VIRGINIA:

       In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Thursday the 2nd day of April, 2020.

Present: All the Justices

Marcellus McQuinn,                                                                 Appellant,

against                Record No. 190266
                       Court of Appeals No. 0775-18-2

Commonwealth of Virginia,                                                          Appellee.


                                                           Upon an appeal from a judgment
                                                     rendered by the Court of Appeals of
                                                     Virginia.


       Marcellus McQuinn appeals his convictions for use of a firearm in the commission of an
abduction and use of a firearm in the commission of a malicious wounding, contending that his
convictions must be overturned because the jury did not find him guilty of the predicate offenses
of abduction and malicious wounding. Because the Court of Appeals did not err in upholding
the jury’s verdicts, we affirm.
                                                I.
       At trial, the Commonwealth presented evidence that Vashawn Gray and Jarvoan
Humphries had met one night in June 2017 to discuss the purchase of heroin in the apartment of
Jarvoan’s mother. Jarvoan and his niece, Jermisha Humphries, were present in the apartment
taking care of Jarvoan’s bedridden mother. During the meeting, Gray stated that he needed to
return to his car to get money for the drugs. Gray left the apartment briefly and returned with
McQuinn and another man named Jamel Scott.
       As soon as McQuinn entered the apartment, he struck Jarvoan on the head with a gun
several times. Jermisha began to retreat down the hallway to her grandmother’s room, but Gray
intercepted her, took her cell phone out of her hands, and pushed her into another bedroom.
Scott told her to sit in a corner and to put a cover over her head. Scott and Gray came back to the
bedroom and asked if Jermisha knew “where the stuff [was]” and “[w]here he hides it.” J.A. at
92. After they had left the bedroom, Jermisha could hear them in the living room asking Jarvoan
where the money was, telling him to get on the floor and lie on his stomach, and threatening to
harm Jermisha if he did not comply. Jermisha shouted for her uncle to comply. At some point,
two of the men 1 brought Jarvoan into the bedroom where Jermisha was and continued to search
for money and drugs.
       When they had brought Jarvoan back out to the living room, the men continued to search
the apartment for money and drugs and told Jarvoan to lay on his stomach. McQuinn tied
Jarvoan’s hands behind his back with a belt. Eventually, Jarvoan freed his hands from the belt,
and when Gray went back down the hallway to the bedroom where Jermisha was, Jarvoan took
the opportunity to attack McQuinn. After slamming McQuinn against the washing machine and
dryer, Jarvoan ran to the second-story balcony of the apartment and heard two clicks of a gun
behind him as it misfired. 2 The third shot fired and struck the wall as Jarvoan escaped onto the
balcony and jumped to the ground. Scott shot at Jarvoan from the balcony and hit him once,
grazing the top of Jarvoan’s head. Jarvoan found two strangers sitting in a car who agreed to
take him to the hospital. Back in the apartment, Jermisha was still in the bedroom with the cover
over her head. After she had heard the gunshots, she heard a man walk into the bedroom, and
she was able to see his feet standing beside the bed from underneath the cover. She then heard
two clicks of a gun and one of the men instructing the others to leave her alone. The three men
left the apartment with Jarvoan’s and Jermisha’s cell phones, $6,000 and 80 grams of heroin
from Jarvoan, Jarvoan’s wallet, and approximately $100 from Jermisha’s purse.
       McQuinn was charged with two counts of abduction for pecuniary benefit, two counts of
robbery, malicious wounding of Jarvoan, and using a firearm in the commission of each of these
felonies. 3 A jury found McQuinn guilty of abducting Jermisha, of using a firearm in the
abduction of Jarvoan, and of using a firearm in the malicious wounding of Jarvoan. The jury



       1
          Jermisha testified that Gray and Scott had brought Jarvoan back to the bedroom, see
J.A. at 94, while Jarvoan testified that it had been McQuinn and Gray, see id. at 132-33.
       2
          The testimony is unclear as to whether McQuinn or Scott was firing at this point. See
id. at 136-39.
       3
         McQuinn was also charged with the attempted murder of Jermisha, using a firearm in
the commission of that attempted murder, and possession of a firearm by a convicted felon, but
these charges were either dismissed or nolle prossed.


                                                 2
found him not guilty of abducting Jarvoan and was deadlocked on the charge of malicious
wounding of Jarvoan. The jury also found McQuinn not guilty of using a firearm in the
abduction of Jermisha and not guilty on both counts of robbery and their attendant firearm
charges. The jury recommended the minimum sentence of 28 years for all of the convictions (20
years for the abduction, 3 years for the first firearm offense, and 5 years for the second), which
the trial court imposed.
       McQuinn moved to set aside the verdicts, arguing that the two firearm convictions could
not stand when the jury had failed to find him guilty of the predicate offenses. McQuinn also
challenged the sufficiency of the evidence for all of the convictions. Rejecting both arguments,
the trial court denied the motion. McQuinn appealed his convictions to the Court of Appeals on
the same grounds, but his petition mistakenly referenced a non-existent conviction for using a
firearm in a robbery instead of his actual conviction for using a firearm in a malicious wounding.
The Court of Appeals denied his petition with respect to the sufficiency of the evidence and the
predicate-offense argument pertaining to abduction. The Court of Appeals dismissed his
petition, however, as it pertained to the non-existent conviction for using a firearm in a robbery.
       McQuinn appealed to this Court, and we granted his assignments of error solely
pertaining to whether the jury could convict him of using a firearm during a felony when it had
not convicted him of the predicate offense and whether the Court of Appeals could dismiss his
petition based upon his mistaken reference to robbery rather than malicious wounding.
                                                  II.
       Inconsistent verdicts against a defendant in a single, criminal, jury trial typically arise in
one of three scenarios. In the first, a jury’s guilty verdict on one charge is irreconcilably
inconsistent with another guilty verdict on a different charge. See, e.g., United States v. Powell,
469 U.S. 57, 69 & n.8 (1984) (allowing a jury’s inconsistent verdicts to stand but stating that
“[n]othing in this opinion is intended to decide the proper resolution of a situation where a
defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a
finding of guilt on the other”). In the second scenario, the evidence is insufficient as a matter of
law to find the defendant guilty of a predicate offense even though the defendant is convicted of
a compound offense, and in such a case, the finding of legal insufficiency on the predicate




                                                  3
offense requires overturning the guilty verdict on the compound offense. See, e.g., Jay v.
Commonwealth, 275 Va. 510, 527 (2008). 4
       The final scenario is one in which the evidence is legally sufficient to convict the
defendant of the predicate offense, but the jury has reached seemingly inconsistent (though not
necessarily mutually exclusive) verdicts by convicting the defendant of the compound, but not
the predicate, offense. In such cases, the apparently inconsistent verdicts must stand because the
jury could have convicted the defendant on both charges but quite possibly decided not to do so
out of a sense of grace and leniency. See Reed v. Commonwealth, 239 Va. 594, 596-98 (1990).
That scenario stands in contrast to one in which a jury, faced with insufficient evidence to
convict on the predicate offense, nonetheless finds the defendant guilty of the compound offense.
The latter verdict cannot be squared with the former based upon a supposition of grace and
leniency. A defendant legally secure in his presumption of innocence needs neither grace nor
leniency.
       In Reed, we addressed the predicate-offense argument that McQuinn makes in this appeal
and rejected it, finding that a defendant could be convicted of using a firearm during a robbery
when the jury had found him not guilty of the robbery itself. See 239 Va. at 594-98. We
reiterated “that ‘verdicts cannot be upset by speculation or inquiry’ into whether they ‘may have
been the result of compromise, or of a mistake on the part of the jury.’” Id. at 597 (citation
omitted). See generally 5 Ronald J. Bacigal & Corinna Barrett Lain, Virginia Practice Series:
Criminal Procedure § 18.6, at 617-18 (2019-2020 ed.); John L. Costello, Virginia Criminal Law
and Procedure § 57.9[1], at 965-66 (4th ed. 2008); 6 Wayne R. LaFave et al., Criminal Procedure
§ 24.10(b), at 717-23 (4th ed. 2015 & Supp. 2019-2020).
       McQuinn argues that this is not simply an “inconsistent verdict” case but a case in which
the underlying predicate felonies are statutorily required. The defendant in Reed, however, made


       4
          In Jay, we overturned an attempted robbery conviction because the evidence was
insufficient as a matter of law to prove that charge. See 275 Va. at 527. That holding necessarily
required us to overturn the defendant’s conviction for attempted use of a firearm during the
commission of an attempted robbery. See id. We included Reed v. Commonwealth, 239 Va.
594, 596-98 (1990), as a “but see” citation for the proposition that we have upheld inconsistent
jury verdicts regarding the same offenses. See Jay, 275 Va. at 527. In hindsight, we should have
used a “but cf.” citation signal to demonstrate the factual distinction between the two scenarios.
In Jay, the evidence was insufficient as a matter of law to convict the defendant of the predicate
offense. See id. In Reed, we made no such finding.


                                                 4
the same argument. After describing the affirmance of inconsistent verdicts in Sullivan v.
Commonwealth, 214 Va. 679 (1974) (per curiam), we stated in Reed, “Reed argues that we
should create an exception to Sullivan when a jury renders inconsistent verdicts in a case
involving compound and predicate offenses.” See Reed, 239 Va. at 596-97. We went on to
analyze two United States Supreme Court cases that had dealt with predicate offenses. See id. at
597 (citing Powell, 469 U.S. 57; Dunn v. United States, 284 U.S. 390 (1932), abrogated on other
grounds by Ashe v. Swenson, 397 U.S. 436, 443-45 (1970), and Sealfon v. United States, 332
U.S. 575, 578-79 (1948)). We concluded, like the Supreme Court had in Powell, “that such an
exception ‘threatens to swallow the rule.’” Id. (citation omitted).
       In declining to depart from these precedents, we reiterate the rationale behind them:
Because the jury (i) may have erred in failing to convict the defendant of the predicate offense
while finding him guilty of the compound offense, or (ii) may have made a mistake in finding
the defendant guilty of the compound offense while finding him not guilty of the predicate
offense, or (iii) may have “simply decided to be lenient with the defendant” by convicting him
only of the compound offense,
               [i]nconsistent verdicts therefore present a situation where “error,”
               in the sense that the jury has not followed the court’s instructions,
               most certainly has occurred, but it is unclear whose ox has been
               gored. Given this uncertainty, and the fact that the Commonwealth
               is precluded from challenging the acquittal, it is hardly satisfactory
               to allow the defendant to receive a new trial on the conviction as a
               matter of course.
Id. at 597-98 (alteration omitted) (quoting Powell, 469 U.S. at 65).
       Our view is strengthened by the observation that Virginia is “more careful than most
states to protect the inviolability and secrecy of jurors’ deliberations,” and thus “a court, in a case
like this, is unlikely to discover what motivated the jury.” Id. at 598 (citation omitted). We do
not view that deliberative safe space with skepticism. To the contrary, we believe that
preserving the secrecy of jury verdicts honors the jury’s role “as ‘the democratical balance in the
Judiciary power,’” Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 95 (1998)
(citation omitted), and secures to the citizenry “a share of Judicature which they have reserved
for themselves,” id. at 94 (citation omitted). This reservation of power presupposes that, while
engaged in the task of sorting out disputed facts, citizen juries are “the best investigators of truth,
and the surest guardians of public justice,” 3 William Blackstone, Commentaries *380 (altering



                                                   5
archaic spelling); see also 2 The Works of the Honourable James Wilson 315-17 (Bird Wilson
ed., 1804). 5
                                                III.
        For these reasons, we hold that the Court of Appeals did not err by refusing to vacate
McQuinn’s convictions for using a firearm in the commission of an abduction and using a
firearm in the commission of a malicious wounding. We thus affirm the judgment of the Court
of Appeals.
        This order shall be published in the Virginia Reports and certified to the Court of Appeals
of Virginia and to the Circuit Court of the City of Richmond.


                                               A Copy,

                                                     Teste:



                                                              Douglas B. Robelen, Clerk




        5
          As noted earlier, see supra at 3, McQuinn also contends that the Court of Appeals erred
in failing to address his mislabeled predicate-offense argument pertaining to robbery. Our
holding addresses the merits of McQuinn’s entire argument before the Court of Appeals, which
was not divided according to the different predicate offenses, see CAV Pet. at 20-23, thus
mooting any need to rule upon his mislabeled predicate-offense argument. See Appalachian
Reg’l Healthcare v. Cunningham, 294 Va. 363, 370 n.5, 375 n.10 (2017) (finding that the
Court’s holdings rendered certain assignments of error moot).


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