                                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Felton and Kelsey
Argued at Chesapeake, Virginia


MICHAEL JOSE REESE
                                                         MEMORANDUM OPINION∗ BY
v.     Record No. 1279-03-4                          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                                 JULY 6, 2004
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                                Jeffrey W. Parker, Judge

                Felipita Athanas, Appellate Defender (Public Defender Commission,
                on briefs), for appellant.

                Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore,
                Attorney General, on brief), for appellee.


       In this criminal appeal, Michael Jose Reese (appellant) contends that the trial court erred in:

1) instructing the jury on appellant’s use of a firearm during the commission of malicious wounding

when the underlying felony charged was unlawful wounding, and 2) refusing to instruct the jury that

the mandatory sentences for the use of a firearm charges must run consecutively to his other

sentences. Finding no error, we affirm.

                                          I. BACKGROUND

       Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       So viewed, the evidence established that on December 13, 1998, Jaycee Montgomery

Peters (Peters) arrived home at approximately 4:00 a.m. and saw appellant’s truck parked nearby.

Appellant was a former employee of Peters’ trucking business. Peters lived with his mother,

Teresa Ann Sharp (Peaches), and sister, Angie Sharp (Angie). The next afternoon Peters saw

appellant and Peaches seated in her bedroom. Peaches, Peters, and Angie arranged to take

appellant to his home in two separate vehicles. Peaches and appellant rode in one car, and Peters

and Angie rode in the other.

       Peters and Angie arrived at appellant’s townhouse and waited for the other two in the car.

Peaches and appellant drove in approximately two to three minutes later, and parked one car

away from them, leaving a car between the two vehicles. Suddenly, Peaches came to Peters and

Angie’s car, opened the driver’s side back door, and jumped into the backseat. Appellant came

to Peaches’ door and fired a gun at her five times and three or four times at Angie. The shots

killed Peaches, struck Angie once, and struck Peters in three places.

       On January 25, 1999, appellant was indicted for two counts of felonious use of a firearm

in the commission of a malicious wounding pursuant to Code § 18.2-53.1, two counts of

unlawful wounding pursuant to Code § 18.2-51, felonious use of a firearm in the commission of

murder pursuant to Code § 18.2-53.1, and murder pursuant to Code § 18.2-32. A jury convicted

appellant on all charges. On April 23, 2003, he was sentenced pursuant to the jury’s

recommendation to life in prison for the murder conviction, and an additional 23 years in prison

for the remaining convictions.1




       1
           Only the firearm convictions are at issue in this appeal.


                                                 -2-
                                  II. INCONSISTENT VERDICTS

       Appellant first contends that the trial court erred when it instructed the jury on the use of

a firearm in commission of a malicious wounding pursuant to Code § 18.2-53.12 when he was

separately indicted3 for the unlawful wounding of the same two victims pursuant to Code

§ 18.2-51.4 Thus, he argues the verdicts are inconsistent and the firearm charges should be

dismissed. We disagree.

       The Supreme Court and this Court have repeatedly addressed this issue. In Reed v.

Commonwealth, 239 Va. 594, 391 S.E.2d 75 (1990), the Supreme Court held that a verdict may

       2
           Code § 18.2-53.1 states, in pertinent part:

                 It shall be unlawful for any person to use or attempt to use any
                 pistol, shotgun, rifle, or other firearm or display such weapon in a
                 threatening manner while committing or attempting to commit . . .
                 malicious wounding as defined in § 18.2-51 . . . . Violation of this
                 section shall constitute a separate and distinct felony.
       3
           The indictments at issue state:

                 THE GRAND JURY CHARGES THAT on or about the 13th day
                 of December, 1998, in the County of Fauquier, Michael Jose Reese
                 did unlawfully and feloniously use or display in a threatening
                 manner a firearm during the commission of malicious wounding of
                 [Jaycee Montgomery Peters and Angie Marie Sharpe].

                 THE GRAND JURY CHARGES THAT on or about the 13th day
                 of December, 1998, in the County of Fauquier, Michael Jose Reese
                 did unlawfully and feloniously shoot or wound [Jaycee
                 Montgomery Peters and Angie Marie Sharpe] with the intent to
                 maim, disable, disfigure, or kill.
       4
           Code § 18.2-51 states, in pertinent part:

                 If any person maliciously shoot, stab, cut, or wound any person or
                 by any means cause him bodily injury, with the intent to maim,
                 disfigure, disable, or kill, he shall, except where it is otherwise
                 provided, be guilty of a Class 3 felony. If such act be done
                 unlawfully but not maliciously, with the intent aforesaid, the
                 offender shall be guilty of a Class 6 felony.


                                                  -3-
be entered on the “compound offense of using a firearm in the commission of a robbery . . .

where, in the same trial, the jury finds the defendant not guilty of the underlying [offense].” Id.

at 595, 391 S.E.2d at 75.

       “[T]he fact that verdicts may, on their face, arguably appear inconsistent does not provide

a basis to reverse either conviction on appeal, provided the evidence is sufficient to support each

verdict.” Pugliese v. Commonwealth, 16 Va. App. 82, 96, 428 S.E.2d 16, 26 (1993). The

“inconsistency” at the heart of the case law on inconsistent verdicts is based upon the premise

that “verdicts may appear inconsistent because the jury has elected through mistake,

compromise, or lenity to acquit or to convict of a lesser offense for one charged crime that seems

in conflict with the verdict for another charged offense.” Id.

       We addressed an analogous situation in Davis v. Commonwealth, 4 Va. App. 27, 353

S.E.2d 905 (1987). The indictment in that case charged that appellant used or displayed a

firearm while attempting to commit robbery. Although the underlying felony of robbery was not

charged, appellant was nevertheless convicted of use of a firearm while attempting to commit

robbery. We held that “where an indictment is returned for an alleged violation of Code

§ 18.2-53.1, the underlying felony must be proved beyond a reasonable doubt,” but that “to

obtain a conviction for a violation of that section it is not necessary to separately indict and

prosecute the underlying felony.” Id. at 31, 353 S.E.2d at 907.

       Appellant contends that Davis does not apply because having no underlying felony

charged is different than having a different felony charge. This is a distinction without a

difference. Under the reasoning in Davis, appellant need not have been charged with malicious

wounding to be convicted of the unlawful use of a firearm in commission of malicious

wounding. The fact that the underlying felony of unlawful wounding was charged does not




                                                 -4-
undermine the rationale of Davis. Additionally, the firearm charge stands independently of any

other felony charge, and the jury was properly instructed on all charges. Code § 18.2-53.1

specifically provides that “violation of this section shall constitute a separate and distinct

felony.” The facts proven at trial clearly establish the basis for a finding that the wounding was

done maliciously.

          We also addressed this issue in Gaines v. Commonwealth, 39 Va. App. 562, 574 S.E.2d

775 (2003). Gaines, the defendant, was charged with first degree-murder and use of a firearm

while committing murder. He was convicted of the lesser offense of manslaughter, but was also

convicted of use of a firearm while committing murder. The trial court granted jury instructions

that correctly stated the elements of both the murder and firearm charges, but did not address

inconsistent verdicts. Gaines’ proposed instruction, which the trial court refused, added the

words “(not manslaughter)” after the second element of use of a firearm while committing

murder charge. We affirmed the conviction, stating that since “[t]he instruction given succinctly

stated that to convict the defendant of the firearm offense, the jury must find he was committing

murder,” the trial court did not err in refusing Gaines’ proposed addition. Id. at 567, 574 S.E.2d

at 777.

          Like Gaines and Davis, the instruction given in the case at bar properly outlined the

elements of each offense. “A trial judge does not abuse his discretion by failing to modify a

correct statement of the law on the mere chance that a jury may not follow clearly written

instructions. We presume the jury will understand, and will follow their instructions.” Id.

(internal citations and quotations omitted).

          Appellant’s attempts to distinguish Wolfe v. Commonwealth, 6 Va. App. 640, 371 S.E.2d

314 (1988), and Gray v. Commonwealth, 28 Va. App. 227, 503 S.E.2d 252 (1998), are also




                                                 -5-
misplaced. In Wolfe, the appellant was indicted for murder and use of a firearm in commission

of murder, but was convicted of voluntary manslaughter and use of a firearm in commission of

murder. In addressing the inconsistent verdicts issue, we stated:

               [A]ll that can be said about the inconsistency in the verdicts in
               Wolfe’s case is that the jury by mistake, compromise, or lenity,
               illogically found Wolfe not guilty of the primary felony of murder
               but nevertheless guilty of the underlying felony of use of a firearm
               in the commission of murder. Obviously without a transcript or
               statement of facts, it is impossible to conclude whether Wolfe or
               the Commonwealth benefited from the inconsistency. The
               sufficiency of the evidence as to either conviction is not before us.
               Furthermore, we are not persuaded that the Virginia Supreme
               Court . . . has adopted the view that the appellate courts should
               search the trial record in an attempt to reconcile otherwise apparent
               inconsistency in verdicts rendered in a single jury trial.

Wolfe, 6 Va. App. at 649-50, 371 S.E.2d at 319.

       Similarly, in Gray, the appellant was indicted for murder and use of a firearm in

commission of murder, and convicted of involuntary manslaughter and use of a firearm in

commission of murder. During deliberations, the trial court refused defense counsel’s proposed

cautionary instruction that an acquittal on the murder charge should lead to a finding of not

guilty on the use of a firearm in commission of murder charge. We held that an apparent

inconsistency of verdicts does not provide a basis to set aside either conviction as long as the

evidence sufficiently supports each verdict. Gray, 28 Va. App. at 232, 503 S.E.2d at 254. The

facts proven at trial clearly establish the basis for the finding that the wounding of the two

victims was done maliciously.

                                         III. SENTENCING

       Appellant next contends that the trial court erred in failing to instruct the jury that the

sentences for the firearm charges must run consecutively and that “on the [other charges] the law is




                                                  -6-
the Court has the power to consider which way to run them. The jury can advise what they want,

but it is up to the court to decide.” Under the facts of this case, we affirm the trial court.

        After finding appellant guilty, during sentencing deliberations the jury asked: “Are the

sentences to run consecutively or concurrently?” The question posed by the jurors dealt with the

entire range of six separate charges: murder, unlawful wounding and the firearm charges. In its

ruling granting the Commonwealth’s instruction,5 the trial court defined the problem with

appellant’s position:

                I understand your position in one aspect, Mr. Maslakowski, in
                terms of the aspect that some of – a certain portion of these
                offenses do or are mandated to run consecutively. But again, I
                think that gets into an issue of perhaps the so-called Pandora’s box
                that the Court has some concern about opening, which Mr. Lynn
                alluded to – is that gets the Jury into this issue of speculating about
                other aspects of the sentence that do not run by law consecutively.
                And I just don’t think the Court should go down that road.

                I certainly don’t think the Court should seek an advisory opinion
                from the Jury as to whether or not they think these cases – or these
                sentences should run concurrently or not. I don’t want to go down
                that road. And I would not be inclined certainly to do that. . . . But
                it’s my understanding that we were not directed in that area. And
                until we are, I am going to decline that invitation. So I’m going to
                give instruction Number 29 as a response to the question that has
                been submitted to the court.

The Commonwealth’s proffered instruction, which the trial judge gave to the jury, was as follows:

                Having found the defendant guilty, you should impose such
                punishment as you feel is just under the evidence and within the
                instructions of the court. You are not to concern yourselves with
                what happens afterwards.




        5
          We note that appellant did not provide to the court or proffer for the record an
instruction that reflected his request.


                                                   -7-
        Relying primarily on Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000),

appellant contends that Code § 18.2-53.1 requires that the jury should have been instructed as he

requested. We disagree.

        Initially we note that the jury was properly instructed pursuant to the dictates of Fishback on

both the abolition of parole, Instruction 30, and geriatric release, Instruction 31. Thus, the issue

raised in the instant case is whether the trial court abused its discretion when it failed to answer the

general question concerning concurrent versus consecutive sentencing.6

        We review jury instructions for an abuse of discretion. See Gaines, 39 Va. App. at 568,

574 S.E.2d at 778. “When granted instructions fully and fairly cover a principle of law, a trial

court does not abuse its discretion in refusing another instruction relating to the same legal

principle.” Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384 (1984). We do

not believe that Fishback and its progeny require the trial court to give an instruction in a mixed

penalty case.

        In sentencing, juries ascertain “within the limits prescribed by law, the term of

confinement in the penitentiary or in jail and the amount of fine . . . .” Code § 19.2-295.

                [T]he punishment fixed by the jury is not final or absolute, since its
                finding on the proper punishment is subject to suspension by the
                trial judge, in whole or in part, on the basis of any mitigating facts
                that the convicted defendant can marshal. The verdict of the jury
                is the fixing of maximum punishment which may be served.
                Under such practice, the convicted defendant is entitled to “two
                decisions” on the sentence, one by the jury and the other by the
                trial judge in the exercise of his statutory right to suspend . . . .
                This procedure makes the jury’s finding little more than an
                advisory opinion or first step decision.




        6
        Because the facts of this case do not encompass only legislatively mandated consecutive
sentences, we do not address whether this analysis is applicable to that factual scenario.


                                                  -8-
Duncan v. Commonwealth, 2 Va. App. 342, 345, 343 S.E.2d 392, 394 (1986) (quoting Vines v.

Muncy, 553 F.2d 342, 349 (4th Cir. 1977)).

        By vesting the trial court with discretionary authority to suspend or modify the sentence

imposed by the jury, the legislature intended to leave the consideration of mitigating

circumstances to the court. See id. “When any person is convicted of two or more offenses, and

sentenced to confinement, such sentences shall not run concurrently, unless expressly ordered by

the court.” Code § 19.2-308. “Generally, a sentencing court has discretion under Code

§ 19.2-308 to order multiple prison sentences to run concurrently.” Moore v. Commonwealth,

27 Va. App. 192, 200, 497 S.E.2d 908, 911 (1998).

        The rationale of Bell v. Commonwealth, 264 Va. 172, 563 S.E.2d 695 (2002), is instructive

in this situation. In addressing a jury question post-Fishback, the Supreme Court noted that

answering a jury inquiry should not inject additional speculation into the deliberative process.

                Thus, a jury could not, without engaging in speculation, factor the
                possibility of sentencing credits . . . . If the jury had inquired about
                a specific form of early release . . . then the court could have
                answered that question accurately and dispelled any possible
                speculation by the jury. Here, however, the question was general
                . . . . [W]e have never allowed a jury to have that information
                because of the potential for jury speculation resulting in a harsher
                sentence than would otherwise be warranted.

Id. at 206-07, 563 S.E.2d at 718.

        The instant case presents an analogous factual situation. When the jury asked the question

in this case, it had all six charges in front of it: the firearm charges mandated by statute to run

consecutively, and the other three which the trial judge could in an appropriate case modify. To

advise the jury that the trial court had the discretion to run some sentences concurrently would only

cause them to speculate what action the court might take. This could in actuality cause a harsher




                                                  -9-
sentence than anticipated.7 Therefore the trial court did not err by refusing to answer the jury’s

question on consecutive versus concurrent sentencing. See also Clagget v. Commonwealth, 252 Va.

79, 96, 472 S.E.2d 263, 272 (1996) (no error not to tell jurors that mandatory sentences have to run

consecutively).

                                                                                            Affirmed.




       7
          We note that on the first-degree murder charge, appellant was given life and that
Instruction 30 informed the jury that appellant would not be released unless he met the
requirements of Instruction 31, geriatric parole.


                                                - 10 -
