                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Senior Judge Coleman and Retired Judge Smith ∗
Argued at Salem, Virginia


MICHAEL WAYNE VANCE
                                                             MEMORANDUM OPINION * * BY
v.      Record No. 1646-07-3                              CHIEF JUDGE WALTER S. FELTON, JR.
                                                                  NOVEMBER 18, 2008
COMMONWEALTH OF VIRGINIA


                       FROM THE CIRCUIT COURT OF RUSSELL COUNTY
                                   Michael L. Moore, Judge

                  C. Eugene Compton (Compton & Compton, P.C., on brief), for
                  appellant.

                  Gregory Franklin, Assistant Attorney General (Robert F. McDonnell,
                  Attorney General; Craig W. Stallard, Assistant Attorney General, on
                  brief), for appellee.


        Following a bench trial, Michael Wayne Vance (“appellant”) was convicted of involuntary

manslaughter in violation of Code § 18.2-36. On appeal, appellant contends the evidence failed to

prove he acted in a criminally negligent manner when he unintentionally killed a camouflaged

hunter while shooting at what he incorrectly thought to be a turkey at a time he knew turkey hunting

was prohibited. For the reasons that follow, we affirm the judgment of the trial court.

                                                   I.

        When on appeal an appellant challenges “the sufficiency of the evidence to sustain his

conviction[], it is the appellate court’s duty to examine the evidence that tends to support the



        ∗
         Retired Judge Charles H. Smith, Jr., took part in the consideration of this case by
designation pursuant to Code § 17.1-400(D).
        **
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
conviction[] and to permit the conviction[] to stand unless [it is] plainly wrong or without

evidentiary support.” Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998).

       So viewed, the evidence proved that in the late afternoon hours of November 11, 2003,

appellant entered a parcel of private property to hunt deer. The property owner had previously

given appellant and at least one other person oral permission to hunt on the property, which was not

posted with signs prohibiting trespassing.

        On that date, the “bow and arrow” and muzzleloading weapon season for deer hunting was

open, 1 but turkey hunting season was closed. 2 Appellant, who had thirty years of experience

hunting, hunted that day with a muzzleloaded .50 caliber rifle, loaded with a .45 caliber bullet

encased in a sabot. 3 His muzzleloaded rifle, when fired, projected a bullet in excess of 2,000 feet

per second.

        When appellant, wearing camouflage, approached a heavily wooded ridge on the property in

the late afternoon hours of November 11, he heard what he incorrectly believed to be a turkey. He

told investigators that he “slipped down [in the direction of the sound],” and “eased to [a] tree”

against which he could “rest” or stabilize his rifle to improve his aim. He “saw a flash” of

movement 18 feet above the ground in a tree some 187 feet away from him that he “swore [] was




        1
          A muzzleloading weapon is “a single shot weapon . . . , excluding muzzleloading
pistols, .45 caliber or larger, firing a single projectile or sabot (with a .38 caliber or larger
projectile) of the same caliber loaded from the muzzle of the weapon and propelled by at least 50
grains of black powder (or black powder equivalent).” 4 VAC 15-90-80(G).
        2
            Code § 29.1-550 provides, in pertinent part, “[i]t shall be unlawful for any person
to . . . take, or attempt to take, any wild bird . . . during the closed season” and that “[a]ny person
convicted of violating any provisions of this section shall be guilty of a Class 2 misdemeanor.”
        3
         A sabot is “a thrust-transmitting light-weight carrier that positions a missile or
sub-caliber projectile in a tube . . . .” Webster’s Third New International Dictionary 1995
(1993).

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turkey wings.” 4 Appellant told police that he “[t]hen [] saw the head move and [he] shot.” After

appellant fired, he reloaded his rifle. He then “got to looking and [] [saw] boot toes.” Appellant

immediately “turned and ran,” without “even go[ing] to see if [the person in the tree] was hurt or [if]

[he] could help him . . . . ”

        When appellant ran from the scene he returned to his house, approximately a quarter of a

mile from where he shot. He did not call anyone to report what had happened or what he saw in the

tree. Instead, he left his .50 caliber muzzleloader at his house and headed back up the ridge with a

.22 caliber rifle and his dogs to “coon hunt.” He planned to go back to the tree in which he saw the

boot toes and, if he did not find a body there, he planned to continue hunting.

        When appellant returned to the tree, he saw that there was a slumped-over person in a seated

position in a tree stand attached to the tree. He ran back down the ridge and called 911, telling the

emergency operator that, while “coon hunting,” he discovered a body in a tree in the woods. Over

the next several hours, appellant gave widely varying accounts to law enforcement officers

concerning his hunting experience that day.

        Appellant led the responding law enforcement officers to the tree stand where he had seen

the body. Evidence at trial established that the person in the tree was appellant’s cousin, Adam

Anderson, and that appellant’s bullet struck Anderson, killing him almost instantly. At the time

appellant shot him, Anderson was sitting in a camouflaged tree stand, dressed in camouflaged

clothing, and had with him arrows and a camouflaged bow.

        After law enforcement officers removed Anderson’s body from the tree, they discovered a

turkey call in his mouth. Expert testimony at trial established that during bow and arrow season for


        4
           The distance of 187 feet, approximately 62 yards, was the distance measured from
where appellant stated he shot to the tree stand in which the victim was found. Expert testimony
at trial established that Virginia hunter safety courses instruct turkey hunters to shoot at a turkey
only if it is within 25 yards of the hunter.

                                                 -3-
deer, a hunter will often use a “turkey call” device to emulate the sound of a turkey to lure deer to

the hunter’s location. Expert testimony further established that hunters use this technique to attract

deer to the area hunted because the presence of turkeys, who are skittish, in an area suggests to deer

that humans are not present.

        Appellant at first denied having fired a gun that day, but changed his account after law

enforcement officers tested his hands for gunshot residue. He then told an investigator that he was

hunting for squirrel with a .50 caliber muzzleloading rifle and that he accidentally shot Anderson

while attempting to “bark” a squirrel.5 He told the investigator that he killed the squirrel by

“barking” the tree, but was unable to produce the dead squirrel when asked to do so.

        In finding appellant guilty of involuntary manslaughter, the trial court found that the

“cardinal rule of hunting is to clearly identify your target [and what is] in the background.” It also

found that appellant “knew or should have known that there were other people in the area” also

hunting that day. In finding appellant guilty, the trial court stated:

                [appellant] said he was sure [the movement he saw in the trees]
                was a turkey. His expert said that if it sounds like a turkey, you
                see a movement, then you can be pretty sure it’s a turkey. Well, I
                don’t think ‘pretty sure’ is enough; ‘pretty sure’ cannot be enough.
                The [appellant] has an obligation, a duty, to properly identify the
                target.

(Emphasis added). The trial court concluded that appellant acted with criminal negligence when

he unintentionally killed Anderson, and convicted him of involuntary manslaughter.


                                                    II.

        On appeal, appellant contends the evidence presented at trial was insufficient to convict him

of involuntary manslaughter, as it did not establish that he was criminally negligent. Appellant, who


        5
         Testimony established that “barking a squirrel” means to kill a squirrel by shooting the
bark of a tree on which a squirrel is located, causing the bark of the tree displaced by the bullet at
impact to kill the squirrel.
                                                 -4-
was hunting in camouflaged clothing, also contends that he could not have known Anderson was

camouflaged, that Anderson was “perhaps impossible” to see in a tree stand and, therefore, he could

not have acted with reckless disregard for human life when he shot toward what he thought

incorrectly to be a turkey, the hunting of which he knew was unlawful at that time.

       Involuntary manslaughter

               is defined as the accidental killing of a person, contrary to the
               intention of the parties, during the prosecution of an unlawful, but
               not felonious, act, or during the improper performance of some
               lawful act. The “improper” performance of the lawful act, to
               constitute involuntary manslaughter, must amount to an unlawful
               commission of such lawful act, not merely a negligent
               performance. The negligence must be criminal negligence. The
               accidental killing must be the proximate result of a lawful act
               performed in a manner “so gross, wanton, and culpable as to show
               a reckless disregard of human life.”

                          *       *       *       *       *      *       *

               “‘Gross negligence’ is culpable or criminal when accompanied by
               acts of commission or omission of a wanton or willful nature,
               showing a reckless or indifferent disregard of the rights of others,
               under circumstances reasonably calculated to produce injury, or
               which make it not improbable that injury will be occasioned, and
               the offender knows, or is charged with the knowledge of, the
               probable results of his acts.”

Lawson v. Commonwealth, 35 Va. App. 610, 617-18, 547 S.E.2d 513, 516-17 (2001) (quoting

Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992) (internal citations

omitted)).

       In Lawson, guided by the Supreme Court’s holding in Cable, this Court affirmed the

conviction of a hunter who unintentionally killed another hunter when he failed to properly identify

his target before discharging his weapon at what he incorrectly thought to be a turkey.

       In Cable,

               the defendant heard a squirrel barking off to his right. Cable
               started walking towards the sound of the squirrel, thought to be
               twenty yards away. He approached “a big old tree” by a ravine.

                                                -5-
               At the edge of the ravine, Cable stopped, not wanting to proceed
               through the thick foliage. He heard something like a squirrel
               jumping, whereupon he turned, aimed his gun, and when he saw a
               flash of movement, black in color, he shot at the movement. The
               shot fatally wounded Cable’s hunting partner, dressed in
               camouflage, whom Cable believed to be elsewhere. The Supreme
               Court held Cable’s actions, in failing to identify his target which
               resulted in the killing of another hunter, amounted to involuntary
               manslaughter.

Lawson, 35 Va. App. at 620, 547 S.E.2d at 517.

       In Lawson, the accused

               had spent the morning sitting on a log looking and waiting for a
               turkey while his friend had gone elsewhere to hunt. At midday,
               [he] was returning toward his truck to meet his friend for lunch
               when he saw on his path that the leaves had been disturbed. He
               interpreted the vegetation disturbance as “turkey scratch feeding.”
               He then heard what he thought was a turkey yelping and started
               “trying to make a visual.” He saw “something black . . . the black
               object [that was] kind of bobbing up and down.” “It looked
               exactly like a turkey . . . because of the way it was going up and
               down, doing that number right there like it was scratching at the
               time and feeding.” “I looked really good and I, I knew this was a
               turkey, and I didn’t see nothing around the turkey at all, so I put
               the gun up, I waited a second, I looked at it, and then I pulled one
               shot.” He got ready to shoot again but nothing moved. Then he
               ran down the hill and found [the victim] and his dog, both dead.
               [The accused] immediately went for help.

               [The accused], on cross-examination, agreed that he had not told
               [the investigating law enforcement officer] that he had seen the
               black object looking exactly like a turkey “bobbing up and down,”
               but claimed that “this is all I’ve been able to think about for five
               months, so I’ve been able to go over it plenty by myself.” He also
               admitted that he told [the officer] that he did not see any colors or
               anything to indicate that what he saw was actually a turkey, but
               insisted that “before I pulled the trigger I saw a black object
               moving up and down like it was feeding. I watched it.” However,
               he also agreed that he answered, “Yes sir,” when [the officer]
               asked him to confirm that, although he saw movement and heard
               the sounds he believed to be a turkey, he did not identify it as a
               turkey before he shot.

Id. at 614-15, 547 S.E.2d at 515.



                                                 -6-
        In Lawson, this Court concluded that the accused, “as a hunter, had a duty to properly

identify his target and everything in the area prior to firing his firearm.” Id. at 620, 547 S.E.2d at

518. We found that the accused’s “firing into thick brush without ascertaining if the dark object was

actually a turkey, in an area where he knew at least one other hunter was present, evidenced a

wanton and culpable disregard for human life amounting to criminal negligence.” Id.

        Here, the trial court found that appellant knew or should have known that there were other

hunters in the area that day. Indeed, the evidence presented at trial established that there were “at

least six hunters within a mile or a mile and a-half” of the location where appellant shot Anderson.

The trial court, while noting that Anderson wore camouflaged clothing and was “hard to see, maybe

impossible to see” in a camouflaged tree stand, also found the fact that another hunter is

camouflaged does not “absolve[] a hunter of a duty to try to identify the target, going back to the

cardinal rule, to identify the target clearly before you fire a shot.” Indeed, appellant himself wore

camouflage clothing the day he shot Anderson. The trial court found that “[appellant] ha[d] an

obligation, a duty, to properly identify the target. In this case, the evidence was it would have taken

a few steps; it would have taken a little more time; it would have taken a little more patience, which

he did not demonstrate.”

        Guided by the holdings in Cable and Lawson, and by the evidence contained in the record,

we conclude that the trial court did not err in its finding that appellant acted in a criminally negligent

manner, with a wanton and culpable disregard of human life, when he fired at a target he did not

fully identify and thought incorrectly to be a turkey, the hunting of which was unlawful at that time.

See Cable, 243 Va. at 241, 415 S.E.2d at 221; Lawson, 35 Va. App. at 620, 547 S.E.2d at 518.

        Accordingly, we affirm appellant’s conviction.

                                                                                               Affirmed.




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