Scott v. Commonwealth of Va..

• Decision Date: 29 March 2011
• Docket Number: Record No. 2289–09–3.
• Citation: 58 Va.App. 35,707 S.E.2d 17
• Parties: Shaun Wallace SCOTTv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 35

707 S.E.2d 17

Shaun Wallace SCOTT

v.COMMONWEALTH of Virginia.

Record No. 2289–09–3.

Court of Appeals of Virginia, Salem.

March 29, 2011.

Robert Michael Doherty (Charles L. Downs; WootenHart, on briefs), for appellant.John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: HALEY, PETTY and POWELL, JJ.PETTY, Judge.

Appellant, Shaun Wallace Scott, was charged with first-degree murder, malicious wounding, attempted malicious wounding, three counts of felony hit-and-run, and felony property damage under Code § 18.2–137(B). After a bench trial, he was convicted of involuntary manslaughter, felony property damage, and one count of felony hit-and-run. On appeal, Scott challenges his convictions, arguing that the trial court erred because it (1) had insufficient evidence to convict him of involuntary manslaughter and felony hit-and-run; (2) imposed an excessive sentence upon him for involuntary manslaughter; and (3) concluded that criminally negligent conduct was sufficient to convict him of felony property damage under Code § 18.2–137(B).¹

We conclude Scott waived his right to appeal the sufficiency of the evidence supporting his convictions for involuntary manslaughter and felony hit-and-run by failing to raise these issues at trial. Further, Scott's sentence for involuntary manslaughter was not excessive. However, the trial court erred as a matter of law when it concluded that criminally negligent conduct was sufficient to convict Scott of felony property damage under Code § 18.2–137(B). Accordingly, we affirm the involuntary manslaughter and felony hit-and-run convictions, as well as the involuntary manslaughter sentence. However, we reverse the conviction for felony property damage, and we remand for re-sentencing on the lesser-included offense set forth in Code § 18.2–137(A).

I. Background

The relevant events leading to Scott's charges occurred late at night at a bar in Salem. Scott spent his evening at the bar, consuming four or five alcoholic drinks. Zane Blankenship and his brother also spent their evening at the bar drinking along with some other friends. At about 1:30 a.m., the bar announced “last call” and began herding customers outside. Witnessing a large crowd gathering outside the bar, a police officer parked his patrol car in a parking lot adjacent to the bar, leaving his headlights on to illuminate the area. Meanwhile, Scott left the bar and crossed the parking lot, headed toward his car. As he did so, Blankenship and several friends approached Scott. Apparently having some issue with Scott, Blankenship aggressively pushed Scott several times. Immediately thereafter, Scott got into his SUV, which was parked nearby, and recklessly drove out of the parking lot at a high speed ² without his headlights on. His driving was so reckless that he almost lost control of his SUV. As he sped out of the lot, he struck and killed Blankenship, causing Blankenship to roll over the hood of Scott's SUV and shatter the windshield. According to the Commonwealth's evidence, Scott also sideswiped Blankenship's brother, injuring his arm, and nearly struck Blankenship's friend, Eric Hughes. Despite striking Blankenship, Scott continued to speed out of the parking lot and hit the police car. In an attempt to readjust the path of his SUV after hitting the police car, Scott hit a parked SUV owned by Scott Guilliams. The value of the damage to Guilliams' SUV exceeded $1,000.

Scott was indicted for first-degree murder, malicious wounding, and attempted malicious wounding. He was also indicted for felony property damage under Code § 18.2–137(B) for the damage to Guilliams' SUV. Finally, he was indicted for three counts of felony hit-and-run.³ At trial, the Commonwealth presented several witnesses and other evidence in support of its theory that Scott, at least indirectly through his other friends at the bar, had a dispute with Blankenship that started in the bar and escalated in the parking lot. According to the Commonwealth's theory, once Blankenship repeatedly pushed Scott in the parking lot, Scott threatened to get a gun and kill Blankenship, his brother, and his friends. The Commonwealth presented evidence that Scott blurted out “watch this” to some bystanders after making this threat. Thus, the Commonwealth proposed that Scott's comment indicated he wished to carry out his threat to kill Blankenship and his friends, and he immediately did so by driving his car at high speed toward Blankenship.

In contrast, Scott's defense rested on the proposition that he had no dispute with Blankenship or his friends and had no desire to fight or injure them. Instead, Scott claimed Blankenship wished to instigate a fight with him. This began in the parking lot when Blankenship repeatedly pushed him. According to Scott and other witnesses, after an aggressive push by Blankenship, Scott held out his hands with his palms out to indicate to Blankenship that he did not want to fight. Instead of saying “watch this” after Blankenship pushed him, Scott testified that he probably said, “F–––this,” indicating his frustration with Blankenship's bullying and, thus, simply indicating his desire to get away. Scott testified that while Blankenship pushed him, Scott heard someone say, “Gun.” Hearing this, Scott feared for his safety. According to him, this fear caused him to frantically flee from the parking lot in his SUV. Scott admitted that he drove too fast and that he almost lost complete control of his SUV. However, he also testified that the police car's headlights blinded him as he drove out of the parking lot. Thus, Scott explained that, although he may have recklessly driven his car, he did so only to get away from the danger he perceived—not to harm anyone. In that frantic rush to flee, he testified he was unable to see that he was about to strike Blankenship. He also testified that he did not see the police car until he actually struck it. Just like the Commonwealth, Scott introduced a significant amount of testimony and other evidence to support his theory of the case.

Scott twice made a motion to strike the evidence, first after the close of the Commonwealth's evidence, and again after the close of all the evidence. During his first motion, Scott asked the trial court to strike the charge of felony property damage, arguing that the Commonwealth's evidence failed to show “an intent to damage [Guilliams'] vehicle.” ⁴ He renewedthis request in his second motion, further arguing that there was “no evidence that there was any intent [to damage] Mr. Guilliams' vehicle. It was clearly an accident.” Scott also argued the evidence was insufficient to support the charges of murder, malicious wounding, and attempted malicious wounding. Notably, Scott's trial counsel said, “[A]t this point[,] we would move to strike and argue that at most, the evidence supports involuntary manslaughter, [because there is] no evidence of a willful, deliberate, intentional act....” She concluded by explaining, “He fled way too fast under the circumstances and at most at this juncture, it is involuntary manslaughter.” Scott never argued the evidence was insufficient to support felony hit-and-run during either motion to strike, nor was the charge ever mentioned in either motion.

The trial court denied each motion to strike. Following the motion to strike at the conclusion of all the evidence, the trial court said, “The defendant makes an interesting and one might think apparently valid argument with regard to the intentional property damage, except for the fact that the Court of Appeals of Virginia ... has said that even criminal negligence is sufficient to support a conviction under the statute.” The trial court then proceeded to closing arguments, and again Scott argued he lacked the intent necessary to commit murder, malicious wounding, or attempted malicious wounding, explaining to the court that this was “an involuntary manslaughter case.” He also argued that he lacked the intent necessary to commit felony property damage, and he again made no argument regarding felony hit-and-run.

The trial court, sitting in place of a jury, found Scott guilty of involuntary manslaughter, felony property damage under Code § 18.2–137(B), and one count of felony hit-and-run. It acquitted him of malicious wounding and attempted malicious wounding. In rendering its judgment, the court explained that it had carefully considered the evidence, and concluded by saying:

The testimony about what Mr. Scott was doing is, with the exception of one witness, entirely consistent in that from the moment he began backing [up his SUV] through the moment he left the parking lot, he was going as fast as he could and had to back off slightly to avoid losing control when he went around the turn of the building. At 15 miles an hour, he covered 22 feet every second. At 25 miles an hour, 36 2/3rds feet.... I have doubt based on reason and the evidence that Mr. Scott intended to maim, disfigure, disable, or kill the two persons whom he is charged with maliciously wounding or attempting to maliciously wound. There is, from the evidence of a number of witnesses including one of those victims, reason to question whether the defendant could possibly have seen them. The intent, the specific intent to maim, disfigure, disable, or kill is an element of the offense of malicious or unlawful wounding. I will find the defendant not guilty of those charges.

... I am not satisfied beyond a reasonable doubt of the necessary intent to commit murder. I am satisfied beyond a reasonable doubt that the killing was the result of negligence so gross, wanton, and culpable as to show a reckless disregard of human life and without discussing it, that the elements of involuntary manslaughter have been proven beyond a reasonable doubt.

Along with the sentences imposed for felony hit-and-run and felony property damage, the...