                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia


MARCO LANCE MARTIN
                                          MEMORANDUM OPINION * BY
v.   Record No. 1405-01-2                JUDGE ROBERT J. HUMPHREYS
                                               JUNE 25, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                 Catherine Currin Hammond, Judge

          Michael Morchower; Christopher C. Booberg
          (Morchower, Luxton and Whaley; Thorsen &
          Scher, L.L.P., on briefs), for appellant.

          Richard B. Smith, Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Marco Lance Martin appeals his conviction, after a jury

trial, for second degree murder of his infant daughter.   Martin

contends the trial court erred in refusing his proposed

instruction on the theory of accident, and in finding the evidence

sufficient as a matter of law to prove the element of malice.   We

disagree and affirm the judgment of the trial court.

     On appeal, Martin first contends that the trial court erred

in refusing his instruction pertaining to the theory of accident.

During Martin's trial, at the conclusion of the evidence, the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this memorandum
opinion has no precedential value, we recite only those facts
necessary to our holding.
trial court gave the jury finding instructions on capital murder,

second degree murder and involuntary manslaughter.     Martin had

also proffered the following instruction on the theory of

accident:

              Where the defense is that the killing was an
              accident, the defendant is not required to
              prove this fact. The burden is on the
              Commonwealth to prove beyond a reasonable
              doubt that the killing was not accidental.
              If after considering all the evidence you
              have a reasonable doubt whether the killing
              was accidental or intentional, then you
              should find the defendant not guilty.

     Martin argued that although his conduct in shaking his infant

child was not accidental, the infant's resulting death was

accidental.     The trial court denied the instruction finding that

the facts of the case did not support the instruction.       The judge

stated "[t]here's just not enough testimony to create a reasonable

hypothesis that there was an accident."

     "A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'" 1    "However, [a] defendant is entitled to have the jury

instructed only on those theories of the case that are supported
                 2
by evidence."


     1
       Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d
717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503,
290 S.E.2d 856, 858 (1982)).
     2
       Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267,
280 (1986) (citing LeVasseur v. Commonwealth, 225 Va. 564,

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     "[F]or purposes of resolving the issue of the trial court's

jury instruction, we are concerned with [Martin's] version of the

events surrounding the crime[] and not a determination of [their]

truthfulness." 3   Nevertheless, "[t]he evidence to support an

instruction 'must be more than a scintilla,'" 4 and "[a] jury

instruction, even though correctly stating the law, should not be

given if it is not applicable to the facts in evidence." 5

     "The rule in Virginia is that every homicide is presumed in

law to be murder in the second degree, and the burden is upon the

accused to reduce it to manslaughter, voluntary or involuntary, or

to show that the killing was justifiable or excusable, in the

latter case — for example, an unavoidable accident." 6   The Supreme

Court of Virginia has recognized that "[e]xcusable homicide per

infortunium, or by misadventure or accident, is where a person

unfortunately kills another in the doing of a lawful act, without

any intent to hurt, and without criminal negligence.     If a man

kills another in doing a lawful act in a lawful manner, that is,


590-91, 304 S.E.2d 644, 658-59 (1983), cert. denied, 464 U.S.
1063 (1984)) (other citations omitted).
     3
       Sam v. Commonwealth, 13 Va. App. 312, 322, 411 S.E.2d 832,
837 (1991).
     4
       Frye, 231 Va. at 388, 345 S.E.2d at 280 (quoting
LeVasseur, 225 Va. at 590, 304 S.E.2d at 658).
     5
       Bolyard v. Commonwealth, 11 Va. App. 274, 277, 397 S.E.2d
894, 896 (1990).
     6
       Mundy v. Commonwealth, 144 Va. 609, 614-15, 131 S.E. 242,
244 (1926).

                                - 3 -
without negligence, the homicide is excusable, 'for the act is

lawful, and the effect is merely accidental." 7   For instance:

          When men, while drunk or sober, drive
          automobiles along highways and through
          crowded streets recklessly, the killing of
          human beings is a natural and probable
          result to be anticipated. When a homicide
          follows as a consequence of such conduct, a
          criminal intent is imputed to the offender
          and he may be punished for his crime. The
          precise grade of such a homicide, whether
          murder or manslaughter, depends upon the
          facts of the particular case. One, however,
          who accidentally kills another, even though
          he may be chargeable with some actionable
          negligence, is not guilty of a crime, unless
          his negligence is so gross and culpable as
          to indicate a callous disregard of human
          life and of the probable consequences of his
          act. The crime is imputed because of the
          recklessness, and where there is no
          recklessness there is no crime. 8

     Thus, although an accused is entitled to an instruction

presenting his theory of accidental killing as a defense – this is

true only when the evidence warrants the instruction. 9   Here,

there is no evidence that the infant's death was the result of

misadventure.   Instead, the evidence, even as stated by Martin,

demonstrated that the death was the natural and probable result of

reckless and/or culpably negligent conduct on the part of Martin.


     7
       Valentine v. Commonwealth, 187 Va. 946, 954, 48 S.E.2d
264, 268 (1948).
     8
       Goodman v. Commonwealth, 153 Va. 943, 952, 151 S.E. 168,
171 (1930).
     9
       Martin v. Commonwealth, 218 Va. 4, 6, 235 S.E.2d 304, 305
(1977).


                               - 4 -
Accordingly, upon the evidence in this case, the jury would not

have been justified in taking the view that the infant's death was

caused by accident.   Therefore, we hold that the trial court did

not err in refusing the instruction.

     Martin next contends that the trial court erred in finding

the evidence sufficient as a matter of law to establish the

necessary element of malice, beyond a reasonable doubt.    Once

again, we disagree.

     "When considering the sufficiency of the evidence on appeal

of a criminal conviction, we must view all the evidence in the

light most favorable to the Commonwealth and accord to the

evidence all reasonable inferences fairly deducible therefrom." 10

"The jury serves as the final arbiter of the facts, 'charged with

weighing the evidence, judging the credibility of the witnesses,

and reaching a verdict' in the case."11   Further, a jury's factual

findings will not be disturbed on appeal unless plainly wrong or

unsupported by the evidence. 12

            To establish the crime of second-degree
            murder, "the defendant must be shown to have
            wilfully [sic] or purposefully, rather than
            negligently, embarked upon a course of
            wrongful conduct likely to cause death or

     10
       Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d
719, 721 (1988).
     11
       Williams v. Commonwealth, 24 Va. App. 577, 582, 484
S.E.2d 153, 155 (1997) (quoting Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 625 (1991)).
     12
          Id.


                                  - 5 -
           great bodily harm." Malice is the element
           that distinguishes murder from manslaughter.
           The trier of fact may infer malice from the
           deliberate use of a deadly weapon unless the
           evidence raises a reasonable doubt whether
           malice existed. Killing with malice but
           without premeditation and deliberation is
           murder in the second degree. 13

"Malice inheres in the doing of a wrongful act intentionally, or

without just cause or excuse, or as a result of ill will.       It

may be directly evidenced by words, or inferred from acts and

conduct which necessarily result in injury.      Its existence is a

question of fact to be determined by a jury under proper

instructions." 14

     On this record, there is ample evidence upon which the jury

could have based its finding that Martin acted with malice in his

actions with regard to the infant.      Martin himself conceded that

he shook the infant "hard, three times."     Moreover, the medical

evidence, without conflict, demonstrated that the infant's death

was caused by nothing other than "shaken baby syndrome."     The

medical evidence further established that the injury sustained by

the infant was very severe, and would have necessarily been caused

by a tremendous amount of force. 15   Thus, on this evidence, we


     13
       Elliot v. Commonwealth, 30 Va. App. 430, 436, 517 S.E.2d
271, 274 (1999) (quoting Essex v. Commonwealth, 228 Va. 273,
280-81, 322 S.E.2d 216, 220 (1984)).
     14
       Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500,
503 (1947).
     15
       Dr. Marcella Fierro, the Chief Medical Examiner for the
Commonwealth of Virginia, whose office performed the autopsy on

                                - 6 -
cannot hold that the jury's finding of malice, beyond a reasonable

doubt, was plainly wrong.   Accordingly, we affirm the judgment of

the trial court.

                                                          Affirmed.




the infant, testified that "to have received an accidental
injury with . . . these catastrophic findings of subdural
hemorrhage, subarachnoid hemorrhages, tremendous brain swelling,
optic nerve hemorrhage, retinal nerve hemorrhage, the, the class
of the accident that would have had to have occurred to cause
this would be something like motor vehicle violence, the child
who is thrown against the windshield or fell from two stories
. . . . This is a major, major injury."

                               - 7 -
