Wright v. Commonwealth, 789 S.E.2d 611

Background

Store asset-protection officer Garrett Atkins observed Mark Wright and Robert Wright leave a grocery store with unpaid beer; Atkins followed, recovered beer from Robert, and recorded the van's plate.
Police traced the van to a residence; Deputy Greathead responded, smelled a strong chlorine-like odor, donned a gas mask, and entered the basement where he encountered Robert near a water heater.
Greathead ordered Robert to drop a beer bottle; as Robert set it down and moved his arm, a reddish-orange cloud (later identified as bear deterrent) floated toward Greathead, causing burning to his skin and eyes.
Officers retreated, a SWAT team later forced entry about two hours after exposure and found both Mark and Robert Wright in the basement; both were arrested.
Mark Wright was convicted by a jury of grand larceny from the person (as a lesser included of robbery), felony malicious bodily injury by caustic substance, assault and battery of a law enforcement officer, obstruction of justice, petit larceny, and contributing to delinquency of a minor.
On appeal to the Virginia Supreme Court, the Court affirmed the grand larceny conviction but reversed and vacated convictions for malicious bodily injury by caustic substance, assault & battery of an officer, and obstruction of justice for insufficient evidence tying Mark to deployment of the deterrent.

Issues

Issue	Wright's Argument	Commonwealth's Argument	Held
Whether jury verdict convicting Wright of grand larceny from the person was improper because it was not charged as such or a lesser-included offense	Trial court erred; conviction deprived due process because grand larceny was not charged or a proper lesser-included offense	Jury instruction adding grand larceny as a lesser-included offense was proper; evidence supported the larceny conviction	Court declined to consider on direct review (procedural rule) and ultimately affirmed the grand larceny conviction on merits as to sufficiency
Whether evidence was insufficient because no proof of the value of items Wright allegedly took	Wright: record lacks evidence of the value attributable to his taking	Commonwealth: evidence of approximate value supported grand larceny conviction	Court refused to reach the argument on procedural grounds (Rule 5A:12(c)) and did not grant relief; grand larceny conviction affirmed
Whether evidence was sufficient to sustain conviction for felony malicious bodily injury by means of a caustic substance (Code § 18.2‑52)	Wright: no direct evidence he was in the basement or that he released the deterrent; circumstantial evidence insufficient	Commonwealth: circumstantial evidence permitted inference Wright released the deterrent (e.g., presence in house, found in basement later, acting in concert)	Reversed: evidence insufficient—circumstances did not exclude reasonable hypotheses of innocence or establish he deployed the deterrent beyond a reasonable doubt
Whether convictions for assault & battery of an officer and obstruction of justice stand absent proof Wright deployed the deterrent	Wright: these convictions rely on the same insufficient proof tying him to the gas deployment	Commonwealth: deployment of deterrent (as proven) supports assault and obstruction convictions	Reversed: because the malicious-injury conviction was unsupported, the affirmance of assault and obstruction (which depended on that finding) was vacated

Key Cases Cited

LaPrade v. Commonwealth, 191 Va. 410, 61 S.E.2d 313 (1950) (circumstantial-evidence standard requires an unbroken chain excluding reasonable hypotheses of innocence)
Commonwealth v. Smith, 259 Va. 780, 529 S.E.2d 78 (2000) (evidence equally susceptible of two interpretations must favor the accused)
Burton v. Commonwealth, 108 Va. 892, 62 S.E. 376 (1908) (trier of fact cannot arbitrarily adopt interpretation that incriminates when facts admit an innocent construction)
Stover v. Commonwealth, 222 Va. 618, 283 S.E.2d 194 (1981) (suspicion, however strong, is insufficient to sustain conviction)
Hall v. Commonwealth, 225 Va. 533, 303 S.E.2d 903 (1983) (definition and proof required for principals in the second degree)