Witherow v. Commonwealth

• Decision Date: 01 December 2015
• Docket Number: Record No. 1827–14–3.
• Citation: 779 S.E.2d 223,65 Va.App. 557
• Parties: James Scott WITHEROW, II v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

65 Va.App. 557

779 S.E.2d 223

James Scott WITHEROW, II

v.COMMONWEALTH of Virginia.

Record No. 1827–14–3.

Court of Appeals of Virginia, Salem.

Dec. 1, 2015.

John W. Swezey, Martinsville, for appellant.

Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Elizabeth C. Kiernan, Assistant Attorney General, on brief), for appellee.

Present: HUFF, C.J., HUMPHREYS, J. and BUMGARDNER, Senior Judge.

GLEN A. HUFF, Chief Judge.

James Scott Witherow, II ("appellant") appeals his conviction for malicious wounding, in violation of Code § 18.2–51.¹ Following a jury trial in the Circuit Court of the City of Martinsville ("trial court"), appellant was sentenced to a total of ten years' incarceration. On appeal, appellant contends that "[t]he trial court erred in denying appellant's tendered instructions 'A' and 'B' which allowed the jury the option of considering the lesser offenses of unlawful wounding and assault and battery." For the following reasons, this Court reverses appellant's conviction for malicious wounding and remands the case for a new trial on that charge if the Commonwealth be so advised.

I. BACKGROUND

"When reviewing a trial court's refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction." Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002) (citing Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991) ). So viewed, the evidence is as follows.

On Sunday, April 14, 2013, appellant, a retired police officer of twenty-five years, was in his apartment with his wife, Marlene Carter ("Carter"), when Carter asked appellant to go to the store to buy some items. While leaving the apartment, appellant passed a row of mailboxes when he noticed that one mailbox, which was associated with an apartment that had been vacant for "two years or more," was left open. Appellant testified that he stuck his fingers in the mailbox "to feel if any mail was in it" and, upon finding none, closed it. Appellant testified that at this point, Carter came outside "cussing" and "want[ing] to know what [appellant] got out of the mailbox." Carter demanded that appellant empty his pockets, which revealed only a set of car keys.

When appellant returned home from the store, he testified that Carter renewed their argument regarding whether appellant had removed something—namely, cigarettes—from the mailbox. Carter then left the apartment to visit a neighbor, Vicky Goins ("Goins"). Upon her return, Carter said, "[l]et me see your will," causing appellant to retrieve it from his top drawer in his bedroom. Carter examined the front page and then threw it at him saying that she would "look at it later." She then retrieved a telephone book to look up divorce attorneys while appellant returned the will to his bedroom. Appellant testified that he decided to call Carter into the bedroom to show her where his will, life insurance, and cemetery plot information are located.

At this point, appellant testified that Carter came into the bedroom and thrust a bowie knife at him. The knife went through his shirttail, which was "blossomed out." According to appellant, Carter took "a couple steps" back and "came at [him]" again. Consequently, appellant "reached up on the shelf [of the closet], got [his] gun, and just came around and fired." Appellant testified that he "didn't aim.... [He] just wanted to scare her and get her away."

Carter was struck in the chest by the bullet, at which point she ran first to Goins' apartment, but when Goins did not answer, she ran to Betty Jo Patterson's ("Patterson") apartment. Appellant testified that after he shot the gun, he threw it on the bed and followed Carter out of the apartment. After appellant arrived at Patterson's apartment, he realized that he had a cut on his index finger.

Carter's version of the events differed significantly. According to Carter, she had been arguing with appellant that day about how appellant was smoking cigarettes against her wishes. During their fight, she asked to see his will, but eventually threw it on the floor saying, "[i]t's a waste of time." She then got a phonebook out to look up divorce attorneys. Carter testified that appellant went into his bedroom and stated, "[c]ome here, I've got something to show you." Carter testified that she entered the room and saw "the barrel of [a] gun pointed at [her]." Carter testified that appellant then shot her in the chest and stated, "I told you I'm getting tired of you calling me an f-ing liar."

At trial, Virginia State Police Special Agent Steve Oliver ("Oliver") described the two shirts that appellant was wearing on the day in question and the cuts he found on each of the shirts. Oliver also testified that he found cuts on appellant's hand and fingers. Special Agent Kevin Heath ("Heath") testified that he found a phonebook lying open, turned to "the lawyers section," a .357 revolver on the bed in appellant's bedroom, and a knife on the floor near the door of Carter's bedroom. Heath also testified that he found small pieces of wood paneling near the knife and that the wood paneling was broken inside the closet in appellant's room.

The jury was instructed, in relevant part, as to the offenses of aggravated malicious wounding and the lesser-included offense of malicious wounding.² Additionally, appellant proffered Instructions A and B. Instruction A, which was refused by the trial court, provided,

The defendant is charged with the crime of malicious wounding. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

(1) That the defendant shot Marlene Carter; and

(2) That such shooting was with intent to kill or permanently maim, disfigure or disable Marlene Carter; and

(3) That the act was done with malice.

....

If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the first two elements of the crime as charged, but that the act was done unlawfully, and not maliciously, then you shall find the defendant guilty of unlawful wounding....

If you find that the Commonwealth has failed to prove beyond a reasonable doubt either malicious wounding or unlawful wounding but you do find beyond a reasonable doubt:

(1) That the defendant willfully touched Marlene Carter without legal excuse or justification; and

(2) That the touching was done in an angry rude, insulting, or vengeful manner then you shall find the defendant guilty of assault and battery....

If you find that the Commonwealth has failed to prove beyond a reasonable doubt any of the above crimes, then you shall find the defendant not guilty.

See Va. Model Jury Instr. Crim. No. G37.100. Instruction B, which was also refused by the trial court, provided,

If you have a reasonable doubt as to the grade of the offense, then you must resolve that doubt in favor of the defendant, and find him guilty of the lesser offense. For example, if you have a reasonable doubt as to whether he is guilty of aggravated malicious wounding or malicious wounding, you shall find him guilty of malicious wounding; if you have a reasonable doubt as to whether he is guilty of malicious wounding or unlawful wounding, you shall find him guilty of unlawful wounding; if you have a reasonable doubt as to whether he is guilty of unlawful wounding or assault and battery, you shall find him guilty of assault and battery; if you have a reasonable doubt as to whether he is guilty at all, you shall find him not guilty.

See Va. Model Jury Instr. Crim. No. 37.500.

Following deliberations, the jury found appellant guilty of malicious wounding, in violation of Code § 18.2–51. This appeal followed.

II. ANALYSIS

On appeal, appellant contends that the trial court abused its discretion by refusing his proposed jury Instructions A and B. Specifically, he argues that these instructions should have been given because there was more than a scintilla of evidence to demonstrate that appellant lacked malice.

"As a general rule, the matter of granting and denying instructions ... rest [s] in the sound discretion of the trial court." Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009) (citing Daniels v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008) ). The trial court's "broad discretion in giving or denying instructions requested" is reviewed for an abuse of discretion. Gaines v. Commonwealth, 39 Va.App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc ). On appeal, this Court's "sole responsibility in reviewing [jury instructions] is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises." Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982) ).

"A defendant is entitled to have the jury instructed only on those theories of the case that are supported by [more than a scintilla of] evidence." Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990) (quoting Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986) ); Williams v. Commonwealth, 64 Va.App. 240, 246, 767 S.E.2d 252, 255 (2015) ("more than a scintilla of evidence must be present to support an instruction" (quoting Eaton, 240 Va. at 255, 397 S.E.2d at 397 )). "This Court," however, "has avoided establishing a precise definition for the term 'scintilla' because to do so would be 'neither practical nor helpful.' " Williams, 64 Va.App. at 247, 767 S.E.2d at 256 (quoting Brandau v. Commonwealth, 16 Va.App. 408, 411, 430 S.E.2d 563, 564 (1993) ). Rather, "[t]he weight of the credible evidence that will amount to more than a mere scintilla ... is a matter to be resolved on a case-by-case basis." Woolridge v. Commonwealth, 29 Va.App. 339, 348, 512 S.E.2d 153, 158 (1999) (quoting Brandau, 16 Va.App. at 411–12, 430 S.E.2d at 565 ).

The Supreme Court has "rejected the concept that a jury instruction on the lesser-included offense...