                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Russell and Athey
UNPUBLISHED


              Argued by teleconference


              STEVEN WAYNE GLENN, SR.
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0938-19-3                                  JUDGE CLIFFORD L. ATHEY, JR.
                                                                                  APRIL 28, 2020
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                                             W. Chapman Goodwin, Judge

                               Samuel Richard Thomas, Assistant Public Defender, for appellant.

                               Liam A. Curry, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Steven Wayne Glenn, Sr. (“Glenn”) appeals his conviction of involuntary manslaughter,

              contending that the Circuit Court of Augusta County (“trial court”) erred “by denying [Glenn’s]

              request for a jury instruction on the defense of accident despite it being supported by the

              evidence.” For the following reasons, we affirm the trial court’s decision.

                                                        I. BACKGROUND

                     Glenn fatally shot his thirteen-year-old son in the head at their home in Augusta County

              on April 21, 2018. The Augusta County Sheriff’s Office subsequently interviewed Glenn

              concerning the shooting after advising him of his Miranda rights.

                     During the interview, Glenn stated that on the morning of the shooting, he was discussing

              a recently purchased firearm—a Springfield XD .40 caliber pistol (“the firearm”)—with his son

              (“the victim”) in Glenn’s upstairs bedroom. Glenn stated that both he and the victim were sitting



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
on the bed as Glenn disassembled the firearm in order to show the victim the proper cleaning and

maintenance of the firearm. According to Glenn, the victim was sitting near the foot of the bed,

to Glenn’s left, while Glenn sat near the middle of the bed disassembling the firearm. Glenn

stated that after reassembling the firearm, he “reache[d] across his body and motion[ed] to set the

pistol down on the bed surface flat in the direction of [the victim] and as he does, he said he was

going to get his cigarette with the same hand.”

       Glenn claimed that as he laid the firearm flat onto the bed, the gun “went off.” However,

Glenn admitted that his finger was inside the trigger guard when the firearm discharged and

subsequently stipulated, at trial, that the firing of the weapon left gunshot primer residue on his

hands. Glenn stated that he did not realize that the victim had been shot until he saw the victim

fly back into a chair near the foot of the bed. Glenn was indicted for murder and the use of a

firearm in its commission, in violation of Code §§ 18.2-32 and 18.2-53.1.

       Allen Shank (“Shank”) testified during the trial that, on the day of the shooting, he was

driving to a wedding reception and was flagged down by a “young girl and an elderly lady [who]

c[a]me bolting out of the house . . . screaming call 9-1-1, he’s been shot.” Shank immediately

contacted the police dispatch and remained on the phone with the dispatcher while entering

Glenn’s home. Shank located the victim sitting upright in a chair while Glenn, who appeared

distraught, emotional, and concerned, covered the victim’s forehead. After positioning the

victim per the instructions of dispatch, Shank waited until the first responders arrived.

       Laura Hollenbeck (“Hollenbeck”), a forensic scientist working for the Virginia

Department of Forensic Science, testified that based on her examination and testing, Glenn’s

firearm had several safety features, including a trigger safety and a grip safety, both of which

functioned properly at the time of the shooting. She also testified that when a cartridge was in

the chamber of the firearm, an indicator on the weapon reflected that the cartridge was present in

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the chamber. Hollenbeck opined that it would have taken nearly six pounds of force pulling

back on the trigger before the firearm would have discharged.

        Assistant Chief Medical Examiner Amy Tharp (“Tharp”) also testified for the

Commonwealth that the victim’s death came as the result of a single bullet that entered the

victim’s forehead above his right eye. Tharp found that this bullet, which came to rest in the

back left of the victim’s head, had traveled in a “front to back and right to left trajectory” with no

deviation up or down. Tharp further opined that, based on the stippling1 found around the

victim’s forehead, nose, and upper cheek, the firearm was about twelve inches away from the

victim’s head when it discharged. Tharp therefore ruled the victim’s death a homicide “based on

the scientific evidence not matching the story that [Glenn] provided,” because if the firearm had

been lying flat on the bed when it fired, as Glenn alleged, the victim’s “eye level would have to

be just at or below that bed level . . . for that bullet to enter in the forehead and come straight

across to the back.”

        At the conclusion of all the evidence, Glenn proffered Instruction H:

                Where the defense is that the killing was an accident, the defense is
                not required to prove this fact. The burden is on the
                Commonwealth to prove beyond a reasonable doubt that the killing
                was not accidental. If after considering all the evidence you have a
                reasonable doubt whether the killing was accidental or intentional,
                then you shall find [] Glenn not guilty.

The Commonwealth objected to the trial court giving the instruction because the instruction was

“not an accurate statement of the law.” The trial court sustained the objection and refused to

give Instruction H because “you can have an accident where there is a conviction and the way

the instruction reads, if there’s an accident, it’s to be dismissed.” In denying Instruction H, the


        1
         Tharp testified that stippling is present when a firearm is fired close to skin or clothing
due to “smoke,” “flame,” or “bits of burning or unburned gun powder” being ejected upon
discharge. When those materials strike the skin, it creates a “sand blasting effect around the
wound,” known as stippling.
                                                 -3-
trial judge wrote on the instruction that it was “not appropriate where involuntary [manslaughter

is] charged.”

       The trial court did instruct the jury on involuntary manslaughter in Instruction No. 9

(“Instruction 9”), specifying in the instruction that “[t]he Commonwealth must prove beyond a

reasonable doubt each of the following elements of” first-degree murder, including:

                (1) That [Glenn] killed [the victim]; and
                (2) That the killing was malicious; and
                (3) That the killing was willful, deliberate and premeditated.

                   ....

                If you find from the evidence that the Commonwealth has proved
                beyond a reasonable doubt the first element of the offense as
                charged, has not proved the second and third elements, but has
                proved that the killing, although unintended, was the direct result
                of negligence so gross, wanton and culpable as to show a callous
                disregard of human life, then you shall find [Glenn] guilty of
                involuntary manslaughter but you shall not fix the punishment
                until your verdict has been returned and further evidence has been
                heard by you.

                If you find from the evidence that the Commonwealth has failed to
                prove beyond a reasonable doubt either of the above offenses, then
                you shall find [Glenn] not guilty.

Both Glenn and the Commonwealth proffered the Virginia Model Jury Instruction recited in

Instruction 9, which permitted the jury to find Glenn guilty of involuntary manslaughter. Glenn

also failed to object when the trial court instructed the jury accordingly.

       After hearing the evidence and instructions, the jury found Glenn guilty of involuntary

manslaughter and fixed his sentence at eight (8) years in prison. This appeal followed.

                                           II. ANALYSIS

       “The decision regarding granting or denying a jury instruction generally rests ‘in the

sound discretion of the trial court.’” Graves v. Commonwealth, 65 Va. App. 702, 707 (2016)

(quoting Cooper v. Commonwealth, 277 Va. 377, 381 (2009)). Thus, we review this decision


                                                -4-
under an abuse of discretion standard, Witherow v. Commonwealth, 65 Va. App. 557, 565

(2015), but we review de novo “whether [the] instruction ‘accurately states the relevant law,’”

Graves, 65 Va. App. at 707 (quoting Sarafin v. Commonwealth, 288 Va. 320, 325 (2014)).

       In doing so, our “sole responsibility . . . is to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly raises.” Cooper, 277 Va. at 381

(quoting Molina v. Commonwealth, 272 Va. 666, 671 (2006)). In addition to “correctly stat[ing]

the law,” Woolridge v. Commonwealth, 29 Va. App. 339, 348 (1999) (quoting Hatcher v.

Commonwealth, 218 Va. 811, 813-14 (1978)), the instruction must be “supported by

[more than a scintilla of] evidence,” Witherow, 65 Va. App. at 565 (alteration in original)

(quoting Eaton v. Commonwealth, 240 Va. 236, 255 (1990)), when viewing the evidence “in the

light most favorable to the proponent,” id. at 561 (quoting Commonwealth v. Vaughn, 263 Va.

31, 33 (2002)).

       “Where the evidence warrants, an accused is entitled to an instruction presenting his

theory of accidental killing as a defense.” Helmick v. Commonwealth, 38 Va. App. 558, 568

(2002) (quoting Martin v. Commonwealth, 218 Va. 4, 6 (1977)). “However, ‘[n]o instruction

should be given that incorrectly states the applicable law or which would be confusing or

misleading to the jury.’” Schmuhl v. Commonwealth, 69 Va. App. 281, 311 (2018) (alteration in

original) (quoting Morgan v. Commonwealth, 50 Va. App. 120, 133 (2007)).

       Here, even if more than a scintilla of evidence supported Instruction H, the trial court

properly denied the instruction for two reasons. First, Instruction H incorrectly stated the law

applicable under the facts of this case. Second, in addition to Instruction H incorrectly stating

the law, giving both Instruction H and Instruction 9 would have confused the jury as the

instructions contradicted each other.




                                                -5-
       First, the trial court properly found that Instruction H incorrectly stated the applicable law

because Instruction H required dismissal of the entire case, including murder, use of a firearm in

the commission of murder, and involuntary manslaughter, if the jury had a reasonable doubt as to

whether the killing was intentional or accidental. We agree that such an instruction is “not

appropriate where involuntary [manslaughter is] charged” because “you can have an accident

where there is a conviction and the way the instruction reads, if there’s an accident, it’s to be

dismissed.” See Noakes v. Commonwealth, 280 Va. 338, 345 (2010) (“We have defined the

common law crime of involuntary manslaughter as ‘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.’” (quoting Mundy v. Commonwealth, 144 Va. 609, 615

(1926))).

       Instruction 9, which instructed the jury on involuntary manslaughter as Glenn and the

Commonwealth agreed was appropriate here, reflected that an involuntary manslaughter

conviction was permitted as an alternative to a murder conviction. Although Instruction H could

have been proper if it specified that the accident defense did not require acquittal in the case of

involuntary manslaughter, Instruction H, as written, was properly denied. See Waters v.

Commonwealth, 39 Va. App. 72, 80 (2002) (affirming the trial court’s denial of an accident

instruction that “required an outright acquittal if the jury had a reasonable doubt as to whether

the killing was intentional” when an involuntary manslaughter conviction was a possible

outcome).2

       Instruction 9 permitted the jury to find Glenn guilty even if the killing was unintentional

or accidental if the Commonwealth proved beyond a reasonable doubt that the accidental killing



       2
         We observe that King v. Commonwealth, 64 Va. App. 580, 592 (2015) (en banc),
overruled the other holding in Waters, but King does not affect the outcome of this matter.
                                              -6-
was a direct result of Glenn’s negligence where that negligence was so gross, wanton, and

culpable as to show a callous disregard of human life. In fact, the jury found Glenn guilty of

involuntary manslaughter based on the facts and instructions provided. Instruction 9 correctly

informed the jury that the burden of proof rested with the Commonwealth and cautioned that if

the Commonwealth failed to prove beyond a reasonable doubt either murder or involuntary

manslaughter, the law required acquittal.

       Second, providing Instruction H along with Instruction 9 would have confused the jury as

the instructions contradicted each other. Although Instruction 9 permitted an involuntary

manslaughter conviction in some instances of accidental killing, Instruction H required an

acquittal in any accidental killing. Thus, jurors would have been confused or misled into

believing that an accidental killing would require an acquittal without consideration of

involuntary manslaughter.

       Because Instruction H incorrectly stated the applicable law and because providing it with

Instruction 9 would have been confusing or misleading to the jury, the trial court properly denied

Instruction H.

                                         III. CONCLUSION

       For the foregoing reasons, this Court affirms the decision of the trial court.

                                                                                           Affirmed.




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