                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Chafin and Decker
            Argued at Salem, Virginia
PUBLISHED




            TINA MARIE BRYANT
                                                                                 OPINION BY
            v.     Record No. 0922-16-3                                  JUDGE MARLA GRAFF DECKER
                                                                                APRIL 25, 2017
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                          Bruce D. Albertson, Judge

                           Andrew C. Graves for appellant.

                           Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   Tina Marie Bryant appeals her conviction for unlawfully discharging a firearm within an

            occupied building in violation of Code § 18.2-279. She argues that the evidence was insufficient

            to support her conviction because it did not prove that she intended to fire the gun. The appellant

            also contends that the trial court erred by denying her proposed jury instruction regarding

            accident. For the reasons that follow, we conclude that the evidence supports a factual finding

            that the appellant discharged the firearm in violation of Code § 18.2-279. In addition, the trial

            court did not err in rejecting the appellant’s proposed jury instruction that the jury could find her

            guilty only if the Commonwealth proved that the discharge of the gun was not accidental.

            Consequently, we affirm the conviction.
                                       I. BACKGROUND1

       On August 8, 2015, the appellant took a .45 caliber handgun from a friend and drove to a

hotel intending to commit suicide. Officers of the Rockingham County Sheriff’s Department

were dispatched to check on the appellant’s welfare. They arrived at the hotel and attempted to

make contact with her in her first floor room. When the appellant did not respond to the officers,

Corporal Thomas James, Deputy Terry Hoopes, and Sergeant Mike Deeds attempted to open the

hotel room door. The appellant told them that she had a gun and would shoot herself if they

came into the room.

       The officers described her as “upset,” “angry,” and “loud.” They tried to calm her. They

believed that they were making progress and that she began to “de-escalat[e].” After about ten

minutes, the officers were surprised by a gunshot from within the appellant’s hotel room.

Sergeant Deeds asked the appellant several times through the door if she “was okay.” She

responded that she was not hurt.

       The officers instructed the appellant to put down the gun, open the window curtains at the

rear of the room, and put her hands on the window. Investigators Douglas Miller, Jr., and

Wesley Burgoyne stood with Deputy Hoopes to the sides of the window. Miller and Burgoyne

saw the appellant point a gun at them through the window. Hoopes saw her “wave” the gun.

Shortly thereafter, the appellant put the gun down, and the officers forced entry into the room.




       1
          In an analysis of the sufficiency of the evidence to prove that the appellant’s discharge
of the firearm was in violation of Code § 18.2-279, this Court considers the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable inferences that flow from the
evidence. Startin v. Commonwealth, 281 Va. 374, 379, 706 S.E.2d 873, 876 (2011).
Additionally, however, this case involves the rejection of a proposed jury instruction. In
determining whether a trial court erred in refusing a proffered jury instruction, we view the
evidence in the light most favorable to the proponent of the instruction, in this case the appellant.
Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002). Consequently, we set
out all evidence relevant to both issues before the Court.
                                                  -2-
        The appellant was arrested and taken into custody. She had an injury on her hand. The

injury was “indicative” that she “had [her] hand too close to the slide [of the firearm] as the slide

ejected [a ]round when the slide came back.” There was a bullet hole in the floor of the hotel

room.

        The appellant testified in her defense. She said that she was depressed over the loss of

her job and her mother’s death. The appellant acknowledged that she had put her finger on the

trigger with the gun pointed at her head and started to press the trigger. She intended to kill

herself but then changed her mind. The appellant explained that as she started to put the gun

down, she had her finger on the trigger and then heard the gun fire. She said that she did not

mean to fire the gun. According to the appellant, she did not recall whether she had the gun in

her hand when she was at the window after it fired.

        Corporal James estimated that the “trigger pull weight” on the seized firearm was seven

pounds. He explained that even if the trigger had been pulled partially back, it would still take

seven pounds of pressure on the trigger to fire the weapon. However, James noted that he did

not know if the gun “was in single or double action” when the appellant discharged it, which

would affect the “amount of trigger pull.” The law enforcement witnesses also testified that they

were trained not to put their fingers on the triggers of their firearms unless they intended to fire

their weapons. James explained that otherwise the trigger may be pulled through a “sympathetic

response” because if a person squeezes one hand, the other hand “is more than likely going to

squeeze,” resulting in an accidental trigger pull.2

        Deputy Hoopes testified that after the incident, the appellant told the deputy that she was

familiar with firearms and routinely fired them at the shooting range. At trial, however, the



        2
        James explained that his service weapon had a trigger pull of five and a half pounds, but
he modified the firearm to have a trigger pull of three and a half pounds.
                                                -3-
appellant testified that she did not recall making these statements, was not familiar with firearms,

and had not previously fired a gun.

       After completion of the evidence, the appellant proffered a jury instruction that the

Commonwealth was required to prove that the shooting was not accidental. The court refused

the instruction as not supported by the law and unnecessarily confusing. The appellant

nevertheless argued to the jury in closing that the firearm discharged accidentally. In contrast,

the prosecutor argued that the appellant intentionally fired the gun.

       The jury found the appellant guilty of unlawfully discharging a firearm within an

occupied building in violation of Code § 18.2-279. It did not impose a term of incarceration and

instead fixed the appellant’s sentence at a fine of zero dollars. The trial court sentenced the

appellant in accordance with the jury’s recommendation.

                                          II. ANALYSIS

       The appellant argues that the evidence was not sufficient to support her conviction for

unlawfully discharging a firearm within an occupied building because the Commonwealth did

not establish that she intended to fire the gun. She also argues that the trial court erred by

refusing her proposed jury instruction on accident.

                               A. Code § 18.2-279 and Sufficiency3

        The appellant challenges the trial court’s application of Code § 18.2-279. She contends

that the Commonwealth was required to prove that she specifically intended to discharge the

firearm and that the prosecution failed to meet that burden.




       3
          We consider the appellant’s sufficiency argument first because her challenge to the
sufficiency of the evidence, if successful, would moot her assignment of error on the jury
instruction. See, e.g., Dennos v. Commonwealth, 63 Va. App. 139, 144, 754 S.E.2d 913, 915-16
(2014).
                                                -4-
       Prior to considering the appellant’s specific challenge to the sufficiency of the evidence,

this Court must determine the level of mens rea required to establish an unlawful discharge of a

firearm under Code § 18.2-279. The interpretation of a statute is a question of law, which the

appellate court reviews de novo. L.F. v. Breit, 285 Va. 163, 176, 736 S.E.2d 711, 718 (2013);

Ngomondjami v. Commonwealth, 54 Va. App. 310, 319, 678 S.E.2d 281, 286 (2009). “This

same de novo standard of review applies to determining the proper definition of a particular word

in a statute.” Miller v. Commonwealth, 64 Va. App. 527, 537, 769 S.E.2d 706, 711 (2015).

       When a “statute is subject to more than one interpretation, we must apply the

interpretation that will carry out the legislative intent behind the statute.” Scott v.

Commonwealth, 58 Va. App. 35, 48, 707 S.E.2d 17, 24 (2011) (quoting Evans v. Evans, 280 Va.

76, 82, 695 S.E.2d 173, 176 (2010)). “While we construe penal statutes strictly against the

Commonwealth, ‘a statute should be read to give reasonable effect to the words used . . . .’”

Johnson v. Commonwealth, 37 Va. App. 634, 639, 561 S.E.2d 1, 3 (2002) (quoting Dillard v.

Commonwealth, 28 Va. App. 340, 344, 504 S.E.2d 411, 413 (1998)). Further, we “‘presume[]

that the legislature chose, with care, the words it use[d]’ when it enact[ed] a statute.” Rives v.

Commonwealth, 284 Va. 1, 3, 726 S.E.2d 248, 250 (2012) (quoting Zinone v. Lee’s Crossing

Homeowners Ass’n, 282 Va. 330, 337, 714 S.E.2d 922, 925 (2011)).

       The applicable statute reflects a tiered approach involving several distinct offenses. Code

§ 18.2-279 provides, in pertinent part, that it is a Class 6 felony for any person to “unlawfully”

discharge “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.” The code section further




                                                 -5-
provides that it is a more serious Class 4 felony for a person to commit such an act

“maliciously.”4 Code § 18.2-279.

       The statute also provides that if such unlawful act results in the “death of any person,” the

offender “is guilty of involuntary manslaughter.” Id. In contrast, if a malicious violation of the

statute results in a person’s death, the offender is guilty of second-degree murder. Id. Further, if

“the homicide is willful, deliberate, and premeditated,” the offender is guilty of first-degree

murder. Id.

       The question presented in this case is what level of intent or mens rea is required to prove

the unlawful discharge of a firearm under Code § 18.2-279.5 In determining the definition of

“unlawful” as used by the legislature, this Court has previously held that the “traditional

understanding of the word ‘unlawfully’ and the conduct usually proscribed by that word” is

“criminally negligent conduct.” Scott, 58 Va. App. at 52, 707 S.E.2d at 26; see also Crowder v.

Commonwealth, 16 Va. App. 382, 384, 429 S.E.2d 893, 894 (1993) (interpreting the word

“unlawful” in a statute to mean criminal negligence). Criminal negligence occurs “when acts of

a wanton or willful character, committed or omitted, show ‘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 occur].’” Noakes v. Commonwealth, 280 Va. 338, 346, 699

S.E.2d 284, 288 (2010) (quoting Brown v. Commonwealth, 278 Va. 523, 528, 685 S.E.2d 43, 46


       4
         In addition, the statute classifies “willfully” discharging a firearm within, or shooting at,
a school building as a Class 4 felony. Code § 18.2-279.
       5
           An offense under Code § 18.2-279 has been described as a “a general intent offense.”
Fleming v. Commonwealth, 13 Va. App. 349, 354, 412 S.E.2d 180, 183 (1991); see also Ellis v.
Commonwealth, 281 Va. 499, 506, 706 S.E.2d 849, 852 (2011) (holding that to support a
conviction for discharging a firearm “at or against any occupied building,” the Commonwealth
need not establish that the defendant had a specific intent to shoot a particular building). See
generally Winston v. Commonwealth, 268 Va. 564, 600, 604 S.E.2d 21, 41 (2004) (“General
intent is the intent to perform an act even though the actor may not desire the consequences that
result.”).
                                                -6-
(2009)). In addition, the offender must “know[], or [be] charged with the knowledge of, the

probable result of [her] act[].” Id. (quoting Brown, 278 Va. at 528-29, 685 S.E.2d at 46).

Conduct that begins as lawful can become unlawful and rise to the level of criminal negligence if

it is “done without requisite caution.” Crowder, 16 Va. App. at 385, 429 S.E.2d at 894 (quoting

Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984)). The standard for

determining whether a defendant acted with criminal negligence is an objective one. Doggett v.

Commonwealth, 66 Va. App. 219, 226, 783 S.E.2d 555, 559 (2016).

       Based on the composition of Code § 18.2-279, we conclude that the legislature intended

the traditional meaning of the word unlawful, i.e., criminal negligence, to inform its application.6

This interpretation is consistent with the statute’s provision that an unlawful discharge of a

firearm that results in the death of another person is involuntary manslaughter. Involuntary

manslaughter, like an unlawful discharge of a firearm under Code § 18.2-279, requires a showing

of criminal negligence. See Gooden, 226 Va. at 571, 311 S.E.2d at 784; Gregg v.

Commonwealth, 67 Va. App. 375, 386, 796 S.E.2d 447, 453 (2017) (holding that “[t]he predicate

facts of an unlawful shooting at an occupied vehicle resulting in death” under Code § 18.2-154,

the vehicular counterpart to Code § 18.2-279, “would always constitute criminal negligence”).

Consequently, in order to support a conviction for “unlawfully” violating Code § 18.2-279, the

Commonwealth must prove that the appellant acted in reckless disregard for the safety of others.




       6
          We note that an unlawful discharge of a firearm in an occupied building under Code
§ 18.2-279 is not a strict liability offense. See Ellis, 281 Va. at 506, 706 S.E.2d at 852 (in the
context of a conviction for unlawfully discharging a firearm at or against an occupied building,
noting that “the evidence need only show that a defendant who unlawfully discharges a firearm
knew or should have known that an occupied building or buildings were in [her] line of fire”);
Saunders v. Commonwealth, 31 Va. App. 321, 324, 523 S.E.2d 509, 511 (2000) (“[M]ens rea or
scienter is simply the unlawful intent or design necessary to any criminal act that is not a strict
liability offense.”).
                                                  -7-
       Further supporting this conclusion is the statute’s differentiation between “maliciously”

and “unlawfully.” The legislature made a malicious violation of the statute a Class 4 felony but

an unlawful violation of the statute a Class 6 felony. Code § 18.2-279. Therefore, a person who

commits the offense maliciously is subject to a more severe penalty. See Code § 18.2-10. In

light of this scheme, clearly the term “malicious” connotes a more culpable mental state than

“unlawful.” See Scott, 58 Va. App. at 50-51, 707 S.E.2d at 25 (differentiating Code § 18.2-137’s

use of “intentionally” from “unlawfully” based on the different penalties provided). “The

authorities are replete with definitions of malice, but a common theme running through them is a

requirement that a wrongful act be done ‘wilfully or purposefully.’” Essex v. Commonwealth,

228 Va. 273, 280, 322 S.E.2d 216, 220 (1984) (quoting Williamson v. Commonwealth, 180 Va.

277, 280, 23 S.E.2d 240, 241 (1942)). The appellant’s proposed interpretation of the statute, that

an unlawful discharge of the firearm requires proof that the offender specifically intended to

discharge her weapon, would erase any meaningful distinction between “maliciously” and

“unlawfully” for purposes of the statute. See generally Rives, 284 Va. at 3, 726 S.E.2d at 250

(presuming that the legislature chooses statutory wording with care); Turner v Commonwealth,

65 Va. App. 312, 325, 777 S.E.2d 569, 576 (2015) (rejecting the defendant's proposed

interpretation of a statute because it “would lead to absurd results”).

       Having addressed the construction of the unlawful requirement under Code § 18.2-279,

we turn to the analysis of the sufficiency of the evidence to prove the charged offense. This

Court considers the evidence in the light most favorable to the Commonwealth, as the prevailing

party below, granting to it all reasonable inferences that flow from the evidence. Startin v.

Commonwealth, 281 Va. 374, 379, 706 S.E.2d 873, 876 (2011). “Viewing the record through

this evidentiary prism requires [the Court] to ‘discard the evidence of the accused in conflict with

that of the Commonwealth . . . .’” Cooper v. Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d

                                                -8-
361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759

(1980)). This Court will “reverse the judgment of the trial court” only “if the judgment ‘is

plainly wrong or without evidence to support it.’” Clark v. Commonwealth, 279 Va. 636, 640,

691 S.E.2d 786, 788 (2010) (quoting Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326,

330 (2006)). “If there is evidence to support the conviction[], the reviewing court is not

permitted to substitute its own judgment, even if its opinion might differ from the conclusions

reached by the finder of fact at the trial.” Id. at 641, 691 S.E.2d at 788 (quoting Commonwealth

v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998)). The pivotal question on appellate

review of a sufficiency issue is “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499,

502 (2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

       In this case the appellant does not dispute that she fired the gun into the floor of the hotel

room. There is also no dispute that she knew that she was in a building occupied by other

people. She was aware that she was in a hotel with other individuals, including the staff person

who checked her into her room and the several law enforcement officers at her door and her

window. Further, it is uncontested that the appellant placed her finger on the trigger, setting in

motion the ability of the gun to discharge once proper pressure was applied. Corporal James

testified that seven pounds of pressure was required to fire the handgun found in the appellant’s

possession and that, in his experience, he had not known of a gun to fire without the trigger being

pulled. After the appellant fired the gun, officers saw her point it at them. See Simon v.

Commonwealth, 58 Va. App. 194, 206, 708 S.E.2d 245, 251 (2011) (holding that circumstantial

evidence of intent may include a person’s conduct, including conduct that occurred “after the

events that constitute the charged crime”). Contrary to the appellant’s testimony at trial that she

                                                -9-
was not familiar with firearms, Deputy Hoopes testified the appellant told her that she was

familiar with firearms and had previously fired guns. See, e.g., Phan v. Commonwealth, 258 Va.

506, 511, 521 S.E.2d 282, 284 (1999) (noting that the fact finder may reject an accused’s

explanation and infer that she is “lying to conceal [her] guilt”); Commonwealth v. Taylor, 256

Va. 514, 518, 506 S.E.2d 312, 314 (1998) (“The fact finder, who has the opportunity to see and

hear the witnesses, has the sole responsibility to determine their credibility, the weight to be

given their testimony, and the inferences to be drawn from proven facts.”).

       The evidence, viewed in the light most favorable to the Commonwealth, supports the

factual finding that the appellant acted wantonly or willfully and in reckless or indifferent

disregard of the safety of the other individuals at the hotel.7 We hold that the evidence was

sufficient to prove the criminal negligence necessary to sustain the appellant’s conviction under

Code § 18.2-279 for the unlawful discharge of a firearm in an occupied building.

                                        B. Jury Instruction

       The appellant also argues the trial court erred in refusing to give the jury instruction that

she requested regarding accidental discharge of the firearm. The Commonwealth responds that

the proposed instruction would have improperly added the element of intent to the statute.

       The appellant proffered the following instruction at trial:

                      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

       7
          The appellant’s own evidence supports that finding. She testified that she had her finger
on the trigger when she decided not to kill herself and that the gun discharged as she was putting
it down. The evidence does not suggest that the gun malfunctioned. The appellant “knew or
should have known” that having her finger on the trigger with the trigger partially depressed
could cause the gun to fire and that such discharge would present a risk to the people near her.
Fleming, 13 Va. App. at 354, 412 S.E.2d at 183.

                                                - 10 -
                 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.

The trial court refused to give the instruction, stating it was “unnecessarily confusing” and not

supported by the law.

          Consistent with the express wording of the statute, the jury was instructed that in order to

find the appellant guilty, it must find that the Commonwealth proved the following two

elements: “(1) [t]hat the [appellant] discharged a firearm within a building occupied by one or

more persons; and (2) [t]hat the firearm was discharged in such a manner as to endanger the life

or lives of such person or persons.” The trial court also instructed the members of the jury that

they could “infer[] that a person of sound mind intends the natural and probable consequences of

his voluntary acts.”

          During deliberations, the jury asked two questions: “[What] [i]f the gun was accidentally

discharged?” and “Does the defendant have to have intent to fire the weapon?” The trial court

responded, over the appellant’s objection, that the jury had to rely on the instructions that it

already had received.

          Whether a trial court erred in denying or granting a jury instruction is reviewed on appeal

for an abuse of discretion. See Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d

775, 778 (2003) (en banc). However, whether a proffered jury instruction accurately states the

law is reviewed de novo. Sarafin v. Commonwealth, 288 Va. 320, 326, 764 S.E.2d 71, 74

(2014).

          A litigant is entitled to jury instructions supporting her theory of the case if more than a

scintilla of evidence supports that theory. Commonwealth v. Sands, 262 Va. 724, 729, 553

S.E.2d 733, 736 (2001). However, “[n]o instruction should be given that ‘incorrectly states the

applicable law or which would be confusing or misleading to the jury.’” Mouberry v.

                                                  - 11 -
Commonwealth, 39 Va. App. 576, 582, 575 S.E.2d 567, 569 (2003) (quoting Bruce v.

Commonwealth, 9 Va. App. 298, 300, 387 S.E.2d 279, 280 (1990)). In addition, we do not

consider questions posed by the jury to the trial court during deliberations as “some tacit finding

of fact.” Dominguez v. Pruett, 287 Va. 434, 442, 756 S.E.2d 911, 915 (2014).

        The appellant relies on King v. Commonwealth, 64 Va. App. 580, 770 S.E.2d 214 (2015)

(en banc), for the proposition that she was entitled to her requested instruction. In that case, this

Court held that it was error for the trial court to refuse to instruct the jury on accident. Id. at 592,

770 S.E.2d at 220. King involved a conviction for malicious wounding, an offense which

requires the specific “intent to maim, disfigure, disable, or kill.” Code § 18.2-51. Consequently,

in that case, the “defense of ‘accident’ . . . would have legally entitled [the defendant] to acquittal

under the circumstances if believed by the jury.” King, 64 Va. App. at 591, 770 S.E.2d at 220.

Here, the appellant’s proffered jury instruction rested on the premise that Code § 18.2-279

likewise does not encompass an accidental discharge of a firearm.

        In contrast to malicious wounding, the relevant offense in King, the appellant’s

conviction for unlawful discharge of a firearm under Code § 18.2-279 required that the

Commonwealth prove, at a minimum, criminal negligence. The occurrence of an accident does

not preclude a finding of criminal negligence. See, e.g., Cable v. Commonwealth, 243 Va. 236,

240, 415 S.E.2d 218, 220 (1992) (defining “involuntary manslaughter,” in part, as an accidental

killing of a person” (quoting Beck v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 9-10 (1975)));

Wright v. Commonwealth, 39 Va. App. 698, 704-05, 576 S.E.2d 242, 245 (2003) (holding that

the circumstances of the car accident were sufficient to find that the driver acted with criminal

negligence). Criminal negligence and accidents are not mutually exclusive. The appellant’s

requested instruction that the jury could not find her guilty if she fired the gun by accident would




                                                 - 12 -
have misstated the applicable law. Therefore, the trial court did not err by refusing the

appellant’s proffered instruction.

                                         III. CONCLUSION

        Under Code § 18.2-279, the unlawful discharge of a firearm within an occupied building

requires that the Commonwealth prove that the defendant acted with criminal negligence.

Viewing the evidence in the light most favorable to the Commonwealth, the evidence was

sufficient for the jury to conclude that the appellant acted with that level of negligence by firing

the gun in reckless disregard of the safety of hotel staff, other guests, and the officers who were

present. Further, the trial court did not err by refusing to instruct the jury that it should not

convict her if it found that the discharging of the firearm was an accident, because such an

instruction would not have been an accurate statement of the law. For these reasons, we affirm

the conviction.

                                                                                             Affirmed.




                                                 - 13 -
