NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank
Argued at Salem, Virginia
Record No. 3257-02-3
COMMONWEALTH OF VIRGINIA
BY JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 9, 2003
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Jesse W. Meadows III for appellant.
Richard B. Smith, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
The trial court convicted the defendant of felonious damage to
He contends the evidence was insufficient because his conduct was neither
intentional nor committed with criminal negligence. Finding the
evidence sufficient, we affirm.
On appeal, we review the evidence and all reasonable inferences
deduced from it in the
light most favorable to the Commonwealth. Commonwealth v.
Hudson, 265 Va. 505, 514, 578
S.E.2d 781, 786 (2003). The defendant and four friends obtained
unlawful access to a
condominium at Vista Pointe in Pittsylvania County. The unit was
immaculate when they
arrived to begin a party that lasted all night. The defendant
took a fifth of Southern Comfort
from a cabinet and consumed it. He became sick and threw up in
at least four different areas.
When the group left the next morning, the heat and the oven were
left on, food containers and
beer cans littered the kitchen, and cigarette burns marked the
carpet. The defendant had gotten
sick on the bed linens, on the living room ottoman, and
throughout the house. The cost to repair
and clean was $12,000.
The defendant contends the evidence is insufficient to prove he
intended to damage the
property or acted with criminal negligence. He maintains that
throwing up was an involuntary
act, and while getting drunk nurtures negligent conduct, his
actions were not intentional.
It is well settled that "a person is presumed to intend the
immediate, direct, and necessary
consequences of his voluntary act." Nobles v. Commonwealth,
218 Va. 548, 551, 238 S.E.2d
808, 810 (1977). Voluntary intoxication is not an excuse for a
crime. Swisher v.
Commonwealth, 256 Va. 471, 488, 506 S.E.2d 763, 772 (1998)
(exception for murder).
However, evidence that the defendant has been drinking, "is
germane to the question of criminal
negligence." Beck v. Commonwealth, 216 Va. 1, 5, 216 S.E.2d
8, 10 (1975) (involuntary
manslaughter). See also Simon v. Commonwealth, 220 Va. 412,
419-20, 258 S.E.2d 567, 573
(1979) (evidence of drinking, which can impair a suspect’s
"capacity to perceive the dangers
with the clarity, make the decisions with the prudence, and
operate the vehicle with the skill and
caution required by the law," is a circumstance to consider
in determining recklessness in
involuntary manslaughter trial). "[W]hether the required
intent exists is generally a question for
the trier of fact." Nobles, 218 Va. at 551, 238 S.E.2d at
810. The evidence supports the trial
court’s finding that the defendant’s action was intentional.The
destruction the defendant
wrought was a foreseeable consequence of his voluntary acts.
In addition, the evidence permits a finding that the defendant
damaged the property while
committing an unlawful act. "Criminal responsibility under
[Code ? 18.2-137] attaches when
property is damaged or destroyed during the commission of an
unlawful act, which includes the
performance of a lawful act in a criminally negligent
manner." Crowder v. Commonwealth, 16
Va. App. 382, 384, 429 S.E.2d 893, 894, aff’d en banc, 17 Va.
App. 202, 436 S.E.2d 192 (1993).
In this case, the defendant trespassed, drank underage, and
stole the alcohol he drank. As in
Crowder, the trial court could conclude the defendant acted with
reckless disregard for the rights
of others and with reckless indifference to the consequences of
his acts. Such conduct
constituted a violation of Code ? 18.2-137. Id.
The evidence supported the trial court’s finding. Accordingly,
we affirm the conviction.
Code ? 17.1-413, this opinion is not designated for publication.
person unlawfully destroys, defaces, damages or removes without the intent to
steal any property, real or personal, not his own," and the
amount of damage is $1,000 or more,
he shall be guilty of a Class 6 felony. Code ? 18.2-137.
[T]hese folks went in there and showed no regard for the
I would dare say . . . they didn’t know whose place it was and
didn’t care whose place it was. They began consuming food and
liquor and alcohol, at least some of which was from the
itself. Absolute disregard for the property of others, which if
intentional, I don’t know what else it could be. To commit
$12,000 worth of damage to a place in one evening, while not
breaking up furniture or things of that nature, certainly by
conduct, damaging rugs and beds and bedding, and having to have
those replaced . . . rise[s] to the level of being an
intentional act. I
don’t think that voluntary intoxication gets you out of that.