challenged after conviction, 

it is our duty to consider it in the light most favorable to the 

Commonwealth and give it all reasonable inferences fairly 

deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 

349, 352, 218 S.E.2d 534, 537 (1975). 

 "Second degree murder does not require a willful, 

deliberate, and premeditated act; it is defined simply as a 

malicious killing." Turner v. Commonwealth, 23 Va. App. 270, 

274, 476 S.E.2d 504, 506 (1996). "Whether or not an accused 

acted with malice is generally a question of fact . . . ." 

Canipe v. Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 

753 (1997). 

 Tumblin and Maddox lived together in a long term 

relationship. On the afternoon of February 5, 1998, they went 

for a ride in Maddox's four-wheel drive Ford Bronco. The 

Shenandoah River had flooded its banks, covering nearby roadways 

with water. With Maddox driving, the couple "drove through the 

water playing around." They then went to Leesburg to run 

various errands. Maddox had been drinking all day and was 

intoxicated. A little before dark they returned to the river 

and stopped under a bridge abutment, where they engaged in 

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sexual intercourse. For a short while thereafter, Maddox let 

Tumblin drive but then resumed driving. Ignoring signs and 

barricades warning that the road was closed due to flooding, he 

drove down the flooded portion of Route 606. The Bronco began 

sliding on the submerged roadway and Maddox lost control. The 

Bronco became stuck on an embankment, about two hundred yards 

down the road and about twenty yards from the closest shore. 

Frigid water flooded the passenger compartment. 

 Rescue personnel were dispatched to the scene. Upon 

arrival, Terrell Davis saw Maddox sitting in the driver's seat 

of the Bronco smoking a cigarette and saw him toss a beer bottle 

out of the window. When asked, Maddox initially replied that he 

was alone. About fifteen minutes after the rescue workers 

arrived, Maddox told them that Tumblin was with him and that she 

had drowned. He lifted her body from behind the front seats of 

the Bronco. Rescue workers testified that he said, "She is 

dead. I killed her. She is dead." A state trooper testified 

that Maddox, when asked what had happened, "stated that he had 

been in the water horsing around with his truck and he had 

killed his girlfriend." At the same time, however, Maddox asked 

whether she was alright. 

 Maddox told witnesses that Tumblin was afraid of the water 

and that she "freaked out" when the Bronco slid off the road and 

became stuck. He admitted hitting Tumblin, because, he 

explained, she was hysterical and he was attempting to calm her. 

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Melody Houff, Tumblin's sister, testified that Maddox told her 

Tumblin never spoke after he struck her, but that her eyes 

remained open. The medical examiner determined that Tumblin 

died of drowning with hypothermia as a possible contributing 

factor. He testified that he saw no sign that she had been 

struck on her face or that she had been rendered unconscious by 

a blow. The only evidence that she had been struck was Maddox's 

statement and Houff's testimony that she noticed a bruise on her 

sister's right cheek at her funeral, four days after her death. 

 Several witnesses testified that Maddox behaved strangely 

at the scene of the accident, that he said he had killed Tumblin 

and that she had drowned, and then asked whether she was 

alright. By the time the rescue workers arrived, Tumblin and 

Maddox had been in the frigid water long enough that both were 

suffering from hypothermia. Upon his removal from the water, 

Maddox's oral temperature was 89.8°. At the hospital, Tumblin's 

core body temperature was 89.1°, so low it was necessary to warm 

her body several degrees before the fact of her death could be 

determined. Maddox was intoxicated, and testimony disclosed 

that intoxication can exacerbate the effects of hypothermia. 

 The malicious infliction of injury can be shown through 

circumstantial evidence, but "[t]he Commonwealth is . . . 

required to exclude hypotheses of innocence that flow from the 

evidence . . . ." Fordham v. Commonwealth, 13 Va. App. 235, 

239, 409 S.E.2d 829, 831 (1991). 

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 Tumblin died of drowning. To convict Maddox of her murder, 

the Commonwealth must prove either that he maliciously drowned 

her or that he maliciously committed some act against her that 

caused her to drown. The Commonwealth contends that Maddox's 

admission that he struck Tumblin in the face, his odd and 

misleading behavior when the rescue workers arrived on the 

scene, and his statements after his rescue that he had killed 

Tumblin, sufficiently prove that he killed her maliciously. We 

disagree. 

 Maddox admitted that he struck Tumblin in the face. 

However, he said that he did so when she "freaked out" after the 

Bronco became stuck and began to fill with water. Although 

Houff observed a bruise on Tumblin's face at her funeral, four 

days after the incident, the medical examiner saw no sign of a 

serious blow to her face and saw no evidence that the blow would 

have caused her to lose consciousness. In admitting that he 

struck Tumblin, Maddox said that while she stopped talking, her 

eyes remained opened. No evidence established that the blow 

caused Tumblin to lose consciousness. While it might be argued 

that, even under the circumstances, striking Tumblin in the face 

was a malicious act, nothing in the record proves that it was a 

lethal act. The blow itself did not kill Tumblin. The record 

fails to prove that it caused her to drown. 

 Maddox was rude and abusive in his conversation with rescue 

workers. Initially, he stated that he was alone in the truck. 

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Not until about fifteen minutes later did he acknowledge 

Tumblin's presence. He may, for any of several reasons, have 

denied Tumblin's presence, but it does not follow from that 

denial that he drowned her. 

 In talking with rescue workers, Maddox repeatedly stated 

that he had killed Tumblin. However, at the same time, he asked 

whether she was alright. Under the circumstances, including 

Maddox's own condition, these statements were just as consistent 

with a remorseful acknowledgment of responsibility for having 

placed Tumblin in peril as a confession of murder. 

 Maddox's statements that he had killed Tumblin were 

ambiguous and were not specific acknowledgments that he had 

drowned her. Only by applying an interpretation supplied by 

imagination can those statements be construed as acknowledgments 

that Maddox drowned Tumblin. Nothing in the record supplies 

that interpretation. Under the circumstances, including her 

hypothermia, Tumblin could have drowned other than through 

Maddox's agency. Other than the single blow, which left no 

significant mark, the record is devoid of evidence that she 

suffered violence. 

 The evidence is insufficient, as a matter of law, to 

support a finding that Maddox killed Tumblin maliciously. 

Reckless conduct, however gross, is not murder. See Essex v. 

Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216, 220 (1984). 

Without such a finding, the conviction of second degree murder 

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cannot stand. Accordingly, we reverse the murder conviction and 

remand to the trial court for further proceedings consistent 

with this opinion, if the Commonwealth be so advised. 

II. Admission of Relationship/Prior Bad Acts

 Maddox's next assignments of error relate to the admission 

of certain evidence. As these issues may arise in a future 

proceeding, we will address them briefly. Maddox contends that 

the trial court erred in admitting evidence: (1) that he was a 

"mad man" after he had been drinking, (2) that he and Tumblin 

were observed fighting during the spring of 1992 through fall 

1997, (3) that he had a drinking problem, (4) that he once tore 

up pieces of Tumblin's clothing, (5) that he was afraid of the 

magistrate, (6) that he had no fear of going to jail, (7) that 

he had brandished a shotgun and then shot at two inflatable 

animals, (8) that he carried a gun and would kill anyone who 

crossed him, (9) that he was on probation, (10) that he had 

prior DUI convictions, (11) that he was awaiting trial and 

sentencing on other unrelated crimes, (12) that he had attempted 

suicide, (13) that he had routinely degraded Tumblin, (14) that 

upon becoming angry, he had thrown automobile tags in Tumblin's 

face, (15) that he had been stopped the morning of Tumblin's 

death for speeding, and (16) that he often assaulted Tumblin 

verbally. 

 Maddox objected contemporaneously and properly at trial 

only to items, 2, 4, 7, and 14, all contained in the testimony 

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of Susan Fields. See Rule 5A:18. However, because any further 

proceedings will concern only whether Maddox committed 

manslaughter, evidence of his prior relationship with Tumblin 

will be irrelevant and should not be admitted. 

III. Admission of Refusal to Submit to Alkasensor Test

 Maddox finally contends that the trial court erred in 

admitting testimony that he refused an alkasensor test at the 

accident scene. We agree. 

 Maddox was indicted for aggravated involuntary 

manslaughter. The indictment specified that he: 

[B]y conduct so gross, wanton, and culpable 

as to show a reckless disregard for human 

life and as a result of driving under the 

influence of alcohol in violation of Section 

18.2-266(ii) of the Code of Virginia, 1950 

as amended, did, . . . feloniously and 

unintentionally cause the death of Evelyn 

Jane Tumblin in violation of Section 

18.2-36.1 of the Code of Virginia, 1950 as 

amended, against the peace and dignity of 

the Commonwealth. 

Thus, his operation of the Bronco while under the influence of 

alcohol, in violation of Code § 18.2-266(ii), was an element of 

the manslaughter charge lodged against him. 

 Code § 18.2-268.10 provides, in relevant part: 

In any trial for a violation of Section 

18.2-266 . . . 

 [t]he failure of an accused to permit a 

blood or breath sample to be taken to 

determine the alcohol or drug content of his 

blood is not evidence and shall not be 

subject to comment by the Commonwealth at 

the trial of the case, except in rebuttal; 

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nor shall the fact that a blood or breath 

test has been offered the accused be 

evidence or the subject of comment by the 

Commonwealth, except in rebuttal. 

Id.

 Because operating the Bronco while under the influence of 

alcohol is a specified element of the indictment, trial of the 

indictment would be trial of a charge under Code § 18.2-266(ii). 

Therefore, evidence that Maddox refused the alkasensor test 

should not be admitted if Maddox is retried for manslaughter. 

 Accordingly, we find the evidence insufficient as a matter 

of law to support Maddox's conviction of second degree murder, 

in violation of Code § 18.2-32. We reverse the judgment of the 

trial court, and remand the case for further proceedings in 

accordance with this opinion, if the Commonwealth be so advised. 

 Reversed and remanded.

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Frank, J., dissenting. 

 I respectfully disagree with the majority's holding that 

the evidence was insufficient to convict appellant of 

second-degree murder and that evidence of appellant's prior bad 

acts and relationship with the victim was inadmissible. 

 "In every criminal prosecution, the Commonwealth must prove 

the element of corpus delicti, that is, the fact that the crime 

charged has been actually perpetrated." Cherrix v. 

Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651 (1999) 

(citing Maughs v. City of Charlottesville, 181 Va. 117, 120, 23 

S.E.2d 784, 786 (1943)). If an accused has "fully confessed 

that he committed the crime, then only slight corroboration of 

the confession is required to establish corpus delicti beyond a 

reasonable doubt." Id. (citing Jackson v. Commonwealth, 255 Va. 

625, 646, 499 S.E.2d 538, 551 (1998)). "The corpus delicti of a 

homicide is proof of the victim's death from the criminal act or 

agency of another person." Swann v. Commonwealth, 247 Va. 222, 

236, 441 S.E.2d 195, 205 (1994) (citing Watkins v. Commonwealth, 

238 Va. 341, 348-49, 385 S.E.2d 50, 54 (1989)). Corpus delicti

may be established by circumstantial evidence. See Cochran v. 

Commonwealth, 122 Va. 801, 94 S.E. 329 (1917). 

 "Second degree murder is defined as a 'malicious killing' 

of another person." Lynn v. Commonwealth, 27 Va. App. 336, 351, 

499 S.E.2d 1, 8 (1998) (citing Turner v. Commonwealth, 23 Va. 

App. 270, 274, 476 S.E.2d 504, 506 (1996)). "The authorities 

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are replete with definitions of malice, but a common theme 

running through them is a requirement that a wrongful act be 

done 'wilfully or purposefully.'" Essex v. Commonwealth, 228 

Va. 273, 280, 322 S.E.2d 216, 220 (1984) (citing Williamson v.

Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)). In 

finding a defendant guilty of second-degree murder, whether the 

defendant acted with malice is a determination for the fact 

finder. See Jacobs v. Commonwealth, 132 Va. 681, 111 S.E. 90 

(1922). 

 I believe the evidence, viewed in the light most favorable 

to the Commonwealth, established the corpus delicti and 

supported the determination by the jury that appellant acted 

with malice. 

 Appellant was aware that the road was flooded. The road 

was barricaded and signs were posted that said, "Road Closed." 

Despite the apparent danger, appellant drove his vehicle onto 

the flooded roadway. When the rescue workers arrived at the 

scene, appellant tried to conceal the fact that the victim was 

in his vehicle, initially telling them he was alone. Fifteen 

minutes later, he lifted her body from behind the front seats of 

the vehicle and told several rescue workers that he killed her. 

Furthermore, he gave inconsistent statements to the police, 

telling one officer the victim drove the truck into the water 

and drowned while he attempted to get the truck started again 

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and telling another officer that he drove the truck into the 

water. 

 The victim's sister testified that appellant recounted the 

events leading up to the victim's death several times. 

Initially, he told the victim's sister that he hugged the victim 

and then climbed out of the vehicle to meet the rescue people. 

When he reached back into the vehicle the victim was floating. 

On another occasion, appellant told the victim's sister he hit 

the victim after she became hysterical when water started to 

flood the passenger compartment of the vehicle. Appellant said 

the victim fell over onto the seat after he hit her and did not 

speak again. Appellant set the victim up and she fell over 

again. Appellant told the victim's sister she drowned when she 

fell out of the seat. The jury was entitled to reject the 

conflicting accounts of the events and believe that appellant 

rendered the victim unconscious, which would cause her to drown. 

Furthermore, the jury was not required to accept appellant's 

statement that the victim was hysterical. See Pugliese v.

Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). 

 Further, the jury was entitled to reject the medical 

examiner's testimony that there was no sign the victim had been 

struck or that she had been rendered unconscious by a blow. 

Such testimony created a factual inconsistency, which is within 

the province of the jury. 

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 The majority holds that the evidence of appellant's prior 

bad acts and relationship with the victim will be inadmissible 

in further proceedings because it will be irrelevant to the 

charge of manslaughter. Because I believe that the evidence was 

sufficient to convict appellant of second-degree murder, I 

address this issue. As discussed by the majority, appellant 

properly objected to the admission of evidence that he and the 

victim were observed fighting during the spring of 1992 through 

fall 1997, that he once tore up pieces of the victim's clothing, 

that he brandished a shotgun at two inflatable animals, and that 

he threw automobile tags in the victim's face after becoming 

angry. 

 Generally, evidence of prior offenses 

is inadmissible because it "confuses the 

issue before the jury, unfairly surprises 

the accused with a charge he is not prepared 

to meet, and tends to prejudice him in the 

minds of the jury." 

 However, we have recognized specific 

exceptions to the rule. We have upheld the 

admission of evidence of prior offenses when 

offered to prove (1) premeditation, (2) 

absence of mistake or accident, (3) motive 

or intent, and (4) the conduct and feelings 

of the accused toward his victim. 

Smith v. Commonwealth, 239 Va. 243, 256, 389 S.E.2d 871, 878 

(1990) (internal citations omitted). 

 I believe the evidence of the fighting between appellant 

and the victim, the evidence that appellant tore up the victim's 

clothing, and the evidence that appellant threw automobile tags 

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in the victim's face is admissible to show his conduct and 

feelings toward her. This testimony belies appellant's claim 

that he loved the victim. 

 I would exclude the evidence that appellant shot at two 

inflatable animals. The evidence did not establish that the 

inflatable animals belonged to the victim or that she was 

present when he shot the gun. Therefore, I believe it was error 

to admit the evidence that appellant shot at the inflatable 

animals. 

 In Virginia, non-constitutional error 

is harmless "[w]hen it plainly appears from 

the record and the evidence given at the 

trial that the parties have had a fair trial 

on the merits and substantial justice has 

been reached." Code § 8.01-678 (emphasis 

added). "[A] fair trial on the merits and 

substantial justice" are not achieved if an 

error at trial has affected the verdict. 

Consequently, under Code § 8.01-678, a 

criminal conviction must be reversed unless 

"it plainly appears from the record and the 

evidence given at the trial that" the error 

did not affect the verdict. An error does 

not affect a verdict 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). 

 Because the evidence that appellant shot at the inflatable 

animals was offered to show the relationship between appellant 

and the victim, I believe the error was harmless. There was 

other evidence before the jury that the two had a stormy 

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relationship, which at times involved violence. Therefore, the 

evidence that appellant shot at the inflatable animals was 

merely cumulative and did not affect the jury's verdict. 

 Therefore, the evidence proved the corpus delicti and 

second-degree murder. Appellant concealed the victim from 

rescue personnel and then admitted killing her on numerous 

occasions. He also gave totally inconsistent statements to the 

police. Additionally, he admitted hitting her, which the jury 

was entitled to believe was to render her unconscious in the 

rising water. There was a history of fighting in the 

relationship, and there were specific acts of violence toward 

the victim by appellant. 

 The majority holds the evidence that appellant refused the 

alkasensor test should not be admitted if appellant is retried 

for manslaughter because operating the vehicle under the 

influence of alcohol is a specified element of the indictment 

and trial of the indictment would be a trial of a charge under 

Code § 18.2-266(ii). Because appellant was not convicted of 

manslaughter, I do not address this issue. 

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