Taylor v. Commonwealth

• Docket Number: Record No. 0433-22-2
• Decision Date: 28 March 2023
• Citation: 77 Va.App. 149,884 S.E.2d 822
• Parties: William Ezell TAYLOR, Jr. v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

77 Va.App. 149

884 S.E.2d 822

William Ezell TAYLOR, Jr.

v.COMMONWEALTH of Virginia

Record No. 0433-22-2

Court of Appeals of Virginia.

March 28, 2023

Todd M. Ritter, Chester (Hill & Rainey, on brief), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Athey, Chaney and Lorish

OPINION BY JUDGE LISA M. LORISH

William Ezell Taylor, Jr. approached Kimani Donovan in a mall food court and provoked a fight. Donovan quickly gained the upper hand. After the fight was broken up, Taylor walked to his backpack and retrieved a firearm. When Donovan restarted the fight, Taylor shot him twice. Taylor also hit his sister with a stray bullet. While Taylor's sister survived, Donovan was critically injured and ultimately died in the hospital. The jury rejected Taylor's self-defense argument, and he was convicted of many different charges. He raises nine assignments of error, including one issue of first impression: whether his three rapid-fire shots at the same person in the same instance are sufficient to sustain three counts of malicious shooting within an occupied building in violation of Code § 18.2-279. Concluding that the General Assembly intended each "discharge" of the firearm to be the relevant unit of prosecution, we affirm all three convictions and find no error in the remaining issues raised.

BACKGROUND

This tragic incident was largely captured on mall security cameras as well as bystander cell phone videos. As a result, the basic facts are not in dispute, although the parties disagree over whether what happened shows that Taylor acted in self-defense. To the extent there is any factual disagreement, we recite the record "in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth , 74 Va. App. 225, 231, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady , 300 Va. 325, 329, 863 S.E.2d 858 (2021) ).

Taylor went shopping at the mall with his mother, sister, and two-year-old son. Taylor brought with him a backpack he used as a diaper bag. In it was a loaded handgun, for which he did not have a concealed carry permit. After shopping, Taylor left his family members in the food court while he went to the parking lot to load packages and his son's stroller into the car. While leaving the mall, Taylor saw Donovan and two of Donovan's friends at a table in the food court. Taylor and Donovan had never met in person, but three years before this encounter Taylor confronted Donovan in a video call after discovering that Taylor's then-girlfriend had been talking to Donovan.

Taylor loaded the items into the car and returned to the mall, still carrying the backpack. He approached Donovan and mentioned the former girlfriend's name. Donovan stood and moved toward Taylor. Taylor threw the diaper bag to the floor, and then struck Donovan in the face, prompting a fistfight that Donovan had the better of until Donovan's friend separated Donovan from Taylor.

Taylor then returned to his discarded bag and retrieved his gun. He held the gun down by his side without displaying it or warning Donovan that he had a weapon. Donovan approached Taylor, and the two began fighting again. Taylor then fired his gun three times in quick succession, twice hitting Donovan in the abdomen and buttocks. One of the shots also injured Taylor's sister. Taylor and his family gathered their belongings and ran out of the mall. Taylor ran ahead of his family, including his son, and testified that he did not know where his son was during the fight.

Donovan was transported to the hospital and went into organ failure "almost immediately." Donovan arrived at the ER close to death and, after a procedure to stop the bleeding, he had a roughly 1% chance of survival according to his treating physicians’ testimony. Donovan underwent at least 10 operations during his 11-day stay at the hospital, during which he never regained consciousness. Donovan ultimately was removed from life support and died.

Taylor was tried before a jury and was convicted of voluntary manslaughter ( Code § 18.2-35 ), three counts of maliciously discharging a firearm within an occupied building ( Code § 18.2-279 ), unlawful wounding ( Code § 18.2-51 ), felony child neglect ( Code § 18.2-371.1(B) ), and carrying a concealed weapon ( Code § 18.2-308(A) ). The trial court sentenced him to 35 years of imprisonment, with 16 years suspended, and 12 months in jail.

ANALYSIS

Taylor assigns nine errors to his various convictions. We start by considering the questions of law. Taylor contends it was error for the court to convict him of three separate counts of malicious shooting within an occupied building when each bullet was fired in the course of the same incident, and additionally that he could not be convicted of both malicious shooting within an occupied building and voluntary manslaughter for the same act of shooting. After addressing these arguments, we take up the court's failure to give the jury Taylor's proposed supplemental instruction. Five assignments of error question the sufficiency of the evidence; we consider those challenges as a group.¹ Finally, we address Taylor's contention that the trial court abused its discretion in sentencing him to the statutory maximum sentence for voluntary manslaughter.

I. The unit of prosecution for Code § 18.2-279 is each act of shooting.

Taylor was found guilty of three counts of violating Code § 18.2-279, which provides that if a 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 ... the person so offending is guilty of a Class 4 felony." Taylor argues that there was "insufficient separation in [the] discharge[s] of his weapon to warrant his conviction for three separate crimes," because he fired each shot in the same location (the mall food court) at the same target (Donovan). This specific statutory interpretation question is one of first impression in Virginia, but not a difficult one, given our caselaw analyzing indistinguishable statutes.²

We review issues of statutory interpretation de novo. See Lopez v. Commonwealth , 73 Va. App. 70, 77, 854 S.E.2d 660 (2021). "This same de novo standard of review applies to determining the proper definition of a particular word in a statute." Miller v. Commonwealth , 64 Va. App. 527, 537, 769 S.E.2d 706 (2015). "[C]riminal statutes are to be strictly construed against the Commonwealth." Brewer v. Commonwealth , 71 Va. App. 585, 592, 838 S.E.2d 557 (2020). But the appellate court "must also ‘give reasonable effect to the words used’ in a statute." Id. (quoting Johnson v. Commonwealth , 37 Va. App. 634, 639, 561 S.E.2d 1 (2002) ). To the extent there is ambiguity, such "ambiguity should be resolved in favor of lenity," because if the legislature "does not fix the punishment for a[n] ... offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses." Bell v. United States , 349 U.S. 81, 83-84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955).

At core, Taylor's argument is that when Code § 18.2-279 says "maliciously discharges a firearm," the offense is incident-specific, not projectile-specific.³ Taylor has not argued that multiple prosecutions for the same incident of shooting violate the Double Jeopardy Clause of the Fifth Amendment. Because many of our prior cases analyzing the "unit of prosecution" set out in a statute do so against the backdrop of a double jeopardy challenge, we briefly acknowledge that both the United States and Virginia constitutions protect a defendant from being "put twice in jeopardy for the same offense." Va. Const. art. I, § 8 ; see also U.S. Const. amend. V. As we have repeatedly held that this protection is "limited to assuring that the court does not exceed its legislative authorization," Stephens v. Commonwealth , 263 Va. 58, 62, 557 S.E.2d 227 (2002) (emphasis added) (quoting Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) ), any double jeopardy challenge necessarily folds back into interpreting the legislature's intent in enacting a criminal offense—the same inquiry we take up here.

In concluding that the legislature intended Code § 18.2-279 to be bullet-specific, we are persuaded by three things: our Supreme Court's analysis of the similar malicious shooting at an occupied vehicle statute, the independent risk carried by each bullet, and the statute's unambiguous use of the word "discharge."

First, Code § 18.2-154 makes it a crime to "maliciously shoot[ ] at, or maliciously throw[ ] any missile" at a vehicle or other specified type of transportation. In Stephens , the defendant shot at another car at least twice, hitting the driver twice. 263 Va. at 60, 557 S.E.2d 227. Our Supreme Court rejected the argument that " ‘in the absence of a showing that the shots constituted separate and distinct acts performed at separate times,’ [the defendant] cannot be convicted of two counts of violating Code § 18.2-154," instead concluding that each shot the defendant fired was a "separate, identifiable act." Id. at 61-62, 63, 557 S.E.2d 227.

Applying these principles here, we see no meaningful distinction between someone who "maliciously shoots" and someone who "maliciously discharges a firearm" where the facts show, as they do here, that the trigger of the firearm was pulled multiple times. See Branch v. Commonwealth , 14 Va. App. 836, 839, 419 S.E.2d 422 (1992) ("Where possible, a statute should be construed with a view toward harmonizing it with other statutes. Because the Code of Virginia is one body of law, other Code sections using the same phraseology may be consulted in determining the meaning of a statute." (citation omitted)).

Second, 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...