Akers v. Com.

• Citation: 31 Va. App. 521,525 S.E.2d 13
• Decision Date: 22 February 2000
• Docket Number: Record No. 2675-98-3.
• Parties: Charles Richard AKERS v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

525 S.E.2d 13

31 Va. App. 521

Charles Richard AKERS v. COMMONWEALTH of Virginia.

Record No. 2675-98-3.

Court of Appeals of Virginia, Salem.

February 22, 2000.

Thomas P. Kratman (Kratman, Swindell & Crenshaw, on brief), Blacksburg, for appellant.

Linwood T. Wells, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: COLEMAN and ELDER, JJ., and COLE, Senior Judge.

ELDER, Judge.

Charles Richard Akers (appellant) appeals his bench trial conviction pursuant to Code § 18.2-53.1 for use of a firearm in the commission or attempted commission of a malicious wounding. Appellant originally also was charged with malicious wounding in violation of Code § 18.2-51 but was convicted of the lesser offense of unlawful wounding. On appeal, appellant contends his conviction for use of a firearm in the commission of a malicious wounding was inconsistent with his conviction for unlawful wounding arising out of the same incident. Conceding the inconsistency of the verdicts, the Commonwealth contends under Rule 5A:18 that appellant waived his right to contest this inconsistency by failing to present this argument to the trial judge. In the alternative, it contends the trial court's inconsistent verdicts do not constitute reversible error. We hold that appellant sufficiently preserved this objection for our review and that a trial court's truly inconsistent verdicts constitute reversible error on direct appeal. Therefore, we reverse and dismiss the challenged firearm conviction.¹

I. BACKGROUND

On January 14, 1998, appellant went to the home of Josh Berkheimer to collect money Berkheimer owed him. When appellant was unable to collect the money, he became angry and later returned to Berkheimer's residence with Donald Teaster. Appellant and Teaster donned ski masks and hid in Berkheimer's backyard. When Matthew Oliveira, Berkheimer's roommate, exited the house, appellant and Teaster attacked him and chased him back into the house. Appellant held Oliveira while Teaster sprayed him with pepper spray. Teaster had a gun and the men said "they were going to kill [Oliveira] or something like that." Oliveira was "very afraid." Appellant and Oliveira exchanged several punches and one or both of the assailants held Oliveira down and continued to beat him, striking him a total of ten to twenty times. Oliveira then heard a very loud bang next to his ear, and the men fled. Oliveira sustained burns to that ear and the side of his head and could not hear out of that ear for about a week. He also sustained a black eye and a cut across his nose which resulted in a scar, and he required three stitches in the back of his head.

Detective Glenn Richardson questioned appellant about the incident. Appellant admitted his involvement. He originally denied knowing Teaster had a gun but later said he knew Teaster usually carried a weapon for protection. Appellant said that when the gun went off, he realized he had been shot in the foot, and the two men left to obtain medical attention.

Appellant was charged with breaking and entering, malicious release of a chemical mixture, malicious wounding, and "use . . . or display [of a firearm] in a threatening manner while committing or attempting to commit malicious wounding."

In closing argument, the prosecutor argued that the doctrine of concert of action permitted appellant to be convicted of the firearm and pepper spray charges. Counsel for appellant argued that this doctrine was inapplicable to the firearm offense because appellant was the victim of the shooting and could not "transfer intent to himself." When the trial court referenced the burns the victim sustained on his ear, counsel for appellant responded, "if it was from the discharge of the weapon . . . [b]ut that would be maliciously wounding, not use of a firearm." Counsel for appellant also argued that the evidence was insufficient to prove malice for the malicious wounding charge and asked that it be reduced to assault and battery.

The trial court said it was "convinced beyond a reasonable doubt that there was a concert of action and that the evidence is sufficient to convict and it's a question of degree and what." It then convicted appellant for breaking and entering and malicious release of a chemical mixture. It also convicted him for unlawful rather than malicious wounding and for "the use, or attempted use of a pistol in a threatening manner." (Emphasis added).

At the sentencing hearing, counsel for appellant moved to set aside the verdict on the firearm charge. When the prosecutor noted during argument that the court had reduced the malicious wounding charge to unlawful wounding, counsel for appellant agreed and reminded the court that "the [firearm] charge was . . . [u]se of a firearm to maliciously wound." He also argued the evidence was insufficient to prove that the requisite wounding occurred from the firearm because appellant was the only person shot and the victim's only injury from the firearm was a burn. The trial court denied the motion.

II. ANALYSIS

A. PROCEDURAL BAR

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." An objection presented via a motion to set aside the verdict is sufficiently timely to satisfy the rule. See Lee v. Lee, 12 Va.App. 512, 515, 404 S.E.2d 736, 738 (1991) (en banc)

. The Commonwealth contends that appellant failed to object to the inconsistent verdicts in the trial court, thereby failing to preserve the issue of inconsistent verdicts for appeal. We disagree.

Counsel for appellant challenged the firearm conviction at the sentencing hearing by moving the trial court to set it aside. The bulk of appellant's argument was based on his contention that the evidence was insufficient to establish the victim's wounds resulted from the firearm. However, in response to the prosecutor's statement that the court had reduced the malicious wounding charge to unlawful wounding, counsel for appellant agreed and reminded the court that "the [firearm] charge was . . . [u]se of a firearm to maliciously wound." (Emphasis added). We hold that this exchange, although brief, was sufficient to inform the trial court of appellant's belief that the convictions for unlawful wounding and use of a firearm in the commission of a malicious wounding were inconsistent.²

B. INCONSISTENT CONVICTIONS BY A TRIAL COURT

Whether it is error for a trial court to render inconsistent verdicts³ is a question of first impression in Virginia. We previously have held that inconsistent verdicts rendered by a jury do not constitute reversible error. See, e.g., Tyler v. Commonwealth, 21 Va.App. 702, 707-09, 467 S.E.2d 294, 296-97 (1996)

.

"`The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.'" . . . [J]uries may reach inconsistent verdicts through mistake, compromise, or lenity, but in such instances it is "unclear whose ox has been gored," the government's or the defendant's. For this reason and the fact that the government is precluded from appealing the acquittal verdict, the Court concluded that inconsistent verdicts should not provide the basis for an appeal by the defendant.

Wolfe v. Commonwealth, 6 Va.App. 640, 647-48, 371 S.E.2d 314, 318 (1988) (quoting United States v. Powell, 469 U.S. 57, 63, 65, 66, 105 S.Ct. 471, 475, 477, 477, 83 L.Ed.2d 461 (1984) (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed.2d 356 (1932))).

The issue of inconsistent verdicts implicates no constitutional guarantee. See id. at 648, 371 S.E.2d at 318. Where a jury renders inconsistent verdicts, "a search of the trial record in an attempt to reconcile such inconsistency is neither appropriate nor required." Id. at 650, 371 S.E.2d at 319. As long as the evidence supports both verdicts, they "will be upheld, despite the apparent inconsistency." Pugliese v. Commonwealth, 16 Va.App. 82, 96, 428 S.E.2d 16, 26 (1993).

Although we have not previously addressed the issue of inconsistent bench trial verdicts, we have commented on the issue in dicta on at least two occasions. In Wolfe, 6 Va.App. at 650 n. 3, 371 S.E.2d at 319 n. 3, we noted that nothing in our opinion was "intended to address inconsistent verdicts rendered by a trial judge in a single criminal trial." Citing Shell v. State, 307 Md. 46, 512 A.2d 358 (1986), we indicated our belief that "the principles stated [in Wolfe] are [not] applicable to such cases." Wolfe, 6 Va.App. at 650 n. 3, 371 S.E.2d at 319 n. 3. More recently, in Elmore v. Commonwealth, 22 Va.App. 424, 427 n. 1, 470 S.E.2d 588, 589 n. 1 (1996), we assumed without deciding "that inconsistent verdicts in a bench trial are grounds for reversal in Virginia." We again cited the decision of Maryland's highest court in Shell as representative of the decisions of other jurisdictions that "the considerations that may justify inconsistent jury verdicts do not apply in a bench trial." Id. (citing United States v. Maybury, 274 F.2d 899, 903 (2d Cir.1960); Shell, 512 A.2d at 363; Haynesworth v. United States, 473 A.2d 366, 368 (D.C.1984)). We now expressly adopt, as applicable to elemental inconsistency in bench trial verdicts, the basic rationale applied by Maryland's highest court in Shell.⁴Shell involved facts almost identical in relevant respects to those at issue here. Shell was charged, inter alia, with attempted murder and use of a handgun in the commission of a "crime of violence,"...