COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Beales and Alston Argued at Richmond, Virginia

JAMES EDWARD WILLIAMS OPINION BY v. Record No. 0700-14-2 JUDGE WILLIAM G. PETTY JANUARY 20, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D’Alton, Jr., Judge Steven P. Hanna for appellant. Christopher P. Schandevel, Assi stant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

James Edward Williams was convicted of malicious wounding in violation of Code § 18.2-51. On appeal, Williams argues that the trial court erred in denying jury instructions for

the lesser-included offense of unlawful w ounding. We disagree and affirm Williams’s

conviction.

I. B ACKGROUND “When reviewing a trial court’s refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruc tion.” Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002). So viewed, the facts are as follows. Williams testified that on September 25, 2012, he went to a 7-11 convenience store with his companion, Delvon Brown. Initially, Brown en tered the store and Williams waited outside. When Williams entered the store to “ask [Brown] what was taking so long,” he saw Brown arguing with a female. With the female were the victim and another male. Williams and Brown then left the store; about one mi nute later, the victim left the st ore. Williams saw Brown “com[e]PUBLISHED- 2 - up to [the victim]” and “hit him” on the back of the head. After Brown hit the victim, Williams “walked around [the car] and went and got [a gun],” which was loaded, from under the seat of

the car. Williams admitted that the victim had done nothing to him or to Brown and that Williams was the only one who pulled out a gun during the incident. Williams testified that he fired shots “to scare” the victim “because [the victim], after [Brown] hit him, he was ready to fight back”—the victim “got upright like[,] like he was ready to defend hi[m]self.” The first shot

Williams fired hit the victim in his front lower torso, above the hip. Williams fired six additional shots as the victim was fleeing, none of which hit the victim.

Williams testified that he fired the shots b ecause he heard that a friend of his “just got murdered leaving a gas station. And was – wa s followed and gunned down.” The friend’s death had occurred in Atlanta, while Williams was in California, sometime between September 16, 2012 and September 23, 2012. 1 Williams testified as to his state of mind at the time of the shooting: The only thing I – the only th ing I was thinking about was my friend. That’s – that’s it. I wasn’t thinking about doing anything or hurting anybody. I was just thinking about [my friend] and the situation. I had just left his mom’s house, not even a couple hours ago. . . . That was in my mind the whole tim e. When this whole thing was going down. That’s what everyt hing that was going on in my mind. Williams testified that when he shot the gun he was “trying to scare [the victim and his friends]

out of the situation.”

1 Although Williams testified that the murder took place on September 16, 2012, both Williams’s fiancée and brother testified that the murder took place on approximately September 23, 2012. Of the two dates, only the earlier on e would accommodate Will iams’s testimony that he “cried for like a whole week before [he] even got on the plane” to travel from California to Virginia.- 3 - Williams was charged with malicious wounding in violation of Code § 18.2-51 and tried by jury. When the defense rested, Williams re newed his motion to strike the evidence. He conceded there was “ample sufficient evidence, qu ite frankly, for an unlawful wounding” charge, but “no sufficient evidence for any malicious wou nding charge.” The court denied the motion to strike, finding that it “d[id]n’t see any evid ence to support [unlawful wounding] as a lesser offense,” but finding that “[c]ertainly there [was] ample evidence to support [malicious wounding] as the offense as charged.” The cour t noted three facts: Williams testified his companion struck the victim first, Williams shot at the victim because Williams was afraid the victim would defend himself, and the first shot hit the victim in the middle of his body. Based on the same facts, the court subsequently denied three jury instructi ons on the lesser-included offense of unlawful wounding. Williams timely appealed the court’s denial of the jury instructions for unlawful wounding.

II. A NALYSIS Williams argues that the trial court erred in denying a jury instruction for the lesser-included offense of unlawful wounding. Willia ms concedes that there is no doubt that he committed a crime against the victim, but argues it wa s for the jury to determine if the crime was malicious or merely unlawful. Williams argues that evidence presented regarding Williams’s state of mind, specifically related to his grief and fear over the death of his friend, indicated a lack of malice, thereby entitling him to jury instructions on the lesser-included offense of unlawful wounding. We disagree.- 4 - A. Rules of Law On appeal, we review the trial court’s “broad discretion in giving or denying instructions requested” for an abuse of discretion. Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc). 1. Jury Instructions Must Be Supported by the Evidence “‘A reviewing court’s responsibil ity in reviewing jury instruct ions is to see that the law has been clearly stated and that the instructi ons cover all issues which the evidence fairly raises.’” Rhodes v. Commonwealth, 41 Va. App. 195, 200, 583 S.E.2d 773, 775 (2003) (quoting Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)). Although a

defendant “is entitled to an in struction upon his theory of the case,” this rule can be invoked “[o]nly when such inst ruction is supported by some appreciable evidence .” Harris v. Commonwealth, 134 Va. 688, 695, 114 S.E. 597, 600 ( 1922) (emphasis added); see Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990) (“A defendant is entitled to have the jury instructed only on those theories of the case that are supported by evidence.”). Additionally, “[m]ore than a scintilla of ev idence must be present to support an instruction.” Id.; see Buchanan v. Commonwealth, 238 Va. 389, 412, 384 S.E.2d 757, 771 (1989) (holding that the trial cour t did not err in denying a jury instruction for a lesser-included offense where the defendant “relie[d] on but a scin tilla of evidence to support his motion for [the lesser-included] instruction”); Le Vasse ur v. Commonwealth, 225 Va. 564, 590, 304 S.E.2d 644, 658 (1983) (“No instruction should be given unl ess it is supported by evidence, and such evidence must be more than a scintilla.”). “Thus , it is not error to refuse an instruction when there is no evidence to support it.” Co mmonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001).- 5 - This Court has avoided establishing a precise definition for the term “scintilla” because to do so would be “neither practical nor help ful.” Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563, 564 (1993). “Rather, the weight of the credible evidence that will amount

to more than a mere scintilla of evidence is a matt er to be resolved on a ca se-by-case basis.” Id. Furthermore, when the proposed jury inst ruction touches upon a lesser-included offense and there is any credible eviden ce in the record to s upport the instruction, “‘ failure to give the

instruction is reversible erro r.’” Id. at 412, 430 S.E.2d at 565 (quoting Boone v. Commonwealth , 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992)). Conversely, “[i]f the evidence is sufficient to support ‘a conviction of the crime charged, and there is no independent evidence warranting a conviction [of the lesser-included offense], an in struction on the lesser-included offense need not be given.’” Vaughn, 263 Va. at 36, 557 S.E.2d at 222-23 (second alteration in original) (emphasis added) (quoting Guss v. Commonwealth, 217 Va. 13, 14, 225 S.E.2d 196, 197 (1976)). The evidence must “provide the ne cessary quantum of independent evidence” to support an instruction on the lesser-included offense. Commonwealth v. Leal, 265 Va. 142, 147, 574 S.E.2d 285, 288 (2003). Further, the jury’s “abi lity to reject eviden ce does not supply the affirmative evidence necessary to support a jury in struction.” Vaughn, 263 Va. at 36, 557 S.E.2d at 223 (emphasis added); see Commonwealth v. Donkor, 256 Va. 443, 446-47, 507 S.E.2d 75, 77 (1998) (“[T]he jury’s ability to reject evid ence [does not operate] as a substitute for the evidentiary support required to gr ant a defendant’s request for an instruction on a lesser-included offense.”). Thus, for Williams to be entitled to a jury instruction on a lesser-included offense, he must provide independent, affirmative evidence supporting the absence of the element that distinguishes the charged offense from the lesser-included offense.- 6 - 2. Malice Distinguishes Malicious Wounding from Unlawful Wounding The jury convicted Williams of malicious wounding in violation of Code § 18.2-51. A defendant violates Code § 18.2-51 when he wounds or injures a victim “with the intent to maim, disfigure, disable, or kill” him. If the defe ndant acts with malice, he is guilty of malicious wounding, a Class 3 felony. See Code § 18.2-51. If he acts without malice—but still commits a legally unjustified wounding with the intent to maim, disfigure, disable, or kill—he is guilty of the lesser-included offense of unlawful wounding, a Class 6 felony. Shifflett v. Commonwealth, 221 Va. 191, 193, 269 S.E.2d 353, 354 (1980). “The element in malicious wounding that distinguishes it from unlawful wounding is malice, ” a state of mind that can be “expressed or implied” by the circumstances of the attac k. Hernandez v. Commonwealth, 15 Va. App. 626, 631, 426 S.E.2d 137, 140 (1993). To define malice, we may look to homicide law “[b]ecause the mental-state elements of unlawful wounding are the same as those of voluntary manslaughter.” Barrett v. Commonwealth, 231 Va. 102, 105, 341 S.E.2d 190, 192 (1986) (analyzing trial court’s refusal of jury instruction for unlawful wounding). “‘Malice is evidenced either wh en the accused acted with a sedate, deliberate mind, and formed desi gn, or committed a purposeful and cruel act without any or without great provocation.’” Robertson v. Commonwealth, 31 Va. App. 814, 823, 525 S.E.2d 640, 645 (2000) (quoting Branch v. Commonwealth, 14 Va. App. 836, 841, 419 S.E.2d 422, 426 (1992)). “A ‘common theme running through [the definitions of malice] is a requirement that a wrongful act be done wilfu lly or purposefully.’” Avent v. Commonwealth, 279 Va. 175, 202, 688 S.E.2d 244, 259 (2010) (alteration in original) (quoting Essex v. Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220 (1984)); see Epperly v. Commonwealth, 224 Va. 214, 231, 294 S.E.2d 882, 892 (1982) (“[M]alice is implied by law from any deliberate, willful, and cruel act against another, however sudden.”). Furthermore, “[m]alice may be- 7 - inferred ‘from the deliberate use of a deadly weapon unless, from all the evidence,’ there is

reasonable doubt as to whether malice existe d.” Avent, 279 Va. at 201-02, 688 S.E.2d at 259 (quoting Smith v. Commonwealth, 239 Va. 243, 263, 389 S.E.2d 871, 882 (1990)). 3. Heat of Passion Excludes Malice Deliberate and purposeful acts may nonetheless be done without malice if they are done in the heat of passion. “Heat of passion excl udes malice when provocat ion reasonably produces fear that causes one to act on impulse w ithout conscious reflection.’” Graham v. Commonwealth, 31 Va. App. 662, 671, 525 S.E.2d 567, 571 ( 2000). “‘Heat of passion’ refers to

‘the furor brevis which renders a man deaf to the voice of reason.’” Id. (quoting Caudill v. Commonwealth, 27 Va. App. 81, 85, 497 S.E.2d 513, 514-15 (1998)). Further, “[t]he law requires the simultaneous occurrence of both reasonable provocati on and passion.” Id. (emphasis added). Moreover, where it is not the victim of th e crime who provoked the defendant’s heat of passion, the evidence will not support a finding of heat of passion. Ar nold v. Commonwealth, 37 Va. App. 781, 789, 560 S.E.2d 915, 919 (2002) (citi ng Peeples v. Commonwealth, 30 Va. App. 626, 634, 519 S.E.2d 382, 386 (1999) (en banc) (concludi ng defendant’s “version of events did not support a claim that he acted in heat of passion upon reason able provocation” because “the perceived threat did not come from the victim”)). 2 Heat of passion requires reasonable

2 We note that courts in other jurisdictions have likewise conclude d that the defendant’s heat of passion must be provoked by the vic tim. See, e.g., MacKool v. State, 213 S.W.3d 618, 622 (Ark. 2005) (observing that Arkansas has “previ ously declined to rec ognize provocation by a third party as sufficient to require instructi ons on manslaughter” and holding that “manslaughter instruction was not appropriate in the absence of any proof of provocation from [the victim] herself”); State v. Follin, 947 P.2d 8, 16-17 (Ka n. 1997) (concluding “the trial court was under no obligation to instruct the ju ry on the lesser offense of voluntary manslaughter” where “the murderous actions were directed against pers ons innocent of any res ponsibility for provoking defendant”); Commonwealth v. LeClair, 840 N.E.2d 510, 515 (Mass. 2006) (rejecting the American Law Institute’s Model Penal Code § 210.3 (1980) and reaffirming Massachusetts’s- 8 - provocation, and, arguably, “a reasonable man woul d never be so greatly provoked as to strike out in blind anger at an innocent person.” 2 Wayne R. LaFave, Substantive Criminal Law § 15.2(g), at 511 (2d ed. 2003). Here, Williams was charged with malicious wounding and requested a jury instruction

for the lesser-included offense of unlawful wounding. “The elem ent in malicious wounding that distinguishes it from unlawful wounding is mali ce . . . .” Hernandez, 15 Va. App. at 631, 426 S.E.2d at 140. Therefore, if there was more th an a scintilla of evid ence supporting Williams’s claim that he acted without malice, i.e. in the he at of passion, when he shot the victim, then he was entitled to jury instructions on the lesse r-included offense of unlawful wounding. On the other hand, if there was sufficient evidence to support a conviction of malicious wounding, “and there [was] no independent evidence warrant ing a conviction [of unlawful wounding], an

instruction on the lesser-included offense” was not required. Vaughn, 263 Va. at 36, 557 S.E.2d at 222-23. Thus, if the trial court correctly determined that there wa s not more than a scintilla of

“well-established rule that evidence of provocatio n by a third party, rather than the victim of a homicide, is insufficient to wa rrant a voluntary manslaughter in struction”); State v. Vinso, 71 S.W. 1034, 1038 (Mo. 1903) (rejecting heat of pa ssion argument where victim “was in no manner responsible by word or act for the assu med violent passion”); State v. Bautista, 227 N.W.2d 835, 839 (Neb. 1975) (holding trial court did not err “in re fusing to instruct the jury further regarding reasonable provocation because there [was] no evidence in the record that the defendant was reasonably provoke d by the victim”); State v. Locklair, 535 S.E.2d 420, 425 (S.C. 2000) (“Provocation necessary to support a voluntary manslaughter charge must come from some act of or related to the vi ctim in order to constitute suffi cient legal provocation.”); State v. Tilson, 503 S.W.2d 921, 924 (Tenn. 1974) (refusing to expand voluntary manslaughter to include victim who was a “noncombatant by-stander” but “‘ on the side’ of the one actually provoking the fight”); State v. Turgeon, 676 A.2d 339, 342 (V t. 1996) (refusing to find reasonable provocation where defendant killed police offi cer after alleged provocation by wife). Furthermore, in unpublished opinions we have previously relied on our holding in Arnold that heat of passion requires reasonable provocation by the victim. See, e.g., Commonwealth v. Smith, No. 0985-12-3, 2012 Va. App. LEXIS 37 2 (Va. Ct. App. Nov. 20, 2012); Monroe v. Commonwealth, No. 2993-07-2, 2009 Va. App. LEX IS 111 (Va. Ct. App. Mar. 17, 2009); Smith v. Commonwealth, No. 2992-02-3, 2004 Va. App. LEXIS 213 (Va. Ct. App. May 4, 2004).- 9 - evidence to support Williams’s theo ry of heat of passion, then “it [was] not error to refuse [the] instruction.” Sands, 262 Va. at 729, 553 S.E.2d at 736. B. Application

“To resolve the issue of whether there was mo re than a mere scint illa of evidence tending to establish that [Williams acted without malice] so as to support an instruction on [unlawful wounding], we focus upon [Williams’s] account of the ev ents in question and view it in the light

most favorable to his assertions.” Brandau, 16 Va. App. at 412, 430 S.E.2d at 565. Based on Williams’s own testimony, he shot the victim after Brown hit the victim on the back of the head, in a completely unprovoked a ttack. Williams admitted that the victim was unarmed and that no one besides Williams pulled a gun out during the incident. Williams

testified that after Brown hit the victim, Williams walked around the car he had ridden in, retrieved a loaded gun from under the seat, and fired the gun. Williams admitted that after he injured the victim with the first shot fired, he co ntinued to fire the gun as the victim was trying to get away. He also admitted that he was not supposed to have a gun in his possession because he

is a convicted felon. Williams does not contest any of these facts, and based on these facts

malice can be inferred.

Malice can be inferred from the deliberate use of a deadly weapon unless, from all the evidence, there is a reas onable doubt as to whether malice existed. Avent, 279 Va. at 202, 688 S.E.2d at 259. Here, Williams admitted to the de liberate use of a deadly weapon. Moreover, “malice is implied by law from any deliberate, w illful, and cruel act against another, however sudden.” Epperly, 224 Va. at 231, 294 S.E.2d at 892. Here, Williams deliberately brought a loaded gun with him to the store even though he knew it was unlawful for him to do so. He deliberately and purposefully retrieved the gun fro m under the seat of the car and, knowing that it was loaded, pointed it toward th e victim and deliberately pulled th e trigger. He deliberately- 10 - continued to pull the trig ger as the victim was fleeing. Therefore, malice can be inferred from Williams’s deliberate acts against the victim. Although a jury may reject the in ference of malice, “the jury’s ability to reject evidence is not a substitute for the evidentiary support requ ired to grant a defendant’s request for an

instruction on a lesser-included offense. ” Donkor, 235 Va. at 446-47, 507 S.E.2d at 77. Williams was required to provide independent, af firmative evidence to rebut the inference of malice. This he simply failed to do. Williams argues that his deliberate act of firi ng multiple gunshots at the victim was done without malice, that is, in the heat of passi on. Heat of passion requires the simultaneous “reasonable provocation” by the victim and resu lting passion by the defendant, such that the defendant acts “on impulse without conscious reflection.” Graham, 31 Va. App. at 671, 525 S.E.2d at 571. As noted above, where it is not the victim of the crime who invoked the defendant’s heat of passion, heat of passion is not established. Arnold, 37 Va. App. at 789, 560 S.E.2d at 919 (finding that where “there was no evidence that Hasan, the victim, committed any action invoking fear and/or rage in Arnold, [there was] no error in the trial court’s refusal of the [voluntary manslaughter] instruction”). Here, W illiams admitted that the victim did nothing to invoke fear or rage in Williams . We must look to the “natur e and degree of the provocation,” Canipe v. Commonwealth, 25 Va. App. 629, 643, 491 S.E.2d 747, 753 (1997), but here Williams admitted there was no provocation from the victim at a ll. Rather, Williams attributed his fear to

the fact that he heard about a friend’s murder ni ne days earlier, in anot her state, by an unnamed assailant. Even if the news of his friend’s death caused Williams grief and fear, that fear was not a result of “reasonable provocation” by the victim . Nor did the fear, which was produced some days earlier, occur simultaneously with the shoo ting. Simply put, Williams’s deliberate acts of getting a loaded gun, bringing it to the store, retrieving it during th e incident, shooting the victim,- 11 - and continuing to fire as the victim was fleei ng all indicate a “deliberate mind and formed design” rather than “impulse without conscious reflection.” See Graham, 31 Va. App. at 672, 525 S.E.2d at 571 (finding “the evidence insufficien t as a matter of law to justify a heat of passion instruction” where the defendant testif ied that he “consciously abandoned his escape, armed himself, and started shooting,” and thus “acted upon reflection and deliberation” rather than “on sudden provocation or from passion”). Thus, Williams failed to provide more than a

scintilla of evidence that his acts were the re sult of heat of passi on rather than malice. Nevertheless, Williams stresses that his testimony that he did not intend to shoot the

victim showed evidence of lack of malice. 3 We disagree. Williams’s testimony that he intended “to scare [the victim and his friends] out of the s ituation” and that he “poi nted [the gun] towards the ground,” does nothing to negate the element of malice. Based on Williams’s testimony, his deliberate aiming of the gun with the purpose of scaring the victim rev eals that the act of shooting was done “with a sedate, deliberate mind, and formed design,” rather than “on impulse

without conscious reflection.” Finally, Williams contends that this Cour t’s decision in Miller v. Commonwealth, 5 Va. App. 22, 359 S.E.2d 841 (1987), controls this case. The two cases, however, are easily distinguishable. In Miller, this Court reversed the trial court’s denial of a jury instruction for unlawful wounding because the defendant produced ev idence at trial upon which the jury could find heat of passion. Id. at 26, 359 S.E.2d at 843. There was evidence that the fight was provoked by the victim, who thought the defendant had cheated the victim in a drug deal. Id.

3 Intent and malice are two separate elements of the offense. Both malicious wounding and unlawful wounding require “the intent to maim, disfigure, di sable, or kill.” Code § 18.2-51. Wounding without intent c onstitutes the lesser-included offense of assault and battery. Vaughn, 263 Va. at 35, 557 S.E.2d at 222. Because Williams di d not request an assault and battery jury instruction, Williams’s intent is not before us and is relevant on appeal only to the extent that it sheds light on the element of malice.- 12 - Witnesses testified that before the shooting, th e defendant was visibly upset and shouting for someone to give him a gun. Id. There was evid ence that “[a]fter he obtained the gun several people tried unsuccessfully to restrain him.” Id. From this evidence, we found there was sufficient evidence tending to suppor t the lesser-included offense, and the trial court therefore erred in refusing to give the jury instruction. Id. In contrast to the reversal in Miller, the Supr eme Court affirmed the tr ial court’s denial of a jury instruction for a le sser-included offense in Harris v. Commonwealth, 134 Va. 688, 694, 114 S.E. 597, 600 (1922), because the “shooting [was] unlawful and without reasonable provocation, and the evidence fail[ed] to disclose any circumstances of palliation, [thus] the jury were compelled to find, as a matter of fact, th at it was done with malice.” In Harris, the “accused’s own statement of how the shooting occurred fail[ed] to disclose that [the victim] did any act which could be construed to constitute a reasonable provocation for the shooting.” Id. The accused had a loaded gun with him. Id. Based on the evidence, the only “provocation” by

the victim was his statement that the accused shou ld not use profanity to a child. Id. at 692, 114 S.E. at 599. The Supreme Court concluded that wh ere “the court can see from the entire record that the jury could not properly ha ve returned a different verdict, ” it was unnecessary to address the trial court’s granting and re fusing of jury instructions. Id. at 694, 114 S.E. at 600. Here, as in Harris, Williams’s own testimony es tablishes that he shot the victim without reasonable provocation. As in Harris, and unlik e Miller, Williams conceded that neither the victim nor the victim’s friends did anything to provoke a reaction from Williams. Williams conceded that all the victim did was stand upright “like he was ready to defend hi[m]self.” As in Harris, and unlike Miller, Williams purposely had a loaded gun with him. In Miller, testimony that Miller was yelling and n eeded restraint indicated he wa s acting “upon impulse without

conscious reflection” and was re ndered “deaf to the voice of reason.” See Graham, 31 Va. App.- 13 - at 671, 525 S.E.2d at 571. In contrast, Williams pr ovided no evidence that at the time of the shooting there was any external manifestation that Williams was upset or under the sway of passion. As in Harris, the evidence failed to di sclose any circumstance at the time of the shooting that suggested a mitigation of Williams ’s deliberate and purposeful actions. Based on the evidence, the trial court correc tly concluded that the jury was compelled to find as a matter of

fact that Williams acted with malice. Thus, the evidence was sufficient to support a finding of malice, and Williams failed to provide independent, affirmative evidence of heat of passion. Therefore, instructions on the lesser-included offense of unlawful wounding were not required, and the co urt did not abuse its discretion in refusing them.

III. C ONCLUSION Because Williams did not produce more than a sc intilla of evidence to negate the element of malice, it was within the court’s discreti on to deny the jury in structions on unlawful wounding. Therefore, we affi rm Williams’s conviction.

Affirmed.