                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia


CARL ANTHONY McKENLEY
                                      MEMORANDUM OPINION * BY
v.   Record No. 1910-96-3           CHIEF JUDGE NORMAN K. MOON
                                         OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                 William N. Alexander, II, Judge
          Charles J. Strauss (H. Victor Millner, Jr.,
          P.C., on brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Carl Anthony McKenley appeals his jury trial convictions of

unlawful wounding in violation of Code § 18.2-51 and use of a

firearm in the commission of malicious wounding in violation of

Code § 18.2-53.1.   McKenley asserts that (1) the trial court

improperly instructed the jury on the charge of use of a firearm;

(2) the evidence was insufficient to prove unlawful wounding and

use of a firearm in the commission of a malicious wounding; and

(3) the verdict form for unlawful wounding was invalid because it

failed to recite the requisite intent either specifically or by

reference to the indictment.   We disagree and affirm.

     Keith Harris, defendant Carl McKenley, and several other

people gathered at a private residence to drink and socialize.

     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
Harris and McKenley began to argue.    McKenley said he was

leaving, but as he walked out the door, Harris grabbed him by the

shirt and pulled him back inside.   They began to fight, each

swinging at the other.   McKenley then shot Harris twice with a

.38 caliber pistol, injuring him.   McKenley testified that he

found the gun in the living room, but other witnesses, including

a defense witness, testified that McKenley took the weapon from

his belt.   McKenley went to the hospital, where an officer

searching McKenley's clothing found five .38 caliber bullets.

The officer testified that McKenley twice told him that if Harris

came to the hospital, he would kill him.
     McKenley was charged with malicious wounding and use of a

firearm in the commission of a malicious wounding.   The court

instructed the jury as to the elements, including the requisite

intent, of the charged crimes, as well as the lesser-included

offenses of unlawful wounding and assault and battery.   The jury,

using a verdict form that lacked a recitation of the requisite

intent for conviction of unlawful wounding but contained the

phrase, "We, the jury, on the issue joined," convicted McKenley

of unlawful wounding and use of a firearm in the commission of a

malicious wounding.

                         JURY INSTRUCTION

     McKenley asserts that the trial court improperly instructed

the jury on the charge of use of a firearm in the commission of

malicious wounding.   He asserts that the jury's finding that he

committed an unlawful, rather than malicious, wounding is
                               - 2 -
inconsistent with its finding of use of a firearm in the

commission of a malicious wounding.

     McKenley failed to object to the instruction at trial.     Rule

5A:18 provides that "[n]o ruling of the trial court . . . will be

considered as a basis for reversal unless the objection was

stated together with the grounds therefor at the time of the

ruling, except for good cause shown or to enable the Court of

Appeals to attain the ends of justice."   Moreover, inconsistent

verdicts are permissible if there is sufficient evidence to

support them.   See Wolfe v. Commonwealth, 6 Va. App. 640, 371

S.E.2d 314 (1988) (holding that an inconsistency between

verdicts--acquittal of murder but conviction of use of a firearm

in the commission of murder--does not require reversal of the

firearm conviction).    Because the record does not show any

obvious miscarriage of justice, neither the ends of justice nor

good cause permits waiver of the Rule 5A:18 bar.    Commonwealth v.

Mounce, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).
                    SUFFICIENCY OF THE EVIDENCE

     McKenley also asserts that the evidence was insufficient to

support his convictions for unlawful wounding and use of a

firearm while committing a malicious wounding.    "On appeal, we

review the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."    Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987).

     To convict a defendant of use of a firearm while committing
                                - 3 -
a malicious wounding, the fact finder must find beyond a

reasonable doubt that the defendant was guilty of malicious

wounding and used a firearm to commit the wounding.   "Intent may,

and most often must, be proven by circumstantial evidence and the

reasonable inferences to be drawn from proven facts are within

the province of the trier of fact."    Fleming v. Commonwealth, 13

Va. App. 349, 353, 412 S.E.2d 180, 183 (1991).   Witnesses

testified that McKenley pulled the gun from his belt and shot

Harris twice.   A police officer testified that at the hospital

McKenley twice said that he would kill Harris if Harris came to

the hospital.   The officer also found bullets of the same type

used to shoot Harris in McKenley's shirt pocket.   The jury was

entitled to convict McKenley of inconsistent charges.    See Wolfe,

6 Va. App. at 650, 371 S.E.2d at 319-20.   The Commonwealth's

evidence was competent, was not inherently incredible, and was

sufficient to prove beyond a reasonable doubt that McKenley used

a firearm while maliciously wounding Harris.

     To convict a defendant of unlawful wounding, a

lesser-included offense of malicious wounding, the fact finder

must find beyond a reasonable doubt only that the defendant

intended to cause the victim bodily injury and that the victim

suffered bodily injury.   Because the Commonwealth's evidence was

sufficient to prove beyond a reasonable doubt that McKenley

maliciously wounded Harris, it follows that the evidence was

sufficient to prove unlawful wounding.


                               - 4 -
                   VALIDITY OF THE VERDICT FORM

     Finally, McKenley asserts that the unlawful wounding verdict

form was invalid because it failed to specify that he wounded

Harris with an intent to maim, disfigure, disable, or kill.

     In Jackson v. Commonwealth, 218 Va. 490, 237 S.E.2d 791

(1977), the Supreme Court of Virginia upheld verdicts which did

not specify the requisite intent on the verdict form but did

include the phrase, "We, the jury on the issue joined,

unanimously find the defendant . . .   guilty . . . ."    Id. at

492, 237 S.E.2d at 792 (emphasis added).   The Court held that the

requisite intent was "necessarily implied" in the verdict.     Id.

at 492, 237 S.E.2d at 793.   The Court reasoned that the jury's

finding was based "on the issue joined," which initially was

framed by the indictments containing the necessary intent, and

thus the verdict forms were valid because the jury's finding of

intent could be determined by its verdict.    Id.

      McKenley's verdict form included the phrase, "on the issue

joined."   Additionally, the instructions defining unlawful

wounding included the requisite intent.    McKenley's conviction

for unlawful wounding is therefore not invalid merely because the

verdict form lacked recitation of the requisite intent.
                                                          Affirmed.




                               - 5 -
Benton, J., concurring and dissenting.



     I concur in the portions of the opinion styled Sufficiency

of the Evidence and Validity of the Verdict Form, and, therefore,

I would affirm the conviction of unlawful wounding.      However, I

would reverse the conviction for use of a firearm in the

commission of malicious wounding.

     This Court's ruling that a jury's inconsistent verdicts does

not provide a ground for reversal, see Wolfe v. Commonwealth, 6
Va. App. 640, 649-50, 371 S.E.2d 314, 319-20 (1988), is clearly

subject to the general rule that the jury must be guided by

proper instructions.   See Dowdy v. Commonwealth, 220 Va. 114,

116, 255 S.E.2d 506, 508 (1979).    A concomitant rule is that

"when a principle of law is vital to a defendant in a criminal

case, a trial [judge] has an affirmative duty properly to

instruct a jury about the matter."       Jimenez v. Commonwealth, 241

Va. 244, 250, 402 S.E.2d 678, 681 (1991).      "That principle

applies even when an objection has not been stated . . . [because

the] trial judge's 'imperative duty [to properly instruct the

jury] . . . is one which can neither be evaded nor surrendered.'"
 Johnson v. Commonwealth, 20 Va. App. 547, 554, 458 S.E.2d 599,

602 (1995) (citation omitted).




                                 - 6 -
     The jury was given two verdict forms. 1   The record

establishes that the verdict form that the jury was given for the
     1
      One form gave the following four options:

          WE, THE JURY, ON THE ISSUE JOINED, FIND THE
          DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF
          MALICIOUSLY CAUSING BODILY INJURY, AS CHARGED
          IN THE INDICTMENT.
                                   ___________________
                                   FOREMAN


          WE, THE JURY, ON THE ISSUE JOINED, FIND THE
          DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF
          UNLAWFUL WOUNDING.
                                  ____________________
                                  FOREMAN


          WE, THE JURY, ON THE ISSUE JOINED, FIND THE
          DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF
          ASSAULT AND BATTERY, AND FIX HIS PUNISHMENT
          AT _______________________________.
                                   ____________________
                                   FOREMAN


          WE, THE JURY, ON THE ISSUE JOINED, FIND THE
          DEFENDANT, CARL ANTHONY MCKENLEY, NOT GUILTY.
                                   _____________________
                                   FOREMAN

     The other form gave the jury the following two options
concerning the gun charge:

          WE, THE JURY, ON THE ISSUE JOINED, FIND THE
          DEFENDANT, CARL ANTHONY MCKENLEY, GUILTY OF
          USE OF A FIREARM IN THE COMMISSION MALICIOUS
          BODILY INJURY, AS CHARGED IN THE INDICTMENT.
                                   _____________________
                                   FOREMAN


          WE, THE JURY, ON THE ISSUE JOINED, FIND THE
          DEFENDANT, CARL ANTHONY MCKENLEY, NOT GUILTY
          OF USE OF A FIREARM.
                                  _____________________
                                  FOREMAN

                              - 7 -
firearm charge is patently defective.   The jury's request for "an

explanation and relationship to the number of verdicts" confirms

the jury's lack of understanding of the relationship of the

various charges and the corresponding verdict forms.

     After the jury began its deliberations, it requested an

explanation of the forms. The following colloquy occurred:
          THE JUDGE:     Alright, Mr. Foreman, you have
                         a question?

          FOREMAN:       Yes sir.
          THE JUDGE:     Yes sir.

          FOREMAN:       What I wanted was just an
                         explanation and relationship
                         to the number of verdicts, the
                         two forms. We have two
                         papers.

          THE JUDGE:     Right.

          FOREMAN:       So this one is clear as far as
                         making a decision one of the
                         others.

          THE JUDGE:     Right. That's right. That's
                         on the use of the firearm.

          FOREMAN:       Yes sir.

          THE JUDGE:     Yes sir.

          FOREMAN:       This one we have four, so
                         should it be one of the four?

          THE JUDGE:     Yeah, one out of the four.
                         It's either not guilty, guilty
                         of an assault, guilty of
                         unlawful wounding, or guilty
                         of malicious wounding, one out
                         of the four.

          FOREMAN:       Okay, one out of the two, one
                         out of the four.

          THE JUDGE:     Right, that's right.   Okay,

                              - 8 -
                            thank you all. Alright, Court
                            will be recessed.


     That colloquy clearly demonstrates that the patent defect in

the firearm verdict likely contributed to the jury finding

McKenley guilty of the use of a firearm in the commission of a

malicious wounding even though the jury found McKenley "guilty of

unlawful wounding."    The firearm verdict form does not inform the

jury that McKenley was not guilty of the charged firearm offense

if he did not use a firearm "in the commission of a malicious

bodily injury."    The form states "We . . . find the defendant
. . . not guilty of use of a firearm."    As worded, the verdict

form conveys to the jury the implication that McKenley could only

be not guilty of the firearm charge if he did not "use . . . a

firearm."   Thus, an "obvious void" exists on the face of the

verdict form.     Johnson v. Commonwealth, 20 Va. App. 547, 554, 458

S.E.2d 599, 602 (1995).

     The verdict form did not sufficiently inform the jury that

proof that McKenley used a firearm was not a sufficient basis to

convict McKenley.    The undisputed evidence proved that McKenley

used a firearm.    Only if he used the firearm in the commission of

malicious wounding, the charge of which he was acquitted, could

he have been convicted of the firearm charge.     See Code

§ 18.2-53.1.

     Defense counsel failed to object to the lack of clarity in

the instruction or in the oral explanation.    However, I would

hold that the lack of objection does not prevent this Court from


                                 - 9 -
considering this issue on appeal as an exception to Rule 5A:18,

see Jimenez, 241 Va. at 250, 402 S.E.2d at 681, and I would

reverse the conviction for use of a firearm in the commission of

malicious wounding.   I dissent.




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