COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Frank and Kelsey 

Argued at Salem, Virginia 

BRIAN ALDEN KENNEMORE 

 OPINION BY 

v. Record No. 1442-06-3 JUDGE D. ARTHUR KELSEY 

DECEMBER 11, 2007 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Charles J. Strauss, Judge 

J. Patterson Rogers, 3rd, for appellant. 

Robert H. Anderson, III, Senior Assistant Attorney 

General (Robert F. McDonnell, Attorney General, on 

brief), for appellee. 

A jury convicted Brian Alden Kennemore of various violent crimes, including murder 

during the commission of arson. On appeal, Kennemore claims his felony murder conviction 

should be overturned because the trial court improperly instructed the jury about the necessary 

causal relationship between the arson and the victim’s death. We find no error in the trial court’s 

ruling and affirm Kennemore’s conviction. 

I. 

At 1:00 a.m. one night in 2005, Kennemore and a friend arrived at the home of Mark 

Alger and Jennifer Popa. After the four drank alcohol and used cocaine for about two hours, 

Kennemore and his friend left. At 7:00 a.m., Alger went to work. He returned that evening to 

find Popa dead in their bedroom. Her hands had been tied behind her back, and a cloth was tied 

around her head covering her mouth and nose. The lower half of her body was unclothed. A 

steak knife lay next to her head on the floor. Wrapped in a sheet and blanket, Popa had been set 

on fire. After burning Popa and melting the television and the mini-blinds, the fire extinguished 
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itself by consuming all of the oxygen in the home. Responding firefighters detected lingering 

gasoline fumes which had previously fueled the fire. 

DNA testing identified Kennemore as the likely perpetrator. Samples of his DNA were 

found on an abrasion on the victim, on the handle of the steak knife, on the cloth tied around the 

victim’s mouth and nose, and on the victim’s shirt. The odds of it being someone else’s DNA on 

the victim’s abrasion were 1 in 6 billion. Police arrested Kennemore and charged him with 

multiple felonies,1

 including arson and felony murder related to the arson. 

At trial, the coroner who performed the autopsy testified that Popa died by asphyxiation. 

She had been smothered to death by the cloth tied around her mouth and nose. The coroner 

believed Popa was dead by the time the “sooty fire was taking place.” The forensic evidence, 

however, left open the possibility that Popa was alive when the initial “flash fire” occurred. The 

“flash fire,” the coroner explained, could have quickly consumed much of the oxygen in the 

room and accelerated Popa’s death by asphyxia. 

Kennemore did not testify. At the close of the evidence, Kennemore’s counsel made a 

motion to strike on various grounds, including the sufficiency of the evidence offered in support 

of the felony-murder charge predicated on arson. Noting the coroner’s testimony about the 

effect of a “flash fire,” the trial court denied the motion to strike this charge. 

During the jury’s deliberations, the foreman submitted a written question to the trial 

court: “Referring to the charge of murder in the commission of arson, must the victim be alive at 

the time the fire is set or can they [sic] be already dead for the defendant to be guilty of this 

1

 The indictments charged Kennemore with breaking and entering with the intent to 

commit murder, rape, robbery, or arson (Code § 18.2-90); abduction with intent to defile (Code 

§ 18.2-48); premeditated murder (Code § 18.2-32); felony murder during the commission or 

attempted commission of arson (Code § 18.2-32); felony murder during the commission or 

attempted commission of an abduction (Code § 18.2-32); felony murder during the commission 

or attempted commission of burglary (Code § 18.2-32); and arson of an occupied dwelling (Code 

§ 18.2-77). 
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charge?” The trial court presented the question to the prosecutor and Kennemore’s counsel. The 

court suggested answering the question this way: “In the commission of arson as used in these 

instructions means a killing before, during or after arson or attempted arson where the killing is 

so closely related to the arson in time, place, and causal connection as to make it part of the same 

criminal enterprise.” Kennemore’s counsel objected, stating: 

The evidence in this case indicates that the deceased was either 

already dead at the time that the arson was committed and that the 

arson was committed for the purpose of hiding her death or 

concealing the manner of her death, or as the medical examiner 

testified, there is a possibility that it in fact was a contributor or 

the sole cause of her death from what was termed oxygen 

deprivation in a flash fire. Because the jury must decide between

those two alternative fact situations in determining whether or not 

the arson was the cause of her death, it is our position that the jury 

instruction unfairly could confuse the jury to believe that if the 

death were, occurred prior to the time of the arson separate, that it 

would permit them to find a verdict of guilty in this matter. 

J.A. at 206-07 (emphasis added). Kennemore’s counsel went on to argue that the confusing 

nature of the proposed instruction could be remedied: 

It’s our position, and we suggest to the Court that the statute and 

the case law which the Court has referred to means that the death 

has to be in some way connected with the arson and that would be 

for example if someone were killed in order to facilitate an arson, 

if someone intended to permit, to commit arson and then killed 

someone in order to be able to commit the crime of arson, that 

would be murder before but would still be within the arson. We 

don’t believe that the evidence in this case does fit that and we 

suggest to the Court that that is the only scenario in which that 

could apply. . . . 

Id. at 207. 

In short, Kennemore’s objection conceded the evidence would permit a rational jury to 

conclude that the flash fire contributed to Popa’s death. The specific objection was simply that 

such a contributing cause of death was not sufficiently “connected with the arson” in the same 

way that a killing “in order to facilitate an arson” would be. 
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The trial court rejected Kennemore’s objection and answered the jury’s question with the 

proposed instruction. The jury later returned guilty verdicts on various indictments, including 

the charge of felony murder during the commission or attempted commission of arson. 

II. 

On appeal, Kennemore claims the trial court’s instruction was “partially correct” but 

nonetheless “incomplete” because “it left out cause.” Appellant’s Br. at 13.2

 The prosecution, 

Kennemore argues, had to prove that Popa’s murder “occurred while the appellant was engaged 

in the arson.” Id. at 14 (emphasis in original). Kennemore interprets the question submitted by 

the jury to be an implied finding of fact that Popa’s death wholly preceded the arson or attempted 

arson, thus making it all the more important that the trial court’s instruction set out the causation 

test with analytical care. After surveying the res gestae precedents governing felony murder, 

Kennemore concludes the trial court’s instruction provided too little guidance on the required 

causal nexus and thereby confused the jury. We disagree. 

(a) JURY QUESTIONS & FINDINGS OF FACT

Kennemore’s argument starts with the assumption that the jury’s question represents an 

implicit finding that Popa had died prior to the commission or attempted commission of arson. 

We do not read it that way.3

 But, even if we did, we still would not characterize it as some sort 

 2

 We previously rejected the portion of Kennemore’s petition for appeal challenging the 

trial court’s denial of his motion to strike the felony-murder charge predicated on arson. On this 

issue, the petition provided “no argument or supporting legal authority” and consequently failed 

to warrant further appellate review. See Per Curiam Order at 8 (Jan. 19, 2007). At oral 

argument before us, Kennemore’s counsel conceded that a reasonable jury could have concluded 

from the evidence that the flash fire contributed in part to Popa’s death. We thus do not address 

the sufficiency of the evidence supporting the felony-murder charge predicated on arson. 

3

 The jury’s question appears to us as nothing more than what it purports to be — an 

inquiry asking whether there needs to be a causal connection linking the killing to the arson. 

Nothing in the text of the question or, for that matter, the context in which it was raised, implies 
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of finding of fact by the jury. A jury speaks only through its unanimous verdict. “The verdict, as 

finally agreed upon and pronounced in court by the jurors, must be taken as the sole embodiment 

of the jury’s act.” United States v. Espinoza, 338 F.3d 1140, 1148 (10th Cir. 2003) (citation 

omitted). We infer from a jury verdict only those factual findings which, by logical necessity, 

must have been made for the jury to reach the conclusion it did. See Jones v. Commonwealth, 

217 Va. 231, 233, 228 S.E.2d 127, 128-29 (1976) (attributing to the jury only those findings of 

fact “necessarily” subsumed in the verdict). 

 In Virginia, as elsewhere, the deliberations of jurors “during retirement, their 

expressions, arguments, motives, and beliefs, represent that state of mind which must precede 

every legal act and is in itself of no jural consequence.” 8 Wigmore, Evidence § 2348, at 680 

(McNaughton rev. 1961) (emphasis added). A question posed to the court during deliberations, 

after all, could suggest as little as the tentative views of a single juror. It cannot be extrapolated 

into a binding factual finding by the jury as a whole. Espinoza, 338 F.3d at 1148 (applying the 

Wigmore principle and refusing “to consider the jury’s note to the trial judge as evidence of how 

the jury arrived at its verdict” because the “jury speaks through its verdict”). 

(b) THE TRIAL COURT’S RES GESTAE INSTRUCTION

No matter how one interprets the jury’s question, Kennemore argues, the trial court’s 

instruction — taken directly from Haskell v. Commonwealth, 218 Va. 1033, 243 S.E.2d 477 

(1978) — was nonetheless an incomplete and confusing summary of the res gestae doctrine. We 

again disagree. 

The felony-murder doctrine “originated at common law,” Commonwealth v. Montague, 

260 Va. 697, 700, 536 S.E.2d 910, 912 (2000), with antecedents recognized as long ago as 

 

a discrete factual finding on the precise moment of Popa’s death or its causal relationship to the 

initial “flash fire.” 
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Blackstone, 4 Commentaries on the Laws of England 200-01 (1769), and Lord Coke, 3 Institutes 

of the Law of England 56 (1797). Under common law, a defendant’s “commission of a felony of 

violence manifests a person-endangering frame of mind such that malice may be imputed to the 

act of killing.” Cotton v. Commonwealth, 35 Va. App. 511, 515, 546 S.E.2d 241, 243 (2001) 

(quoting John L. Costello, Virginia Criminal Law and Procedure § 3.4-3, at 33 (2d ed. 1995) 

(footnote omitted)). When the killing takes place during the commission of arson, Code 

§ 18.2-32 punishes the killing as first-degree murder. Code § 18.2-32 applies both to 

“unintentional” and intentional killings. Ball v. Commonwealth, 221 Va. 754, 757, 273 S.E.2d 

790, 792 (1981). 

Inherent in the felony-murder doctrine is the res gestae limitation. It focuses on whether 

the killing and the felony were “closely related in time, place, and causal connection” to permit 

the conclusion that there “was a continuity of evil action.” Haskell, 218 Va. at 1043, 243 S.E.2d 

at 483 (finding res gestae satisfied where the defendant killed a victim of an attempted robbery 

in an effort to protect the defendant’s way of escape); see also Pope v. Netherland, 113 F.3d 

1364, 1369 (4th Cir. 1997) (applying Haskell’s restatement of res gestae doctrine). 

“The rule which we adopt,” the Virginia Supreme Court has declared, “is that the felonymurder statute applies where the killing is so closely related to the felony in time, place, and 

causal connection as to make it a part of the same criminal enterprise.” Haskell, 218 Va. at 

1043-44, 243 S.E.2d at 483 (refusing to limit res gestae to the elements of the felony); see also

Montague, 260 Va. at 701, 536 S.E.2d at 913; see generally Ronald J. Bacigal, Criminal 

Offenses and Defenses 338 (2007). If the felony and the killing are “inextricably interwoven” in 

this way, they conjoin for purposes of the res gestae doctrine. Haskell, 218 Va. at 1043, 243 

S.E.2d at 483. 

Within the res gestae “continuity of evil action,” id., it does not matter whether the 

killing precedes the felony or follows it. See id. at 1041, 243 S.E.2d at 482 (discussing, with 
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approval, the general rule that “a killing within the res gestae of the felony is felony-murder, 

whether the killing occurs before or after the felony”). If the events are sufficiently related, the 

killing can take place “before, during, or after” the felony. Hoke v. Netherland, 92 F.3d 1350, 

1363 (4th Cir. 1996) (citation omitted); see Harward v. Commonwealth, 229 Va. 363, 366, 330 

S.E.2d 89, 91 (1985) (noting that the statutory phrase “in the commission of” includes a killing 

“before, during, and after the underlying felony” (emphasis in original)).4 Thus, under the 

prevailing view, the res gestae doctrine 

embraces not only the actual facts of the transaction and the 

circumstances surrounding it, but the matters immediately 

antecedent to and having a direct causal connection with it, as well 

as acts immediately following it and so closely connected with it as 

to form in reality a part of the occurrence. 

Rollin M. Perkins, Criminal Law 42-43 (2d ed. 1969) (citation omitted). 

Here, the trial court’s instruction fairly restated the governing principles of the res gestae

limitation on the felony-murder doctrine. The instruction explained that the killing could take 

place “before, during or after” the arson if the killing was “so closely related to the arson in time, 

place, and causal connection as to make it a part of the same criminal enterprise.” It was 

unnecessary for the trial court to give a more elaborate restatement of the res gestae conceptual 

boundaries. We find nothing in the brevity or clarity of the instruction to suggest, as Kennemore 

does, that the jury could find him guilty without any showing of causal connection between the 

 4 See, e.g., George v. Commonwealth, 242 Va. 264, 277-78, 411 S.E.2d 12, 20 (1991) 

(“Murder in the commission of robbery is a killing which takes place before, during, or after the 

robbery and is so closely related thereto in time, place, and causal connection as to make the 

killing part of the same criminal enterprise as the robbery.”); Whitley v. Commonwealth, 223 

Va. 66, 73, 286 S.E.2d 162, 166 (1982) (applying principle where the killing preceded the 

felony, permitting the inference that the latter motivated the former); Bassett v. Commonwealth, 

222 Va. 844, 855-56, 284 S.E.2d 844, 851-52 (1981) (“In a robbery prosecution, where the 

violence against the victim and the trespass to his property combine in a continuing, unbroken 

sequence of events, the robbery itself continues as well for the same period of time. . . . [W]e 

hold that the killing involved here was so closely related in time, place and causal connection to 

make the killing, as a matter of law, a part of the same criminal enterprise.” (citation omitted)). 
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killing and the arson or attempted arson. Nor do we think the instruction somehow misled the 

jury by giving them an incomplete explanation of their factfinding task. 

Our task on appeal is to “ensure that the law has been ‘clearly stated’ and that the 

‘instructions cover all issues’ fairly raised by the evidence.” Mouberry v. Commonwealth, 39 

Va. App. 576, 581-82, 575 S.E.2d 567, 569 (2003) (citation omitted). No instruction “should be 

given that ‘incorrectly states the applicable law or which would be confusing or misleading to 

the jury.’” Id. (quoting Bruce v. Commonwealth, 9 Va. App. 298, 300, 387 S.E.2d 279, 280 

(1990)). “The purpose of any jury instruction is to inform the jury of the law guiding their 

deliberations and verdict.” Morgan v. Commonwealth, 50 Va. App. 120, 132, 646 S.E.2d 899, 

905 (2007) (citation omitted). 

It is true brevity can sometimes mask incomplete thinking. But it is more often true that 

verbosity parades confused thinking. Instructions to juries, therefore, should be succinct and 

clear — leaving nothing unsaid which needs to be said, while saying no more than necessary.5 

We rely heavily on the instincts of trial judges on where to draw that line. As the United States 

Supreme Court has explained: 

Once the judge has made an accurate and correct charge, the extent 

of its amplification must rest largely in his discretion. The trial 

judge, in the light of the whole trial and with the jury before him, 

may feel that to repeat the same words would make them no more 

clear, and to indulge in variations of statement might well confuse. 

How far any charge on technical questions of law is really 

understood by those of lay background would be difficult to 

 5

 See Williams v. Blue Bird Cab Co., 189 Va. 402, 407, 52 S.E.2d 868, 870 (1949) (“The 

object of instructions is to impartially inform the jury in clear, concise and succinct language of 

the principles and rules of law applicable to the case . . . .”); Gottlieb v. Commonwealth, 126 Va. 

807, 813, 101 S.E. 872, 874 (1920) (advocating “simple, impartial, clear, concise statement of 

the law” instructions because “such instructions aid juries in reaching right conclusions, while 

many others which unfortunately have received judicial sanction are couched in technical 

language of doubtful meaning and with their obscurities, refinements, distinctions, 

contradictions, hypotheses and tergiversations serve only to confuse, mystify and mislead jurors, 

while they likewise furnish unnecessary and unprofitable exercise for the judges”). 
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ascertain, but it is certainly more evident in the living scene than in 

a cold record. 

United States v. Bayer, 331 U.S. 532, 536-37 (1947). 

The trial court’s res gestae instruction in this case compromised none of these principles. 

The instruction fairly addressed the causation nexus and did not understate the importance of this 

limitation of the res gestae doctrine. The trial court “was within its area of discretion in his 

brevity.” See id. at 537. We thus reject Kennemore’s challenge to the accuracy or completeness 

of the instruction. 

III. 

Finding no error in the res gestae instruction given by the trial court in response to the 

jury’s question, we affirm Kirby’s conviction for felony murder during the commission or 

attempted commission of arson. 

 Affirmed.