                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia


HERBERT GAUSE
                                           MEMORANDUM OPINION * BY
v.   Record No. 2468-00-2                   JUDGE LARRY G. ELDER
                                               DECEMBER 18, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                      Thomas V. Warren, Judge

          J. Kevin Clarke for appellant.

          Eugene Murphy, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Herbert Gause (appellant) appeals from his jury trial

conviction for second degree murder pursuant to Code § 18.2-32.

On appeal, he contends the evidence (1) supported an involuntary

manslaughter instruction, rendering erroneous the court's

refusal to give such an instruction, and (2) was insufficient to

prove appellant acted with the malice necessary to support his

conviction for second degree murder.   We hold that any error in

failing to instruct the jury on involuntary manslaughter was

harmless because the jury's conviction of appellant for second

degree murder, which required proof of malice, and its rejection

of voluntary manslaughter necessarily constituted its rejection


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of a finding that the killing was done with inadvertence or

criminal negligence.   We also hold that the evidence, viewed in

the light most favorable to the Commonwealth, was sufficient to

support the jury's finding that appellant acted with malice.

Thus, we affirm appellant's conviction.

                                I.

                                A.

               INVOLUNTARY MANSLAUGHTER INSTRUCTION

     In reviewing the trial court's refusal to grant a proffered

jury instruction, we view the evidence in the light most

favorable to appellant.   See, e.g., Boone v. Commonwealth, 14

Va. App. 130, 131, 415 S.E.2d 250, 251 (1992).   "A defendant is

entitled to have the jury instructed . . . on those theories of

the case" that are supported by "more than a scintilla" of

evidence.   Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d

267, 280 (1986).   As a matter of common law, "[i]t is . . .

error for the trial court to refuse to instruct the jury on the

lesser offenses charged in the indictment if there is any

evidence in the record tending to prove such lesser offenses."

Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908

(1947).

     Although failure to give a proffered instruction on a

lesser-included offense is error when the instruction is

supported by the evidence, that error may be harmless.     Turner

v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504, 507

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(1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997).     An error is

harmless "if a reviewing court can conclude, without usurping

the jury's fact finding function, that, had the error not

occurred, the verdict would have been the same."     Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc).     "Such a determination can be made where it is

evident from the verdict that the jury would have necessarily

rejected the lesser-included offense on which it was not

instructed."     Turner, 23 Va. App. at 276, 476 S.E.2d at 507.

             "[I]f a defendant is charged with offense
             'A' of which 'B' is the next immediate
             lesser-included offense (one step removed)
             and 'C' is the next below 'B' (two steps
             removed), then when the jury is instructed
             on 'B' yet still convicts the accused of 'A'
             it is logical to assume that the panel would
             not have found him guilty only of 'C' (that
             is, would have passed over 'B'), so that the
             failure to instruct on 'C' is harmless."

State v. Mendez, 599 A.2d 565, 571 (N.J. Super. Ct. App. Div.

1991) (quoting State v. Abreau, 363 So. 2d 1063, 1064 (Fla.

1978)), cited with approval in Turner, 23 Va. App. at 276, 476

S.E.2d at 507.

     Applying these principles in Turner, we held that any error

in failing to instruct the jury on voluntary manslaughter in

addition to first and second degree murder was harmless where

the jury convicted Turner for first degree murder.    23 Va. App.

at 276, 476 S.E.2d at 507.    Similarly, here, any error in

failing to instruct the jury on involuntary manslaughter in


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addition to first degree murder, second degree murder and

voluntary manslaughter was harmless because the jury convicted

appellant for second degree murder.    See Mendez, 599 A.2d at

570-72.

     An analysis of the elements of these offenses makes clear

this result.   Second degree murder is defined as a killing

committed with malice aforethought.    Turner, 23 Va. App. at 274,

476 S.E.2d at 506.

          Malice . . . is unnecessary in manslaughter
          cases and is the touchstone by which murder
          and manslaughter cases are
          distinguished. . . . [Proof of] malice
          . . . require[s] . . . a wrongful act . . .
          done "wilfully or purposefully." This
          requirement of volitional action is
          inconsistent with inadvertence. Thus, if a
          killing results from [criminal] negligence,
          however gross or culpable, and the killing
          is contrary to the defendant's intention,
          malice cannot be implied[, and the offense
          constitutes manslaughter]. In order to
          elevate the crime to second-degree murder,
          the defendant must be shown to have
          willfully or purposefully, rather than
          negligently, embarked upon a course of
          wrongful conduct likely to cause death or
          great bodily harm.

Essex v. Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216,

219-20 (1984) (citation omitted) (quoting Williamson v.

Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)).

     Here, by convicting appellant of second degree murder, the

jury found appellant acted with malice, which indicated it

rejected the notion that appellant acted merely with

inadvertence or criminal negligence.   Thus, the conviction for

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second degree murder, when the jury was instructed on voluntary

manslaughter, necessarily constituted a rejection of involuntary

manslaughter and, therefore, the trial court's error, if any, in

failing to instruct the jury on involuntary manslaughter was

harmless.

                                  B.

            SUFFICIENCY OF THE EVIDENCE TO PROVE MALICE

     On appellate review of a challenge to the sufficiency of

the evidence to support a criminal conviction, we examine the

evidence in the light most favorable to the Commonwealth, and we

may not disturb the jury's verdict unless it is plainly wrong or

without evidence to support it.    See Traverso v. Commonwealth, 6

Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).      Whether an

accused acted with malice is a question of fact and may be

proved by circumstantial evidence.       See Canipe v. Commonwealth,

25 Va. App. 629, 642, 491 S.E.2d 747, 753 (1997).

Circumstantial evidence is as competent and is entitled to as

much weight as direct evidence, provided the evidence as a whole

is sufficiently convincing to exclude every reasonable

hypothesis except that of guilt.       Coleman v. Commonwealth, 226

Va. 31, 53, 307 S.E.2d 864, 876 (1983).

     "'Malice inheres in the doing of a wrongful act

intentionally, or without just cause or excuse, or as a result

of ill will.'"   Long v. Commonwealth, 8 Va. App. 194, 198, 379

S.E.2d 473, 475 (1989) (quoting Dawkins v. Commonwealth, 186 Va.

                               - 5 -
55, 61, 41 S.E.2d 500, 503 (1947)).    "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).

     Here, the evidence, viewed in the light most favorable to

the Commonwealth, established that appellant was significantly

taller and heavier than the "frail" Melvin Morrison.   Although

Morrison had been following appellant around that day, as he

often did, and appellant had moved on at least two occasions in

order to try to avoid Morrison, the record contains no evidence

that Morrison did anything significant to provoke appellant.

Employee Harrison said she observed appellant and Morrison

merely passing each other going in opposite directions

immediately prior to the incident in question.   With little or

no provocation, appellant grabbed Morrison from behind, placed

him in a bear hug, and picked him up.   Although Nurse Bell-Clyde

called out to appellant to stop, appellant ignored her, turned

Morrison so that his head was facing downward, and "banged him

on the floor."   Morrison's head struck the ground with such

force that it made a "loud thump that . . . sounded like

somebody's head hitting the pavement," a pool of blood

immediately collected around it, and Morrison died three days

later as a result of blunt head trauma.   Thus, the only

reasonable hypothesis flowing from the circumstantial evidence

was that appellant committed a purposeful, cruel act against

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Morrison with little or no provocation, thereby establishing the

malice necessary to support his conviction for second degree

murder.

                                II.

     For these reasons, we hold that any error in failing to

instruct the jury on involuntary manslaughter was harmless and

that the evidence supported the jury's finding that appellant

acted with malice.   Therefore, we affirm appellant's conviction.

                                                         Affirmed.




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