*1 fact of prudent steps but who has not taken to confirm the an undesir- coverage. interpretation encourage Such would in growth able the number of motor vehicles driven with uninsured coverage payment neither insurance nor This, turn, motor vehicle fee. would inhibit the effective- cost of statutory ness scheme its effort to reduce the result, coverage. light uninsured motorist of this we hold substantial evidence officer’s conclusion supported hearing failed to show cause appellant good why suspension not be order should enforced.
III. hold appellant’s motorcycle We was a motor vehicle as and, thus, defined Code 46.2-705 was governed by Code § 46.2-706. also hold We that substantial evidence supported hearing officer’s finding appellant good lacked cause motorcycle believe the was insured when it. registered Thus, we affirm the circuit court’s order the DMV affirming hearing officer’s decision to reinstate the order of suspension.
Affirmed.
Court of
Richmond.
Jan. 2004. *4 Beach,
Andrew Wiggin, G. for Virginia appellant. Eugene Murphy, Assistant Attorney (Jerry General W. Kilgore, Attorney General, brief), on appellee. for FITZPATRICK, C.J.,
Present: BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, FELTON, CLEMENTS and JJ.
UPON A REHEARING EN BANC HUMPHREYS, Judge.
This matter comes before the Court on banc rehearing en from an unpublished panel decision May rendered 2003. See Vap UNP WL decision, In that a divided of this panel Court Nicko affirmed Bazemore’s for grand larceny, conviction but reversed convictions for feloniously and eluding police second degree By murder. order dated June we granted banc, petition Commonwealth’s for en rehearing stayed decision, the mandate of appeal. reinstated the banc, Upon rehearing this en affirm case we each of Baze- more’s convictions. *5 Background
I. challenges sufficiency an the the “When appellant conviction, we the evidence in to sustain his review evidence grant and to it most to the Commonwealth light the favorable ” fairly Kelley therefrom.’ ‘all reasonable inferences deducible 548, 489 S.E.2d (citation omitted). viewed, presented evidence So the on morning August the during proved Bazemore’s rear Marshall noticed a broken window Officer M.C. and received City a minivan the Suffolk green on regis on minivan were plates information the license Marshall activated the to another vehicle. When Officer tered car, green of the and on his the driver lights police siren minivan continued to drive. minivan, pursuit green Officer Marshall’s
During relatively heavy more than mile which covered little traffic, stop signs, failed two the driver of the minivan to heed hour, speed and to 50 later decreased per accelerated miles an minivan made series green “to ... 10 miles hour.” The turns, and struck another stop sign, failed heed another Officer Marshall entering minivan after intersection. however, he testified speed; not estimate the vehicle’s could an 15 to 20 miles hour” speed “approximately that his own A the intersection. witness green when the minivan entered the intersec- green “shooting minivan as across described tion.” minivan, yet hit the another green
After the minivan other A minivan. the minivan passenger hit the other vehicle and spine hit a fractured cervical died. that was sustained collision, minivan the road and spun off green After the a nearby crashed into house. minivan, he ob- green Marshall approached
As Officer front passen- the van Greg through Shorter leave served moving Bazemore Marshall also observed ger door. Officer the front through to exit attempting from the driver’s seat then arrested Shorter and door. Officer Marshall passenger green in the passenger another Byron, Bazemore. Denise minivan, on having found after been lying ground, thrown from van it hit the when house. arrived, rescue squad complained
When the pain and officers to the scene that he was responding told *6 minivan it driving green the when crashed. Officers observed that wearing green Bazemore was one shoe. Inside the minivan, officers found Bazemore’s other shoe under the brake screwdriver, also pedal. They handgun, found a 9-mm and a Florida The plate. ignition license minivan’s had been damaged, rag and was column. covering steering The evidence that proved green minivan had been two stolen days earlier in the Norfolk City of and that broken was glass found on the it had pavement after been stolen. Bazemore, police
Several hours after arrested he waived his Miranda rights. Bazemore initially police told the that a friend, he only “Malik,” whom knew as and Shorter offered him a 9:00 p.m. ride at on the night before the accident. Bazemore that said he noticed the screwdriver on the floor and the broken window that him gotten and Malik told he had the van from Norfolk. Bazemore also said he within learned two Later, hours that the van been joined had stolen. Byron them and sat the rear area the van. police
Bazemore told began he at 3:00 driving vehicle a.m. He also said that after the officer attempted stop vehicle, he believed the vehicle stolen. might be When asked “Why you vehicle?,” didn’t stop the “I responded was scared.” theAs progressed, interview Bazemore said Malik did not exist minivan, and that when he entered the Shorter was the driver and sole occupant. Bazemore admit- ted driving he was the van when the accident occurred and could not recall his speed happened because “it quick.” so
On October grand jury for the City of Suffolk indicted on Bazemore “in charges grand larceny, violation of 18.2-95,” felony eluding [Code] police, violation of Code §§ 18.2-10, 46.2-817 and and degree second murder. indictment for second degree murder stated that Bazemore “unlawfully feloniously prosecution and while in the of a to the intention act, contrary accidentally,
felonious §§ 18.2- [Code] in violation Mil and murder did parties, 33,18.2-32, and 18.2-26.” Bazemore’s trial, judge had denied after the
During Shorter, evidence, Bazemore testified to strike the motion minivan “Malik,” driving green is also called who incident hours They spent it. before when he entered driving he was Bazemore testified places. to various driving morning, but he or 6:00 the joined them 5:30 Byron when he knew Although column. steering the broken seeing denied money and did not have not own the minivan Shorter did it or vehicle, where he obtained not ask Shorter he did buy it. who owned him to that, police signaled after the also testified him, places switched he and Shorter pursue
stop began when driving He said that Shorter moving in the vehicle. he did not and that the intersection the vehicle entered *7 the collision driving he was when telling police remember that he to police his statement Despite previous occurred. van, testified that Shorter in the Bazemore gun had not seen a and to going prison, not back the said he was displayed gun, Bazemore stop. to Byron’s requests and Bazemore’s ignored accident, crawled across Shorter that after the also testified testified out of the van. He get seat to him from the driver protect to Shorter in the interview police that he lied to the going on around that was everything “was afraid because he afraid of Shorter. him” and by receiving larceny of “grand convicted Bazemore jury
The signal ... of disregarding “felony property,” stolen The officer,” “felony homicide.” and a law enforcement Lar- convictions as “Grand denotes the final conviction order ([Code] 18.2-95),” Poliee-Endangerment “Eluding § ceny Murder 46.2-81[7](B) Degree (§ and “Second (Felony),” 18.2-32) (§ (Felony).” Analysis
II. (1) was insuffi- the evidence contends appeal, On (2) by convictions, judge erred support to cient an refusing give jury instruction the word defining “wanton,” and the trial judge erred by failing properly instruct jury on the elements the offense of feloniously and, thus, eluding the police permitted to improperly convict him of feloniously eluding police homi- felony follow, cide. For the reasons affirm we Bazemore’s convictions.
A. Bazemore first contends the evidence was insuffi cient to support conviction for grand larceny by receiving stolen property. Specifically, argues he the evidence was insufficient prove stolen, knew the vehicle was intended to permanently deprive the vehicle, owner of the and had dishonest intent. note,
We first in regard to this argument, that Bazemore contends the evidence was insufficient to convict him of violat- ing § Code 18.2-108. final recites, conviction order howev- er, that the conviction was for grand larceny in violation of 18.2-95, Code which was the charge specified in the indict- ment. Although neither Bazemore nor the Commonwealth addressed this discrepancy, we address it for purposes of clarity.
The record reflects that judge’s the trial instructions per- mitted the convict “grand Bazemore of larceny,” which was the offense charged indictment, or to convict him of offenses, other lesser including “grand larceny by receiving stolen property.” The verdict form establishes that the convicted “grand Bazemore of larceny by receiving stolen *8 property,” which is prohibited § by Code Following 18.2-108. guilt trial, phase of the fixed punish- Bazemore’s ment at one year prison for “grand larceny by receiving stolen property.” Consistent jury’s with the findings, the trial judge entered an order reflecting that the jury convicted Bazemore and fixed his for “grand sentence larceny by receiv- ing stolen property.” order, The final however, conviction contains no § reference to Code 18.2-108 and only recites that
212 ([Code] § larceny 18.2- “grand
Bazemore was convicted 95).” “[r]eceiving goods, has held that stolen Supreme Court stolen, may charged larceny.” same to be be as
knowing the Commonwealth, 490, 498, 704, 115 706 Clark v. 135 Va. S.E. (1923), grounds by overruled on other Chittum v. Common- (1970). wealth, 12, v. 211 174 779 See also Cobbler Va. S.E.2d (1971) Commonwealth, Va. S.E.2d is a lesser (holding “[l]arceny by receiving goods that stolen major larceny”). which is in the one of offense included forms, decisions, trial jury’s view of these verdict and the verdict, jury’s entered we hold that the judge’s upon order § 18.2-108 judge’s failure to include reference Code was a clerical error. on the final conviction order mere We limited further remand this matter to the trial court for the correcting that error. purpose argument, recog- to the merits of Bazemore’s we Turning any buy § provides person nize that Code 18.2-108 “[i]f or aid in person, concealing, or receive from another to have thing, knowing stolen or other the same been goods thereof, stolen, may and guilty larceny he shall be deemed offender be not proceeded against, although principal be have the elements of the offense as convicted.” We described follows: 18.2-108,
“To convict a defendant under Code the Com (1) ‘was prove property previously monwealth must (3) (2) another, defendant, by with by stolen and received theft, Guilty a dishonest intent.’ knowledge of the if sufficiently proven ‘is shown the circumstances knowledge recipient made or caused the are such as must have ” they were stolen.’ Shaver goods stolen believe 789, 800-01, 520 S.E.2d (1999). an admis ... “Guilty knowledge proof [a]bsent interest, by must be shown necessarily sion against Commonwealth, 225 Va. Lewis v. circumstantial evidence.” *9 Commonwealth, Snow v. 766, 775, 6, 537 S.E.2d (2000). bar,
The evidence the case at light when viewed Commonwealth, most favorable to the proved that Bazemore confessed to police shortly after he entered the green minivan, he learned it had been stolen. He also saw the minivan’s broken window and the screwdriver on the floor. Thus, by admission, Bazemore’s own he knew he was driving stolen vehicle before he failed to heed the signal. officer’s The proved evidence also Bazemore admitted to an in jail inmate that he Moreover, knew the vehicle was stolen. apart from his own inmate, confession and the testimony an the evi- dence proved Bazemore was driving the vehicle in daylight and had the opportunity to see the “popped” ignition, column, broken steering and a rag covering the steering column. was not required to accept Bazemore’s trial Commonwealth, Marable v.
testimony. 27 Va.App. 509- (1998). 500 S.E.2d It was free believe or disbelieve, in whole, or in part testimony any witness. Commonwealth, Rollston v. 535, 547, 11 Va.App. 399 S.E.2d 823, 830 Although testimony Bazemore’s differed from confession, “the obliged ‘not it accept’ what obviously found was an unreasonable explanation,” Roberts v. (1985), 230 Va. and was free to believe his confessed participation. We hold the evidence was sufficient for the beyond find reasonable doubt that Bazemore knew the vehicle was stolen when he drove it.
Bazemore also contends the evidence was insufficient
prove he intended to permanently deprive the owner of the
However,
minivan.
Bazemore’s reliance on Moehring v. Com-
monwealth,
(1982),
223 Va.
There is no evidence record or control over Moehring any degree exercised dominion truck, the court could have in- the stolen or from which jointly the truck with Fai- possessed ferred defendant .... *10 certainty son The most that can be said with reasonable accepted is that this defendant-hitchhiker a ride from the person that he that person stopped first who and knew driving a stolen vehicle. in this
Id. at
Bazemore further that the evidence was insuffi argues consistently intent. have prove cient he had dishonest We held, however, not properly preserved that issues were raised on Andrews v. appeal. cannot be Bazemore of dishonest intent before the trial argument never raised the record, Because, to consider court. on this we find no reason cause” or “ends of argument pursuant “good this to the 5A:18, issue, to Rule we do not review this justice” exceptions first on See Rule 5A:18. appeal. raised for the time
B. on that the trial appeal judge Bazemore next contends to instruct on the definition of failing erred his that because of this error argues “wanton.” Bazemore homicide must felony police felony convictions for and eluding be reversed. 46.2-817,
To a violation of Code Common prove in a the “motor vehicle had to Bazemore drove prove wealth Never disregard” signal. and wanton the officer’s willful theless, ask the to instruct the judge Bazemore did not Therefore, not we will of “wanton.” concerning the definition See Rule 5A:18. appeal. first time on issue for the review the no basis Furthermore, provides this record find that we to Rule 5A:18. exceptions consider this claim under C. Bazemore contends appeal, final on arguments his wantonly disregarded prove was insufficient to
evidence judge the trial He also contends signal stop. officer’s elements of concerning the instructed the incorrectly of “willfull” by § 46.2-817 the elements placing Code conjunctive. than in the rather disjunctive, “wanton” conviction felony eluding argues Consequently, and, homicide conviction felony reversed because his should be conviction, that convic- contingent upon felony eluding tion must also be reversed. evidence, Bazemore’s
At close of the Commonwealth’s *11 to He conceded Baze- attorney trial made motion strike. however, that be- argued, more the minivan. He operated stolen, minivan was the cause Bazemore did not know the Thus, he that larceny. argued evidence failed to prove grand predi- should have been the larceny, which he asserted grand homicide, not He then felony proved. cate for was offense as argued follows: is a eluding separate
I ... that the would submit crime, is to heed distinct that the essence of which [failure] that to under circumstances create police signal stop the traffic.... I would to the or danger motoring pedestrian for submit, a sufficient predicate that that is not Judge, to felony apply. murder evidence, attorney trial
At of the Bazemore’s the conclusion eluding the concerning also moved to strike the evidence clear, intelligent real asserting any “there charge, [wasn’t] the vehicle actually operating that was evidence [Bazemore] when the stop for of time that the vehicle failed any length driven in such being were on and the car was lights blue that attorney argued, as to Bazemore’s endanger.” fashion proved places because credible evidence had Shorter switched “[tjhere’s Bazemore, with no to clearly evidence demonstrate anyone endangered that time for a felony eluding was when was operating the vehicle. the evi- [Bazemore] And dence is that you before when he wanted stop, he couldn’t said, stop because had brandished ... and weapon [Shorter] ” ‘Drive on.’ Summarizing, argued Bazemore’s trial attorney as follows:
[T]hey have to for the prove endangerment reckless element that the defendant at the time to driving create danger to motoring pedestrian public. the can’t do They that. We would have to the Court have to guess, would guess at that I point endangerment occurred. So [the] submit, Honor, would Your charge felony that the elud- likewise, to fall ing, has because there is evi- insufficient dence to the conclusion that at the time support relevant driving the defendant was a car or van to actually this endanger motoring public. the argued As to the felony-homicide charge, he as follows: We would also move to strike the Commonwealth’s evidence as degree to second murder. It’s clear that this accident, was an that whoever not driving it was that, intended to do and ... purpose the evidence before the Court is that the was not operator defendant of the vehicle at time the collision.
These which also arguments, judge rejected, formed gist closing of Bazemore’s counsel’s argument jury. “the Urging analyze elements offenses,” larceny he discussed detail the elements of the offense. to “the eluding,” posed question, As “where *12 Nicko the evidence that Bazemore was operating at time that to any danger created a the public?” [vehicle] Thus, he argued:
So, if, indeed, conclude that not the you [Bazemore] collision, driver at of the could of the the time he [vehicle] not If felony you be convicted murder. believe that the vehicle a driving any presented not time when not convicted of he could be motoring public, to the danger felony. a eluding not trial, contended he was Bazemore stages
At all disregard entered the intersection when the vehicle driving At no did he point with the van. and collided stop sign the element prove was insufficient object that the evidence our issues at trial bars The failure to raise these of “wanton.” Floyd on Rule 5A:18. See appeal. consideration of them 583-85, 171, 176 219 Va. of insufficien- that review of the issue (holding appellate that issue was a element is barred when cy prove specific trial). Moreover, arguments in view of the not raised at pro- at trial and the evidence actually advanced duced, excep- that no exists to invoke the we conclude basis tions to Rule 5A:18. from consider precluded find that we are likewise
We erred in ing judge Bazemore’s final contention that the on the offense of instructing eluding. the elements of given, The instruction read as follows: The instructs the that the defendant is charged Court of a law felony disregarding signal with a crime of enforcement officer to The Commonwealth must stop. each of the prove beyond following reasonable doubt of a that the defendant was elements crime. Number vehicle; that he received a driving motor and Number audible from a law enforcement officer signal visible and/or 3, that he bring stop; his motor vehicle to a and Number to endan- willfully wantonly disregarded signal such so as ger any person.... object that Bazemore did not to the record reflects Indeed, Bazemore does not dis-
instruction manner. below, an contends pute objection his failure raise but this it falls within the “ends we must address issue because justice” exception to Rule 5A:18. our that Code 46.2-817 begin analysis by recognizing
We provides *13 who,
[a]ny person having received a visible or audible signal from any law-enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of signal such so as to interfere with endanger the operation of the law-enforcement vehicle or endanger a person guilty of a felony. Class 6 added). (Emphasis The trial judge instructed the jury that the Commonwealth required to “prove beyond a reason- able doubt willfully or wantonly [Bazemore] disre- garded such signal so as to endanger any person.” (Emphasis added).1 parties The do not dispute the fact that the instruc- tion, given, as was an incorrect statement of law.
Nevertheless, Rule [u]nder 5A:18 we do not notice the trial errors for which no timely objection was made except in extraordinary situations necessary when to enable us to attain the ends of justice. laudatory purpose 5A:18, behind Rule and its equivalent Supreme 5:25, Court Rule frequently referred to as the contemporaneous objection rules, is to require that objections be promptly brought to the attention of court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when neces- sary. The rules promote orderly and efficient justice and are to be strictly except enforced where the error has resulted manifest injustice. Errors can usually be cor- court, rected in the trial particularly trial, in a bench without the necessity of appeal. Because our function is to review the rulings court, of the trial rather than superintend the proceedings, we will notice error for which there has been no timely objection only when necessary to satisfy the of justice. ends Commonwealth,
Brown v. 126, 131, 8 Va.App. 8,10 380 S.E.2d (1989) (citation omitted). Assembly
1. The General amended Code 46.2-817 in effective 1, 2000, July preceding and substituted "and” for "or" the words Acts, disregard.” “wanton See 1999 Va. ch. 720. “ and is to be is narrow justice exception ‘The ends of ” Va.App. Redman sparingly.’ used Brown, (quoting 487 S.E.2d 10)). must Additionally, the record at oc justice has miscarriage that a “affirmatively show[] *14 occurred.” might have miscarriage curred not ... Commonwealth, 433, 436, 742, 357 4 S.E.2d Va.App. Mounce v. (1987) a defendant requires This (emphasis original). 744 clear, ... that the error affirmatively [was] “to show [that] 132, Brown, at 380 Va.App. and material.” 8 substantial (alterations original). 11 S.E.2d at that the “ends of Virginia of has held Supreme Court “granted when a permit to review justice” exception applies of the offense” omitted some essential elements instruction to those elements.” produced relating and “no evidence was 678, Commonwealth, 244, 251, 241 402 S.E.2d Jimenez v. Va. Commonwealth, 14 Va.App. In Campbell 681-82 (1992), 988, 994, similarly this held 421 S.E.2d Court our of an instruc- applies permit that the to review exception to without of proof tion that “allows a convict defendant charged an element of the offense.” necessary essential However, nor this Virginia, neither the Court Supreme Court, justice always apply held that we must the ends has to involving faulty jury in cases instructions which exception faulty no noted where such instruc- objection was below—even elements of an offense. See improperly tions stated the Commonwealth, 457, 464-65, 424 Phoung v. S.E.2d Va.App. (1992) consider, for the first time on (refusing improperly contention that the trial court appeal, defendant’s burglary charge). on the elements of a instructed the Indeed, on so would us to raise such failures require do jurisdictional compo- to the level of a part of counsel effective Warden, 276, 281, 552 S.E.2d nent. See Nelson v. 262 Va. jurisdiction granted by (noting subject matter waived, any cannot so that constitution statute and be initio, lack it ab and that judgment rendered without is void time, any at subject jurisdiction may matter be raised manner, court, (citations before any or by the court itself omitted)). We decline to take such a leap here.
Moreover, application “broad justice the ends of exception” suggested by Bazemore,
would undermine the trial court’s ability to correct errors in court and thereby justice, frustrate the ends of not prevent a justice. miscarriage an expansion of [S]uch exception would also encourage trial counsel to stand mute thereby knowingly inviting the trial judge to commit error without having sufficient opportunity to upon rule the issue.
Redman, 25
nized that is axiomatic that “[i]t belongs ‘[i]t to the court [trial] law, instruct the jury as to the whenever they require ” instruction, or either of parties it request given.’ be Fishback v. Va.
635 (quoting (24 Thornton v. 65 Va. Gratt.) 657, (1874)). 662 The Court has stated that courts of this Commonwealth
“adhere to the rule that the trial court is not required to amend or correct an instruction, erroneous but the rule is subject to the limitation that when the principle law is materially vital to a in case, defendant a criminal it is reversible error for the trial court to refuse a defective instruction instead of correcting it and giving it in the proper form.”
[Fishback,
117,
In a circuit court ordinarily does not have an duty affirmative give jury instruction on a particular legal principle when a criminal defendant fails to request that the jury be on instructed that principle. have We regularly applied this rule in criminal cases. Jerman,
Commonwealth 263 Va. 556 S.E.2d 757
221 that, properly- it clear when principles, In of these view decision Jime- understood, Virginia’s Supreme Court this that nez, Campbell, demonstrate as well as our decision circumstance “extraordinary” represent case does not to overlook a defen- necessary found it under which we have instruction. See object failure to defective dant’s 464-65, 424 at 716-17. at S.E.2d Phoung, Va.App. Jimenez, object defense counsel failed of an offense. one of the elements
instruction that omitted
at all.
result,
did not state
offense
As a
the instruction
relating
to the
Moreover,
at
produced
no evidence
“a
convicted of
Finding that Jimenez was
missing element.
regarding
produced
that no evidence was
non-offense” and
element,
Court held
Virginia Supreme
missing
to raise it
not
failure
by
the error was
waived
Jimenez’s
at
at 681.
below.
Va.
S.E.2d
the Court
Specifically,
at
[w]e appeal this matter on right waived his to raise Jimenez at trial. The he failed to the error preserve because omitted some essential elements granted instruction Likewise, relating to produced no evidence was offense. Jimenez, convicted a non- therefore, was those elements. offense.
Jimenez, (emphases at at 681-82 Va. S.E.2d added). of a document. forgery public involved a trial for
Campbell Although at the issue 653. defendant, at 1005- by the id. adamantly intent was contested *16 (Moon, 06, J., dissenting), the instruc- 421 at 662 S.E.2d of intent to defraud as an element “essentially tion eliminated at 717. 424 S.E.2d Phoung, the offense.” 15 had occurred because injustice that a manifest held “We court relieved the Common- by the trial given ‘instructions intent,’ permitted and prove of its criminal wealth burden to. ‘for otherwise innocent behav- Campbell to convict 222 (quoting
ior.’” Id. 14 Campbell, Va.App. at 655-56). S.E.2d at
Here, no justice such obvious of miscarriage occurred. Jimenez, factual Unlike the scenario the evidence that “willfully and wantonly” disregarded Officer Mar so signal, “endanger any shall’s as to person” overwhelm context, ing. civil Supreme long ago Court defined willful and wanton conduct follows: as convey and of purpose
[W]illfulness wantonness the idea or or design, actual constructive.... used to [T]hey signify are higher degree gross of than “In neglect negligence. order may conduct, that one be held of guilty willful or wanton it conduct, must be shown he was conscious of his and conscious, from knowledge conditions, of existing conduct, injury likely probably would result from his and that with reckless indifference to con- consequences he and act sciously intentionally wrongful did some or omitted duty produced injurious some known which result.” Snow, 654, 660, Thomas Va. 174 S.E. (citation omitted). See v. Boy also C. Scouts Amer- Infant of Inc.,
ica Va. This requires definition showing plus recklessness additional culpability. from
“Wanton differs reckless both as to the actual state of mind as to degree culpability. and who is acting One fully is aware risk recklessly unreasonable he is creating, may trying but be and to avoid harm. hoping acting wantonly greater One be may creating no risk harm, he is not to avoid it trying but indifferent to whether harm results or not. has properly Wanton conduct been characterized as ‘vicious’ and rates extreme degree culpability. mutually two are not exclusive. plus, Wanton conduct is reckless so to speak.” (7th ed.1999) Black’s Rollin Dictionary (quoting Law M. (3d Ronald Law 879-80 Boyce, Perkins & N. Criminal ed.1982)).
223 46.2-817(B) § a violated Code person held that We have at a high a vehicle stop, a to signal operated he ignored when cars, a limits, three crossed passed in of posted violation speed line, signal traffic at an a red “disregarded solid double into a and then crashed highway,” with a four-lane intersection v. Common- control of the Tucker losing tree after vehicle. (2002). wealth, 146-47 Va.App. S.E.2d hand, has noted “that Court Supreme other On more, law, will not a traffic without intentional violation of negligence.” and finding willful wanton support Alfonso Robinson, 257 Va. more in much than proved case present evidence Bazemore a traffic law. intentionally that Bazemore violated in an to effort disregarded signal stop officer’s admittedly Furthermore, to note that significant it is police. elude homicide, it jury guilty felony found Bazemore because the at the driving clear he was the minivan time found Thus, in collision. the evidence established that fatal at his effort to elude continued drive police, Bazemore traffic, heavy” in speeds per “relatively to 50 miles hour up through and he stop signs, he failed to heed three drove to yield failure busy intersection without Bazemore’s yielding. intersection, “mostly in a in that was located residential which area,” fatal collision. Accord- and small caused the businesses that, demonstrates wheth- ingly, an examination of the record otherwise, it acted “scared” or er Bazemore because fact to for a rational trier of reach would have been difficult other than that Bazemore drove the minivan any conclusion willfully wantonly disregard police as to and a manner so and, therefore, others in place danger. officer’s signal Moreover, Bazemore never Campbell, unlike the situation or “wantoness.” contested the of “willfulness” elements fact, that he was claim only strategy Bazemore’s not minivan the fatal collision occurred driving green when danger motoring to the presented when the “vehicle and/or the minivan Bazemore never contested the fact that public.” manner, in a and wanton so as elude was driven willful danger. others police place
Further,
instruction,
the erroneous
given,
as
did not
allow the
to convict
“otherwise innocent
Campbell,
behavior.” See
at
S.E.2d
Indeed,
656.
Code
46.2-852 states that
“[(Irrespective
law,
the maximum speeds permitted by
any person who drives
*18
a
any
vehicle on
highway
at a
recklessly
speed or in a
limb,
manner so as to endanger
life,
or property
person
guilty
added).
shall be
driving.”
reckless
(Emphasis
found,
the jury
Whether
under the instruction as given, that
by
driving
willfully
the vehicle Bazemore
or wantonly
disregarded Officer Marshall’s signal, “so as to endanger any
person,” either classification
a
give
finding
would
rise to
Bazemore committed conduct that
not
“otherwise inno-
behavior,”
cent
but was a criminal offense.
Campbell,
See
Va.App. at
Accordingly, finding no miscarriage justice record, on this we decline Bazemore’s invitation to consider his argument pursuant of justice” exception “ends to Rule 5A:18.
D. For reasons, the above-stated we find no merit in Baze- we, more’s on arguments therefore, appeal and affirm his for grand convictions larceny, feloniously eluding police and However, second degree murder. we remand this matter court, solely circuit for purposes correcting final conviction order to reflect that Bazemore’s conviction for grand larceny § to Code pursuant 18.2-108. and remanded.
Affirmed BENTON, J., ELDER, J., joins, with whom in concurring, part, and in dissenting, part.
For previously the reasons I have explained Bazemore v. (2003), 03 Vap UNP 0103021 I affirm would Nicko Bazemore’s conviction for I grand larceny. Thus, join 11(A) in Parts I and majority Parts of the I opinion. join also 11(B) in Part I majority opinion, for the reasons 11(C) explained I previously join Bazemore. do not Part trial committed reversible judge I hold that the would because of the offense when significant a element by omitting error elud- feloniously the offense jury concerning instructed the not harmless. The error was law officer. ing a enforcement I. by judge erred Bazemore contends the appeal,
On on the instructing when omitting statutory element feloniously eluding law enforce- of the offense of elements 46.2-817(B). Although by officer as Code proscribed ment not notes that Bazemore did correctly the Commonwealth instruction, this I would address object trial to flawed falls ex- recognized Bazemore’s claim within issue because to Rule 5A:18. ception “ends of Supreme justice” Court has held that there permit of Rule 5A:18 review when
exception applies failure to to an instruction “omitted object has been a offense.” some essential element of the Jimenez Common- *19 (1991). wealth, 251, 244, 678, also 241 402 S.E.2d 681 We Va. an have held that Rule will not our review of 5A:18 bar instruction “allows to convict a defendant without that a of necessary charged of an essential and element proof 994, 988, offense.” v. 14 Campbell (1992). 421 S.E.2d 656 defining
The for statute the offense which Bazemore being pertinent tried as follows: provides, part, who,
Any person having a visible or audible received bring motor signal any from law-enforcement officer to motor in a and stop, vehicle to a drives such vehicle willful so to with or disregard signal wanton such as interfere or endanger operation of the law-enforcement vehicle felony. a of a Class 6 endanger person guilty added). 46.2-817(B) § Code (emphasis § to its The amended 46.2-817 Assembly General Code “or” substituting preceding form in “and” for present Acts, ch. Al disregard.” “wanton 1999 720. words See Va. word, one must statutory only involves we though change this Assembly’s “assume that General amendments to the law purposeful unnecessary are and not or Virginia-Am. vain.” Serv., Water Co. v. Prince Wm. Va.
618, rule, a general “As a that a presumption exists substantive change in law was by intended an amendment to an existing Thus, statute.” a construing statute that has been amended by Assembly, General presume we that the acted full legislature knowledge with of the law as it affect- subject ed the matter.
It is our task ... to a construction adopt gives that import legislative to the and purpose the words used. Bruhn, Commonwealth Va. S.E.2d (2002) (citations omitted). “and,” By “or” to changing Assembly General significantly increased the prosecution’s Indeed, of proof. burden both parties agree the statute on the effect date this incident expressly required to evidence support finding “willful wanton disregard 46.2-817(B) signal.” [the officer’s] Code (emphasis add- ed). however, jury, was not such required finding. make judge
When the trial instructed the that the Common- wealth was required “prove beyond reasonable doubt ... wantonly or willfully disregarded signal [Bazemore] such endanger added), so (emphasis as person” judge’s instruction incorrectly informed the Simply law. put, the judge instructed the jury, contrary require- statute, ments the amended to convict Bazemore if it found either willfully wantonly “[t]hat such disregarded signal” added), (emphasis not both. *20 however,
A trial judge, duty “has an affirmative properly to instruct a jury [every about of that to a principle law is vital Jimenez, 250, in defendant a criminal 241 at 402 case].” Va. S.E.2d 681. The of of proper description the elements the offense is to a in vital defendant a criminal case because the fact, as jury, the finder of must determine whether the prosecution has the of process requirements due “satisfied]
227
proving
...
bear the burden
the
Constitution
[to]
Federal
doubt.”
beyond
reasonable
all
of the offense
elements
(1983)
882,
Warden,
111, 117,
885
306 S.E.2d
Stokes v.
Va.
363,
1068, 1072,
90 S.Ct.
Winship,
In Re
397 U.S.
(citing
(1970)).
require
this
To assure
constitutional
the to reverse ... a conviction exception ends of offense”). non-existent reasons, reject
For these I would the Commonwealth’s Rule our of this assertion that 5A:18 bars consideration issue. hold, instead, judge giving I trial the would that the erred Bazemore permitted instruction convict Therefore, judg- I offense. would reverse non-existent feloniously of convictions the law enforce- eluding ments for homicide, for felony predicated ment officer and which was officer. upon feloniously eluding the law enforcement II. if “ends
The contends even Commonwealth justice” applies, the convictions nevertheless should exception I disagree. be affirmed because error was harmless. judge’s permitted error in this case finding a criminal offense without convict beyond a reasonable each element of proved evidence doubt the offense. “Lest there remain doubt about constitu- standard, tional stature of reasonable-doubt United [the *21 228 Supreme
States
long ago] explicitly
Court
that the Due
[held]
protects
Process Clause
against
accused
conviction except
upon proof beyond a reasonable doubt of every
necessary
fact
to constitute the
with
charged.”
crime
which he is
In Re
364,
Winship,
U.S. at
1068. Equally important,
S.Ct.
the Sixth Amendment to the United States Constitution pro-
vides that
all criminal prosecutions,
“[i]n
the accused shall
trial,
enjoy
right
by
to a
an
jury.” A
impartial
necessary corollary to these two
principles is that
a jury
trial,
gives
Constitution
a criminal
“[t]he
defendant the right
determine,
jury
doubt,
have a
beyond a
guilt
reasonable
of every element of the crime
which
is charged.”
with
Gaudin,
506,
2310,
522-23,
United States v.
515 U.S.
115 S.Ct.
2319,
(1995).
“[B]efore constitutional can held harm- be less, the court must be able to declare a that it belief beyond a harmless reasonable Chapman doubt.” v. Califor- nia, 828, 386 U.S. 87 S.Ct. L.Ed.2d Giving effect to the constitutional right by to a trial jury, the error requires harmless test courts examine the basis for verdict. jury-trial Consistent with the guarantee, question [Chapman reviewing instructs the court ] to consider is not what effect the constitutional error might generally be expected to have jury, reasonable but rather upon what upon effect it had guilty verdict the case hand. Harmless-error review looks ... to the on which basis “the its actually rested verdict.” The inquiry, other whether, words, is not in a trial that occurred without the error, guilty surely rendered, verdict would have been but whether verdict guilty actually rendered in this trial was so, surely unattributable the error. That must be be- .a hypothesize guilty cause to verdict that never in fact findings rendered —no matter how inescapable sup- port might that verdict be—would the jury-trial violate guarantee. Louisiana, 113 S.Ct. 508 U.S.
Sullivan omitted). (1993) (citation L.Ed.2d 182 46.2-817(B), the Common- a violation Code To establish lan- express to the statute’s according prove, must wealth *22 “willful and in a the vehicle operated that Bazemore guage, to interfere so as signal officer’s] of disregard [the wanton vehicle law-enforcement of the operation endanger or with added). United Quoting (Emphasis a endanger person.” or 223, 225, 78 Murdock, 54 S.Ct. 290 U.S. v. States as follows: (1933), willful we have defined L.Ed. 381 is inten- an act which often denotes “The [willful] word acci- from distinguished as tional, voluntary, or knowing, it generally statute in a criminal But when used dental. justifiable without a purpose; act done with bad means an is The word excuse; stubbornly, obstinately, perversely. ground done without thing characterize a to employed also ” it is lawful.... believing for 643, 646-47, 400 S.E.2d v. Snead (1991). Supreme States More United precisely, must criminal defendant willfully act has held that to Court States, United the law. know that his acts violate Ratzlaf v. 655, 656-57, 135, 136-37, 126 L.Ed.2d 114 S.Ct. 510 U.S. to (1994). ... refers typically criminal law [willfull] “[I]n States, 524 U.S. v. Bryan of mind.” United state culpable 1939, 1945, 141L.Ed.2d 197 184, 191, 118 S.Ct. offense, wanton necessary element
To the other prove additional plus must show recklessness the evidence disregard, Johnson, 184 Va. Big Gap Town Stone See culpability. of New Inter- (citing Webster’s ed.). 2d Dictionary, national actual state of as to the differs from reckless both
“Wanton acting is One who culpability. to the degree mind and as he is unreasonable risk aware of the recklessly fully is harm. to avoid trying hoping creating, may but be risk creating greater no wantonly may be acting One indifferent avoid it and is harm, trying he is not but has properly conduct harm results or not. Wanton whether been as characterized ‘vicious’ and rates extreme in the degree The two are not culpability. mutually exclusive. conduct plus, Wanton is reckless so speak.” (7th ed.1999) Law Dictionary Black’s Rollin (quoting M. (3d Perkins & Ronald N. Boyce, Criminal Law 879-80 ed.1982)).
Because the trial judge incorrectly the jury by instructed placing statutory elements “willful” and “wanton” disjunctive, we cannot have any degree confidence jury actually found elements were proved beyond both reasonable doubt. test laying
“The not whether aside the there [error] was other beyond evidence sufficient to convict a reasonable ..., but, doubt more stringently, “whether there is a reason- able that the possibility complained of might [error] have ” words, contributed the conviction.’ other even if verdicts, other amply “the evidence the ... supports [error *23 is not harmless when may well have the ... it] affected decision.” An “emphasis perhaps overemphasis, the upon [con- ” of cept] ‘overwhelming has of evidence’ the effect clouding “
the relevant question ‘whether there is a possi- reasonable bility complained might [error] of have contributed ” to the conviction.’ As stated, Court has Supreme whether, correct is inquiry assuming “[t]he that the damag- of ing potential fully realized, the [error] were a reviewing might court say nonetheless that the error was harmless Thus, a beyond reasonable doubt.” “a error harmless anal- ysis sufficiency a of simply [is analy- not] evidence sis.” 395, 399-400,
Williams v. (citations omitted). 166, 168-69 S.E.2d Recently, in a civil case where the issue was whether conduct was “so willful or wanton ... support [to] an award of punitive damages,” Supreme Court ruled that the evidence Isaacs, was insufficient to either. prove Doe 265 Va. summarized The Court 174, 176-77 535, 579 S.E.2d as follows: of evidence the lack of actions, violation involving the defendant’s
Clearly, road, disregard a demonstrated rules of the traffic laws and of others safety to the level that prudence to gross amounts But this conduct neglected. completely it is less than people; fair-minded shocks which negligence, “actual or constructive required recklessness. willful act done from the will result injury consciousness omitted,” proof. in the lacking is defendant standpoint, the plaintiffs’ most from
At the
nearly stopped
for vehicles
lookout
keep
proper
did not
proper
under
him,
his vehicle
keep
he did not
ahead of
extent, and he
control,
intoxicated
some
probably
of Code
accident
violation
the scene
feloniously left
that defendant exceeded
no evidence
§ 46.2-894. There is
circum-
under the
speed
limit or a reasonable
the speed
street,
side of the
proper
on his
driving
He was
stances.
vehicle.
functioning
properly
operating
apparently
“egregious”
not the
sum,
behavior was
the defendant’s
in our cases.
conduct
spoken
(citations omitted). Thus,
at
Id. 8.01-44.5) (see per- are Code exemplary damages although “willful or wanton” showing upon mitted in a civil case Isaacs, at the evidence conduct, 265 Va. element, neither proved reviewed above Court Supreme a mere by either only prove had to though even the plaintiff preponderance. case, prose- in this where the before the
The evidence and wanton” disre- “willful proving cution had the burden doubt, It did deficient. equally a reasonable gard beyond *24 Al- limits. speed any posted exceeded prove not Bazemore acceler- point that at one the officer testified though hour, does not establish the evidence per miles fifty ated strongly limit on this road. The evidence speed posted the limit the however, speed Bazemore was within that suggests, that runs “thoroughfare the road was a four-lane because officer The of Carolina.” North] from State [the Suffolk road, also testified that after this Bazemore left Bazemore’s speed decreased “to 10 miles an approximately hour when he a turned into residential area.” suggests No evidence Baze- posted more was the limit he left violating speed as the Indeed, residential area and entered the intersection. the officer behind Bazemore testified own speed approxi- his was mately twenty fifteen to miles when per hour Bazemore drove into the intersection. the collision severity the likely explained intersection is by Bazemore’s vehicle a hitting that travelling minivan was on a highway four-lane divided with a greater speed. the absence of proof Bazemore was speed, at an it driving excessive is difficult to conclude that a jury reasonable would have found necessary mercilessness a justify finding disregard. wanton The evidence also leaves uncertain whether based jury finding its conviction on a of willful Significantly, conduct. jury accepted Bazemore’s that he steal testimony did not him upon vehicle and convicted larceny testimony that he driving knew a vehicle Shorter had stolen. The jury may also have believed Bazemore’s testimony that he did not stop because he was “scared” that he also afraid However, Shorter would have harmed him. if the jury even accepted testimony Bazemore’s and found that he did not intentionally fear, traffic violate the laws but acted out of see id. at (reaffirming standing S.E.2d the long “ law, rule ‘the of a that intentional violation traffic without more, not will support finding willful and wanton [con- ”), the jury duct]’ still could have instruc- applied defective tion and convicted Bazemore. put, even
Simply though majority concludes that opinion is the evidence perhaps adequate support finding wanton and disregard, entirely willful it is possible jury solely finding convicted Bazemore on a of either willful or disregard Indeed, wanton of the officer’s signal. highly it because, did probable so without an instruction the proved to find that both elements requiring were doubt, beyond per- reasonable we cannot assume the
233 under required nor necessary neither a task was formed the defective instruction. a “in a criminal by jury tried a elects be defendant
When to the solely case[,] factfinding function] assigns [the the law 523, Montana, 510, 442 99 S.Ct. U.S. v. jury.” Sandstrom (1979). Therefore, cannot on appeal we 2450, 39 61 L.Ed.2d jury the to add an element jury’s finding the supplement would, effect, Indeed, so, to do we to consider. required not would judge the trial committed—we commit the same error a reasonable doubt proved beyond the evidence determine to find but was required element of the offense deter- independent would make an not instructed to find. We weight of the credibility mination of the witnesses fact evidence, solely matters for the both of which “are Commonwealth, 644, 648, v. 32 Hampton finder.” error, 843, compounding Instead of S.E.2d function jury’s finding by we can avoid fact negating that a harmless effect to the well established giving principle entirely analysis is distinct from an analysis error Commonwealth, v. sufficiency the evidence. See Cartera (1978) that even (holding 219 Va. 248 S.E.2d verdicts, ... if other evidence amply supports [error “the may is not harmless well have affected the when] [error] decision”); ... 14 Va.App. Hooker v. “a error (holding harmless sufficiency a of the evidence analysis simply [is not] analysis”). in this case was the result of a jury’s plainly verdict wantonly or
finding upon acting either premised willfully, but not both. in a requires jury, that the United States Constitution
[T]he case, a reasonable doubt that the beyond criminal determine necessary to consti- government proven has each element Thus, a in a criminal case charged. judge tute the crime verdict, verdict, for the may partial not direct even overwhelming though even the evidence is government an undisputed point. judge gives even on the When from a material preventing considering instruction issue, that instruction is equivalent to an impermissible directed verdict on the issue. Piche,
United States (4th Cir.1992) 981 F.2d (citations omitted). Certainly, if “a trial judge prohibited from entering a judgment of conviction or directing *26 come forward with ..., such a verdict regardless of how overwhelmingly the may evidence in point direction,” United States v. Co., Martin Linen Supply 564, 430 U.S. 572- 97 S.Ct. (1977), L.Ed.2d 642 an appellate court cannot supplement on appeal the jury’s fact finding function by applying sufficiency analysis to conclude that an element offense, not found by the jury, was proved beyond a reasonable doubt. reasons,
For these I would hold that the error was not harmless.
III.
I
Lastly, would
occasions,
note that on several
the Supreme
Court has reversed convictions for non-existent offenses.
Commonwealth,
Bundy
(1979),
Va.
We believe that the weapons verdict in this case ... plainly convicts the defendant of the use of a firearm while murder, committing, not but undesignated some other felo- ny. Under the weapons statute as it prior read such a verdict might have been proper. a result
[A]s of the 1976 18.2-53.1, amendment to Code the use of a firearm “while committing a no felony” longer is sufficient to constitute a Now, violation of the statute. violation only occurs when a firearm is used with respect to the specified murder, felonies of rape, robbery, burglary, and abduction. offense this case and the prosecution therefor took
place after the effective date the amendment to Code Yet, § 18.2-53.1. under instructions erroneously framed to action, permit such given free rein either to convict the defendant of the no-longer existing offense of of a to convict using felony a firearm the commission him of a firearm while murder. The using committing convicted the defendant of the non-existent offense. Clear- therefore, ly, the defendant’s firearms conviction must be reversed.
The erroneous instructions which led to the anomalous
result reached below were
if not at the
granted,
Common-
request,
any objection.
wealth’s
the absence of
487-88,
Jimenez,
Id. at
(citation omitted).
Because the convicted Bazemore of non-existent offense, criminal I would hold that the circuit court exceeded jurisdictional its power when it an convicted Bazemore of offense does not exist under the criminal law.
IV. In summary, I would affirm the conviction grand larceny and remand to the trial judge to correct that conviction order
by inserting a reference to 18.2-108. I would Code reverse felony the convictions for a law eluding enforcement officer homicide, I felony and would remand for a new trial jury may where the be instructed. properly
Court of
Salem.
Jan. 2004.