Osman v. Osman

• Decision Date: 28 February 2013
• Docket Number: Record No. 120291.
• Citation: 737 S.E.2d 876
• Parties: Michael Jeffrey OSMAN v. Louis Moss OSMAN, et al.
• Court: Virginia Supreme Court

737 S.E.2d 876

Michael Jeffrey OSMAN

v.Louis Moss OSMAN, et al.

Record No. 120291.

Supreme Court of Virginia.

Feb. 28, 2013.

Barry Randolph Koch (Ros W. Willis; Inman & Strickler, Virginia Beach, on brief), for appellant.

Richard H. Matthews; Andrew D. Kubovcik; Pender & Coward, on brief), for appellees.

Present: All Justices.

OPINION BY Justice DONALD W. LEMONS.

In this appeal, we consider whether the Circuit Court of the City of Virginia Beach (“circuit court”) erred in determining that Michael Jeffrey Osman (“Osman”) was a “slayer” under Code § 55–401.¹

I. Facts and Proceedings

Louis Moss Osman and Wanda M. Austin (“Executors”), co-executors of the estate of Carolyn Goldman Osman, and co-trustees of the Carolyn Goldman Osman Revocable Trust, Osman Family Trust and Goldman Family Trust fbo Carolyn Goldman Osman, filed a complaint and request for declaratory judgment in the circuit court, asking the court to declare that Osman was a “slayer” under Code § 55–401.Code § 55–401 defines a slayer as:

[A]ny person (i) who is convicted of the murder or voluntary manslaughter of the decedent or, (ii) in the absence of such conviction, who is determined, whether before or after his death, by a court of appropriate jurisdiction by a preponderance of the evidence to have committed one of the offenses listed in subdivision (i) resulting in the death of the decedent.

Code § 55–414(A) states that:

This chapter shall not be considered penal in nature, but shall be construed broadly in order to effect the policy of this Commonwealth that no person shall be allowed to profit by his own wrong, wherever committed. In furtherance of this policy, the provisions of this chapter are not intended to be exclusive and all common law rights and remedies that prevent one who has participated in the willful and unlawful killing of another from profiting by his wrong shall continue to exist in the Commonwealth.

The facts in this case are not in dispute. Carolyn Goldman Osman (“Carolyn”) had three sons, Bradley Alan Osman, Louis Moss Osman, and Osman, all of whom were the beneficiaries of Carolyn's estate and various trusts. On December 7, 2009, Carolyn died as a result of Osman's actions. Her cause of death was strangulation and blunt force trauma to the head. Osman was charged with first-degree murder, but pled not guilty by reason of insanity.

Osman signed a stipulation of the Commonwealth's evidence, admitting that the Commonwealth would have established that on the morning of December 7, 2009, Carolyn came to Osman's house to drive him to traffic court. Osman strangled Carolyn and struck her head against the ground until she died. He fled the scene in Carolyn's car. A police officer stopped him shortly thereafter, and Osman admitted that he had killed his mother. Osman has a very long history of mental illness, and had been previously diagnosed with paranoid schizophrenia. He had become severely delusional and thought everyone, including his mother, meant to harm him. The Commonwealth agreed that Osman was insane at the time he killed his mother, and the trial court found him not guilty by reason of insanity.

Subsequently, the circuit court held a hearing on the complaint and request for declaratory judgment at issue in this case. The parties agreed there were no material issues in dispute, and that the only issue before the court was whether Osman could inherit his portion of his mother's estate. The Executors argued that Osman was responsible for his mother's death, and that it would violate public policy to allow him to inherit a portion of her estate. Osman argued that the slayer statute only prevents someone from benefitting from an intentional wrongful act, and because he was insane at the time of the killing, he did not intend to kill her. The circuit court agreed that there was no case on point, but found that the strong public policy of the Commonwealth was that a person should not profit from their wrong which results in the death of another. The circuit court determined that although Osman was found not guilty by reason of insanity, Osman was a slayer under Code § 55–401 and could not share in the proceeds from his mother's estate.

Osman filed a petition for appeal with this Court, and we awarded him an appeal on the following assignments of error:

1. The court erred in determining that the defendant was a “slayer” as defined under Section 55–401 Code of Virginia 1950, as amended, as the Defendant was adjudged not guilty by reason of insanity in the killing of Carolyn Osman.

2. That the court erred in determining that the strong public policy of Virginia as codified in Section 55–414(A) Code of Virginia 1950, as amended, as applied to this case supports the determination that the defendant Michael Jeffrey Osman should be determined to be a slayer under Section 55–401 of the Code of Virginia 1950, as amended, as a person adjudged to be insane does not know they are profiting nor that the killing which they committed is wrong.

II. Analysis

A. Standard of Review

Well-settled principles of statutory review guide our analysis in this case.

[A]n issue of statutory interpretation is a pure question of law which we review de novo. When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations omitted).

B. Code §§ 55–401 and 55–414

Under Code § 55–401, there are two ways a person may be declared a slayer. The first is when a person is convicted of murder or voluntary manslaughter of the decedent. This portion of the statute does not apply to Osman because he was found not guilty by reason of insanity. In the absence of a conviction for murder or voluntary manslaughter, the statute provides that a slayer shall mean any person “who is determined, whether before or after his death, by a court of appropriate jurisdiction by a preponderance of the evidence to have committed one of the offenses listed in subdivision (i) resulting in the death of the decedent.”

We have held:

An accused cannot be convicted of a crime unless the Commonwealth meets its burden of proof. An essential element of the due process guaranteed by the Fourteenth Amendment is that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.

Hubbard v. Commonwealth, 276 Va. 292, 295, 661 S.E.2d 464, 466 (2008) (internal citations and punctuation omitted)(emphasis added). Code § 55–401(1)(ii) provides that a person can be determined to be a slayer if a court determines, by a preponderance of evidence, that the person committed the “offense” of murder or voluntary manslaughter. Of course, proof of criminal “offenses” requires an evidentiary standard of “beyond a reasonable doubt.” Read literally, the statute is internally inconsistent.

In resolving this issue of statutory construction we are aided by Code § 55–414, entitled “Construction.” This section states that this chapter “shall be construed broadly in order to effect the policy of this Commonwealth that no person shall be allowed to profit by his wrong, wherever committed.” Code § 55–414(A). This statute further states that the purpose of this chapter is to “prevent one who has participated in the willful and unlawful killing of another from profiting by his wrong....” Id. Giving effect to legislative intention, we have no difficulty interpreting Code § 55–401(ii) as requiring proof by preponderance of the evidence of the remaining elements of either murder or voluntary manslaughter.

Preponderance of evidence is the burden of proof used in most civil actions. See Wyatt v. McDermott, 283 Va. 685, 700, 725 S.E.2d 555, 563 (2012). In this civil action to declare Osman a slayer, we must review the sufficiency of the evidence to determine if the elements of murder are proved by a preponderance of the evidence.²

Murder is the unlawful killing of another with malice. Wood v. Commonwealth, 140 Va. 491, 494, 124 S.E. 458, 459 (1924). Malice, in a legal sense, means any wrongful act done willfully or purposely. See Avent v. Commonwealth, 279 Va. 175, 202, 688 S.E.2d 244, 259 (2010). In Virginia, all murder other than capital murder and murder in the first degree is murder of the second degree. Code § 18.2–32. To be found guilty of murder, a person must have acted maliciously; in other words, he must possess the necessary mens rea. Mens rea is defined as “criminal intent.” Black's Law Dictionary 1075 (9th ed. 2009). It is often referred to as “guilty mind.” Id.

However, in considering whether Osman is a slayer under Code § 55–401, we do not consider criminal intent (“mens rea”), we consider civil intent. Intent in a civil context only requires that a person intended his actions; there is no requirement that the person have knowledge that his actions were wrongful. When discussing intent and the differences between the term “willful” in a criminal context versus a civil one, the United States Supreme Court explained:

[W]e have consistently held that a defendant cannot harbor such criminal intent unless he acted with knowledge that his conduct was unlawful. Civil use of the term [willful], however, typically presents neither the textual nor the substantive reasons for pegging the threshold of liability at knowledge of wrongdoing.

Safeco Ins. Co. v. Burr, 551 U.S. 47, 57–58 n. 9, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007)(internal quotation marks and citation omitted).

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