COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Coleman 

Argued at Salem, Virginia 

CARL ANTHONY McKENLEY 

 MEMORANDUM OPINION* BY 

v. Record No. 1910-96-3 CHIEF JUDGE NORMAN K. MOON 

 OCTOBER 28, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

William N. Alexander, II, Judge 

 Charles J. Strauss (H. Victor Millner, Jr., 

P.C., on brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Carl Anthony McKenley appeals his jury trial convictions of 

unlawful wounding in violation of Code § 18.2-51 and use of a 

firearm in the commission of malicious wounding in violation of 

Code § 18.2-53.1. McKenley asserts that (1) the trial court 

improperly instructed the jury on the charge of use of a firearm; 

(2) the evidence was insufficient to prove unlawful wounding and 

use of a firearm in the commission of a malicious wounding; and 

(3) the verdict form for unlawful wounding was invalid because it 

failed to recite the requisite intent either specifically or by 

reference to the indictment. We disagree and affirm. 

 Keith Harris, defendant Carl McKenley, and several other 

people gathered at a private residence to drink and socialize. 

 

 *Pursuant to Code § 17-116.010, this opinion is not 

designated for publication. 
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Harris and McKenley began to argue. McKenley said he was 

leaving, but as he walked out the door, Harris grabbed him by the 

shirt and pulled him back inside. They began to fight, each 

swinging at the other. McKenley then shot Harris twice with a 

.38 caliber pistol, injuring him. McKenley testified that he 

found the gun in the living room, but other witnesses, including 

a defense witness, testified that McKenley took the weapon from 

his belt. McKenley went to the hospital, where an officer 

searching McKenley's clothing found five .38 caliber bullets. 

The officer testified that McKenley twice told him that if Harris 

came to the hospital, he would kill him. 

 McKenley was charged with malicious wounding and use of a 

firearm in the commission of a malicious wounding. The court 

instructed the jury as to the elements, including the requisite 

intent, of the charged crimes, as well as the lesser-included 

offenses of unlawful wounding and assault and battery. The jury, 

using a verdict form that lacked a recitation of the requisite 

intent for conviction of unlawful wounding but contained the 

phrase, "We, the jury, on the issue joined," convicted McKenley 

of unlawful wounding and use of a firearm in the commission of a 

malicious wounding. 

JURY INSTRUCTION

 McKenley asserts that the trial court improperly instructed 

the jury on the charge of use of a firearm in the commission of 

malicious wounding. He asserts that the jury's finding that he 

committed an unlawful, rather than malicious, wounding is 
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inconsistent with its finding of use of a firearm in the 

commission of a malicious wounding. 

 McKenley failed to object to the instruction at trial. Rule 

5A:18 provides that "[n]o ruling of the trial court . . . will be 

considered as a basis for reversal unless the objection was 

stated together with the grounds therefor at the time of the 

ruling, except for good cause shown or to enable the Court of 

Appeals to attain the ends of justice." Moreover, inconsistent 

verdicts are permissible if there is sufficient evidence to 

support them. See Wolfe v. Commonwealth, 6 Va. App. 640, 371 

S.E.2d 314 (1988) (holding that an inconsistency between 

verdicts--acquittal of murder but conviction of use of a firearm 

in the commission of murder--does not require reversal of the 

firearm conviction). Because the record does not show any 

obvious miscarriage of justice, neither the ends of justice nor 

good cause permits waiver of the Rule 5A:18 bar. Commonwealth v. 

Mounce, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). 

SUFFICIENCY OF THE EVIDENCE

 McKenley also asserts that the evidence was insufficient to 

support his convictions for unlawful wounding and use of a 

firearm while committing a malicious wounding. "On appeal, we 

review the evidence in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 

443, 358 S.E.2d 415, 418 (1987). 

 To convict a defendant of use of a firearm while committing 
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a malicious wounding, the fact finder must find beyond a 

reasonable doubt that the defendant was guilty of malicious 

wounding and used a firearm to commit the wounding. "Intent may, 

and most often must, be proven by circumstantial evidence and the 

reasonable inferences to be drawn from proven facts are within 

the province of the trier of fact." Fleming v. Commonwealth, 13 

Va. App. 349, 353, 412 S.E.2d 180, 183 (1991). Witnesses 

testified that McKenley pulled the gun from his belt and shot 

Harris twice. A police officer testified that at the hospital 

McKenley twice said that he would kill Harris if Harris came to 

the hospital. The officer also found bullets of the same type 

used to shoot Harris in McKenley's shirt pocket. The jury was 

entitled to convict McKenley of inconsistent charges. See Wolfe, 

6 Va. App. at 650, 371 S.E.2d at 319-20. The Commonwealth's 

evidence was competent, was not inherently incredible, and was 

sufficient to prove beyond a reasonable doubt that McKenley used 

a firearm while maliciously wounding Harris. 

 To convict a defendant of unlawful wounding, a 

lesser-included offense of malicious wounding, the fact finder 

must find beyond a reasonable doubt only that the defendant 

intended to cause the victim bodily injury and that the victim 

suffered bodily injury. Because the Commonwealth's evidence was 

sufficient to prove beyond a reasonable doubt that McKenley 

maliciously wounded Harris, it follows that the evidence was 

sufficient to prove unlawful wounding. 
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VALIDITY OF THE VERDICT FORM

 Finally, McKenley asserts that the unlawful wounding verdict 

form was invalid because it failed to specify that he wounded 

Harris with an intent to maim, disfigure, disable, or kill. 

 In Jackson v. Commonwealth, 218 Va. 490, 237 S.E.2d 791 

(1977), the Supreme Court of Virginia upheld verdicts which did 

not specify the requisite intent on the verdict form but did 

include the phrase, "We, the jury on the issue joined, 

unanimously find the defendant . . . guilty . . . ." Id. at 

492, 237 S.E.2d at 792 (emphasis added). The Court held that the 

requisite intent was "necessarily implied" in the verdict. Id.

at 492, 237 S.E.2d at 793. The Court reasoned that the jury's 

finding was based "on the issue joined," which initially was 

framed by the indictments containing the necessary intent, and 

thus the verdict forms were valid because the jury's finding of 

intent could be determined by its verdict. Id.

 McKenley's verdict form included the phrase, "on the issue 

joined." Additionally, the instructions defining unlawful 

wounding included the requisite intent. McKenley's conviction 

for unlawful wounding is therefore not invalid merely because the 

verdict form lacked recitation of the requisite intent. 

 Affirmed.
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Benton, J., concurring and dissenting. 

 I concur in the portions of the opinion styled Sufficiency 

of the Evidence and Validity of the Verdict Form, and, therefore, 

I would affirm the conviction of unlawful wounding. However, I 

would reverse the conviction for use of a firearm in the 

commission of malicious wounding. 

 This Court's ruling that a jury's inconsistent verdicts does 

not provide a ground for reversal, see Wolfe v. Commonwealth, 6 

Va. App. 640, 649-50, 371 S.E.2d 314, 319-20 (1988), is clearly 

subject to the general rule that the jury must be guided by 

proper instructions. See Dowdy v. Commonwealth, 220 Va. 114, 

116, 255 S.E.2d 506, 508 (1979). A concomitant rule is that 

"when a principle of law is vital to a defendant in a criminal 

case, a trial [judge] 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). "That principle 

applies even when an objection has not been stated . . . [because 

the] trial judge's 'imperative duty [to properly instruct the 

jury] . . . is one which can neither be evaded nor surrendered.'" 

Johnson v. Commonwealth, 20 Va. App. 547, 554, 458 S.E.2d 599, 

602 (1995) (citation omitted). 
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 The jury was given two verdict forms.1

 The record 

establishes that the verdict form that the jury was given for the 

 1One form gave the following four options: 

 WE, THE JURY, ON THE ISSUE JOINED, FIND THE 

DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF 

MALICIOUSLY CAUSING BODILY INJURY, AS CHARGED 

IN THE INDICTMENT. ___________________ 

 FOREMAN 

 WE, THE JURY, ON THE ISSUE JOINED, FIND THE 

DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF 

UNLAWFUL WOUNDING. ____________________ 

 FOREMAN 

 WE, THE JURY, ON THE ISSUE JOINED, FIND THE 

DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF 

ASSAULT AND BATTERY, AND FIX HIS PUNISHMENT 

AT _______________________________. 

 ____________________ 

 FOREMAN 

 WE, THE JURY, ON THE ISSUE JOINED, FIND THE 

DEFENDANT, CARL ANTHONY MCKENLEY, NOT GUILTY. 

 _____________________ 

 FOREMAN 

 The other form gave the jury the following two options 

concerning the gun charge: 

 WE, THE JURY, ON THE ISSUE JOINED, FIND THE 

DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF 

USE OF A FIREARM IN THE COMMISSION MALICIOUS 

BODILY INJURY, AS CHARGED IN THE INDICTMENT. 

 _____________________ 

 FOREMAN 

 WE, THE JURY, ON THE ISSUE JOINED, FIND THE 

DEFENDANT, CARL ANTHONY MCKENLEY, NOT GUILTY 

OF USE OF A FIREARM. _____________________ 

 FOREMAN 
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firearm charge is patently defective. The jury's request for "an 

explanation and relationship to the number of verdicts" confirms 

the jury's lack of understanding of the relationship of the 

various charges and the corresponding verdict forms. 

 After the jury began its deliberations, it requested an 

explanation of the forms. The following colloquy occurred: 

 THE JUDGE: Alright, Mr. Foreman, you have 

a question? 

 FOREMAN: Yes sir. 

 THE JUDGE: Yes sir. 

 FOREMAN: What I wanted was just an 

explanation and relationship 

to the number of verdicts, the 

two forms. We have two 

papers. 

 THE JUDGE: Right. 

 FOREMAN: So this one is clear as far as 

making a decision one of the 

others. 

 THE JUDGE: Right. That's right. That's 

on the use of the firearm. 

 FOREMAN: Yes sir. 

 THE JUDGE: Yes sir. 

 FOREMAN: This one we have four, so 

should it be one of the four? 

 THE JUDGE: Yeah, one out of the four. 

It's either not guilty, guilty 

of an assault, guilty of 

unlawful wounding, or guilty 

of malicious wounding, one out 

of the four. 

 FOREMAN: Okay, one out of the two, one 

out of the four. 

 THE JUDGE: Right, that's right. Okay, 
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thank you all. Alright, Court 

will be recessed. 

 That colloquy clearly demonstrates that the patent defect in 

the firearm verdict likely contributed to the jury finding 

McKenley guilty of the use of a firearm in the commission of a 

malicious wounding even though the jury found McKenley "guilty of 

unlawful wounding." The firearm verdict form does not inform the 

jury that McKenley was not guilty of the charged firearm offense 

if he did not use a firearm "in the commission of a malicious 

bodily injury." The form states "We . . . find the defendant 

. . . not guilty of use of a firearm." As worded, the verdict 

form conveys to the jury the implication that McKenley could only 

be not guilty of the firearm charge if he did not "use . . . a 

firearm." Thus, an "obvious void" exists on the face of the 

verdict form. Johnson v. Commonwealth, 20 Va. App. 547, 554, 458 

S.E.2d 599, 602 (1995). 

 The verdict form did not sufficiently inform the jury that 

proof that McKenley used a firearm was not a sufficient basis to 

convict McKenley. The undisputed evidence proved that McKenley 

used a firearm. Only if he used the firearm in the commission of 

malicious wounding, the charge of which he was acquitted, could 

he have been convicted of the firearm charge. See Code 

§ 18.2-53.1. 

 Defense counsel failed to object to the lack of clarity in 

the instruction or in the oral explanation. However, I would 

hold that the lack of objection does not prevent this Court from 
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considering this issue on appeal as an exception to Rule 5A:18, 

see Jimenez, 241 Va. at 250, 402 S.E.2d at 681, and I would 

reverse the conviction for use of a firearm in the commission of 

malicious wounding. I dissent.