*1 material, so far as the regarded ... is not proof of venue concerned, allega- and so the of the are prosecution merits forego- part tion of venue is not of the crime. Because evidentiary insufficiency with ing error did not stem from defendant, the case to the or innocence of the respect guilt Arlington County will be remanded the Circuit Court [to County] of Fairfax for transfer to the Circuit Court so if the Commonwealth be advised. proceedings, further Sutherland v. (1988) (internal omitted). citations
Reversed and remanded.
Christopher Charles GAINES Virginia. COMMONWEALTH of Record No. 0839-01-1. Virginia, Appeals Court Richmond. May *2 Kimball, & (Colgan, Beach Kimball Virginia Loren Keith Carnes, brief), appellant. on for A. Witmer, Attorney (Randolph A. Assistant General
Steven General, brief), Beales, for appellee. on Attorney ANNUNZIATA, J., FITZPATRICK, C.J., Present: COLEMAN, Judge. Senior
ANNUNZIATA, Judge. his trial convic-
Christopher appeals Charles during of a firearm and use involuntary manslaughter tions for court felony. argues He that the trial the commission of 1) regarding refusing erred 2) felony, of a the commission of use firearm of a set use his motion to aside conviction denying felony. For the reasons firearm in the commission of a follow, agree and reverse his conviction.
BACKGROUND arranged marijua- purchase to On October marijuana, the Zachary Kipps. Kipps purchased na from portion a repackaged bag, kept it in a different and in a to Gaines’ house car driven Kipps himself. then traveled friend, mari- Jerry Torres. When delivered the Kipps his Gaines, was than the juana to Gaines realized the amount less taking Kipps he accused purchased amount he had and car he outside to the where Kipps some. Gaines followed shotgun, a began arguing produced with Torres. Gaines his and Kipps property, that and Torres leave demanded awith to his house. After Torres had armed himself returned him. knife, Gaines, to cut attempted and he confronted ran the gun Kipps as and Torres down Gaines retrieved the of his two men to end street. Gaines followed the The shot single fired where he towards them. property the back, he as a result of Torres in the and died struck murder use charged with and gunshot wound. Gaines was felony. in a the commission of a firearm trial, parties rested, At after the Commonwealth submit- using ted a instruction on the crime of or a displaying § felony. firearm commission of a 18.2- during See Code 53.1. The Commonwealth’s based on proffered was Jury Model Instructions and stated:
The Court instructs that is defendant crime a charged using committing with the firearm while or to attempting commit murder. The must Commonwealth prove a each beyond following reasonable doubt of the elements of crime: that firearm;
1. That the defendant used a that use was committing attempting while or to commit murder.
If you find from the the Commonwealth has proved beyond reasonable each doubt of the above ele- ments of offense charged, you then find the shall defendant but fix you shall not until punishment your has verdict been returned further evidence is by you. heard
If you that the prove find Commonwealth has to failed beyond offense, a reasonable doubt either element of the you then shall find the not guilty. defendant Appellant proffered jury instruction that differed from the Commonwealth’s above only it words, word, added the “not manslaughter,” after the “mur- der,” in stating second element which the Commonwealth required to prove. counsel,
Following arguments from the trial court declined to add appellant’s language to the model stating only, “I think ought use model. Take out ‘not *4 ” manslaughter.’ The jury then convicted of invol- appellant untary manslaughter and use of a firearm during the commis- murder, sion of a which are inconsistent verdicts.
ANALYSIS when appeal, jury “On the issue is a refused instruc tion, light we view in the evidence the most favorable to the
330 Commonwealth, 27 Lynn of the instruction.” v.
proponent 239, 1, (1998), 836, 344, aff'd, 4-5 257 499 S.E.2d Va. Va.App. (1999). in reviewing responsibility 147 “A 514 court’s S.E.2d law jury is ‘to see that the has been reviewing instructions the all which instructions cover issues clearly stated and ” Commonwealth, Darnell 6 fairly the raises.’ v. omitted). (1988) (citation 485, 717, 488, 719 Va.App. 370 S.E.2d give jury A not a “which incor trial court should confusing which be or rectly applicable states law or would Commonwealth, misleading jury.” Va.App. to Bruce v. 9 (1990). 300, 279, addition, 298, pro 387 In “[a] S.E.2d 280 by party, a which posed jury instruction submitted constitutes case, of to the shall applicable an accurate statement the law solely jury not from the for its nonconformance be withheld § jury Code 19.2-263.2. with model instructions.” Here, declining grant the court’s rationale for statutory instruction violated this dictate. proposed Gaines’ such, As it constituted error.
Furthermore, this Had the error not harmless. instruction, the given jury court would trial Gaines’ is clearly manslaughter have been informed that a conviction to sustain the of use a firearm legally charge insufficient However, of murder. during the commission a under court, the inconsis given by the trial rendered verdicts, finding involuntary manslaugh tent murder, conjunction ter latter in with the firearm jury’s inconsistent do charge. acknowledge We verdicts se, not, See v. per provide Pugliese basis reversal. (1993) Commonwealth, Va.App. Powell, 57, 66, 105 v. 469 U.S. S.Ct. (citing United States (1984)). However, this is inquiry the focus of L.Ed.2d verdict, not on instructing of error on effect Here, the serve inconsistency per se. inconsistent verdicts refusing instruc the trial court’s error in an evidence that to the in the case on precisely tion more tailored issue in the it not the model resulted ground that was law and of the issues. misapprehension confusion jury’s 227, 503 Gray Cf.
331 (1998) (inconsistent acquitted affirmed after the jury verdict defendant of murder but found him of use of a guilty firearm in the of commission murder where defense counsel object jury
did not
the use of the model
instruction and did
an
proffer
not
that
precisely
more
stated the law
Commonwealth,
640,
until sentencing);
v.
6 Va.App.
Wolfe
(1988) (inconsistent
645,
814,
jury
871 S.E.2d
316
of
verdicts
voluntary manslaughter
use of
firearm in
the commis
sion of murder affirmed where defendant “did not seek a
if
cautionary
jury acquitted
that
him of mur
der,
then
him
they
should
find
not
use of a firearm in
murder”).
such,
say,
commission
As
we cannot
“that
the trial court’s error in failing
jury
to instruct the
could not
”
Commonwealth,
have
affected
verdict....
Turner v.
23
omitted),
270,
(1996) (citations
276,
504,
Va.App.
476 S.E.2d
507
1,
'd,
(1997);
255 Va.
Reversed and dismissed.
COLEMAN, J., dissenting.
I respectfully and, therefore, with disagree majority I my opinion dissent. In trial judge, by did not err instruct- ing he did. denying Because we find the trial court abused discretion its error, Gaines’ address Gaines’ which was not need harmless not argument by denying that the erred trial court motion to set aside the verdict.