Timothy Miles, s/k/a Timothy L. Miles v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Ortiz, Chaney and Senior Judge Haley
Argued at Richmond, Virginia
TIMOTHY MILES, S/K/A
TIMOTHY L. MILES
OPINION BY
v. Record No. 0288-22-2 JUDGE JAMES W. HALEY, JR.
JULY 25, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Daniel R. Bouton, Judge Designate
Norman H. Lamson for appellant.
Lucille M. Wall, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
A jury convicted Timothy Miles of six counts of unlawfully discharging a firearm in an
occupied building, in violation of Code § 18.2-279.1 Miles contends that the trial court erred by
failing to instruct the jury that the term “unlawful” refers to criminal negligence. He also asserts
that the trial court erred by sustaining his convictions because the apartment where he fired a gun
at a police officer was not “occupied” within the intendment of Code § 18.2-279 merely because
the officer was present. Moreover, even assuming that the building was “occupied,” Miles
maintains that the evidence proved only a single violation of Code § 18.2-279 because, although
he shot six times, he fired “aimlessly in quick succession.” For the following reasons, we affirm
the trial court’s judgment.
1
The jury acquitted Miles of attempted capital murder and use of a firearm in the
commission of a felony.
BACKGROUND
On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we “discard the evidence
of the accused in conflict with that of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Cady, 300
Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
The relevant facts, framing the issues raised, can be concisely stated. Following a report
of shots fired at a Charlottesville apartment complex, Corporal Huber received information at the
scene suggesting Miles was the shooter. When Huber confronted Miles in an apartment, Huber
and Miles exchanged gunfire. Miles, who was armed with a semi-automatic handgun, fired six
times, wounding Huber. Huber and Miles were the only individuals in the apartment when Miles
opened fire. A second officer reached the apartment doorway as the gunfire erupted. The
incident was recorded on the second officer’s body worn camera.
At trial, Miles denied any recollection of shooting his gun, but he admitted that he knew
Huber was in the apartment immediately before he exchanged gunfire with the officer and
disregarded the officer’s commands to raise his hands. He also admitted that he knew he could not
lawfully possess a firearm because he was a convicted felon and that, before he fired at Huber, the
officer told Miles he had outstanding warrants. A firearm expert testified that Miles’s 9mm firearm
was a semi-automatic pistol, “meaning that it only fire[d] when you pull the trigger.”
After the evidence closed, the parties submitted jury instructions to the court. With respect
to the discharge of a firearm offenses, the Commonwealth submitted only a malicious discharge
instruction, but Miles offered an instruction that included unlawful discharge as a lesser-included
offense. When the trial court offered to hear argument from the parties, Miles replied that the
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Commonwealth had agreed to his instruction, which the Commonwealth confirmed. The trial court
agreed to give the proffered instruction. Miles also agreed that the jury should be instructed
regarding the circumstances under which “heat of passion excludes malice.”
The jury convicted Miles of six counts of unlawful discharge of a firearm in an occupied
building and recommended a sentence of twelve years’ incarceration. Miles filed several
post-verdict motions challenging his convictions. Miles argued that the evidence had failed to prove
that the building was “occupied” when he fired his weapon because Huber was neither a resident
nor a guest there. Further, Miles maintained that the evidence failed to prove six separate counts of
unlawfully discharging a firearm because he fired all six bullets in rapid succession. Moreover,
Miles asserted that the jury instructions failed to inform the jury that “unlawful” referred to criminal
negligence, thereby allowing the jury to convict him of a “non-existent” offense, “heat of passion”
discharge of a firearm in an occupied building. The trial court denied each of Miles’s motions and
entered a final sentencing order imposing the jury’s verdict. Miles appeals.
ANALYSIS
I. Jury Instructions on Unlawful Discharge
We do not disturb a trial court’s judgment denying a motion to set aside a jury verdict
“unless it is plainly wrong or without evidence to support it.” Ferguson Enters., Inc. v. F.H. Furr
Plumbing, Heating & Air Conditioning, Inc., 297 Va. 539, 548 (2019) (quoting Parson v. Miller,
296 Va. 509, 524 (2018)). We review a trial court’s refusal to set aside a verdict based on allegedly
erroneous jury instructions for abuse of discretion. Boyd v. Weisberg, 75 Va. App. 725, 736-37
(2022). Nevertheless, “[i]nstructions given without objection become the law of the case and
thereby bind the parties in the trial court and . . . on [appellate] review.” Id. at 736-37 (second and
third alterations in original) (quoting Smith v. Commonwealth, 296 Va. 450, 461 (2018)). “Even if a
party makes a motion to set aside the verdict, ‘this does not save him from his failure to object to the
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instructions which submitted the issues . . . to the jury.” Id. at 737 (alteration in original) (quoting
Smith, 296 Va. at 462).
“As a general rule, the matter of granting and refusing jury instructions rests ‘in the sound
discretion of the trial court.’” Pena Pinedo v. Commonwealth, 300 Va. 116, 121 (2021) (quoting
Cooper v. Commonwealth, 277 Va. 377, 381 (2009)). “Our sole responsibility in reviewing [jury
instructions] is to see that the law has been clearly stated and that the instructions cover all issues
which the evidence fairly raises.” Id. (alteration in original) (quoting Cooper, 277 Va. at 381).
“[W]hether a jury instruction accurately states the relevant law is a question of law that we review
de novo.” Watson v. Commonwealth, 298 Va. 197, 207 (2019) (quoting Payne v. Commonwealth,
292 Va. 855, 869 (2016)).
Miles contends that the trial court erred by denying his post-verdict motion challenging his
convictions because the court simultaneously instructed the jury that heat of passion excludes
malice, while failing to instruct it that criminal negligence is the scienter requirement for
“unlawfully” discharging a firearm. Miles maintains that, because the trial court did not inform the
jury that “unlawful” refers to criminal negligence, he was convicted of a non-offense: “heat of
passion” discharge of a firearm.
As he did below, Miles concedes that he agreed to the unlawful discharge instruction and
“insisted on” the “heat of passion language”; however, to the extent that his post-verdict objection
was untimely, he asks that we consider his argument under either the good cause or ends of justice
exceptions in Rule 5A:18. Although Miles agreed to these instructions, he asserts that the “invited
error” doctrine is inapplicable because a conviction for a “non-offense” is a “fundamental error that
can be raised at any time.” Specifically, Miles maintains that “a claim of conviction for a
non-existent offense can be made at any time,” just as subject matter jurisdiction or an indictment’s
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failure to charge an offense may be raised at any time.2 Moreover, he contends that a trial court
lacks subject matter jurisdiction to enter a conviction when a jury instruction misstates the elements
of the offense. We disagree.
“A party may not approbate and reprobate by taking successive positions in the course of
litigation that are either inconsistent with each other or mutually contradictory.” Cangiano v.
LSH Bldg. Co., 271 Va. 171, 181 (2006). “The doctrine protects a basic tenet of fair play: No
one should be permitted, in the language of the vernacular, to talk through both sides of his
mouth.” W. Refin. Yorktown, Inc. v. Cnty. of York, 292 Va. 804, 826 (2016) (quoting Wooten v.
Bank of Am., N.A., 290 Va. 306, 310 (2015)). “The approbate-reprobate doctrine is broader and
more demanding than Rule 5A:18.”3 Alford v. Commonwealth, 56 Va. App. 706, 709 (2010).
Thus, a defendant does not suffer a “grave injustice” when he concurs with or invites the trial
court’s ruling.4 Id. Because Miles requested the very instructions about which he now
2
To the extent that Miles asserts that the failure to instruct the jury on the meaning of
“unlawful” deprived him of due process, we decline to address that argument because his
assignment of error does not allege a constitutional violation. See Rule 5A:20(c)(1) (“Only
assignments of error listed in the brief will be noticed by this Court.”); Riddick v.
Commonwealth, 72 Va. App. 132, 146 (2020) (stating that an appellate court “cannot ‘consider
issues . . . not encompassed by [the] assignment of error’” (quoting Banks v. Commonwealth, 67
Va. App. 273, 290 (2017))).
3
Most recently, the Court noted that, “[b]ecause the purpose of the approbate/reprobate
doctrine is to prevent a defendant from ‘tak[ing] advantage of the situation created by his own
wrong,’ the ends of justice exception does not apply when a defendant ‘invite[s] the error of
which he complain[s].’” Holman v. Commonwealth, 77 Va. App. 283, 301 (2023) (second, third,
and fourth alterations in original) (quoting Rowe v. Commonwealth, 277 Va. 495, 502-03
(2009)). While not the ratio decidendi of that decision, the quoted language is used with
approval. Thus, we recognized in Holman that the approbate/reprobate doctrine “bar[s] a
defendant from offering specific jury instructions but then appealing the language of those
instructions.” Id.4
Even if Miles had not requested the jury instructions, the good cause exception to Rule
5A:18 does not apply because the record demonstrates that Miles was afforded multiple
opportunities to voice his objections and that he did so through extensive post-verdict motions
and hearings. “The Court may only invoke the ‘good cause’ exception where an appellant did
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complains—and because Miles was responsible for the lack of instruction on “criminal
negligence”—we will not consider his arguments under either exception to Rule 5A:18.5
II. “Occupied” Building
Miles asserts that the evidence failed to prove that he fired his gun in an “occupied” building
in violation of Code § 18.2-279 because the only individual in the apartment when he fired was a
police officer, as opposed to a guest or a resident. He contends that Huber did not “occupy” the
apartment because Huber neither lived nor slept there. Miles maintains that Code § 18.2-279 “is not
not have the opportunity to object to a ruling in the trial court; however, when an appellant ‘had
the opportunity to object but elected not to do so,’ the exception does not apply.” Perry v.
Commonwealth, 58 Va. App. 655, 667 (2011) (quoting Luck v. Commonwealth, 32 Va. App.
827, 834 (2000)).
5
We also reject Miles’s argument that the trial court committed a “fundamental error” by
allegedly misstating the elements of the offense. “It is well settled that instructions given
without objection become the law of the case and thereby bind the parties in the trial court and
this Court on review.” Bryant v. Commonwealth, 295 Va. 302, 307 (2018) (quoting Online Res.
Corp. v. Lawlor, 285 Va. 40, 60-61 (2013)). Even when a trial court erroneously instructs the jury
on the “essential elements of the offense,” the error is harmless if the record clearly establishes the
defendant’s guilt. Conley v. Commonwealth, 74 Va. App. 658, 683-84 (2022). In Conley, the
defendant did not lodge a timely objection to a sodomy instruction that misstated the elements of the
offense. Id. at 683. On appeal, however, he asked this Court to consider his argument under the
ends of justice exception in Rule 5A:18. Id. We held that the trial court erred, but the error was
harmless because video evidence clearly established Conley’s guilt. Id. at 684.
Here, the body worn camera footage, combined with Miles’s testimony, proved that Miles
was criminally negligent when he discharged his gun. See Bryant, 295 Va. at 311 (“[H]andling an
instrumentality as inherently dangerous as a loaded firearm in an occupied building, with one’s
finger on the trigger, [constitutes] criminal[] negligen[ce] if discharge . . . endanger[s] others in the
building.”). The body worn camera footage established that Miles, who admittedly realized that
Huber was a police officer, disregarded the officer’s orders to submit and fired his gun repeatedly in
Huber’s direction, wounding the officer. Recorded images, such as photographs and video footage,
“aid . . . in ascertaining the truth.” Bowman Apple Prods. Co., Inc. v. Commonwealth, State Water
Control Bd., 50 Va. App. 383, 392 (2007) (alteration in original) (quoting Adams v. Ristine, 138 Va.
273, 298 (1924)); see also Brooks v. Commonwealth, 15 Va. App. 407, 410 (1992) (“Videotapes,
like photographs, when properly authenticated, may be admitted . . . as ‘mute,’ ‘silent,’ or ‘dumb’
independent photographic witnesses.” (quoting Ferguson v. Commonwealth, 212 Va. 745, 746, cert.
denied, 409 U.S. 861 (1972))). Viewed as a whole, the evidence clearly proved that Miles
possessed the requisite criminal intent for unlawful discharge of a weapon in an occupied building;
thus, any error committed by the trial court in defining the scienter requirement for the offense was
harmless. Bowman Apple Prods., 50 Va. App. at 392; Brooks, 15 Va. App. at 410; Bryant, 295 Va.
at 311.
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designed for the protection of police officers who enter dwellings for the purpose of investigating
crimes.”6
We apply a de novo standard of review to the trial court’s interpretation of a statute. Hall v.
Commonwealth, 296 Va. 577, 582 (2018). “[W]e owe no deference to the circuit court’s
interpretation of the statutory scheme.” Cannaday v. Commonwealth, 75 Va. App. 707, 716 (2022)
(alteration in original) (quoting Esposito v. Va. State Police, 74 Va. App. 130, 133 (2022)). “In
interpreting law our ‘primary objective . . . is to ascertain and give effect to legislative intent.’” Id.(alteration in original) (quoting Lawlor v. Commonwealth, 285 Va. 187, 236 (2013)). “This same de
novo standard of review applies to determining the proper definition of a particular word in a
statute.” Jones v. Commonwealth, 68 Va. App. 304, 307 (2017) (quoting Miller v. Commonwealth,
64 Va. App. 527, 537 (2015)).
Code § 18.2-279 states in pertinent part:
If any person maliciously discharges a firearm within any building
when occupied by one or more persons in such a manner as to
endanger the life or lives of such person or persons, or maliciously
shoots at, or maliciously throws any missile at or against any
dwelling house or other building when occupied by one or more
persons, whereby the life or lives of any such person or persons
may be put in peril, the person so offending is guilty of a Class 4
felony. . . .
If any such act be done unlawfully, but not maliciously, the person
so offending is guilty of a Class 6 felony . . . .
6
In the event that we construe “occupied” to include “anybody physically on the
premises at the time of the discharge,” Miles contends that such a construction should be applied
only prospectively because a reasonable person would not be on notice that the term “occupied”
applies that broadly. In essence, he contends that the statute, as written, is so vague that it is
unconstitutional. See Johnson v. United States, 576 U.S. 591, 595 (2015) (recognizing due
process violation when the government deprives a person of “life, liberty, or property under a
criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes”).
As noted above, we decline to address arguments that are beyond the scope of the assignment of
error, and nothing in Miles’s assignment of error alleges that the statute is unconstitutionally
vague. See Rule 5A:20(c)(1); Riddick, 72 Va. App. at 146. Therefore, he has waived his
constitutional argument.
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We have not previously addressed the meaning of the term “occupied” in Code § 18.2-279.
We have held, however, that “the statute is meant to prohibit unlawful conduct, whether malicious
or merely criminally reckless, which has the potential to endanger the lives of persons inside
occupied buildings, without regard to the shooter’s actual motive or intent in unlawfully discharging
a firearm.” Meade v. Commonwealth, 74 Va. App. 796, 811 (2022) (emphasis added and omitted)
(quoting Ellis v. Commonwealth, 281 Va. 499, 506 (2011)). Our Supreme Court has construed “the
language of the . . . statute as a legislative declaration that human lives may be endangered when a
deadly weapon is maliciously discharged at or against a building occupied by people.” Dowdy v.
Commonwealth, 220 Va. 114, 117 (1979) (emphasis added). Thus, to prove a violation of the
statute, the Commonwealth need not establish that “human life was, in fact, endangered.” Id.Instead, the Commonwealth must establish only “that the discharge of the firearm may have put [the
victim’s] life in peril.” Kirby v. Commonwealth, 264 Va. 440, 445 (2002).
“A statute ‘should be read to give reasonable effect to the words used and to promote the
ability of the enactment to remedy the mischief at which it is directed.’” Armstead v.
Commonwealth, 55 Va. App. 354, 360 (2009) (quoting Mayhew v. Commonwealth, 20 Va. App.
484, 489 (1995)). “When the language of a statute is plain and unambiguous, we are bound by the
plain meaning of that language.” Proctor v. Commonwealth, 40 Va. App. 233, 247 (2003) (quoting
Shelor Motor Co. v. Miller, 261 Va. 473, 479 (2001)). “[W]hen determining the boundaries of such
a statute, ‘[t]he plain, obvious, and rational meaning of a statute is always preferred to any curious,
narrow or strained construction[.]’” Id. (second alteration in original) (quoting Branch v.
Commonwealth, 14 Va. App. 836, 839 (1992)). “We must determine the intent of the General
Assembly from the words contained in the statute, unless a literal construction of the statute would
yield an absurd result.” Id.-8-
Code § 18.2-279 prohibits shooting in an occupied building in a manner that may imperil
“one or more persons.” Bryant v. Commonwealth, 295 Va. 302, 309 (2018). The statute
criminalizes conduct that “‘endanger[s] the lives of persons inside occupied buildings’” without
otherwise qualifying the status of the “persons.” Meade, 74 Va. App. at 811 (emphasis added)
(quoting Ellis, 281 Va. at 506). Moreover, the statute contemplates that “any building” can be
“occupied,” and does not limit its application to “dwelling house[s]” where individuals eat and
sleep. Code § 18.2-279; cf. Code § 18.2-77 (limiting arson statute to a “dwelling house,” or some
“other house in which persons usually dwell or lodge”). Nothing in the statute suggests that the
General Assembly was concerned with preserving the lives of only tenants, owners, or otherwise
lawful occupants of an apartment building.
“Adhering closely to statutory texts, Virginia courts presume that the legislature chose,
with care, the words it used when it enacted the relevant statute.” Cornell v. Benedict, __ Va. __,
__ (Oct. 13, 2022) (quoting Tvardek v. Powhatan Village Homeowners Ass’n, Inc., 291 Va. 269,
277 (2016)). “The act of choosing carefully some words necessarily implies others are omitted
with equal care.” Kerns v. Wells Fargo Bank, N.A., 296 Va. 146, 156 (2018) (quoting In re:
Brown, 295 Va. 202, 223 (2018)). “Although we strictly construe penal statutes against the
Commonwealth, . . . ‘we will not apply “an unreasonably restrictive interpretation of the statute
that would subvert the legislative intent expressed therein.”’” Giles v. Commonwealth, 51
Va. App. 449, 453 (2008) (quoting Armstrong v. Commonwealth, 263 Va. 573, 581 (2002)),
aff’d, 277 Va. 369 (2009).
“[T]he word ‘occupying’ ‘denotes a physical presence in or on a place or object.’”
Newman v. Erie Ins. Exch., 256 Va. 501, 505 (1998) (quoting Stern v. Cincinnati Ins. Co., 252
Va. 307, 311 (1996)). “Occupy” means “[t]o take up the extent, space, room or time of.”
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Occupy, Black’s Law Dictionary (11th ed. 2019). An “occupant” is “one who occupies a
particular place or premises.” Occupant, Webster’s Third New International Dictionary (2002).
Given the legislature’s intent to protect all people inside any building against physical harm,
we hold that the term “occupied” in Code § 18.2-279 refers to the physical presence of any
individual in the building when a firearm is discharged. Meade, 74 Va. App. at 811 (quoting Ellis,
281 Va. at 506). Accordingly, as Huber was in the building when Miles discharged his weapon, the
evidence was sufficient to prove beyond a reasonable doubt that Miles unlawfully discharged a
firearm in an occupied building.
III. Unit of Prosecution
Although the evidence is undisputed that Miles fired his gun six times, he contends that the
evidence was insufficient to prove six violations of Code § 18.2-279 because the shots were not
separated by a “lapse” of time and placed only a single individual (Huber) at risk. He stresses that
the footage depicted “rapid fire shots [that] lasted but a few brief seconds at most, and then ceased
entirely.”
As discussed above, we apply a de novo standard of review to a trial court’s interpretation of
a statute, including the definition assigned to a particular word in a statute. Lopez v.
Commonwealth, 73 Va. App. 70, 77 (2021); Jones, 68 Va. App. at 307. We recently held that the
term “discharge” in Code § 18.2-279 is “bullet-specific,” meaning each shot fired from a gun
constitutes a separate discharge; and, thus, a separate offense.7 Taylor v. Commonwealth, 77
Va. App. 149, 161-64 (2023). We noted that “the essence, or gravamen, of an offense under Code
§ 18.2-279 is the risk of endangerment or death to another as a result of discharging a firearm”
7
As we recognized in Taylor, our Supreme Court has reached a similar conclusion in
interpreting a related statute, Code § 18.2-154, holding that each shot fired at an occupied vehicle is
a separate offense. Taylor v. Commonwealth, 77 Va. App. 149, 163 (2023) (citing Stephens v.
Commonwealth, 263 Va. 58, 61-63 (2002)).
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and that “[t]he life of another is endangered with the discharge of each shot, even if multiple
shots are discharged in rapid succession.” Id. at 163-64. “Given the unique harm a firearm may
pose, it is logical that the legislature would intend to more severely punish a person firing
multiple shots in the same occupied location in quick succession than someone who fires a single
shot.” Id. at 164. To hold otherwise, we concluded, would eliminate the “punitive deterrent”
associated with firing multiple bullets at once, “essentially a buy one, harm as much as you like
discount.” Id. (quoting State v. Rasabout, 356 P.3d 1258, 1264 (Utah 2015)).
As Miles concedes, Taylor is dispositive of his argument. Under Taylor, the undisputed
evidence supports the jury’s reasonable conclusion that Miles was guilty of six counts of
unlawfully discharging a firearm in an occupied building because Miles fired six times.
CONCLUSION
For the reasons stated, the trial court’s judgment is affirmed.
Affirmed.
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Chaney, J., concurring in the judgment.
I concur with the majority’s judgment affirming Miles’s convictions. I write separately
because I would hold—as the best and narrowest ground for resolving Miles’s first assignment of
error8—that each of Miles’s convictions is not for a non-offense.9 In convicting Miles of
unlawfully discharging a firearm within an occupied building and acquitting him of maliciously
doing so, the jury determined that Miles discharged the firearm without malice. Contrary to
Miles’s argument on appeal, the fact that the jury was instructed that heat of passion can negate
malice did not convert his conviction into the “non-existent offense [of] ‘heat of passion’
discharge.”10 Op. Br. 18. Rather, the jury convicted Miles of the offense of non-malicious
unlawful discharge of a firearm within an occupied building. See Code § 18.2-279. In reaching
their verdict, the jury necessarily found—in accordance with their instructions—that (1) Miles
discharged a firearm within a building occupied by one or more persons and (2) the firearm was
discharged in such a manner as to endanger the life or lives of such person or persons. Our
Supreme Court has recognized that conduct satisfying these two elements is criminally negligent.
See Bryant v. Commonwealth, 295 Va. 302, 311 (2018) (holding that Code § 18.2-279 reflects “a
8
“Virginia courts strive to decide cases on the best and narrowest grounds available.”
Nottingham v. Commonwealth, 77 Va. App. 60, 67 n.6 (2023) (internal quotation marks omitted)
(quoting Matzuk v. Price, 70 Va. App. 474, 481 n.6 (2019)). Here, resolving Miles’s first
assignment of error on the merits is the best and narrowest ground for deciding this issue. See
Abdo v. Commonwealth, 64 Va. App. 468, 473 n.1 (2015) (finding that “[i]n this case, resolution
of the merits constitutes the best and narrowest ground” for decision and declining to decide
whether appellant’s argument was waived under Rule 5A:18). See also Butcher v.
Commonwealth, 298 Va. 392, 396 (2020) (“The ‘best’ answer to a legal question is the one with
which the least number of jurists would disagree or, in other words, the one with which the
greatest number of jurists would agree. The ‘narrowest’ answer to a legal question is the one
affecting the least number of cases.”).
9
I disagree with the majority’s opinion that it would not be a grave injustice if Miles had
been convicted and sentenced to serve 12 years in prison for a non-offense.
10
Miles did not invite error in the trial court because the relevant requested jury
instructions accurately state the applicable law.
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legislative determination that handling an instrumentality as inherently dangerous as a loaded
firearm in an occupied building, with one’s finger on the trigger, is criminally negligent if
discharge results in such a manner as to endanger others in the building”). Therefore, contrary to
Miles’s contention on appeal, it was unnecessary to additionally instruct the jury that
“unlawfully” means “with criminal negligence.” Since the jury received complete instructions
on the elements of unlawfully discharging a firearm within an occupied building, the jury did not
convict Miles of a non-offense.
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