COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges Co leman and Bray Argued at Rich mond, Virginia

ERIC DONNELL SAUNDERS OPINION BY v. Record No. 1929-98-2 JUDGE RICHAR D S. BRAY JANUARY 18, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GREENSVI LLE COUNTY Robert G. O'Ha ra, Jr., Judge (Andrew E. Weaver; Tr aylor, Morris & Wornom, on brief), for appellant. Appellant submitting on brief. (Mark L. Earley, Atto rney General; Eugene Murphy, Assist ant Attorney General, on brief), for appellee. Appellee submitting on brief.

Eric Donnell Saunders (defendant) wa s convicted by a jury for "writ[ing] or co mpos[ing] and se nd[ing]" a lett er to another "containing a th reat 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 er roneously refu sed to instruct the jury on the element of malice. We disagr ee and affirm the conviction. Code § 18.2-60(A) prov ides, 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 orcomposing 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 mali ce was indispensabl e to the "unlawful

mens rea " implicit in the statutory offe nse, defendan t proffered an instruction wh ich required the Commonwe alth to prov e that he committed the pros cribed acts "w ith malice," to gether with a companion instru ction defining malice. In refusing both instructions, the court noted th at the statute did not "contain . . . the word malicious." "A reviewing cour t's responsibi lity in revi ewing 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 correc t statement of the law is one of the 'essential s of a fair trial.'" Darnell v. Commonwealth , 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)

- 2 -(citations omitted). "An instruction should not be given which incorrectly st ates 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 whic h results in the intentional doin g of a wrongful act to another wi thout legal excuse or justific ation, at a time when the mind of the actor is under the control of reason." Lynn v. Co mmonwealth , 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 ei ther when the accused acted with a sedate, deliberate mind, and formed design, or committed any pu rposeful and cruel act without any or without great provoc ation." Branch v. Commonwealth , 14 Va. App. 836, 841, 419 S.E.2d 422, 426 (1992). The legisl ature has expressly required malice as an element of numerous statutory of fenses. 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
- 3 -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. Co mmonwealth , 213 Va. 48, 189 S.E.2d 350 (1972) th e Supreme Court of Virginia stated: A claim that a stat ute on its face contains no re quirement of mens rea or scienter is no ground for holding the statute unconstitutional since such requirement wi ll be read into the statute by the court when it appears the legisl ature implicitly intended that it must be proved. 213 Va. 48, 49, 189 S.E.2d 350, 351 (1972). . . . Therefor e, § 18.2-83 can be read as requiring mens rea . Such a narrowing construction of this stat ute 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." - 4 -overbreadth. Only an in dividual who maliciously "makes and commun icates . . . any threat" prohibit ed by the stat ute will be punished. Id. at 15, 402 S. E.2d at 234 (e mphasis added). Defendant ackn owledges that Perkins clearly inst ructs that

mens rea or scienter "will be read into a [criminal] statute" to satisfy consti tutional imperatives. Ad ditionally, ho wever, he

construes dicta in Perkins , "[o]nly an individual who maliciously " engages in conduct "p rohibited by [Code § 18.2-83(A)] will be punished," to also graft the elem ent of malice on to the subject Code § 18.2-60(A), a statute simila r to Code § 18.2-83(A). Perkins , 12 Va. App. at 15 , 402 S.E.2d at 234 (empha sis 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 jurisprudenc e, and, therefore, decline defendant's in vitation 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 Su pervisors v. Brockman , 224 Va. 391, 397, 297 S.E.2d 805, 80 8 (1992) (citat ions omitted). Accordingly, we affi rm the conviction. Affirmed.

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