COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Bray 

Argued at Richmond, Virginia 

ERIC DONNELL SAUNDERS 

 OPINION BY 

v. Record No. 1929-98-2 JUDGE RICHARD S. BRAY 

 JANUARY 18, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY 

Robert G. O'Hara, Jr., Judge 

 (Andrew E. Weaver; Traylor, Morris & Wornom, 

on brief), for appellant. Appellant 

submitting on brief. 

 (Mark L. Earley, Attorney General; Eugene 

Murphy, Assistant Attorney General, on 

brief), for appellee. Appellee submitting on 

brief. 

 Eric Donnell Saunders (defendant) was convicted by a jury for 

"writ[ing] or compos[ing] and send[ing]" a letter to another 

"containing a threat to kill or do bodily injury" to such person, 

a violation of Code § 18.2-60(A). On appeal, he complains that 

the trial court erroneously refused to instruct the jury on the 

element of malice. We disagree and affirm the conviction. 

 Code § 18.2-60(A) provides, in pertinent part: 

 If any person write or compose and also 

send or procure the sending of any letter 

. . . , so written or composed, . . . to any 

person, containing a threat to kill or do 

bodily injury to the person to whom such 

letter or communication was sent or to kill 

or do bodily injury to any member of his or 

her family, the person so writing or 
composing and sending or procuring the 

sending of such letter or communication 

shall be guilty of a Class 6 felony. 

 Accordingly, the court instructed the jury, in pertinent 

part: 

 The defendant is charged with the crime 

of threatening bodily injury to another 

person. The Commonwealth must prove beyond 

a reasonable doubt the following elements of 

that crime: (1) That the defendant wrote or 

composed a letter or written communication 

signed or unsigned to [another]; and 

(2) That the letter or written communication 

contained a threat to do bodily harm to 

[such other] or his family; and (3) That the 

defendant sent such letter or written 

communication to [him]. 

 Arguing that malice was indispensable to the "unlawful 

mens rea" implicit in the statutory offense, defendant proffered 

an instruction which required the Commonwealth to prove that he 

committed the proscribed acts "with malice," together with a 

companion instruction defining malice. In refusing both 

instructions, the court noted that the statute did not "contain 

. . . the word malicious." 

 "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 the issues which the evidence 

fairly raises.' It is elementary that a jury must be informed as 

to the essential elements of the offense; a correct statement of 

the law is one of the 'essentials of a fair trial.'" Darnell v. 

Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) 

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(citations omitted). "An instruction should not be given 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) (citation omitted). 

 Malice is "that state of mind which results in the 

intentional doing of a wrongful act to another without legal 

excuse or justification, at a time when the mind of the actor is 

under the control of reason." Lynn v. Commonwealth, 27 Va. App. 

336, 344-45 n.1, 499 S.E.2d 1, 5-6 n.1 (1998); see also 1 Virginia 

Model Jury Instructions – Criminal 33.220 (1998 repl. ed. with 

1999 Supp.). Thus, "[m]alice is evidenced either when the accused 

acted with a sedate, deliberate mind, and formed design, or 

committed any purposeful and cruel act without any or without 

great provocation." Branch v. Commonwealth, 14 Va. App. 836, 841, 

419 S.E.2d 422, 426 (1992). The legislature has expressly 

required malice as an element of numerous statutory offenses. 

See, e.g., Code §§ 18.2-77, -79, -80, -86, -127, -152.7(B), -212, 

and -279. 

 In contrast, mens rea or scienter is simply the unlawful 

intent or design necessary to any criminal act that is not a 

strict liability offense. See Reed v. Commonwealth, 15 Va. App. 

467, 424 S.E.2d 718 (1992); 1 Wayne R. LaFave, Substantive

Criminal Law § 3.4 (1986); Livingston v. Commonwealth, 184 Va. 

830, 36 S.E.2d 561 (1946). Thus, although malice is a species 

of mens rea, see Christian v. Commonwealth, 221 Va. 1078, 227 

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S.E.2d 205 (1981); Berkley v. Commonwealth, 19 Va. App. 279, 451 

S.E.2d 41 (1994), mens rea does not always evince malice. See

e.g., Mosby v. Commonwealth, 23 Va. App. 53, 473 S.E.2d 732 

(1996) (criminal negligence); Fortune v. Commonwealth, 12 Va. 

App. 643, 406 S.E.2d 47 (1991) (unlawful behavior). Hence, a 

wrongful act done intentionally is not always malicious. See

Mason v. Commonwealth, 7 Va. App. 339, 373 S.E.2d 603 (1988). 

 Although Code § 18.2-60(A) makes no mention of malice, 

defendant, nevertheless, relies on Perkins v. Commonwealth, 12 

Va. App. 7, 402 S.E.2d 229 (1991), to infer malice as an element 

of the offense. In Perkins, the accused challenged Code 

§ 18.2-83(A)1 as unconstitutionally overbroad because it required 

no mens rea to complete the crime. We disagreed, reasoning 

that: 

In Maye v. Commonwealth, 213 Va. 48, 189 

S.E.2d 350 (1972) the Supreme Court of 

Virginia stated: 

A claim that a statute on its face 

contains no requirement of mens rea

or scienter is no ground for 

holding the statute 

unconstitutional since such 

requirement will be read into the 

statute by the court when it 

appears the legislature implicitly 

intended that it must be proved. 

213 Va. 48, 49, 189 S.E.2d 350, 351 

(1972). . . . Therefore, § 18.2-83 can be 

read as requiring mens rea. Such a narrowing 

construction of this statute prevents 

 1

 Code § 18.2-83(A) prohibits any person from "mak[ing] or 

communicat[ing] to another by any means any threat to bomb, 

burn, destroy or in any manner damage any place of assembly, 

building or other structure." 

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overbreadth. Only an individual who 

maliciously "makes and communicates . . . any 

threat" prohibited by the statute will be 

punished. 

Id. at 15, 402 S.E.2d at 234 (emphasis added). 

 Defendant acknowledges that Perkins clearly instructs that 

mens rea or scienter "will be read into a [criminal] statute" to 

satisfy constitutional imperatives. Additionally, however, he 

construes dicta in Perkins, "[o]nly an individual who maliciously" 

engages in conduct "prohibited by [Code § 18.2-83(A)] will be 

punished," to also graft the element of malice onto the subject 

Code § 18.2-60(A), a statute similar to Code § 18.2-83(A). 

Perkins, 12 Va. App. at 15, 402 S.E.2d at 234 (emphasis added). 

 We are not persuaded that this Court in Perkins intended to 

equate mens rea with malice, a concept clearly at odds with 

well-established jurisprudence, and, therefore, decline 

defendant's invitation to imply both mens rea and malice as 

elements of Code § 18.2-60(A). "We may not add to a statute 

language which the legislature has chosen not to include." County 

of Amherst Bd. of Supervisors v. Brockman, 224 Va. 391, 397, 297 

S.E.2d 805, 808 (1992) (citations omitted). 

 Accordingly, we affirm the conviction. 

 Affirmed.

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