PRESENT: All Justices

MICHAEL JEFFREY OSMAN
                                                OPINION BY
v.    Record No. 120291                 JUSTICE DONALD W. LEMONS
                                            February 28, 2013
LOUIS MOSS OSMAN, ET AL.


           FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                       H. Thomas Padrick, Jr., Judge

       In this appeal, we consider whether the Circuit Court of

the City of Virginia Beach ("circuit court") erred in

determining that Michael Jeffrey Osman ("Osman") was a "slayer"

under Code § 55-401. 1

                          I. Facts and Proceedings

      Louis Moss Osman and Wanda M. Austin ("Executors"), co-

executors of the estate of Carolyn Goldman Osman, and co-

trustees of the Carolyn Goldman Osman Revocable Trust, Osman

Family Trust and Goldman Family Trust fbo Carolyn Goldman Osman,

filed a complaint and request for declaratory judgment in the

circuit court, asking the court to declare that Osman was a

"slayer" under Code § 55-401.      Code § 55-401 defines a slayer

as:



       1
       Effective October 1, 2012, Code §§ 55-401 through -415
(Chapter 22 of Title 55, entitled "Acts Barring Property
Rights") were repealed and replaced by Code §§ 64.2-2500 through
-2511 (Chapter 25 of Title 64.2). Acts 2012 ch. 614. We will
refer to the code sections in effect during the trial, as those
are the ones referenced by the circuit court and the parties in
their briefs on appeal.
     [A]ny person (i) who is convicted of the murder
     or voluntary manslaughter of the decedent or,
     (ii) in the absence of such conviction, who is
     determined, whether before or after his death, by
     a court of appropriate jurisdiction by a
     preponderance of the evidence to have committed
     one of the offenses listed in subdivision (i)
     resulting in the death of the decedent.

Code § 55-414(A) states that:

     This chapter shall not be considered penal in
     nature, but shall be construed broadly in order
     to effect the policy of this Commonwealth that no
     person shall be allowed to profit by his own
     wrong, wherever committed. In furtherance of
     this policy, the provisions of this chapter are
     not intended to be exclusive and all common law
     rights and remedies that prevent one who has
     participated in the willful and unlawful killing
     of another from profiting by his wrong shall
     continue to exist in the Commonwealth.

     The facts in this case are not in dispute.   Carolyn Goldman

Osman ("Carolyn") had three sons, Bradley Alan Osman, Louis Moss

Osman, and Osman, all of whom were the beneficiaries of

Carolyn's estate and various trusts.   On December 7, 2009,

Carolyn died as a result of Osman's actions.   Her cause of death

was strangulation and blunt force trauma to the head.    Osman was

charged with first-degree murder, but pled not guilty by reason

of insanity.

     Osman signed a stipulation of the Commonwealth's evidence,

admitting that the Commonwealth would have established that on

the morning of December 7, 2009, Carolyn came to Osman's house

to drive him to traffic court.   Osman strangled Carolyn and



                                 2
struck her head against the ground until she died.      He fled the

scene in Carolyn's car.    A police officer stopped him shortly

thereafter, and Osman admitted that he had killed his mother.

Osman has a very long history of mental illness, and had been

previously diagnosed with paranoid schizophrenia.      He had become

severely delusional and thought everyone, including his mother,

meant to harm him.    The Commonwealth agreed that Osman was

insane at the time he killed his mother, and the trial court

found him not guilty by reason of insanity.

        Subsequently, the circuit court held a hearing on the

complaint and request for declaratory judgment at issue in this

case.    The parties agreed there were no material issues in

dispute, and that the only issue before the court was whether

Osman could inherit his portion of his mother’s estate.      The

Executors argued that Osman was responsible for his mother's

death, and that it would violate public policy to allow him to

inherit a portion of her estate.       Osman argued that the slayer

statute only prevents someone from benefitting from an

intentional wrongful act, and because he was insane at the time

of the killing, he did not intend to kill her.      The circuit

court agreed that there was no case on point, but found that the

strong public policy of the Commonwealth was that a person

should not profit from their wrong which results in the death of

another.    The circuit court determined that although Osman was


                                   3
found not guilty by reason of insanity, Osman was a slayer under

Code § 55-401 and could not share in the proceeds from his

mother's estate.

     Osman filed a petition for appeal with this Court, and we

awarded him an appeal on the following assignments of error:

1.   The court erred in determining that the defendant was a
     "slayer" as defined under Section 55-401 Code of Virginia
     1950, as amended, as the Defendant was adjudged not guilty
     by reason of insanity in the killing of Carolyn Osman.

2.   That the court erred in determining that the strong public
     policy of Virginia as codified in Section 55-414(A) Code of
     Virginia 1950, as amended, as applied to this case supports
     the determination that the defendant Michael Jeffrey Osman
     should be determined to be a slayer under Section 55-401 of
     the Code of Virginia 1950, as amended, as a person adjudged
     to be insane does not know they are profiting nor that the
     killing which they committed is wrong.

                             II. Analysis

                         A. Standard of Review

     Well-settled principles of statutory review guide our

analysis in this case.

     [A]n issue of statutory interpretation is a pure
     question of law which we review de novo. When
     the language of a statute is unambiguous, we are
     bound by the plain meaning of that language.
     Furthermore, we must give effect to the
     legislature's intention as expressed by the
     language used unless a literal interpretation of
     the language would result in a manifest
     absurdity. If a statute is subject to more than
     one interpretation, we must apply the
     interpretation that will carry out the
     legislative intent behind the statute.




                                   4
Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,

104, 639 S.E.2d 174, 178 (2007) (citations omitted).

                     B. Code §§ 55-401 and 55-414

     Under Code § 55-401, there are two ways a person may be

declared a slayer.    The first is when a person is convicted of

murder or voluntary manslaughter of the decedent.   This portion

of the statute does not apply to Osman because he was found not

guilty by reason of insanity.    In the absence of a conviction

for murder or voluntary manslaughter, the statute provides that

a slayer shall mean any person "who is determined, whether

before or after his death, by a court of appropriate

jurisdiction by a preponderance of the evidence to have

committed one of the offenses listed in subdivision (i)

resulting in the death of the decedent."

     We have held:

     An accused cannot be convicted of a crime unless
     the Commonwealth meets its burden of proof. An
     essential element of the due process guaranteed
     by the Fourteenth Amendment is that no person
     shall be made to suffer the onus of a criminal
     conviction except upon sufficient proof – defined
     as evidence necessary to convince a trier of fact
     beyond a reasonable doubt of the existence of
     every element of the offense.

Hubbard v. Commonwealth, 276 Va. 292, 295, 661 S.E.2d 464, 466

(2008) (internal citations and punctuation omitted) (emphasis

added).   Code § 55-401(1)(ii) provides that a person can be

determined to be a slayer if a court determines, by a


                                  5
preponderance of evidence, that the person committed the

"offense" of murder or voluntary manslaughter.   Of course, proof

of criminal "offenses" requires an evidentiary standard of

"beyond a reasonable doubt."   Read literally, the statute is

internally inconsistent.

     In resolving this issue of statutory construction we are

aided by Code § 55-414, entitled "Construction."   This section

states that this chapter "shall be construed broadly in order to

effect the policy of this Commonwealth that no person shall be

allowed to profit by his wrong, wherever committed."   Code § 55-

414(A).    This statute further states that the purpose of this

chapter is to "prevent one who has participated in the willful

and unlawful killing of another from profiting by his wrong

. . . ."   Id.   Giving effect to legislative intention, we have

no difficulty interpreting Code § 55-401(ii) as requiring proof

by preponderance of the evidence of the remaining elements of

either murder or voluntary manslaughter.

     Preponderance of evidence is the burden of proof used in

most civil actions.   See Wyatt v. McDermott, 283 Va. 685, 700,

725 S.E.2d 555, 563 (2012).    In this civil action to declare

Osman a slayer, we must review the sufficiency of the evidence




                                  6
to determine if the elements of murder are proved by a

preponderance of the evidence. 2

     Murder is the unlawful killing of another with malice.

Wood v. Commonwealth, 140 Va. 491, 494, 124 S.E. 458, 459

(1924).   Malice, in a legal sense, means any wrongful act done

willfully or purposely.     See Avent v. Commonwealth, 279 Va. 175,

202, 688 S.E.2d 244, 259 (2010).       In Virginia, all murder other

than capital murder and murder in the first degree is murder of

the second degree.   Code § 18.2-32.     To be found guilty of

murder, a person must have acted maliciously; in other words, he

must possess the necessary mens rea.      Mens rea is defined as

"criminal intent."   Black's Law Dictionary 1075 (9th ed. 2009).

It is often referred to as "guilty mind."       Id.

     However, in considering whether Osman is a slayer under

Code § 55-401, we do not consider criminal intent ("mens rea"),

we consider civil intent.    Intent in a civil context only

requires that a person intended his actions; there is no

requirement that the person have knowledge that his actions were

wrongful.   When discussing intent and the differences between

the term "willful" in a criminal context versus a civil one, the

United States Supreme Court explained:

     2
       Osman was charged with murder, not voluntary manslaughter.
There is no contention that he was guilty of voluntary
manslaughter or that the elements of voluntary manslaughter were
proven. Accordingly, we limit our analysis to the elements of
murder.

                                   7
     [W]e have consistently held that a defendant
     cannot harbor such criminal intent unless he
     acted with knowledge that his conduct was
     unlawful. Civil use of the term [willful],
     however, typically presents neither the textual
     nor the substantive reasons for pegging the
     threshold of liability at knowledge of
     wrongdoing.

Safeco Ins. Co. v. Burr, 551 U.S. 47, 57-58 n.9 (2007)(internal

quotation marks and citation omitted).

     In Johnson v. Insurance Co. of North America, 232 Va. 340,

350 S.E.2d 616 (1986), we examined this distinction.   In

Johnson, we held that an intentional injury exclusion clause in

a homeowners policy precluded coverage for an insured who, while

mentally ill, shot and injured a friend.   Id. at 348, 350 S.E.2d

at 621.   The insured had avoided criminal liability because he

was found not guilty by reason of insanity.    Id. at 344, 350

S.E.2d at 618.   However, in a subsequent action for personal

injury we held that the insured's actions were intentional.      He

was excused from criminal sanctions because he did not know that

his actions were wrongful.   Nonetheless, he intended his

actions; and, in a civil action for personal injury, the

intentional injury exclusion clause applied.   Id. at 348, 350

S.E.2d at 621.

     Significantly, in Johnson we noted,

     . . . an individual may be excused from penalty if he is
     insane at the time he commits a criminal act. . . . [H]e
     may do the act with every intention of consummating it, but
     when it is shown that he was mentally ill, he is excused


                                 8
     from the imposition of the usual sanctions. "The absence of
     punishment, however, does not retrospectively expunge the
     original intention."


Id. (citing Colonial Life & Accident Ins. Co. v. Wagner, 380

S.W.2d 224, 226 (Ky. 1964)); see also Eastlack v. Commonwealth,

282 Va. 120, 124, 710 S.E.2d 723, 725 (2011).

     In this case, the stipulated evidence presented at Osman's

trial for murder clearly demonstrated that Osman intended to

kill his mother.   He repeatedly struck her head against the

ground while strangling her.   As in Johnson, Osman avoided

criminal sanctions because, due to his mental illness, he did

not understand his actions were wrongful.   Nonetheless, he did

intend his actions, and we hold that, under the civil burden of

proof of preponderance of the evidence, the evidence is

sufficient to prove the elements of murder.   This holding is

consistent with the direction found in Code § 55-414 that we

must interpret Code § 55-401 to effect the policy of this

Commonwealth that no person should be allowed to profit from his

wrong.

     In Avent v. Commonwealth, we stated that " '[k]illing in

self-defense may be either justifiable or excusable homicide.

Justifiable homicide in self-defense occurs [when] a person,

without any fault on his part in provoking or bringing on the

difficulty, kills another under reasonable apprehension of death



                                 9
or great bodily harm to himself.' "    279 Va. at 199, 688 S.E.2d

at 257 (quoting Yarborough v. Commonwealth, 217 Va. 971, 975,

234 S.E.2d 286, 290 (1977)).   Excusable homicide in self-defense

occurs when the accused, although in some fault in the first

instance in provoking or bringing on the difficulty, when

attacked retreats as far as possible, announces his desire for

peace, and kills his adversary from a reasonably apparent

necessity to preserve his own life or save himself from great

bodily harm.   Yarborough, 217 Va. at 975, 234 S.E.2d at 290.

     It is instructive to point out that a person who has

committed a justifiable homicide is not a person who has

committed a "wrong," as anticipated by Code § 55-414.   A person

who committed an excusable homicide, however, may have committed

a wrong in the initial provocation.    The issue whether a person

who kills in self-defense is a slayer is a question left for

another day.

                          III. Conclusion

     We hold that the circuit court did not err in holding that

Osman is a slayer under Code § 55-401, and that as a result he

cannot inherit his share of his mother's estate.    Accordingly,

we will affirm the judgment of the circuit court.

                                                           Affirmed.



JUSTICE McCLANAHAN, concurring.


                                  10
     I agree with the majority that Osman committed murder under

Code § 55-401 (the "slayer statute"), barring him from sharing

in his mother's estate.    I disagree, however, with the

majority's rationale in reaching that conclusion.    The majority

holds that proof of the mens rea element of murder, i.e.,

malice, is not required under clause (ii) of the definition of

"[s]layer" in Code § 55-401 because the statute incorporates a

civil preponderance of the evidence standard for proving the

commission of murder.     In doing so, the majority substitutes

malice with its own notion of "civil intent" as an element of

murder.   This construction of the slayer statute then provides

the majority the means for concluding that Osman was a slayer as

a result of killing his mother, despite the fact that he was

adjudged legally insane at that time.    I read the slayer statute

differently.

     Code § 55-401 plainly provides that, absent a conviction of

the defendant for murder or voluntary manslaughter, the

plaintiff must prove that the defendant nevertheless "committed

one of [those] offenses" under clause (ii) of the statute's

definition of murder. 1   Under Virginia law, proof of murder


     1
       There is no basis for this Court to conclude that Osman
committed voluntary manslaughter as opposed to murder because
there is no evidence that Osman's mother did anything to
reasonably provoke him into attacking and killing her. See
Jenkins v. Commonwealth, 244 Va. 445, 457, 423 S.E.2d 360, 368

                                  11
requires a showing of malice.      Rhodes v. Commonwealth, 238 Va.

480, 485, 384 S.E.2d 95, 98 (1989) ("Malice [is] an essential

element of all grades of murder . . . ." (citing Moxley v.

Commonwealth, 195 Va. 151, 157, 77 S.E.2d 389, 393 (1953)));

Wooden v. Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814

(1981) (" 'Malice aforethought is the grand criterion which

distinguishes murder from other killings.' " (quoting M'Whirt's

Case, 44 Va. (3 Gratt.) 594, 605 (1846))).       There is nothing in

the language of Code § 55-401 indicating that it dispenses with

the requirement of proving malice for one seeking to establish

that an alleged slayer, though not "convicted" of murder,

nevertheless "committed" murder.        The statute simply reduces the

burden for such proof from the beyond a reasonable doubt

standard for criminal conviction to the civil preponderance of

the evidence standard.   Here, however, Osman's successful

insanity defense established the basis for an exception to the

requirement of proving malice as an element of murder: Osman's

insanity negated consideration of whether he possessed malice at

the time he killed his mother. 2



(1992) (voluntary manslaughter, a common law crime in Virginia
requires that "'the killing must have been done in the heat of
passion and upon reasonable provocation'" (quoting Barrett v.
Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190, 192 (1986))).
     2
       I agree with Justice Powell's assessment in her
concurrence that the majority's construction of Code § 55-401 is
internally inconsistent and has the unintended consequence of
rendering one a slayer under the statute for intentionally

                                   12
     A finding of not guilty by reason of insanity under

Virginia law is predicated upon findings that (a) the defendant


killing another in self-defense. However, I disagree that this
Court should hold that Osman possessed the mens rea for murder
even though he was found not guilty of that offense by reason of
his insanity.
      As we recently explained in Eastlack v. Commonwealth, 282
Va. 120, 124, 710 S.E.2d 723, 725 (2011), mens rea and insanity
are incompatible. Indeed, malice, as the mens rea for murder,
is premised on the fact that the "mind of the actor" must have
been under the "control of reason" at the time of the offense -
the antithesis of insanity. Thomas v. Commonwealth, 279 Va.
131, 161, 688 S.E.2d 220, 236 (2010). See Davis v. United
States, 160 U.S. 469, 485 (1895) ("One who takes human life
cannot be said to be actuated by malice aforethought . . .
unless at the time he had sufficient mind to comprehend the
criminality or the right and wrong of such an act.").
      I believe reliance on Johnson v. Insurance Co. of N. Am.,
232 Va. 340, 350 S.E.2d 616, (1986), and Clark v. Arizona, 548
U.S. 735 (2006) for their asserted propositions is misplaced.
Johnson was limited to the application of a homeowners insurance
policy excluding coverage for intentional bodily injury caused
by the insured. Johnson, 232 Va. at 344, 350 S.E.2d at 618.
This Court held that the insured's intentional acts to injure
the plaintiff were excluded from coverage even though the
insured was legally insane at the time the injury was inflicted.
Id. at 347-48, 350 S.E.2d at 620-21. The Court did not indicate
in Johnson, however, that malice could be equated with the
intentional acts of the insured; indeed, we did not address at
all in Johnson the subject of either malice or murder.
      As to Clark, the United Sates Supreme Court held in that
case that due process was not violated by Arizona law allowing
"mental-disease and capacity evidence [to] be considered only
for its bearing on the insanity defense." Clark, 548 U.S. at
770. In that regard, Arizona law is like Virginia law. As this
Court explained in Stamper v. Commonwealth, 228 Va. 707, 717,
324 S.E.2d 682, 688 (1985), "evidence of a criminal defendant's
mental state at the time of the offense is, in the absence of an
insanity defense, irrelevant to the issue of guilt."
Accordingly, mental-disease and capacity evidence is not
permitted to rebut mens rea apart from the affirmative defense
of insanity under Virginia law as well as Arizona law. But
where such evidence does establish legal insanity, as recognized
in Clark, "insanity trump[s] mens rea." Clark, 548 U.S. at 768
n.38.

                               13
"committed" the criminal offense charged, but (b) he was insane

at the time of its commission.    Code § 19.2-182.2 provides in

relevant part that, "[w]hen the defense is insanity of the

defendant at the time the offense was committed, the jurors

shall be instructed, if they acquit him on that ground, to state

the fact with their verdict."    (Emphasis added.)   Indeed, absent

a finding that the defendant committed the offense, his insanity

defense would be irrelevant to the consideration of guilt; and

he would be entitled to a finding of not guilty.

     Based on the requirements of Code § 19.2-182.2, the

Virginia Criminal Model Jury Instruction addressing the insanity

defense thus states: "If you find from the greater weight of the

evidence that at the time of the crime the defendant was insane,

then you must find him not guilty by reason of insanity even

though you find that he committed the crime."    2 Virginia Model

Jury Instructions - Criminal, No. 53.150, at 53-7 (repl. ed.

2011) (emphasis added).   This means, as we recently explained in

Eastlack v. Commonwealth, 282 Va. 120, 124, 710 S.E.2d 723, 725

(2011), that "[a] person who has been found 'not guilty by

reason of insanity' of a criminal charge has not been acquitted

in the sense that he has been determined to be innocent of the

commission of the criminal act charged.    Rather, he has been

excused from criminal responsibility for the act because his




                                 14
mental condition at the time of the offense crossed the

borderline of legal insanity . . . ."

       A finding of not guilty by reason of insanity, in turn,

triggers the requirement under Code § 19.2-182.2 that the

defendant shall be civilly committed at least temporarily, which

can then lead to an indeterminate period of involuntary civil

commitment.   See id. at 124-25, 710 S.E.2d at 725 (discussing

the civil commitment process).   Consequently, "a person found

not guilty by reason of insanity is not discharged from the

constraints imposed upon him by law as a result of his criminal

act.   He is not free to resume his life in the community as he

would be if he had been acquitted in the usual sense."     Id. at

124, 710 S.E.2d at 725.

       As to the mens rea element of a crime relative to the

insanity defense, under Virginia law the finding of insanity

necessarily supersedes any specific consideration of that

element by the factfinder.   In other words, evidence showing

insanity trumps mens rea.    See id. at 124, 710 S.E.2d at 725

(finding the defendant legally insane "preclud[es] a finding

that he possessed the mens rea requisite for conviction"); see

also Clark v. Arizona, 548 U.S. 735, 768 n.38 (2006); cf.

Stamper v. Commonwealth, 228 Va. 707, 717, 324 S.E.2d 682, 688

(1985) (evidence of criminal defendant's mental state is

relevant only to insanity defense).   Accordingly, the finding


                                 15
that the defendant committed the criminal act (i.e., the actus

reus), along with the finding that he was insane at the time of

its commission, ends the inquiry.    The defendant is nevertheless

held accountable for his criminal act; his successful insanity

defense excuses him from criminal punishment but subjects him to

the constraints of involuntary civil commitment.

     In this case, the estate representatives established, based

on the undisputed evidence under a preponderance standard, that

Osman committed the act of murdering his mother when he, without

justification, caused her death by strangling her and beating

her head against the ground.   The additional undisputed evidence

that Osman was insane at that time, and thus found not guilty by

reason of insanity on the charge of first degree murder, did not

render him "innocent of the commission of [that] criminal act."

Eastlack, 282 Va. at 124, 710 S.E.2d at 725.   Even though his

successful insanity defense excused him from criminal

punishment, because of his wrongful actions, he was deprived of

his freedom indeterminately through involuntary civil

commitment.

     Construing Code § 55-401 "broadly," as Code § 55-414

mandates to effectuate the Commonwealth's policy of disallowing

one to "profit by his own wrong," I would hold that conduct such

as that shown here amounting to the actus reus of murder,

committed by one found not guilty by reason of insanity,


                                16
constitutes the commission of murder as contemplated by clause

(ii) of the definition of "[s]layer" in Code § 64.2-2500.          The

trial court was therefore correct in ruling that the estate

representatives proved that Osman was a "slayer" under this

civil statute, barring him from sharing in his mother's estate.



JUSTICE POWELL, concurring.

         I agree with the majority that the estate representatives

proved that Osman was a “slayer” as contemplated by Code § 55-

401. 1       In affirming the trial court, however, the majority

eliminates the mens rea element and replaces it with civil

intent.        I write separately because I believe that the

majority’s analysis results in an internal inconsistency in the

definition of “slayer” under Code § 55-401.        Furthermore, I

believe that the majority’s interpretation expands the

definition of “slayer” to apply to individuals that the General

Assembly clearly did not intend.

         Under Code § 55-401, there are two conditions under which a

person can be found to be a slayer: 1) the person is “convicted

of the murder or voluntary manslaughter of the decedent” (Code


         1
       For the sake of clarity, I will also refer to the Code
sections in effect during the trial, as those are the ones
referenced by the circuit court and the parties in their briefs
on appeal. However, it is important to note that the relevant
language of the current definition of “slayer” in Code § 64.2-
2500 is identical to the language in Code § 55-401.

                                     17
§ 55-401(i) (emphasis added)), or 2) the person “is determined

. . . to have committed” murder or voluntary manslaughter.       Code

§ 55-401(ii) (emphasis added).   The majority concludes that this

makes the statute “internally inconsistent” because “proof of

criminal ‘offenses’ requires an evidentiary standard of ‘beyond

a reasonable doubt,’ ” while proof in a civil proceeding is by a

preponderance of the evidence.   The flaw in the majority’s

logic, however, is the illogical premise that the difference in

the burdens of proof between criminal proceedings (i.e.,

“convicted” of a crime) and civil proceedings (i.e., “committed”

a crime) results in a change in the elements of the crime.

     To the contrary, a clear reading of the statute indicates

that the elements must remain the same.    Indeed, in my opinion

it is the majority’s interpretation that results in an internal

inconsistency.   Notably, Code § 55-401(ii) defines a slayer as a

person who “is determined . . . to have committed one of the

offenses listed in subdivision (i) resulting in the death of the

decedent.”   (Emphasis added.)   The plain language of the statute

establishes that the offenses under both subdivisions (i) and

(ii) are identical.   Under the majority’s interpretation of Code

§ 55-401, however, the offenses listed in subdivision (i) have a

mens rea element, whereas the offenses listed in subdivision

(ii) have a civil intent element.     In my opinion, different

burdens of proof do not change the elements that must be proved.


                                 18
     Finally, I am compelled to point out the unintentional

consequences of the majority’s interpretation of Code § 55-

401(ii).   By replacing the mens rea element with a civil intent

element, I believe that the majority has unintentionally

expanded the definition of “slayer” to include anyone who

intentionally kills another, regardless of the circumstances.

Thus, a person who kills another in self-defense, or as a result

of some other form of justifiable homicide, would be, according

to the majority, a slayer.   Indeed, by arguing self-defense “a

defendant implicitly admits the killing was intentional.”

McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810

(1978).

     Consider, for example, a wife who kills her abusive husband

while defending herself from his attacks.   Under the majority’s

“civil intent” approach, the wife would be considered a slayer.

She would thus be prohibited from inheriting or receiving any

property or benefits resulting from the husband’s death.    See

Code § 55-402 (“Neither the slayer nor any . . . person claiming

through him shall in any way acquire any property or receive any

benefits as the result of the death of the decedent”); see also

Code § 64.2-2501.   Nor would she be entitled to any property

that she would have acquired by statutory right as the surviving

spouse.    See Code § 55-403; see also Code § 64.2-2502.   She

would also effectively forfeit any property she owned as a


                                 19
tenant by the entirety or with right of survivorship with the

husband.    See Code § 55-405 (“As to property held by the slayer

and the decedent as tenants by the entirety or any other form of

ownership with right of survivorship, the resulting death of the

decedent caused by the slayer thereby effects a vesting of the

interest of the slayer in the estate of the decedent as though

the slayer had predeceased the decedent”); see also Code § 64.2-

2503.    I do not read Code § 55-401 et seq. to warrant such a

result.

        In my opinion, the proper approach is to look at the

elements of murder and determine whether the evidence is

sufficient to prove by a preponderance of the evidence that

Osman committed murder.     As the majority has stated, murder is

the unlawful killing of another with malice.     “Malice may be

either express or implied by conduct.”     Essex v. Commonwealth,

228 Va. 273, 280, 322 S.E.2d 216, 220 (1984).     “Implied malice

exists when any purposeful, cruel act is committed by one

individual against another without any, or without great

provocation.”     Pugh v. Commonwealth, 223 Va. 663, 668, 292

S.E.2d 339, 341 (1982).     As I explained above, malice cannot be

transformed into civil intent or the mere intent to commit one’s

actions.

        Turning now to Osman’s argument that he could not have

possessed the requisite mens rea because he was found not guilty


                                  20
by reason of insanity, we have addressed this argument before.

This Court has recognized that a successful insanity defense

does not serve to negate mens rea.

     In the law, there are many situations in which a
     person may intentionally injure or kill another and
     not be subject to criminal punishment. For example,
     an individual may kill in self-defense. The
     executioner may kill with the sanction of the State.
     A soldier may injure or kill under rules of combat.
     This conduct is intentional, but it is also excusable.
     Likewise, an individual may be excused from penalty if
     he is insane at the time he commits a criminal act.
     As here, he may do the act with every intention of
     consummating it, but when it is shown that he was
     mentally ill, he is excused from the imposition of the
     usual sanctions. “The absence of punishment, however,
     does not retrospectively expunge the original
     intention.”

Johnson v. Insurance Co. of N. Am., 232 Va. 340, 348, 350 S.E.2d

616, 621 (1986) (emphasis added) (quoting Colonial Life &

Accident Ins. Co. v. Wagner, 380 S.W.2d 224, 226 (Ky. 1964)).

     Insanity rules like M’Naghten . . . are attempts to
     define, or at least to indicate, the kinds of mental
     differences that overcome the presumption of sanity or
     capacity and therefore excuse a defendant from
     customary criminal responsibility, even if the
     prosecution has otherwise overcome the presumption of
     innocence by convincing the factfinder of all the
     elements charged beyond a reasonable doubt.

Clark v. Arizona, 548 U.S. 735, 768-69 (2006) (emphasis added)

(citations omitted). 2



     2
       As the Supreme Court notes, an insanity defense is an
affirmative defense. Clark, 548 U.S. at 778 n.45. Therefore,
the Commonwealth is not required to prove the absence of
insanity as an element of proving murder. Id. at 766-67 (“[The]
presumption [of sanity] dispenses with a requirement on the

                               21
     In Clark, the issue before the Supreme Court was “whether

due process prohibits [a state] from . . . narrowing its

insanity test or from excluding evidence of mental illness and

incapacity due to mental illness to rebut evidence of the

requisite criminal intent.”    Id. at 747 (emphasis added).    The

Supreme Court held that due process allows each state to choose

its own standard for an insanity defense and the purpose for

which such evidence may be used.      Id. at 779.   It recognized

that, while a state may choose to allow the use of such evidence

to rebut the mens rea element of a crime, 3 it is not required to.

Id. at 752 (“it is clear that no particular formulation has

evolved into a baseline for due process, and that the insanity



government’s part to include as an element of every criminal
charge an allegation that the defendant had such a capacity.”);
see also McGhee, 219 Va. at 562, 248 S.E.2d at 810, (“Self-
defense in Virginia is an affirmative defense, the absence of
which is not an element of murder.”).
     3
       Furthermore, the Supreme Court specifically cautioned
against allowing a defendant to present evidence for such a
purpose, noting that if such evidence

     is accepted as rebutting mens rea in a given case, the
     affirmative defense of insanity will probably not be
     reached or ruled upon; the defendant will simply be
     acquitted (or perhaps convicted of a lesser included
     offense). If an acquitted defendant suffers from a
     mental disease or defect that makes him dangerous, he
     will neither be confined nor treated psychiatrically
     unless a judge so orders after some independent
     commitment proceeding.

Clark, 548 U.S. at 778 n.45.



                                 22
rule, like the conceptualization of criminal offenses, is

substantially open to state choice”) (emphasis added).   Indeed,

as Justice Rehnquist recognized in his concurrence in Mullaney

v. Wilbur, 421 U.S. 684, 705-06 (1975):

       Although . . . evidence relevant to insanity as
       defined by state law may also be relevant to whether
       the required mens rea was present, the existence or
       nonexistence of legal insanity bears no necessary
       relationship to the existence or nonexistence of the
       required mental elements of the crime.

(Emphasis added.)   Notably, Virginia has never allowed evidence

of mental illness to rebut the mens rea element of a crime.

       The evidence demonstrates that Osman’s mental illness only

affected his motive for killing his mother, not his intent in

doing so.   Indeed, the stipulated evidence clearly demonstrated

that Osman committed a purposeful, cruel act against his mother

with no provocation that resulted in her death.   Osman admitted

that he intended his actions, and I would hold that the estate

representatives have proved by a preponderance of the evidence

that Osman committed murder and is therefore a slayer within the

meaning of Code § 55-401.

       Accordingly, I would hold that one who is shown to have

executed the necessary actus reus while possessing the necessary

mens rea for murder, but who is subsequently found not guilty by

reason of insanity, is a slayer within the meaning of Code § 55-

401.



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