574 S.E.2d 775

#### Christopher Charles GAINES, v. COMMONWEALTH of Virginia.

Record No. 0839-01-1.

Court of Appeals of Virginia, Richmond.

Jan. 14, 2003.

*565Keith Loren Kimball (Colgan, Kimball & Carnes, on brief), Virginia Beach, for appellant.

Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on briefs), for appellee.

Present: FITZPATRICK, C.J., BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, CLEMENTS, FELTON, AGEE and KELSEY, JJ.

UPON A REHEARING EN BANC

BUMGARDNER, Judge.

A jury convicted Christopher Charles Gaines of manslaughter on an indictment for first degree murder. It also convicted him of the use of a firearm while committing murder. The defendant only appealed his conviction of the firearm charge, which a divided panel of this Court reversed. *Gaines v. Commonwealth,*38 Va.App. 326, 563 S.E.2d 410 (2002). We granted the Commonwealth a rehearing *en bane*and stayed the mandate of that decision. Upon rehearing *en banc,*we affirm the conviction.

The murder and firearm charges arose from a dispute that began when the defendant felt cheated in a drug purchase. The argument with his suppliers ended when the defendant shot the victim in his back at a distance of 98 feet. The single shot was lethal. The defendant contends the trial court erred by refusing an instruction intended to prevent inconsistent verdicts.1

*566The finding instruction on first degree murder followed the format suggested in Model Jury Instructions — Criminal Instruction 38.700. It stated the elements of first degree murder in outline form using a separate numbered clause for each element. It also defined the lesser-included offenses by reference to the presence or absence of one of those clauses. The instruction outlined the elements of both degrees of manslaughter. The trial court gave separate instructions defining malice and explaining that malice was the difference between murder and manslaughter.

The finding instruction on use of a firearm while committing murder also followed the format suggested in Model Jury Instructions — Criminal.2 It stated the two elements of the offense in separate numbered clauses. The offense consists of two elements: (1) use of a firearm; (2) while committing murder, rape, robbery, burglary, or abduction. *Yarborough v. Commonwealth,*247 Va. 215, 218, 441 S.E.2d 342, 344 (1994); *Davis v. Commonwealth,*4 Va.App. 27, 30, 353 S.E.2d 905, 907 (1987). The instruction must specify one of the designated felonies. *Bundy v. Commonwealth,*220 Va. 485, 488, 259 S.E.2d 826, 828 (1979).

The instruction given to the jury was a correct finding instruction for the facts of this case. It was an accurate and precise statement of the law. It specified the burden of proof and the degree of proof, it listed each element of the offense, and it defined the verdicts dictated by the possible alternative findings of fact. The instruction was not misleading or confus*567ing. The defendant acknowledges the instruction as given was a correct statement of the law, and he does not contend that his revision modified its statement of the substantive law.

The instruction given succinctly stated that to convict the defendant of the firearm offense, the jury must find he was committing murder. The instruction did not permit inconsistent verdicts. Instructions should be “simple, impartial, clear and concise----” *Bryant v. Commonwealth,*216 Va. 390, 392, 219 S.E.2d 669, 671 (1975). When they are, they do not need clarification. *Joseph v. Commonwealth,*249 Va. 78, 89-90, 452 S.E.2d 862, 869-70 (1995).

A trial judge does not abuse his discretion by failing to modify a correct statement of the law on the mere chance that a jury may not follow clearly written instructions. We presume the jury will understand, *Rinehart & Dennis Co. v. Brown,*137 Va. 670, 680, 120 S.E. 269, 272 (1923), and will follow their instructions, *LeVasseur v. Commonwealth,*225 Va. 564, 589, 304 S.E.2d 644, 657 (1983).

The defendant proffered a minor modification to the instruction that appended the parenthetical phrase “(not manslaughter)” to the second element of proof. The defendant maintained the modification was a clearer statement of the law because it would prevent the possibility of inconsistent verdicts.

The modification adopted the precise wording of the original instruction,3 and only amended it by stating the antithesis. It appended a negative formulation to the affirmative statement of an element of proof. While the modification restated as a negative that which was already stated in the affirmative, it added no substance, no refinement, no nuance to the principle of law. *Cf. Dowdy v. Commonwealth,*220 Va. 114, 116, 255 S.E.2d 506, 508 (1979) (error to refuse to instruct on elements of shooting offense); *Martin v. Commonwealth,*218 Va. 4, 7, *568235 S.E.2d 304, 305 (1977) (error to refuse instruction that defendant has no burden of proof when he raised the defense of accident because Commonwealth has burden to prove killing not an accident).

The defendant’s instruction was no more or less correct than the instruction given. While it “was a correct statement of the legal principles involved and the trial court, in its discretion, could properly have given the instruction, it does not follow that it was reversible error to refuse it.” *Lincoln v. Commonwealth,*217 Va. 370, 375, 228 S.E.2d 688, 692 (1976). ‘When granted instructions fully and fairly cover a principle of law, a trial court does not abuse its discretion in refusing another instruction relating to the same legal principle.” *Stockton v. Commonwealth,*227 Va. 124, 145, 314 S.E.2d 371, 384 (1984). *See also Joseph,*249 Va. at 90, 452 S.E.2d at 870; *Eaton v. Commonwealth,*240 Va. 236, 255, 397 S.E.2d 385, 396 (1990).

The instructions clearly stated that murder was necessary to convict for the firearm charge. The defendant chose not to argue that to the jury. He did not request a separate cautionary instruction explaining that if the jury acquitted of murder, it must acquit of the firearm charge. As noted in *Wolfe v. Commonwealth,*6 Va.App. 640, 645, 371 S.E.2d 314, 316 (1988), “there are sound tactical reasons why aii accused would not desire such an instruction and thus permit the jury to show leniency in convicting him of a lesser included offense of the primary felony; i.e., in this case voluntary manslaughter rather than murder.”

“The trial judge has broad discretion in giving or denying instructions requested.” John L. Costello, *Virginia Criminal Law and Procedure*§ 60.6-8, 810 (2d ed.1995). It was not an abuse of discretion to fail to give a cautionary instruction *sua sponte*in this case because tactically the defendant may not have wanted the point emphasized. “A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.’ ” *Darnell v. Commonwealth,*6 Va.App. 485, 488, 370 S.E.2d 717, *569719 (1988) (quoting *Swisher v. Swisher,*223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)).

General verdicts permit the existence of inconsistent verdicts. A jury may acquit of the primary charge, but the findings necessary to make that decision logically prohibit a finding of guilt on a secondary charge. When deciding the primary charge, the jury found something not true that must be true to establish the secondary charge.

A separate instruction would have been one proper way to instruct the jury on the problem of inconsistent verdicts. The instruction needed to compel the logical relationship between the elements of the primary and the secondary offenses as defined in the respective finding instructions. The possibility of inconsistent verdicts would have been avoided with an instruction that linked the two charges: if you find the defendant not guilty of murder, then you shall find him not guilty of use of a firearm while committing murder.

The defendant tried to address the problem by modifying the finding instruction for the secondary charge. He specified one possible negative to the preceding affirmative declaration, but that did not effectively guide the jury. A finding instruction must be complete in itself! *Outlaw v. Pearce,*176 Va. 458, 469, 11 S.E.2d 600, 605 (1940). Such a modification would need to list every alternative that applied to the case. In this case, it should have listed the not guilty alternative as well as lesser-included offenses. Even if the two word modification was sufficient, that technique would create problems in many cases. The list of negative alternatives could easily be lengthy and turn a precise statement of law into a cluttered and confusing one. The defendant’s instruction was not a proper way to address the problem that he sought to avoid, and he chose not to request a separate cautionary instruction.

Finally, the defendant contends the trial court erred in failing to set aside the firearm conviction.4 He does not *570challenge the sufficiency of the evidence, and he acknowledges that inconsistent verdicts have been approved. He argues that they cannot be approved in this case because the trial court erred in not granting his instruction. Because we have concluded the trial court did not err in refusing the defendant’s instruction, the premise of the argument fails and cannot form the basis for overturning the verdict.

Consistency in jury verdicts is not required. *Dunn v. United States,*284 U.S. 390, 394, 52 S.Ct. 189, 76 L.Ed. 356 (1932).

> Inconsistent verdicts ... present a situation where “error,” in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the [Commonwealth] is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.

*United States v. Powell,*469 U.S. 57, 65, 105 S.Ct. 471, 477, 83 L.Ed.2d 461 (1984). Moreover, because Virginia is “ ‘more careful than most states to protect the inviolability and secrecy of jurors’ deliberations,’ a court, in a case like this, is unlikely to discover what motivated the jury.” *Reed v. Commonwealth,*239 Va. 594, 598, 391 S.E.2d 75, 77 (1990) (affirming conviction of use of firearm during commission of robbery when defendant is acquitted of robbery) (quoting *Caterpillar Tractor Co. v. Hulvey,*233 Va. 77, 82, 353 S.E.2d 747, 750 (1987)). *See also Wolfe,*6 Va.App. at 650, 371 S.E.2d at 319-20 (affirming convictions of voluntary manslaughter and use of a firearm in the commission of murder); *Gray v. Commonwealth,*28 Va.App. 227, 233, 503 S.E.2d 252, 255 (1998) (affirming convictions of involuntary manslaughter and use of a firearm in the commission of murder).

We conclude the trial court did not err in refusing the defendant’s instruction or in refusing to set aside the firearm conviction. Accordingly, we affirm.

*Affirmed.*

1

. The court granted Instruction 21, which provided, in part:

> The Court instructs the jury that the defendant is charged with the crime of using a firearm while committing or attempting to commit murder. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

> (1) That the defendant used a firearm; and (2) That the use was while committing or attempting to commit murder [ (not manslaughter) ].*

> *566If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty----

*

 The defendant’s proposed modification appears in brackets.

2

. The instruction was crafted from Instruction G18.700. That format appeared in *Johnson v. Commonwealth, 20*Va.App. 547, 549-50, 458 S.E.2d 599, 600 (1995) *(en banc).*Though that appeal addressed a situation involving inconsistent verdicts, the decision never suggested that the pattern instruction was incorrect or incomplete, nor did it suggest the instruction was a proper vehicle for instructing about inconsistent findings.

3

. Both instructions referred to an attempt to commit murder though the facts did not fit that alternative. If the inclusion of those words was error, it was either invited or objection was waived.

4

. The panel opinion did not reach this argument since it found reversible error on the first issue.

*571FITZPATRICK, Chief Judge, with whom ELDER and BENTON, JJ.,

join, dissenting.

I respectfully disagree with the majority and, therefore, I dissent.

“On appeal, when the issue is a refused jury instruction, we view the evidence in the light most favorable to the proponent of the instruction.” *Lynn v. Commonwealth,*27 Va.App. 336, 344, 499 S.E.2d 1, 4-5 (1998), *aff'd,*257 Va. 239, 514 S.E.2d 147 (1999). “A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.’ ” *Darnell v. Commonwealth,*6 Va.App. 485, 488, 370 S.E.2d 717, 719 (1988) (citation omitted).

> Virginia law regarding inconsistent verdicts is well settled. As this Court has held, “[t]he fact that verdicts may, on their face, arguably appear inconsistent does *not*provide a basis to reverse either conviction on appeal, provided the evidence is sufficient to support each verdict.” *Pugliese v. Commonwealth,*16 Va.App. 82, 96, 428 S.E.2d 16, 26 (1993) (citing *United States v. Powell,*469 U.S. 57, 66, 105 S.Ct. 471, 477, 83 L.Ed.2d 461 ... (1984) (emphasis added)). “Jury verdicts may appear inconsistent because the jury has elected through mistake, compromise, or lenity to acquit or to convict of a lesser offense for one charged crime that seems in conflict with the verdict for another charged offense.” *Pugliese,*16 Va.App. at 96, 428 S.E.2d at 26.

*Tyler v. Commonwealth,*21 Va.App. 702, 708, 467 S.E.2d 294, 296 (1996) (footnote omitted). A trial court, however, should not give a jury instruction “which incorrectly states the applicable law or *which would be confusing or misleading to the jury.” Bruce v. Commonwealth,*9 Va.App. 298, 300, 387 S.E.2d 279, 280 (1990) (emphasis added).

Gaines attempted to prevent an inconsistent jury verdict by including in his proffered instruction a qualification or modification to the model jury instruction which more clearly told the jury that in order to find him guilty of use of a firearm during the commission of murder, it must conclude that he *572committed murder and not manslaughter. I agree with the majority that Gaines’s instruction could have been more artfully drafted as a separate instruction that “linked the two charges” and specifically stated, “if you find the defendant not guilty of murder, then you shall find him not guilty of the use of a firearm charge while committing murder.” Gaines’s proffered instruction, however, properly states the law and covers the factual scenario at bar.

In pertinent part, Code § 18.2-53.1 provides that:

> It shall be unlawful for any person to use or attempt to use any ... firearm or display such weapon in a threatening manner while committing or attempting to commit murder, rape, forcible sodomy, inanimate or animate object sexual penetration as defined in § 18.2-67.2, robbery, carjacking, burglary, malicious wounding as defined in § 18.2-51, malicious bodily injury to a law-enforcement officer as defined in § 18.2-51.1, aggravated malicious wounding as defined in § 18.2-51.2, malicious wounding by mob as defined in § 18.2-41 or abduction.

A violation of the statute only occurs when a firearm is used during the commission of the specified felonies and does not occur if the predicate felony is manslaughter rather than murder. *See Bundy v. Commonwealth,*220 Va. 485, 488, 259 S.E.2d 826, 828 (1979). By specifically requesting an instruction that told the jury a violation of the statute would not occur if the jury believed Gaines had committed manslaughter and not murder, Gaines stated the applicable law clearly and also attempted to avoid the confusion that resulted from using the model instruction in this case.

In *Gray v. Commonwealth,*28 Va.App. 227, 503 S.E.2d 252 (1998), we affirmed a similarly inconsistent verdict after the jury acquitted Gray of murder but found him guilty of the use of a firearm in the commission of murder. In that case, however, defense counsel did not object to the use of the model jury instruction at the guilt phase and did not proffer an instruction that more precisely stated the law to prevent the recurring problem of inconsistent verdicts. The question *573in *Gray*was only whether “the trial court erred in refusing to instruct the jury, while it was deliberating during the sentencing phase, that if it acquitted [Gray] of murder, it should not find him guilty of’ the firearm charge. *Id.*at 229-30, 503 S.E.2d at 253. We held that “the jury did not possess the authority to revisit the findings of guilt” and, therefore, the trial judge did not err in refusing to instruct the jury that it could reconsider at the sentencing phase its prior guilt verdict. *Id.*at 234, 503 S.E.2d at 255.

In *Wolfe v. Commonwealth,*6 Va.App. 640, 371 S.E.2d 314 (1988), we also affirmed the inconsistent jury verdicts of voluntary manslaughter and use of a firearm in the commission of murder. In that case we concluded that mere inconsistency of verdicts did not bar Wolfe’s conviction of use of a firearm in the commission of murder. *Id.*at 650, 371 S.E.2d at 319. We also specifically “not[ed] that Wolfe did not seek a cautionary instruction that if the jury acquitted him of murder, they should then find him not guilty of use of a firearm in the commission of murder.” *Id.*at 645, 371 S.E.2d at 316. This case is distinguishable from both *Gray*and *Wolfe*because Gaines attempted, to no avail, to prevent the same inconsistent result by proffering an instruction that more accurately stated the law than the one proffered by the Commonwealth and given by the trial court.

By refusing Gaines’s instruction, the trial court abused its discretion. Had the trial court granted appellant’s requested instruction, the jury would have been precisely instructed, consistent with the law, that it could not find Gaines guilty of use of a firearm in the commission of murder when it acquitted him of murder and found him guilty of the offense of manslaughter. Thus, I would reverse and dismiss the conviction.

BENTON, Judge,

dissenting.

I fully concur in the dissenting opinion. I write separately only to note that this case dramatically demonstrates why an instruction offered to prevent inconsistent verdicts should be *574granted whenever multiple charges present a realistic possibility of inconsistent verdicts.

The finding instruction on the firearm charge did not inform the jury that it is applicable only if the jury convicted Gaines of murder or attempted murder. Thus, the judge’s failure to instruct the jury, as requested by Gaines, that a finding of manslaughter required the jury to find Gaines not guilty of the firearm charge had the effect of creating an ambiguity because Instruction 18 informed the jury as follows:

> The Court instructs the jury that you are instructed that it is unlawful for any person to handle recklessly any firearm so as to endanger the life, limb or property of any person.

In short, the jury had a basis upon which to infer, contrary to the provisions of Code § 18.2-53.1, that because Gaines handled a firearm unlawfully while committing manslaughter, Gaines was also guilty of the firearm offense.

The overriding purpose of jury instructions is to inform the jury of the applicable law in a manner that will aid the jury in reaching a proper verdict. *See Cooper v. Commonwealth,*2 Va.App. 497, 500, 345 S.E.2d 775, 777 (1986). Thus, the Supreme Court has “frequently held that the giving of instructions which are confusing or which tend to mislead the jury because of ambiguity or for any other reason is reversible error.” *State Highway & Transp. Comm’r v. Allmond,*220 Va. 235, 241-42, 257 S.E.2d 832, 836 (1979). *See also Simmons v. Adams,*202 Va. 926, 932, 121 S.E.2d 379, 383-84 (1961); *Scott’s Executor v. Chesterman,*117 Va. 584, 615, 85 S.E. 502, 512-13 (1915). In addition, “when a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter.” *Jimenez v. Commonwealth,*241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). This means the judge has an obligation to amend, if necessary, the proffered instruction. *Bryant v. Commonwealth,*216 Va. 390, 393, 219 S.E.2d 669, 671-72 (1975); *Blevins v. Commonwealth,*209 Va. 622, 628, 166 S.E.2d 325, 330 (1969). The trial judge commits error by not instructing *575the jury on a matter when, in the absence of such instruction, the jury may make findings based upon a mistaken belief of the law. *See Martin v. Commonwealth,*218 Va. 4, 7, 235 S.E.2d 304, 305 (1977) (per curiam).

Accordingly, I would reverse the conviction and dismiss the indictment.