Holman v. Commonwealth

• Docket Number: Record No. 0629-22-2
• Decision Date: 18 April 2023
• Citation: 77 Va.App. 283,885 S.E.2d 493
• Parties: Marcus C. HOLMAN, Sometimes Known as Marcus Cleophus Holman v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

77 Va.App. 283

885 S.E.2d 493

Marcus C. HOLMAN, Sometimes Known as Marcus Cleophus Holman

v.COMMONWEALTH of Virginia

Record No. 0629-22-2

Court of Appeals of Virginia, Richmond.

April 18, 2023

Charles E. Haden, Hampton, for appellant.

Stephen J. Sovinsky, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges O'Brien, Ortiz and Raphael

OPINION BY JUDGE DANIEL E. ORTIZ

Though narrow, the "ends of justice" exception to the contemporaneous objection rule should negate a conviction for use of a firearm in the commission of a malicious wounding when the trial court affirmatively found an absence of malice. Here, the King William County Circuit Court held a bench trial and convicted Marcus Holman of unlawful wounding and use of a firearm in the commission of a felony, in violation of Code §§ 18.2-51 and -53.1,¹ after Holman discharged a shotgun and permanently injured his girlfriend, Selena Spurlock. Holman was indicted on aggravated malicious wounding, but the trial court granted his motion to strike and proceeded on the lesser-included unlawful wounding. On appeal, Holman argues that the evidence did not support his convictions for unlawful wounding or use of a firearm in the commission of a felony. After reviewing the evidence, the record supports Holman's conviction for unlawful wounding but does not support his conviction for use of a firearm in the commission of a felony. We affirm in part and reverse in part.

BACKGROUND

Marcus Holman was the domestic partner of Selena Spurlock. He was a hunter and owned a shotgun. In the morning of November 14, 2020, Holman went hunting. When it became late, Spurlock called to ask what time Holman would come home, which escalated into a "big argument." She went to Holman's mother's house to retrieve her license plates and cell phone, because she believed that Holman was drinking and did not want him to drive with her plates. When she arrived, the couple began fighting. Spurlock testified that Holman yelled, took a license plate off the truck, and "hit [her] in the face with it." Spurlock then hit Holman in the back of the neck, causing him to fall. She then went home.

Three hours later, Spurlock was upstairs when her security camera notified her that someone was approaching the house. From her bedroom window, she observed Holman "pull in, sit there for a minute," and then back out as if he were leaving. He backed into another vehicle, exited the truck, and tried to enter the house. He could not enter because he did not have a key. Spurlock then contacted Holman's sister, Nikki, and asked her to get Holman. Nikki arrived twenty minutes later with her boyfriend, Shawn. Spurlock went to the second-floor bathroom and opened the window to look outside. When Holman saw his sister and Shawn, he jumped out of his truck and started yelling, while holding his shotgun. Through the open bathroom window, Spurlock told Holman to give the gun to his sister and that she was calling the police. Holman pointed the shotgun at Spurlock and told her to "come outside. You wanna hide behind the window, come outside."

Nikki and Shawn tried to take the shotgun, but Holman would not let go. Spurlock dialed the non-emergency police line and placed her cell phone on the windowsill so that Holman could hear the call. He continued to yell and curse at Spurlock and told her that if the police arrived there would be "a shootout." She testified that he was angry, "pissed," frustrated, "really, really drunk," and acting erratically. As Spurlock spoke to the police, Holman pointed the gun toward the window where Spurlock was standing and fired. One shotgun pellet struck the side of the house, to the left of the window, and another struck the windowpane. Spurlock was hit in the face. She suffered a broken nose

, shattered sinuses, and permanent blindness and remained in the hospital for two weeks. Holman fled the scene.

Although Holman admitted to police that he fired the shotgun twice, he stated that he fired it into the air because he was frustrated. Captain Hamm, a responding officer, interviewed Holman after the shooting. He testified that Holman told him at least twice that the shooting was not intentional and that "he did not take aim at the window." He also testified that Holman began crying when he was told the extent of Spurlock's injuries.

After the Commonwealth rested, Holman moved to strike the evidence, arguing that it failed to prove the requisite elements of malice and intent to maim, disfigure, disable, or kill necessary to sustain a conviction for aggravated malicious wounding. Holman argued that, at best, the Commonwealth's evidence rose to the level of "unlawful wounding." The trial court denied the motion to strike at that time.

Holman then testified that he did not intend to shoot or injure Spurlock but, rather, that he fired the shotgun because he was frustrated and humiliated. Although he admitted to arguing with Spurlock at his mother's house, he denied hitting her with a license plate. He stated that when he could not get into the house, he planned to sleep in the truck. But he was upset when Nikki arrived and felt frustrated and humiliated that Spurlock called her. Holman admitted that he exited the truck and told Nikki and Shawn that he was tired of needing to leave every time Spurlock got mad. He testified that he could hear Spurlock yelling "leave" but told Nikki that he was not going anywhere. He also testified that he knew Spurlock was at one of the windows but did not know which one. He denied that he threatened a shootout and stated that he was not angry enough to hurt Spurlock. Finally, he claimed that after Nikki and Shawn left, he shot the gun twice in the air. He denied aiming it at the house and testified that he did not know Spurlock was hurt when he left.

Shawn testified that Holman was sleeping in his truck when he and Nikki arrived. Nikki woke Holman and told him to go with them. Although Shawn did not smell alcohol, Holman appeared to have been drinking. Nikki and Holman argued, as Holman did not want to leave without his belongings. He appeared upset and stated that he was "tired of this." As the argument escalated, Shawn heard Spurlock say that they needed to leave before she called the police. Although Shawn could not see Spurlock, it sounded like she was upstairs. Shawn testified that he did not see Holman with a shotgun and that there was no struggle. He stated that he did not hear Holman threaten a shootout. Finally, Shawn testified Holman became emotional when he learned that Spurlock was injured.

After the defense rested, Holman renewed his motion to strike. He argued that the evidence failed to prove the specific intent necessary for malicious wounding and the element of malice, arguing that Holman acted in "the heat of passion." Although Holman acknowledged that use of a gun "creates a presumption of malice," he emphasized that every witness stated that he was "angry, upset, frustrated, pissed off," and drunk, especially Spurlock, the victim. Holman also emphasized that he did not know where Spurlock was inside the house and that he consistently stated that he did not intend to shoot at the house or at Spurlock. The court granted the renewed motion to strike. It stated:

I have considered the argument[s] ... [and] the evidence that was before me. I have looked at these cases that y'all presented. And at this stage of the game, the presumption is not with the Commonwealth. And based on the testimony from the victim and the other evidence that was presented, I'm gonna grant the motion to strike on aggravated malicious wounding. I think we can go forward on unlawful wounding.

Through counsel, Holman immediately informed the trial court that he would plead guilty to unlawful wounding. He also stipulated that the evidence was sufficient to show guilt on the weapons offenses. The court accepted Holman's guilty plea to unlawful wounding and stated: "All right. I'll find then on the other charges he entered—he stipulated to those, even though he entered not guilty pleas." Holman's counsel responded, "Yes, sir." The court then found Holman guilty of all four counts:

On the unlawful wounding, based on your plea of guilty that I have before me, I find you guilty of the unlawful wounding. On the use of a firearm in commission of a felony, you stipulated to that, I find you guilty of that. On the discharge of a firearm in a public place, you stipulated to that, I find you guilty of that. On possession of a firearm by a felon, you have stipulated to that, so I find you guilty of that.

Following sentencing, Holman filed a pro se motion to reconsider his conviction for use of a firearm in the commission of a felony. He asserted that the trial court erred, as unlawful wounding is not a predicate offense of Code § 18.2-53.1. No hearing was scheduled, and the trial court did not rule on Holman's pro se motion. This appeal followed.

STANDARD OF REVIEW

"On appeal, ‘we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’ " Barnett v. Commonwealth , 73 Va. App. 111, 115, 855 S.E.2d 874 (2021) (quoting Smith v. Commonwealth , 66 Va. App. 382, 384, 785 S.E.2d 500 (2016) ). We also discard any evidence "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." Id. (quoting Yerling v. Commonwealth , 71 Va. App. 527, 530, 838 S.E.2d 66 (2020) ).

"We review questions of law, and mixed questions of law and fact, utilizing a de novo standard of review." Dunaway v. Commonwealth , 52 Va. App. 281, 299, 663 S.E.2d 117 (2008) (quoting Muhammad v. Commonwealth , 269 Va. 451, 479, 619 S.E.2d 16 (2005) ). When reviewing the sufficiency of the evidence, "we determine whether the evidence, viewed in the light most favorable to the prevailing party, the...