Will Rogers Loving, Jr. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Fitzpatrick
Argued at Richmond, Virginia
WILL ROGERS LOVING, JR.
MEMORANDUM OPINION * BY
v. Record No. 2499-94-2 JUDGE LARRY G. ELDER
FEBRUARY 20, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
Samuel Taylor Powell, III, Judge
Craig S. Cooley for appellant.
Richard H. Rizk, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Richard B. Smith, Assistant Attorney General,
on brief), for appellee.
Will Rogers Loving, Jr. (appellant) appeals his conviction
for use of a firearm in the commission of a murder in violation
of Code § 18.2-53.1. Appellant asserts (1) the trial court, in a
bifurcated trial, erred in refusing to set aside his conviction
for use of a firearm in the commission of a murder where he was
convicted only of voluntary manslaughter; and (2) insufficient
evidence supported his conviction. Because the trial court did
not err, we affirm the conviction.
I.
FACTS
The victim and appellant fought on prior occasions,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
including one incident in February or March 1994, when both
parties were intoxicated. On June 26, 1994, appellant and two
friends were driving on Route 618 in Charles City County, when
the victim, in his vehicle, waved for them to stop. The victim,
who became intoxicated that day after a fight with appellant's
mother (whom he dated) and sister, was in a very agitated state.
After each party exited his vehicle, the victim attacked
appellant and threw full beer cans at him. Appellant re-entered
his vehicle and fled with the victim in pursuit. Appellant
returned to his house, where he retrieved a pistol and hid behind
a truck. The victim sped into appellant's driveway and exited
his vehicle. Appellant testified that after he fired warning
shots into the air, the victim, with one hand held behind
himself, told appellant, "If you got [a gun], you better use it."
Appellant testified that as the victim approached him, he feared
for his life and shot the victim two times, killing him. The
victim was unarmed, he stood twenty feet away from appellant when
appellant shot him, and his blood alcohol level was .19 percent
when he died.
In a bifurcated jury trial in the Circuit Court of Charles
City County, a jury convicted appellant of voluntary manslaughter
and use of a firearm in the commission of a murder. Appellant
made a motion to set aside and strike the conviction for use of a
firearm in the commission of a murder, which the trial court
denied. The circuit court entered judgments on the jury
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verdicts.
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II.
INCONSISTENT VERDICTS IN A BIFURCATED TRIAL
Appellant argues that the trial court erred in failing to
set aside his conviction for use of a firearm in the commission
of a murder after the jury convicted him only of manslaughter.
Appellant recognizes that prior to the statutory creation of
bifurcated felony jury trials, see Code § 19.2-295.1,
inconsistent verdicts could not be reversed on appeal due to
inconsistency. However, appellant contends that because the jury
in a bifurcated trial does not consider guilt and punishment
concurrently, the trial judge has the discretion to set aside an
inconsistent verdict before the punishment phase. We disagree.
"Jury verdicts may appear inconsistent because the jury has
elected through mistake, compromise, or lenity to acquit or to
convict of a lesser offense for one charged crime that seems in
conflict with the verdict for another charged offense." Pugliese
v. Commonwealth, 16 Va. App. 82, 96, 428 S.E.2d 16, 26 (1993)
(citations omitted); see also Wolfe v. Commonwealth, 6 Va. App.
640, 371 S.E.2d 314 (1988). Based on this notion, the Supreme
Courts of the United States and Virginia both have held that a
court may not overturn a defendant's conviction on one count
simply because it is inconsistent with the jury's verdict on
another count. United States v. Powell, 469 U.S 57 (1984); Reed
v. Commonwealth, 239 Va. 594, 391 S.E.2d 75 (1990). The Court of
Appeals recently applied this rule specifically to bifurcated
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proceedings, Tyler v. Commonwealth, __ Va. App. __, __ S.E.2d __
(1996), and we hold that this rule similarly dictates the result
of this case.
III.
SUFFICIENCY OF THE EVIDENCE
In his alternate argument, appellant asserts that the
Commonwealth did not present sufficient evidence to support his
conviction and failed to prove beyond a reasonable doubt every
element of the offense. See Jackson v. Virginia, 443 U.S. 307,
315-16 (1979). We disagree and hold that sufficient evidence
proved every element of the charge of use of a firearm in the
commission of a murder.
The Commonwealth had the burden of proving appellant
(1) used a firearm (2) while committing murder. Code
§ 18.2-53.1; Yarborough v. Commonwealth, 247 Va. 215, 218, 441
S.E.2d 342, 344 (1994). To establish appellant committed second
degree murder, the Commonwealth had to prove the unlawful killing
was done with malice, but without premeditation and deliberation.
Perricllia v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d 679, 683
(1985).
Our analysis of whether sufficient evidence supported the
elements and sub-elements of the firearm charge must "not be
confused with the problems caused by inconsistent verdicts. . . .
[Our] review should be independent of the jury's determination
that evidence on [the murder] count was insufficient." Powell,
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469 U.S. at 67 (citations omitted). When examining a sufficiency
issue, we must view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
deducible therefrom. Josephs v. Commonwealth, 10 Va. App. 87,
99, 390 S.E.2d 491, 497 (1990)(en banc). Additionally, we
discard all evidence of the accused that conflicts with that of
the Commonwealth, and we regard as true all credible evidence
favorable to the Commonwealth. Lea v. Commonwealth, 16 Va. App.
300, 303, 429 S.E.2d 477, 479 (1993). Finally, "[t]he jury's
verdict will not be disturbed on appeal unless it is plainly
wrong or without evidence to support it." Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
The evidence adduced at trial showed the following:
appellant and the victim involved themselves in previous
altercations, and mutual animosity existed between them. On
June 26, 1994, after their violent encounter on Route 618,
appellant left the scene and returned to his house. Appellant
testified he presumed the victim would arrive at his house, but
he did not attempt to leave the premises or notify police as to
any potential conflict. Instead, appellant retrieved his gun and
hid next to a truck in his driveway as the victim arrived.
Appellant disclosed to police that after the victim told him to
use his gun, he did in fact shoot the victim. See Gills v.
Commonwealth, 141 Va. 445, 449, 126 S.E. 51, 53 (1925)(holding
malice may be inferred by the use of a deadly weapon). Appellant
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also admitted the victim, who did not possess a weapon, was
approximately twenty feet away when appellant shot at him three
times, hitting him twice.
Sufficient credible evidence, viewed in the light most
favorable to the Commonwealth, showed appellant acted with malice
in killing the victim, and appellant used a firearm in the
commission of the crime. See generally Mundy v. Commonwealth, 11
Va. App. 461, 479, 390 S.E.2d 525, 535 (1990)(en banc)(subsequent
history omitted); Long v. Commonwealth, 8 Va. App. 194, 198, 379
S.E.2d 473, 475-76 (1989). In light of the legal principles
described above, we cannot say the jury's verdict was plainly
wrong or without evidence to support it. Code § 8.01-680.
Accordingly, we affirm appellant's conviction.
Affirmed.
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