Present: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Russell, S.J.

TINA MARIE BRYANT
                                                       OPINION BY
v. Record No. 170712                         SENIOR JUSTICE CHARLES S. RUSSELL
                                                        April 5, 2018
COMMONWEALTH OF VIRGINIA


                        FROM THE COURT OF APPEALS OF VIRGINIA

        This appeal involves consideration of the elements of the crime of unlawfully discharging

a firearm within an occupied building, made a Class 6 felony by Code § 18.2-279. Specifically,

it presents the question whether the Commonwealth has the burden of proving that the firearm

was not discharged accidentally or inadvertently.

                                 FACTS AND PROCEEDINGS

        Except for the issue of the defendant’s intent when discharging the firearm, the essential

facts are undisputed. Tina Marie Bryant (the defendant) was a resident of Calvert County,

Maryland in August 2015. She had become so deeply depressed by the loss of her job and the

recent sudden death of her mother that she resolved to end her life. On August 8, 2015, after

taking a .45 caliber semi-automatic pistol and a clip of ammunition from the home of a friend,

she drove to Harrisonburg, Virginia, intending to die by suicide there. As a witness in her own

defense at trial, she testified that she loved the mountains and wanted to see them again on the

last day of her life.

        The office of the Sheriff of Calvert County was made aware of her departure, her

expressed intentions and her possession of the firearm. By a process of “pinging” on her cellular

telephone, the Maryland authorities were able to determine her approximate location, which

proved to be in Rockingham County, Virginia. The Maryland authorities relayed this

information to the office of the Sheriff of Rockingham County, requesting a “welfare check” on
the defendant and advising that she was “mentally unstable” and in possession of a firearm.

Rockingham County Sheriff’s deputies located the defendant’s car parked outside the Country

Inn and Suites, a hotel located in the City of Harrisonburg on the county line.

       Inquiring at the front desk, the deputies ascertained that the defendant was registered in

Room 104, on the ground floor. The deputies went to that room and knocked on the door. There

was no response. At their request, the clerk called the room’s telephone but there was no answer.

The manager gave them a universal key to unlock the door, but it failed to function. The

defendant, evidently hearing the activities outside the door, called out that they should not come

in, that she had a gun and if they came in she would shoot herself. Her voice sounded “angry”

and “upset.”

       One of the deputies initiated a conversation with her through the closed door in an effort

to calm her. He told her that they wanted only “to see that she was okay so we could try to get

her some help.” She responded that she was disgusted with life and that she wanted the police to

shoot her. As the conversation proceeded, she seemed to become more calm. During this time

the hotel staff began evacuating other guests from the rooms adjacent and on the floor above.

Other deputies were sent outside the building to observe the interior of the defendant’s room

through its exterior window.

       Suddenly, the deputies heard a gunshot within the room. The senior deputy present

called to her several times: “Are you okay?” After a 15-second silence, she responded: “I’m

not hurt.” The senior deputy asked her to go put the pistol on the bed and to go to the window

and put her hands on the window to enable the deputies outside to be sure that she had put the

weapon down. Upon receiving word by radio from the deputies outside that she had complied

with that request, the deputies outside the door forced it open and entered the room. The



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defendant was standing, her arms at her sides, her hands empty. The pistol was on the bed. A

hole was visible in the carpet that covered the concrete floor. The fragmented spent round was

recovered from the concrete near the hole. She had an injury to her hand that evidently resulted

from holding the weapon too close to the slide when it came back after firing to eject the spent

cartridge case and load the next round. She offered no resistance and was transported to a

hospital.

       In the Circuit Court of Rockingham County, the defendant was indicted for unlawfully

discharging a firearm within an occupied building in violation of Code § 18.2-279. At a jury

trial, the defendant testified that while the senior deputy was talking to her through the closed

door, she had been holding the weapon to her head with her finger on the trigger. At some point,

however, she made a split-second decision, motivated by her religious beliefs, to abandon her

suicidal intent. She testified that the weapon discharged accidentally while she was trying to put

it down. She adamantly denied any intent to fire it.

       Without objection, the court gave the following instruction to the jury, which is adapted

from 1 Virginia Model Jury Instructions-Criminal No. G18.100:

       The defendant is charged with the crime of discharging a firearm within an
       occupied building. The Commonwealth must prove beyond a reasonable doubt
       each of the following elements of that crime:

            (1) That the defendant discharged a firearm within a building occupied by one
                or more persons; and

            (2) That the firearm was discharged in such a manner as to endanger the life or
                lives of such person or persons.

       If you find from the evidence that the Commonwealth has proved beyond a
       reasonable doubt each of the above elements of the crime as charged, then you
       shall find the defendant guilty of unlawfully discharging a firearm, but you shall
       not fix the punishment until your verdict has been returned and further evidence
       has been heard by you.



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       If you find that the Commonwealth has failed to prove beyond a reasonable
       doubt either or both of the first two elements of the crime, then you shall find
       the defendant not guilty.

“It is well settled that instructions given without objection become the law of the case and

thereby bind the parties in the trial court and this Court on review.” Online Res. Corp. v. Lawlor,

285 Va. 40, 60-61, 736 S.E.2d 886, 897 (2013); Powell v. Warden of the Sussex I State Prison,

272 Va. 217, 236, 634 S.E.2d 289, 298 (2006); Spencer v. Commonwealth, 240 Va. 78, 89, 393

S.E.2d 609, 616 (1990).

       At trial, the defense raised only the issue of the defendant’s intent when firing the shot.

Consequently, no issue whether the evidence was sufficient to prove that the shot was fired in

such a manner as to endanger others was submitted at trial. Therefore, no question related to the

second element of the offense, as framed by this instruction, is before us in this appeal.

       The defense offered the following instruction, which the Court refused:

       Where, as in the case at bar, the defense is that the discharge of the firearm was
       accidental, the defendant is not required to prove this fact, beyond a reasonable
       doubt or by a preponderance of the evidence, but the burden is upon the
       Commonwealth to prove beyond a reasonable doubt that said firearm discharge
       was not accidental; therefore, if after hearing all of the evidence, you have a
       reasonable doubt whether said firearm discharge was accidental or that it was
       intentional, then you shall find the defendant not guilty.

       At the conclusion of trial, the jury returned a verdict finding the defendant guilty as

charged. After hearing evidence in mitigation, the jury returned a verdict fixing her punishment

at a fine of zero dollars, with no confinement.

       The defendant appealed her conviction to the Court of Appeals, which granted the appeal.

There, as here, she assigned two errors: (1) that the evidence was insufficient to support the

conviction because of a lack of proof that she intentionally discharged the firearm, and (2) that

the trial court erred in refusing to instruct the jury that the burden was on the Commonwealth to



                                                  4
prove, beyond a reasonable doubt, that her discharge of the firearm was not accidental. In a

published opinion, the Court of Appeals affirmed the conviction. Bryant v. Commonwealth, 67

Va. App. 569, 798 S.E.2d 459 (2017). We awarded the defendant an appeal.

                                           ANALYSIS

       A single dispositive question is presented by both assignments of error: Does Code

§ 18.2-279 require, as an element of the crime of unlawful discharge of a firearm within an

occupied building, proof that the firearm was discharged intentionally? Put another way, is proof

of accidental or inadvertent discharge a defense? That is a pure question of statutory

interpretation, subject to de novo review on appeal. Washington v. Commonwealth, 272 Va. 449,

455, 634 S.E.2d 310, 313-14 (2006). For the reasons that follow, we answer that question in the

negative. Code § 18.2-279 provides:

        If any person maliciously discharges a firearm within any building when
       occupied by one or more persons in such a manner as to endanger the life or lives
       of such person or persons, or maliciously shoots at, or maliciously throws any
       missile at or against any dwelling house or other building when occupied by one
       or more persons, whereby the life or lives of any such person or persons may be
       put in peril, the person so offending is guilty of a Class 4 felony. In the event of
       the death of any person, resulting from such malicious shooting or throwing, the
       person so offending is guilty of murder in the second degree. However, if the
       homicide is willful, deliberate and premeditated, he is guilty of murder in the first
       degree.

       If any such act be done unlawfully, but not maliciously, the person so offending is
       guilty of a Class 6 felony; and, in the event of the death of any person resulting
       from such unlawful shooting or throwing, the person so offending is guilty of
       involuntary manslaughter. If any person willfully discharges a firearm within or
       shoots at any school building whether occupied or not, he is guilty of a Class 4
       felony.

       The language of Code § 18.2-279 is plain and unambiguous. Among other acts, it

proscribes the act of discharging a firearm within an occupied building in such a manner as to

endanger the life of a person therein. It distinguishes, however, between several levels of the



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offense and subjects them to punishments that differ according to the mens rea of the offender

and the resulting harm. Shooting in an occupied building in such a manner as to put such a

person’s life in peril, if done “maliciously,” is punishable as a Class 4 felony. Doing so

“unlawfully” is punishable as a Class 6 felony. If death of a person results from such a shooting

done “maliciously,” it is punishable as second-degree murder. If done willfully, deliberately and

with premeditation, it is punishable as first-degree murder. If, however, such a shooting is done

“unlawfully” and results in death of a person, it is punishable as involuntary manslaughter.

        These distinctions demonstrate a clear legislative intent not only to proscribe the acts

described in Code § 18.2-279 but also to punish them differently, taking into account the

differing levels of culpability attending them. The legislative use of the terms “maliciously” and

“unlawfully” in this section, in connection with the varying punishments provided, makes the

distinctions clear. “Maliciously” describes a wrongful act done “willfully or purposefully.”

Essex v. Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220 (1984). “Unlawfully,”

however, describes conduct that merely demonstrates “criminal negligence.” Gooden v.

Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984). “Criminal negligence” is judged

under an objective standard and may be found to exist where the offender either knew or should

have known the probable results of her acts. Riley v. Commonwealth, 277 Va. 467, 483-84, 675

S.E.2d 168, 177 (2009). In Riley, this Court defined criminal negligence in terms of gross

negligence, stating:

        “Gross negligence” is culpable or criminal when accompanied by acts of
        commission or omission of a wanton or wilful 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 result of his acts.

Id. (citations omitted).


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       By including involuntary manslaughter in the offenses punished for acts done

“unlawfully” under this statute, the General Assembly demonstrated its recognition that the

irresponsibility of the proscribed conduct standing alone may be the mens rea underlying the

offense. No specific intent need be shown. The common-law definition of involuntary

manslaughter is “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.” Gooden, 226 Va. at 570-71, 311 S.E.2d at 783-84 (emphasis added).

       In Ellis v. Commonwealth, 281 Va. 499, 706 S.E.2d 849 (2011), a case involving

unlawfully shooting at an occupied building in violation of Code § 18.2-279, we held that the

statute did not require the Commonwealth to prove that the defendant had any specific intent, but

merely general criminal intent. We said that the legislative purpose of the statute was “to

prohibit unlawful conduct, whether malicious or merely criminally reckless, which has the

potential to endanger the lives of persons inside the occupied buildings, without regard to the

shooter’s actual motive or intent. . . .” Id. at 506, 706 S.E.2d at 852. That purpose amounts to a

legislative determination that handling an instrumentality as inherently dangerous as a loaded

firearm in an occupied building, with one’s finger on the trigger, is criminally negligent if

discharge results in such a manner as to endanger others in the building. The General Assembly

has made such conduct “unlawful” and punishable as a Class 6 felony even if done accidentally

or unintentionally.

                                          CONCLUSION

       We conclude that the evidence, viewed in the light most favorable to the Commonwealth,

was sufficient to support the conviction without any proof of the defendant’s intent when

discharging the firearm. The jury instruction given without objection in this case, adapted from



                                                 7
the model instruction, “accurately conveyed [the] applicable law without confusion to the jury”

and “properly instructed the jury on the law and the facts of the case.” Muhammad v.

Commonwealth, 269 Va. 451, 485, 619 S.E.2d 16, 35 (2005). We presume that jurors follow the

instructions they are given. Prieto v. Warden, 286 Va. 99, 107, 748 S.E.2d 94, 103 (2013). The

defendant’s proposed additional jury instruction placing the burden upon the Commonwealth to

prove that the discharge of the firearm was not accidental was properly refused as an incorrect

statement of the law. Accordingly, we will affirm the judgment of the Court of Appeals.



                                                                                        Affirmed.




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