Howsare v. Commonwealth , 799 S.E.2d 512 ( 2017 )

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Russell,
S.J.
MARK THOMAS HOWSARE
OPINION BY
v. Record No. 160414 SENIOR JUSTICE CHARLES S. RUSSELL
June 1, 2017
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal presents the question whether, in a homicide case, the jury was improperly
instructed on the issue of intent.
FACTS AND PROCEEDINGS
In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial. Scott v. Commonwealth,
292 Va. 380, 381, 789 S.E.2d 608, 608 (2016) (citing Baldwin v. Commonwealth, 274 Va. 276,
278, 645 S.E.2d 433, 433 (2007)).
Mark Thomas Howsare lived alone in his house in Stafford County. His nephew,
William Conner, Jr., lived nearby and had a good relationship with him. Conner frequently
helped Howsare around the house and ran errands for him. On the evening of January 19, 2014,
Howsare asked Conner to return an air mattress to a store from which it had been purchased.
Connor agreed to go and, with his girlfriend, Cheyanne Henry, took the mattress to the store.
They were unsuccessful in returning it because the store refused to accept it from them, insisting
on Howsare’s personal presence to make the exchange. Conner and Henry began driving back to
Howsare’s house and called him, telling him of the problem and that they were coming to pick
him up. Howsare responded, “Like hell you are” and hung up. Conner called him back and
Howsare made it clear he did not want to go. An argument ensued in which Howsare told
Conner that he “was going to hurt” him. Neither Connor nor Henry took the threat seriously.
They continued to the house, parked Conner’s truck and walked up onto the front porch. Finding
the door locked, Conner knocked and called on Howsare to come out. Howsare had been
drinking. He refused to come out and an argument ensued through the closed door, in which
Howsare told Conner that he had a gun, that it was loaded and that he was going to shoot
Conner. Conner told Henry to return to the truck, which she did. Conner continued pounding on
the door. Henry, from the truck, heard the door open followed by three to five gunshots and a
sound of breaking glass.
Henry looked back at the door and saw Howsare standing there with a gun in his hand.
She saw Conner stagger off the front porch and fall on the ground. She called to Conner but he
made no reply. She ran down the driveway and called 911 on her cell phone. When the police
arrived, they determined that Conner was dead. He was lying on his back about 25 feet from the
house, with gunshot wounds in his shoulder and abdomen. An autopsy later revealed that the
shoulder wound had been the cause of death, having passed laterally through the lungs and heart.
The police investigation also indicated that the front door had been open when the shots were
fired, but they had passed through an outer storm door, shattering the glass.
Before entering the house, the police tried unsuccessfully to communicate with Howsare
by telephone and by a public-address system. They then broke in through a side window and
saw him directly ahead of them, sitting in a bathroom and pointing a gun at them. They shouted
at him to drop the gun and step outside. He complied.
When later interviewed by a detective at the sheriff’s office, Howsare stated that he told
Conner over the phone to “[c]all it a day,” to “[c]all it good” and to just leave him alone. With
regard to the shooting, he said that he had “pulled the trigger on a .357 four or five times” but
that “there was no intent to maim, to hurt, just go away.” He said that he “just wanted to go to
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bed” but that Conner “just kept pounding on the door” and that Howsare “just kind of snapped.”
He said that he had “shot high” as he fired. The detective testified that when told that Conner
was dead, Howsare “acted shocked.”
Howsare was indicted by a Stafford County grand jury for first-degree murder,
aggravated malicious wounding, and use of a firearm during the commission of a felony. Tried
by a jury, he was convicted of second-degree murder, aggravated malicious wounding, and use
of a firearm during the commission of a felony. At the conclusion of the trial, in accordance with
the jury verdict, the court entered judgment imposing a total sentence of 28 years’ incarceration.
At trial, the Commonwealth offered a proposed jury instruction that read: “Intent is the
purpose formed in a person’s mind which may, and often must, be inferred from the facts and
circumstances of a particular case. The state of mind of the defendant may be shown by his acts
and conduct.” Defense counsel objected on the grounds that it was not a model jury instruction
and was an incomplete statement of the law because it failed to mention inferences that could be
drawn from the defendant’s statements. Overruling the objection to the instruction, the court
granted it as Instruction 7. Without objection, the court also granted Instruction 20, which read:
“The statements presented to you as having been made by the defendant are submitted for your
consideration along with all the other evidence. The weight, value, credibility and reliability of
those statements are questions for your determination.” Also, over Howsare’s objection but not
assigned as error on appeal, the court granted Instruction 6, which reads “You may infer that
every person intends the natural and probable consequences of his acts.”
Howsare’s appeal to the Court of Appeals was unsuccessful. Howsare v.
Commonwealth, Record No. 0106-15-4, slip op. at 1 (Sept. 21, 2015) (unpublished). He
petitioned this Court for an appeal, asserting eight assignments of error. We awarded him an
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appeal limited to his first two assignments of error, both of which challenge Instruction 7, quoted
above.
ANALYSIS
A trial court’s decision whether to grant or refuse a proposed jury instruction is generally
subject to appellate review for abuse of discretion. Cooper v. Commonwealth, 277 Va. 377, 381,
673 S.E.2d 185, 187 (2009). The reviewing court’s sole responsibility is to ensure that the law
has been clearly stated in the instructions and that they cover all the issues that the evidence
fairly raises. Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982). In deciding
whether an instruction was appropriate, the appellate court views the facts in the light most
favorable to the instruction’s proponent. Cooper, 277 Va. at 381, 673 S.E.2d at 187.
Howsare argues that Instruction 7 was an incomplete statement of the law and was
misleading because it failed to inform the jury that his intent could be inferred from his
statements as well as from his acts and conduct. The Commonwealth concedes that an
instruction amending the language of Instruction 7 to read “. . . his acts, conduct and statements”
would have been a correct statement of the law, but argues that it nevertheless would not have
been reversible error to refuse it. Where other instructions fully and fairly cover the principles of
law governing the case, the trial court does not err in refusing an additional instruction on the
same subject. Lincoln v. Commonwealth, 217 Va. 370, 375, 228 S.E.2d 688, 692 (1976).
We agree with the Commonwealth’s argument. Instruction 20, which Howsare proposed
and to which the Commonwealth did not object, informed the jury that the statements by the
defendant “were submitted for your consideration along with all the other evidence.” Thus, the
instructions, taken as a whole, stated the law clearly and covered all issues fairly raised by the
evidence. Swisher, 223 Va. at 503, 290 S.E.2d at 858.
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Howsare also argues that Instruction 7 improperly emphasized specific evidence, his acts
and conduct, as tending to prove a particular fact, his intent, citing Keefer v. Commonwealth, 56
Va. App. 520, 524, 694 S.E.2d 802, 804 (2010). Because, as stated above, we review the
instructions as a whole, we do not agree.
Howsare objected to Instruction 7 on the ground that it is not a model jury instruction.
We find no merit in that argument. Code § 19.2-263.2 expressly provides that an instruction that
accurately states the law applicable to the case shall not be withheld for that reason. See also
Brothers v. Commonwealth, 50 Va. App. 468, 473, 650 S.E.2d 874, 877 (2007). Indeed, the
Virginia Model Jury Instructions cite this very statute in advising readers that “a proposed jury
instruction which constitutes an accurate statement of the law applicable to the case must not be
rejected solely for its nonconformance with model jury instructions.” 1 Virginia Model Jury
Instructions – Criminal, Chapter 1 Scope Note (1); Role of Instructions Generally, at 1-1 (repl.
Ed. 2014) (citing Williams v. Commonwealth, 228 Va. 347, 349, 323 S.E.2d 73, 74 (1984)). See
also, e.g., Jeffress v. Virginia Ry. & P. Co., 127 Va. 694, 714, 104 S.E. 393, 399 (1920) ("[I]t is
well settled that each party has the right to have presented to the jury its contention upon vital
points in language to be chosen by it, provided such language is in keeping with the law.") and
Banner v. Commonwealth, 204 Va. 640, 645-46, 133 S.E.2d 305, 309 (1963) (“It cannot be
questioned that both the Commonwealth and the defendant are entitled to appropriate
instructions telling the jury the law applicable to each version of the case, provided such
instructions are based upon the evidence adduced[, a]nd each party may employ language of its
own choosing so long as it is in keeping with the law.”) (citations and internal quotation marks
omitted).
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Howsare’s second assignment of error raises the question whether Instruction 7 was
improperly based on language from appellate cases not involving a jury instruction and meaning
to provide a rationale for a particular decision. Because that argument was never presented to
the circuit court, the Court of Appeals held that it was barred by Rule 5A:18. We agree and do
not consider that assignment of error.
CONCLUSION
Because the jury instructions, taken as a whole, clearly and correctly stated the applicable
law and covered all the issues fairly raised by the evidence, we will affirm the judgment of the
Court of Appeals.
Affirmed.
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