PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and McCullough, JJ., and Koontz,
S.J.

SARAH ELIZABETH FLANDERS
                                                                        OPINION BY
v. Record No. 181228                                             JUSTICE WILLIAM C. MIMS
                                                                      February 13, 2020
COMMONWEALTH OF VIRGINIA


                      FROM THE COURT OF APPEALS OF VIRGINIA

       In this appeal, we consider as a matter of first impression whether felony hit and run may

serve as a predicate offense for a felony-homicide conviction.

               I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

       “On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth,

the prevailing party in the trial court.” Vasquez v. Commonwealth, 291 Va. 232, 236 (2016)

(quoting Bowman v. Commonwealth, 290 Va. 492, 494 (2015)). So viewed, the evidence

established that while a utility crew conducted overnight repair work, a man walked through the

job site causing them to suspend work until he cleared the area. Five or ten minutes later, a

woman later identified as Sarah Flanders “abruptly” pulled up to the job site in a red Dodge

Durango and asked the workers to call 911 because it “looked like someone had been run over

behind” the neighboring school and “the person was bleeding to death.” She then “sped away”

and “quickly left the scene.”

       The utility crew’s supervisor drove behind the school to investigate. He found an injured

man, who he recognized as the same person who had passed through earlier. He was conscious

but visibly in “a lot of pain.” He had difficulty breathing and was bleeding from abrasions on his

head and knees. He told the supervisor that he had been hit. The supervisor immediately called

911. By the time first responders arrived five minutes later, the man had lost consciousness. A
police officer observed that the man’s clothes and backpack had black marks “like soot” on them

and that there were visible tire tracks in the pine needles and soil of the median where he was

lying. The man eventually regained consciousness and identified himself as Rick Pentz. Pentz

was transported to a hospital where he died approximately four hours later from blunt force

trauma to his torso.

       Police collected various personal items belonging to Pentz from the scene, including a

cell phone whose call log reflected a 19-second call to Flanders approximately an hour before the

incident. During an interview with investigators the next day, Flanders denied any involvement

in Pentz’ death. She did, however, admit that she drove a red Dodge Durango on the date of the

incident. She also said that she knew Pentz and had been friends with him for around six years.

The two of them had once lived together in a residence close to where the incident occurred.

When asked whether she had been with Pentz lately, she replied that she had last seen him earlier

in the week when she dropped him off at work. Investigators eventually told Flanders that Pentz

had died, then left her alone in the interview room where she was overheard saying aloud to

herself that “she thought that this was crazy and that she thought that he was going to make it.” 1

       Investigators seized and forensically examined the Durango they suspected Flanders

drove during the incident. They identified Pentz’ blood on the front bumper. In addition, the

investigators found yellow paint consistent with the yellow paint on the median curb where Pentz

was found inside of the front and rear driver’s side tires. Mail addressed to Flanders was in the

passenger seat, and her DNA was on the steering wheel and gear shift knob.




       1
          The detective who interviewed Flanders testified that she made several statements while
she was alone in the interview room. Specifically, he testified that “[m]uch of [what she said]
was unintelligible, but she did say a few moments later that she thought that this was crazy and
that she thought that he was going to make it.”


                                                 2
       Flanders was ultimately charged with felony hit and run, in violation of Code § 46.2-894,

and felony homicide, in violation of Code § 18.2-33. At trial, the Commonwealth introduced

evidence that Flanders and Pentz were involved in another incident two days prior to Pentz’

death. An officer responded to a restaurant parking lot where he encountered a red Dodge

Durango parked partially in the road and partially in the grass with a bicycle lying next to it.

Flanders was in the driver’s seat and Pentz, who had apparently been riding the bicycle, was

standing near the driver’s door. Both were agitated. The officer asked them whether “somebody

had tried to strike somebody with a vehicle,” but both denied it. Flanders acknowledged this

incident when questioned after Pentz’ death and explained that Pentz “had jumped on the

passenger door of her Durango.”

       Counsel for Flanders moved to strike the felony-homicide charge at the close of the

Commonwealth’s evidence. The crux of his argument was that a hit and run in violation of Code

§ 46.2-894 was insufficient as a matter of law to support a conviction of felony homicide, and

that even assuming that some hit and run convictions could serve as a predicate for felony

homicide, the facts of this case did not rise to the level of imputing malice to Flanders’ actions.

The Commonwealth responded that Flanders’ actions amounted to a single, continuous

transaction in which she intended to strike Pentz with her vehicle. Under these circumstances,

the Commonwealth argued, a felony-homicide conviction was proper because the homicide was

within the res gestae of the predicate hit and run. The trial court denied the motion to strike and

ultimately found Flanders guilty of both charges, noting that the issues counsel raised “create[] a

very interesting legal conundrum that minds wiser than mine will have to sort out for you and

your client.”




                                                  3
       Flanders filed motions to set aside the verdict renewing the arguments made at trial and

additionally asserting that the evidence at trial was insufficient to support her convictions.

Following argument at sentencing, the trial court denied the motions and imposed an active

sentence of 22 years’ imprisonment. The Court of Appeals affirmed by unpublished opinion,

holding that the evidence established that Pentz’ death was within the res gestae of the hit and

run.

       We awarded Flanders this appeal.

                                          II. ANALYSIS

       Flanders’ sole assignment of error argues that the evidence was insufficient to support her

felony-homicide conviction. Resolving this assignment of error requires a two-step inquiry. The

first issue, whether felony hit and run may serve as a predicate offense for a felony-homicide

conviction, presents a question of law we review de novo. See AGCS Marine Ins. Co. v.

Arlington Cty., 293 Va. 469, 473 (2017) (“[W]e review all conclusions of law de novo.”); see

also, e.g., Mulford v. Walnut Hill Farm Grp., LLC, 282 Va. 98, 106 (2011) (“[T]he ultimate

conclusion as to whether [a] roadway [is] a public road is reviewed de novo.”). If felony hit and

run can be a predicate offense, then the second step is to determine whether the evidence in this

case was sufficient to establish that Pentz’ death was within the res gestae of the hit and run, and

thus was an appropriate predicate offense for Flanders’ felony-murder conviction. We apply a

familiar standard of review to that inquiry:

               “When reviewing the sufficiency of the evidence, ‘the judgment of
               the trial court is presumed correct and will not be disturbed unless
               it is plainly wrong or without evidence to support it.’” This Court
               “does not ask itself whether it believes that the evidence at the trial
               established guilt beyond a reasonable doubt.” “Rather, the relevant
               question is, upon review of the evidence in the light most favorable
               to the prosecution, whether any rational trier of fact could have




                                                  4
               found the essential elements of the crime beyond a reasonable
               doubt.”

Yoder v. Commonwealth, 298 Va. __, __ (2019) (quoting Smith v. Commonwealth, 296 Va. 450,

460 (2018)). To the extent this case involves issues of statutory interpretation, we review them

de novo. Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007).

A. Development of the Felony-Homicide Doctrine in Virginia

       We begin our consideration of felony homicide under Code § 18.2-33 with an overview

of how that offense fits within Virginia’s scheme for punishing homicides. As early as 1796, the

General Assembly perceived a need “to mitigate the harshness of the common law which

punished murder and numerous other crimes with death.” Fitzgerald v. Commonwealth, 223 Va.

615, 636 (1982). Explaining that “the several offences which are included under the general

denomination of murder, differ so greatly from each other in the degree of their atrociousness,

that it is unjust to involve them in the same punishment,” the General Assembly created

gradations of murder such that only first-degree murder was punishable by death. Acts 1796,

ch. 2; Fitzgerald, 223 Va. at 636. Although the General Assembly has amended the murder

statutes over time, the sole purpose of these changes has been to create gradations in the

punishments imposed. Fitzgerald, 223 Va. at 636. These statutory gradations have not created

new offenses. Instead, they established punishments for the common law crime of murder that

correspond to the degree of culpability with which it is committed. Id.; see Livingston v.

Commonwealth, 55 Va. (14 Gratt.) 592, 596 (1857) (“[T]he true object and effect of [statutory

gradations] was not to create two offences out of the crime of murder, but to arrange the various

kinds of murder at the common law, under the two denominations of murder in the first degree,

and murder in the second degree; and to annex to the cases in each denomination a punishment

corresponding in severity to the degree of atrocity with which they might be perpetrated.”).



                                                 5
Thus, although Virginia law recognizes capital murder, first-degree murder, and second-degree

murder and punishes each with different ranges of penalties corresponding to “prevailing societal

and legal views of what is appropriate and procedurally fair,” Fitzgerald, 223 Va. at 636, all

three gradations punish the same offense of common-law murder. Code §§ 18.2-10, 18.2-31,

18.2-32; see Wooden v. Commonwealth, 222 Va. 758, 761 n.3 (1981); Livingston, 55 Va. (14

Gratt.) at 596.

        Among the forms of common-law murder punishable as first-degree murder under Code

§ 18.2-32 is felony murder. Felony murder at common law occurred when an actor

unintentionally killed another person during the commission of a dangerous or violent felony.

John L. Costello, Virginia Criminal Law and Procedure § 3.4[3], at 59 (4th ed. 2008). The

relevant statutory language provides that “[m]urder . . . in the commission of, or attempt to

commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery,

burglary or abduction . . . is murder of the first degree.” Code § 18.2-32. Thus, as codified, the

offense of felony murder consists of common-law murder “coupled with the contemporaneous

commission or attempted commission of one of the listed felonies.” Wooden, 222 Va. at 761.

Each of these enumerated felonies is an inherently dangerous crime. Although there is no malice

inherent in an unintentional killing, as this Court explained in Wooden, the malice intrinsic in the

commission of one of the listed felonies “provides the malice prerequisite to a finding that the

homicide was murder” and justifies elevation of even an unintentional killing to first-degree

murder. Id. at 762.

        In 1975, the General Assembly created the offense of felony homicide. The statute

codifying this offense, Code § 18.2-33, provides that “[t]he killing of one accidentally, contrary

to the intention of the parties, while in the prosecution of some felonious act other than those




                                                 6
specified in §§ 18.2-31 and 18.2-32, is murder of the second degree.” This statute uses language

modeled on standard definitions of involuntary manslaughter 2 to create a gradation of common-

law felony murder that is less culpable than that chargeable as first-degree murder under Code

§ 18.2-32. Unlike the statutory murder grades, which did not depart from the common law of

murder but instead set varying punishments based on culpability, the plain language of the

felony-homicide statute goes beyond the common-law understanding of felony murder by

permitting murder convictions based on nonviolent predicate felonies. As one commentator has

observed:

               It is arguable that the statutory creation of the offense of felony
               homicide in 1975 departed from the tradition that the Virginia
               murder statutes only graded the common law of murder for
               punishment purposes and did not create any new types of murder.
               . . . [F]elony murder at common law could be predicated only upon
               a dangerous felony. Felonies which endangered people manifested
               legal malice and an unintentional killing by the felon in the
               perpetration of one of them was murder. The Virginia statute is
               clearly broader than that in its terms.

Costello, supra, at § 3.5[1], 66. In light of this apparent disconnect between the General

Assembly’s centuries-long practice of not expanding upon the common law of murder by statute

on the one hand, and Code § 18.2-33’s broader reach on the other, determining what felonies

may serve as predicate offenses for a felony-homicide conviction requires construing the

statutory phrase “some felonious act.”

       As an initial matter, the legislative history is unhelpful. The General Assembly enacted

Code § 18.2-33 during the recodification of Title 18.1. The statute did not exist in prior versions



       2
         The statutory language substitutes “felonious” for “unlawful, but not felonious,” in a
commonly used involuntary manslaughter definition. See, e.g., Mundy v. Commonwealth, 144
Va. 609, 615 (1926) (“Involuntary manslaughter is the killing of one accidentally, contrary to the
intention of the parties, in the prosecution of some unlawful, but not felonious, act; or in the
improper performance of a lawful act.”).


                                                 7
of the Code, and a note in the Code Commission’s report explains only that the statute was

“designed to correct an omission in Virginia criminal law.” Report of the Virginia Code

Commission, Revision of Title 18.1 of the Code of Virginia 27–28 (1973). The report, however,

did not explain what the omission was or how the creation of felony homicide was calculated to

fill the gap.

        Nevertheless, it can reasonably be inferred from Code § 18.2-33’s sentencing provisions

that the legislature did not intend the statute to depart from the substantive common law of

murder. The legislative evidence suggests that the General Assembly did not intend for every

felony other than those enumerated in Code §§ 18.2-31 and 18.2-32 to be potential predicate

offenses for felony homicide. The statute classifies a felony homicide as a second-degree

murder punishable by imprisonment for between five and forty years, the same penalty imposed

for any other second-degree murder. Given that the General Assembly’s “evident purpose” of

grading murders by the culpability with which they are committed is to “assign punishment

consistent with prevailing societal and legal views of what is appropriate and procedurally fair,”

Fitzgerald, 223 Va. at 636, it would be a notable aberration for the legislature to enact a statute

imposing the same penalty for an accidental homicide occurring during an inherently dangerous

or dangerously committed felony as one during a non-dangerous felony. Moreover, treating

inherently dangerous felonies and felonies committed in a dangerous fashion identically to

non-dangerous felonies in Code § 18.2-33 would be inconsistent with the General Assembly’s

imposition of punishments proportionate to culpability elsewhere in Title 18.2. See, e.g., Code

§ 18.2-51 (punishing malicious wounding as a Class 3 felony and unlawful wounding as a Class

6 felony).




                                                  8
       Our treatment of prior felony-homicide cases suggests that there are limits to the

circumstances under which felonies may serve as predicates for Code § 18.2-33 convictions.

Specifically, this Court’s inquiries into whether defendants committed the predicate felony with

malice and whether the accidental killing occurred within the res gestae of the predicate felony

limit the circumstances under which a felony can serve as a predicate offense for felony

homicide.

       1. Malice and Dangerousness of Underlying Felony

       As noted above, the mechanism by which the felony-murder doctrine in Code § 18.2-32

elevates an incidental homicide committed during a felony to first-degree murder is to impute the

malice inherent in the underlying felony to the killing. This imputation is necessary because

malice is an essential element of murder in Virginia. Wooden, 222 Va. at 762. Virginia’s

felony-homicide doctrine in Code § 18.2-33 operates by the same process of imputation. See

Commonwealth v. Montague, 260 Va. 697, 700 (2000) (noting that the felony-homicide doctrine

“operates to elevate to second-degree murder a homicide committed during the commission of a

felony by imputing malice to the killing”). Whereas Code § 18.2-32 expressly contemplates a

“killing with malice,” “[t]he same imputation of malice is implicit in § 18.2-33 which

contemplates an accidental killing.” Heacock v. Commonwealth, 228 Va. 397, 403 (1984).

Thus, for a killing during the prosecution of a felonious act to constitute felony murder, there

must be some malice inherent in the underlying felony.

       As we have often observed, “the authorities are replete with definitions of malice.” Essex

v. Commonwealth, 228 Va. 273, 280 (1984). “At common law, malice was defined ‘as any evil

design in general: the dictate of a wicked, depraved, and malignant heart: un disposition a faire

un male chose [a disposition or inclination to do a bad thing].” Watson-Scott v. Commonwealth,




                                                 9
298 Va. __, __ (2019) (quoting 4 William Blackstone, Commentaries *198). This Court has

long employed a volitional definition of malice requiring that the “wrongful act be done

‘willfully or purposefully.’” Essex, 228 Va. at 280 (quoting Williamson v. Commonwealth, 180

Va. 277, 280 (1942)); see also Dawkins v. Commonwealth, 186 Va. 55, 61 (1947) (defining

malice as “the doing of a wrongful act intentionally, or without just cause or excuse, or as a

result of ill will”).

        Malice may be either express or implied, but the requisite malice for a felony-homicide

conviction will almost invariably be implied from the defendant’s conduct because the felony-

homicide doctrine contemplates an unintentional killing incidental to the underlying felony.

Implied malice “exists where a defendant lacks the deliberate intent to kill, but the circumstances

of the defendant’s actions are ‘so harmful that the law punishes the act as though malice did in

fact exist.’” Watson-Scott, 298 Va. at __ (quoting Pugh v. Commonwealth, 223 Va. 663, 668

(1982)). In determining whether malice may be implied from conduct, we look for actions

reflecting “a species of reckless behavior so willful and wanton, so heedless of foreseeable

consequences, and so indifferent to the value of human life that it supplies the element of

malice.” Id. (quoting Essex, 228 Va. at 288 (Poff, J., concurring)). In addition, malice may be

implied from use of a deadly weapon, id., and we have recognized that “[a] motor vehicle,

wrongfully used, can be a weapon as deadly as a gun or a knife,” Essex, 228 Va. at 281.

        A nuanced approach to this malice inquiry is apparent in Heacock, which gives effect to

the General Assembly’s broad formulation of the felony-homicide doctrine while recognizing the

common-law limitations on the circumstances under which offenses may be predicates for a

felony-homicide conviction. In that case, the felony underlying Heacock’s felony-homicide

conviction was his distribution of cocaine to the victim who died after being injected with the




                                                10
drug. 228 Va. at 403. Heacock protested that because he did not administer the injection and

cocaine distribution is not itself a foreseeably dangerous felony, no logical basis existed for

imputing malice to the victim’s death. Id. at 404. We disagreed. After reviewing Code

§ 18.2-33 and concluding that its implicit imputation of malice from the underlying felony

“codifie[d] ancient common law” principles, id. at 403 (citing Whiteford v. Commonwealth, 27

Va. (6 Rand.) 721 (1828)), the Court held that the evidence supported imputing malice because

“Heacock knew, or should have known, that injection of the narcotic he supplied and helped to

administer . . . was inherently dangerous to human life,” id. at 404.

       The citation to Whiteford is significant because it supports the proposition that Code

§ 18.2-33 is an application of common-law murder principles requiring the malice inquiry, not

new substantive law under which any felony may be a predicate without regard to its inherent

dangerousness or the dangerous way in which it is carried out. In a discussion of general

common-law murder principles, the Court in Whiteford considered several archetypical examples

of unintentional homicides that nevertheless evinced malice sufficient to constitute common-law

murder. These included the person who shot a fowl with the felonious intent to steal it and

unintentionally killed a person with the shot, as well as the workman who, carelessly and without

warning, threw a stone or timber from a house in a populous city with the knowledge that people

were passing and thus killed a passerby. Whiteford, 27 Va. (6 Rand.) at 724–25. These

illustrations reflect that an underlying felony must involve some intentional course of wrongful

conduct dangerous to human life sufficient to imply malice for that felony to be among the

“felonious act[s]” contemplated by Code § 18.2-33. See Watson-Scott, 298 Va. at __; Essex, 228

Va. at 280–81; see also Costello, supra at § 3.5[1], 68 (“A review of many Virginia cases




                                                 11
dealing with malice did not disclose any case wherein malice was found in the doing of a non-

dangerous but wrongful act.”).

       2. Res Gestae

       The doctrine of res gestae provides an additional limitation on what offenses may serve

as predicates for felony-homicide convictions. In essence, the res gestae rule requires that there

be a connection between the predicate felony and the death, giving effect to the statutory

requirement that the death occur “while in the prosecution of” the underlying felony. See

Montague, 260 Va. at 701; Heacock, 228 Va. at 405 (“[W]hen the homicide is within the res

gestae of the initial felony and is an emanation thereof, it is committed in the perpetration of that

felony.” (quoting Haskell v. Commonwealth, 218 Va. 1033, 1041 (1978))). Thus, the felony-

homicide statute “applies where the killing is so closely related to the felony in time, place, and

causal connection as to make it a part of the same criminal enterprise.” Haskell, 218 Va. at

1044; see Montano v. Commonwealth, 61 Va. App. 610, 616 (2013) (“When the homicide

‘resulted from an act which was an integral part of the felony or an act in direct furtherance of or

necessitated by the felony,’ felony [homicide] is established.” (quoting Griffin v.

Commonwealth, 33 Va. App. 413, 425 (2000))). The required elements of the res gestae rule—

time, place, and causal connection—are stated in the conjunctive. As such, all three must be

proven for the felony-homicide statute to apply. Montague, 260 Va. at 702; see 7 Ronald J.

Bacigal & Corinna Barrett Lain, Virginia Practice Series: Criminal Offenses and Defenses 351–

52 (2019–2020 ed.) (“When the death occurs at the time and place of the felony and the felony

itself is inherently dangerous, or the felony, not inherently dangerous, is factually committed in a

dangerous way, the death is within the res gestae of the felony.”).




                                                 12
       Whether these elements are proven in a particular case is a case-specific inquiry for the

fact finder to decide. Haskell, 218 Va. at 1043. For instance, in Haskell, several assailants

attacked an intoxicated sailor in an effort to rob him. Id. at 1036. Finding the sailor had nothing

of value, the assailants attempted to flee the scene in their car. Id. The injured sailor tried to

reenter the car to prevent their escape and was killed in the ensuing struggle. Id. at 1037. The

defendants appealed their felony-murder convictions arguing that because they had abandoned

their attempt to rob the sailor, his subsequent death was not within the res gestae of the felony.

Id. at 1039. We rejected their argument and held that, although the attempted robbery had ended

at the time of the killing, the sailor’s death “was closely related in time, place, and causal

connection to the attempted robbery” such that there was a “continuity of evil action” sufficient

to make the killing “part of the same criminal enterprise.” Id. at 1043–44.

       In contrast, all three elements were absent in Montague. In that case, the defendant stole

a car one day, then struck and killed a pedestrian while evading police in a different location the

next. Montague, 260 Va. at 699–700. The Commonwealth argued that despite the time elapsing

between the grand larceny and the accidental killing, the defendant’s flight from police to avoid

detection of the larceny established the requisite causal connection between the larceny and the

homicide. Id. at 700. We disagreed, finding that the eleven-hour period between the larceny’s

discovery and the homicide meant that the accidental killing “was not related in time to the

larceny.” Id. at 702. Additionally, the fact that the larceny and homicide occurred in different

parts of the same city defeated the place element. Id. In light of these conclusions, we held that

“the grand larceny and the homicide were not parts of the same criminal enterprise as required by

the res gestae rule,” rendering the felony-homicide statute inapplicable. Id.




                                                  13
          These cases illustrate the fact-intensive nature of the res gestae inquiry. A finder of fact

must look to the particular aspects of each felony-homicide case to determine whether the death

occurred within the res gestae of the underlying felony without relying on rigid formulas. The

analysis in Haskell indicates that a killing may be within the res gestae even if it does not occur

while the predicate felony is ongoing. This result is consistent with the General Assembly’s use

of the broad phrase, “in the prosecution of some felonious act,” which contemplates a killing

occurring before, during, or after the underlying felony, provided it shares a causal connection

sufficient to make the killing part of the same criminal enterprise. Haskell, 218 Va. at 1044; cf.

Harward v. Commonwealth, 229 Va. 363, 366 (1985) (interpreting the phrase “in the

commission of” in Code §§ 18.2-31 and 18.2-32 to “include[] a killing before, during, and after

the underlying felony”). This view is consistent with the Court of Appeals’ observation in a

felony-murder case that “[t]he res gestae of the underlying crime begins where an indictable

attempt to commit the felony is reached and ends where the chain of events between the

attempted crime or completed felony is broken.” Berkeley v. Commonwealth, 19 Va. App. 279,

286 (1994) (citations omitted). If a fact finder concludes that the accidental killing occurred

before that chain of events breaks, then it has occurred within the res gestae of the underlying

felony.

          Taken together, the principles of imputed malice and res gestae provide guidance

regarding when felonies may serve as predicates under Code § 18.2-33. For the felony-homicide

statute to apply, the Commonwealth must show that the defendant unintentionally3 killed a



          3
         At oral argument, counsel for Flanders contended that this case may involve a judicial
estoppel issue because the Commonwealth charged an accidental death but relied on evidence of
an alleged intentional act, implying that the Commonwealth did not prove that the killing
occurred “accidentally, contrary to the intention of the parties.” The model jury instruction for
felony homicide includes as an element “[t]hat the killing was accidental and contrary to the


                                                   14
person “while in the prosecution of some felonious act” other than those exempted in the statute.

The res gestae rule’s requirements that the killing be closely related to the felony in time, place,

and causal connection ensures that only those killings occurring “in the prosecution of” a proper

predicate felony fall within the statute’s ambit. Likewise, only felonies from which malice can

be imputed—that is, inherently dangerous felonies or non-dangerous felonies that are actually

committed in a dangerous way—can serve as the predicate “felonious act” for a felony-homicide

conviction. With these principles in mind, we now consider their application in this case.

B. Hit and Run as a Predicate Offense to Felony Homicide

       As an initial matter, Flanders urges this Court to categorically reject the crime of felony

hit and run as a predicate offense because recognizing it as such would have substantial negative

policy implications. She contends that permitting hit and run to be a predicate would open the

door for the Commonwealth to bring felony-homicide charges against every driver involved in a




intention of the defendant,” although the practice commentary to the instruction observes that
several treatises “have opined that the Model Instruction is wrong to require the Commonwealth
to prove that the killing was accidental and that the defendant did not intend to kill.” Virginia
Model Jury Instructions—Criminal, No. 33.340, at 33-89, 33-93 (repl. ed. 2019–20). Indeed,
Professors Bacigal and Lain have argued that “to prove a felony homicide it is not necessary that
the Commonwealth prove accident/lack of intent. That language has been part of the definition
of involuntary manslaughter for at least fifty years, but has never been treated as identifying
elements of the offense.” Bacigal & Lain, supra, at 351. The Court of Appeals has, in dicta,
cited this critique with approval. Cotton v. Commonwealth, 35 Va. App. 511, 515 n.3 (2001).
         The apparent reason killings in felony murders and felony homicides are described as
unintentional is that if the killing was intentional, the malice would inhere in the killing itself,
and the death would be chargeable as murder. The statutory language referring to an accidental
killing thus clarifies how the offense of felony homicide fits within Virginia’s scheme for
punishing homicides rather than setting out a substantive element that the Commonwealth must
prove beyond a reasonable doubt. If the absence of intent was a substantive element, an absurd
situation would arise when evidence of the defendant’s intent is in equipoise. In that situation, as
Professors Bacigal & Lain have pointed out, “[a] regular second degree conviction could not be
had because intent was not proven beyond a reasonable doubt, but a felony homicide conviction
could not be had because the absence of intent was not proven beyond a reasonable doubt.”
Bacigal & Lain, supra, at 351.


                                                 15
hit and run death case. She argues that “would inexorably result in the two charges being paired

in every case.”

       Whether a given offense can serve as a predicate for a felony-homicide conviction under

Code § 18.2-33, however, is not a categorical question. Instead, the finder of fact must examine

the particular circumstances of each case to determine whether the underlying felony was

committed with malice and whether the resulting death fell within the res gestae of the felony.

As we have repeatedly emphasized, the touchstone of malice is “volitional action”—the

wrongful act must be done intentionally. Essex, 228 Va. at 280. “In order to elevate the crime to

second-degree murder, the defendant must be shown to have willfully or purposefully, rather

than negligently, embarked upon a course of wrongful conduct likely to cause death or great

bodily harm.” Id. at 280–81 (emphasis added). This principle addresses the concern that every

hit and run death will be charged as murder. Where the accident is unintentional—as is true in

the vast majority of felony hit and run cases—it will not support a felony-homicide conviction.

A conviction will require the fact finder to find that the defendant intentionally placed the victim

in danger such that “the circumstances of the defendant’s actions are ‘so harmful that the law

punishes the act as though malice did in fact exist.’” Watson-Scott, 298 Va. at __ (quoting Pugh,

223 Va. at 668).

       Turning to the specific facts of this case, the evidence viewed in the light most favorable

to the Commonwealth demonstrated that Flanders knew Pentz well and had some degree of

animosity toward him. Mere days before the hit and run, police were summoned to an incident

involving an altercation between the two in which Flanders appeared to have attempted to strike

Pentz with her Durango. Telephone records show that Pentz called Flanders roughly an hour

before the early morning hit and run. She then navigated to his location in a school’s rear




                                                 16
parking lot where she struck him with the Durango, a large sport utility vehicle, with enough

force to cause fatal injuries. She knew that she struck him because she reported his injuries to

the utility crew. Despite her awareness that she had inflicted injuries placing Pentz at risk of

“bleeding to death,” she nevertheless fled the scene without providing any aid. While alone after

the police interview, she said that she “thought that he was going to make it.”

       Taken together, the evidence is sufficient to establish that malice can be implied from

Flanders’ actions and that the killing fell within the res gestae of that felony. Although Flanders’

statement that she thought Pentz would survive suggests that she did not intend to kill him, her

actions nevertheless reveal that she “willfully or purposefully, rather than negligently, embarked

upon a course of wrongful conduct likely to cause death or great bodily harm” to Pentz. Essex,

228 Va. at 280–81. Unlike typical hit and run incidents, in which the accident is between

strangers and occurs on a thoroughfare of some sort, the incident in this case took place in a

school’s rear parking lot during the early morning hours, a setting in which Flanders had no

reason to be. This atypical setting, coupled with the similar altercation involving the Durango

just two days earlier, yields an inference that Flanders’ conduct was intentionally designed to

place Pentz in danger—the essence of malice.

       Flanders, however, contends that Pentz’ death could not have occurred within the res

gestae of the hit and run and that his death was not causally connected to the hit and run. She

bases her argument on two cases from the Court of Appeals.

       In the first, King v. Commonwealth, 6 Va. App. 351, 353–54 (1988), a drug-smuggling

airplane crewed by King and a co-felon crashed in adverse weather conditions, killing the co-

felon. King was convicted of felony homicide. Id. at 354. On appeal, the Court of Appeals held

that although the death was close in time and place to the underlying felony, it was not causally




                                                 17
connected to drug-smuggling and therefore fell outside the res gestae. Id. at 358. It reversed

King’s conviction because “fog, low cloud cover, pilot error, and inexperience” rather than “an

act of the felons in furtherance of the felony” caused the death. Id. at 353, 358.

       The second, Griffin, involved a defendant who accidentally shot his roommate while

“dancing to music.” 33 Va. App. at 418. He was charged with felony homicide. Id. Possession

of a firearm by a convicted felon was the predicate felony. Id. at 422. The Court of Appeals

reversed his conviction, ruling that “no evidence produced at trial established a causal connection

between the underlying felony and the accidental killing,” which occurred neither in the

prosecution of a felonious act nor in furtherance of the felony. Id. at 424.

       Based on her reading of these cases, Flanders argues that no requisite causal connection

exists between the hit and run and the death. The death, she argues, was not a consequence of

the felony, nor was it calculated to further the felony. Rather, the death was merely coincident to

the hit and run and would have occurred regardless of whether she left the scene. At most, she

concedes, the death was close in time and place to the felonious act, just as in King.

       Flanders’ arguments are unpersuasive and the cases upon which she relies are readily

distinguished from the case at bar. In this case, Pentz’ death was not merely the result of

coincident circumstances, but was inextricably connected to the underlying felony because the

injury-causing collision is “an integral part of the felony” of hit and run. Griffin, 33 Va. App. at

425; see Clarke v. Galdamez, 292 Va. 228, 236 (2016). Unlike King and Griffin, in which the

underlying felonies were minimally connected to the death, Pentz’ death was the direct result of

the felony hit and run. Flanders’ actions—striking Pentz, recognizing that his injuries were

severe enough to endanger his life, and fleeing the scene without providing aid—caused the

injuries and subsequent death four hours later. The “killing was closely related in time, place




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and causal connection to the [hit and run]. Indeed, the two crimes were inextricably

interwoven.” Haskell, 218 Va. at 1043.

       Accordingly, Flanders committed the hit and run with malice sufficient to elevate the

killing to second-degree murder and Pentz’ death occurred within the res gestae of the

underlying hit and run. The Court of Appeals did not err in affirming Flanders’ conviction of

felony homicide.

                                        III. CONCLUSION

       Because it is possible for felony hit and run to have been committed with malice and for

the resulting death to fall within the res gestae of that offense, felony hit and run may serve as a

predicate offense for felony homicide upon such facts. In this case, the evidence viewed in the

light most favorable to the Commonwealth established that Flanders intentionally acted in a

manner endangering Pentz such that malice could be implied from her conduct, and that Pentz’

death was sufficiently related to the hit and run in time, place, and causal connection such that it

was within the res gestae of the felony hit and run. Accordingly, we will affirm the Court of

Appeals’ judgment based on the conclusion that the evidence was sufficient to sustain Flanders’

conviction for felony homicide.

                                                                                            Affirmed.




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