                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia


MICHAEL JENNINGS MADDOX
                                         MEMORANDUM OPINION * BY
v.   Record No. 1129-99-4             JUDGE JERE M. H. WILLIS, JR.
                                             AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF CLARKE COUNTY
                     John R. Prosser, Judge

          Alexander N. Levay (Michael D. Sawyer;
          Moyes & Levay, P.L.L.C., on briefs), for
          appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     On appeal from his conviction of second degree murder, in

violation of Code § 18.2-32, Michael Jennings Maddox contends

(1) that the evidence was insufficient to support his conviction

of murder, (2) that the trial court erred in admitting evidence

concerning his relationship with the victim, Evelyn Jane

Tumblin, and (3) that the trial court erred in admitting

evidence that he refused to take an alkasensor test.   We reverse

the judgment of the trial court and remand the case for further

proceedings, if the Commonwealth be so advised.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                   I.   Sufficiency of the Evidence

     Maddox contends that because the Commonwealth did not prove

that he killed Tumblin maliciously, the evidence failed to

support his conviction of murder.        See Code § 18.2-32.   "Where

the sufficiency of the evidence is challenged after conviction,

it is our duty to consider it in the light most favorable to the

Commonwealth and give it all reasonable inferences fairly

deducible therefrom."     Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).

     "Second degree murder does not require a willful,

deliberate, and premeditated act; it is defined simply as a

malicious killing."     Turner v. Commonwealth, 23 Va. App. 270,

274, 476 S.E.2d 504, 506 (1996).    "Whether or not an accused

acted with malice is generally a question of fact . . . ."

Canipe v. Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747,

753 (1997).

     Tumblin and Maddox lived together in a long term

relationship.   On the afternoon of February 5, 1998, they went

for a ride in Maddox's four-wheel drive Ford Bronco.       The

Shenandoah River had flooded its banks, covering nearby roadways

with water.    With Maddox driving, the couple "drove through the

water playing around."    They then went to Leesburg to run

various errands.   Maddox had been drinking all day and was

intoxicated.    A little before dark they returned to the river

and stopped under a bridge abutment, where they engaged in

                                 - 2 -
sexual intercourse.      For a short while thereafter, Maddox let

Tumblin drive but then resumed driving.      Ignoring signs and

barricades warning that the road was closed due to flooding, he

drove down the flooded portion of Route 606.      The Bronco began

sliding on the submerged roadway and Maddox lost control.        The

Bronco became stuck on an embankment, about two hundred yards

down the road and about twenty yards from the closest shore.

Frigid water flooded the passenger compartment.

        Rescue personnel were dispatched to the scene.    Upon

arrival, Terrell Davis saw Maddox sitting in the driver's seat

of the Bronco smoking a cigarette and saw him toss a beer bottle

out of the window.    When asked, Maddox initially replied that he

was alone.    About fifteen minutes after the rescue workers

arrived, Maddox told them that Tumblin was with him and that she

had drowned.    He lifted her body from behind the front seats of

the Bronco.    Rescue workers testified that he said, "She is

dead.    I killed her.   She is dead."    A state trooper testified

that Maddox, when asked what had happened, "stated that he had

been in the water horsing around with his truck and he had

killed his girlfriend."     At the same time, however, Maddox asked

whether she was alright.

        Maddox told witnesses that Tumblin was afraid of the water

and that she "freaked out" when the Bronco slid off the road and

became stuck.    He admitted hitting Tumblin, because, he

explained, she was hysterical and he was attempting to calm her.

                                  - 3 -
Melody Houff, Tumblin's sister, testified that Maddox told her

Tumblin never spoke after he struck her, but that her eyes

remained open.   The medical examiner determined that Tumblin

died of drowning with hypothermia as a possible contributing

factor.    He testified that he saw no sign that she had been

struck on her face or that she had been rendered unconscious by

a blow.    The only evidence that she had been struck was Maddox's

statement and Houff's testimony that she noticed a bruise on her

sister's right cheek at her funeral, four days after her death.

     Several witnesses testified that Maddox behaved strangely

at the scene of the accident, that he said he had killed Tumblin

and that she had drowned, and then asked whether she was

alright.   By the time the rescue workers arrived, Tumblin and

Maddox had been in the frigid water long enough that both were

suffering from hypothermia.   Upon his removal from the water,

Maddox's oral temperature was 89.8°.    At the hospital, Tumblin's

core body temperature was 89.1°, so low it was necessary to warm

her body several degrees before the fact of her death could be

determined.   Maddox was intoxicated, and testimony disclosed

that intoxication can exacerbate the effects of hypothermia.

     The malicious infliction of injury can be shown through

circumstantial evidence, but "[t]he Commonwealth is . . .

required to exclude hypotheses of innocence that flow from the

evidence . . . ."    Fordham v. Commonwealth, 13 Va. App. 235,

239, 409 S.E.2d 829, 831 (1991).

                                - 4 -
     Tumblin died of drowning.    To convict Maddox of her murder,

the Commonwealth must prove either that he maliciously drowned

her or that he maliciously committed some act against her that

caused her to drown.    The Commonwealth contends that Maddox's

admission that he struck Tumblin in the face, his odd and

misleading behavior when the rescue workers arrived on the

scene, and his statements after his rescue that he had killed

Tumblin, sufficiently prove that he killed her maliciously.      We

disagree.

     Maddox admitted that he struck Tumblin in the face.

However, he said that he did so when she "freaked out" after the

Bronco became stuck and began to fill with water.     Although

Houff observed a bruise on Tumblin's face at her funeral, four

days after the incident, the medical examiner saw no sign of a

serious blow to her face and saw no evidence that the blow would

have caused her to lose consciousness.   In admitting that he

struck Tumblin, Maddox said that while she stopped talking, her

eyes remained opened.   No evidence established that the blow

caused Tumblin to lose consciousness.    While it might be argued

that, even under the circumstances, striking Tumblin in the face

was a malicious act, nothing in the record proves that it was a

lethal act.   The blow itself did not kill Tumblin.   The record

fails to prove that it caused her to drown.

     Maddox was rude and abusive in his conversation with rescue

workers.    Initially, he stated that he was alone in the truck.

                                 - 5 -
Not until about fifteen minutes later did he acknowledge

Tumblin's presence.    He may, for any of several reasons, have

denied Tumblin's presence, but it does not follow from that

denial that he drowned her.

     In talking with rescue workers, Maddox repeatedly stated

that he had killed Tumblin.    However, at the same time, he asked

whether she was alright.   Under the circumstances, including

Maddox's own condition, these statements were just as consistent

with a remorseful acknowledgment of responsibility for having

placed Tumblin in peril as a confession of murder.

     Maddox's statements that he had killed Tumblin were

ambiguous and were not specific acknowledgments that he had

drowned her.   Only by applying an interpretation supplied by

imagination can those statements be construed as acknowledgments

that Maddox drowned Tumblin.   Nothing in the record supplies

that interpretation.   Under the circumstances, including her

hypothermia, Tumblin could have drowned other than through

Maddox's agency.   Other than the single blow, which left no

significant mark, the record is devoid of evidence that she

suffered violence.

     The evidence is insufficient, as a matter of law, to

support a finding that Maddox killed Tumblin maliciously.

Reckless conduct, however gross, is not murder.    See Essex v.

Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216, 220 (1984).

Without such a finding, the conviction of second degree murder

                                - 6 -
cannot stand.     Accordingly, we reverse the murder conviction and

remand to the trial court for further proceedings consistent

with this opinion, if the Commonwealth be so advised.

            II.   Admission of Relationship/Prior Bad Acts

     Maddox's next assignments of error relate to the admission

of certain evidence.    As these issues may arise in a future

proceeding, we will address them briefly.    Maddox contends that

the trial court erred in admitting evidence:    (1) that he was a

"mad man" after he had been drinking, (2) that he and Tumblin

were observed fighting during the spring of 1992 through fall

1997, (3) that he had a drinking problem, (4) that he once tore

up pieces of Tumblin's clothing, (5) that he was afraid of the

magistrate, (6) that he had no fear of going to jail, (7) that

he had brandished a shotgun and then shot at two inflatable

animals, (8) that he carried a gun and would kill anyone who

crossed him, (9) that he was on probation, (10) that he had

prior DUI convictions, (11) that he was awaiting trial and

sentencing on other unrelated crimes, (12) that he had attempted

suicide, (13) that he had routinely degraded Tumblin, (14) that

upon becoming angry, he had thrown automobile tags in Tumblin's

face, (15) that he had been stopped the morning of Tumblin's

death for speeding, and (16) that he often assaulted Tumblin

verbally.

     Maddox objected contemporaneously and properly at trial

only to items, 2, 4, 7, and 14, all contained in the testimony

                                 - 7 -
of Susan Fields.    See Rule 5A:18.   However, because any further

proceedings will concern only whether Maddox committed

manslaughter, evidence of his prior relationship with Tumblin

will be irrelevant and should not be admitted.

     III.    Admission of Refusal to Submit to Alkasensor Test

     Maddox finally contends that the trial court erred in

admitting testimony that he refused an alkasensor test at the

accident scene.    We agree.

     Maddox was indicted for aggravated involuntary

manslaughter.   The indictment specified that he:

            [B]y conduct so gross, wanton, and culpable
            as to show a reckless disregard for human
            life and as a result of driving under the
            influence of alcohol in violation of Section
            18.2-266(ii) of the Code of Virginia, 1950
            as amended, did, . . . feloniously and
            unintentionally cause the death of Evelyn
            Jane Tumblin in violation of Section
            18.2-36.1 of the Code of Virginia, 1950 as
            amended, against the peace and dignity of
            the Commonwealth.

Thus, his operation of the Bronco while under the influence of

alcohol, in violation of Code § 18.2-266(ii), was an element of

the manslaughter charge lodged against him.

     Code § 18.2-268.10 provides, in relevant part:

            In any trial for a violation of Section
            18.2-266 . . .

                 [t]he failure of an accused to permit a
            blood or breath sample to be taken to
            determine the alcohol or drug content of his
            blood is not evidence and shall not be
            subject to comment by the Commonwealth at
            the trial of the case, except in rebuttal;

                                - 8 -
           nor shall the fact that a blood or breath
           test has been offered the accused be
           evidence or the subject of comment by the
           Commonwealth, except in rebuttal.

Id.

      Because operating the Bronco while under the influence of

alcohol is a specified element of the indictment, trial of the

indictment would be trial of a charge under Code § 18.2-266(ii).

Therefore, evidence that Maddox refused the alkasensor test

should not be admitted if Maddox is retried for manslaughter.

      Accordingly, we find the evidence insufficient as a matter

of law to support Maddox's conviction of second degree murder,

in violation of Code § 18.2-32.   We reverse the judgment of the

trial court, and remand the case for further proceedings in

accordance with this opinion, if the Commonwealth be so advised.

                                         Reversed and remanded.




                               - 9 -
Frank, J., dissenting.

     I respectfully disagree with the majority's holding that

the evidence was insufficient to convict appellant of

second-degree murder and that evidence of appellant's prior bad

acts and relationship with the victim was inadmissible.

     "In every criminal prosecution, the Commonwealth must prove

the element of corpus delicti, that is, the fact that the crime

charged has been actually perpetrated."    Cherrix v.

Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651 (1999)

(citing Maughs v. City of Charlottesville, 181 Va. 117, 120, 23

S.E.2d 784, 786 (1943)).   If an accused has "fully confessed

that he committed the crime, then only slight corroboration of

the confession is required to establish corpus delicti beyond a

reasonable doubt."    Id. (citing Jackson v. Commonwealth, 255 Va.

625, 646, 499 S.E.2d 538, 551 (1998)).    "The corpus delicti of a

homicide is proof of the victim's death from the criminal act or

agency of another person."    Swann v. Commonwealth, 247 Va. 222,

236, 441 S.E.2d 195, 205 (1994) (citing Watkins v. Commonwealth,

238 Va. 341, 348-49, 385 S.E.2d 50, 54 (1989)).    Corpus delicti

may be established by circumstantial evidence.    See Cochran v.

Commonwealth, 122 Va. 801, 94 S.E. 329 (1917).

     "Second degree murder is defined as a 'malicious killing'

of another person."    Lynn v. Commonwealth, 27 Va. App. 336, 351,

499 S.E.2d 1, 8 (1998) (citing Turner v. Commonwealth, 23 Va.

App. 270, 274, 476 S.E.2d 504, 506 (1996)).   "The authorities

                               - 10 -
are replete with definitions of malice, but a common theme

running through them is a requirement that a wrongful act be

done 'wilfully or purposefully.'"   Essex v. Commonwealth, 228

Va. 273, 280, 322 S.E.2d 216, 220 (1984) (citing Williamson v.

Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)).       In

finding a defendant guilty of second-degree murder, whether the

defendant acted with malice is a determination for the fact

finder.   See Jacobs v. Commonwealth, 132 Va. 681, 111 S.E. 90

(1922).

     I believe the evidence, viewed in the light most favorable

to the Commonwealth, established the corpus delicti and

supported the determination by the jury that appellant acted

with malice.

     Appellant was aware that the road was flooded.    The road

was barricaded and signs were posted that said, "Road Closed."

Despite the apparent danger, appellant drove his vehicle onto

the flooded roadway.   When the rescue workers arrived at the

scene, appellant tried to conceal the fact that the victim was

in his vehicle, initially telling them he was alone.   Fifteen

minutes later, he lifted her body from behind the front seats of

the vehicle and told several rescue workers that he killed her.

Furthermore, he gave inconsistent statements to the police,

telling one officer the victim drove the truck into the water

and drowned while he attempted to get the truck started again



                              - 11 -
and telling another officer that he drove the truck into the

water.

     The victim's sister testified that appellant recounted the

events leading up to the victim's death several times.

Initially, he told the victim's sister that he hugged the victim

and then climbed out of the vehicle to meet the rescue people.

When he reached back into the vehicle the victim was floating.

On another occasion, appellant told the victim's sister he hit

the victim after she became hysterical when water started to

flood the passenger compartment of the vehicle.   Appellant said

the victim fell over onto the seat after he hit her and did not

speak again.   Appellant set the victim up and she fell over

again.   Appellant told the victim's sister she drowned when she

fell out of the seat.   The jury was entitled to reject the

conflicting accounts of the events and believe that appellant

rendered the victim unconscious, which would cause her to drown.

Furthermore, the jury was not required to accept appellant's

statement that the victim was hysterical.   See Pugliese v.

Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).

     Further, the jury was entitled to reject the medical

examiner's testimony that there was no sign the victim had been

struck or that she had been rendered unconscious by a blow.

Such testimony created a factual inconsistency, which is within

the province of the jury.



                              - 12 -
     The majority holds that the evidence of appellant's prior

bad acts and relationship with the victim will be inadmissible

in further proceedings because it will be irrelevant to the

charge of manslaughter.   Because I believe that the evidence was

sufficient to convict appellant of second-degree murder, I

address this issue.   As discussed by the majority, appellant

properly objected to the admission of evidence that he and the

victim were observed fighting during the spring of 1992 through

fall 1997, that he once tore up pieces of the victim's clothing,

that he brandished a shotgun at two inflatable animals, and that

he threw automobile tags in the victim's face after becoming

angry.

               Generally, evidence of prior offenses
          is inadmissible because it "confuses the
          issue before the jury, unfairly surprises
          the accused with a charge he is not prepared
          to meet, and tends to prejudice him in the
          minds of the jury."

               However, we have recognized specific
          exceptions to the rule. We have upheld the
          admission of evidence of prior offenses when
          offered to prove (1) premeditation, (2)
          absence of mistake or accident, (3) motive
          or intent, and (4) the conduct and feelings
          of the accused toward his victim.

Smith v. Commonwealth, 239 Va. 243, 256, 389 S.E.2d 871, 878

(1990) (internal citations omitted).

     I believe the evidence of the fighting between appellant

and the victim, the evidence that appellant tore up the victim's

clothing, and the evidence that appellant threw automobile tags


                              - 13 -
in the victim's face is admissible to show his conduct and

feelings toward her.   This testimony belies appellant's claim

that he loved the victim.

     I would exclude the evidence that appellant shot at two

inflatable animals.    The evidence did not establish that the

inflatable animals belonged to the victim or that she was

present when he shot the gun.    Therefore, I believe it was error

to admit the evidence that appellant shot at the inflatable

animals.

                In Virginia, non-constitutional error
           is harmless "[w]hen it plainly appears from
           the record and the evidence given at the
           trial that the parties have had a fair trial
           on the merits and substantial justice has
           been reached." Code § 8.01-678 (emphasis
           added). "[A] fair trial on the merits and
           substantial justice" are not achieved if an
           error at trial has affected the verdict.
           Consequently, under Code § 8.01-678, a
           criminal conviction must be reversed unless
           "it plainly appears from the record and the
           evidence given at the trial that" the error
           did not affect the verdict. An error does
           not affect a verdict if a reviewing court
           can conclude, without usurping the jury's
           fact finding function, that, had the error
           not occurred, the verdict would have been
           the same.

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d

910, 911 (1991) (en banc).

     Because the evidence that appellant shot at the inflatable

animals was offered to show the relationship between appellant

and the victim, I believe the error was harmless.   There was

other evidence before the jury that the two had a stormy

                                - 14 -
relationship, which at times involved violence.   Therefore, the

evidence that appellant shot at the inflatable animals was

merely cumulative and did not affect the jury's verdict.

     Therefore, the evidence proved the corpus delicti and

second-degree murder.   Appellant concealed the victim from

rescue personnel and then admitted killing her on numerous

occasions.   He also gave totally inconsistent statements to the

police.   Additionally, he admitted hitting her, which the jury

was entitled to believe was to render her unconscious in the

rising water.   There was a history of fighting in the

relationship, and there were specific acts of violence toward

the victim by appellant.

     The majority holds the evidence that appellant refused the

alkasensor test should not be admitted if appellant is retried

for manslaughter because operating the vehicle under the

influence of alcohol is a specified element of the indictment

and trial of the indictment would be a trial of a charge under

Code § 18.2-266(ii).    Because appellant was not convicted of

manslaughter, I do not address this issue.




                               - 15 -
