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Malicious shooting convictions affirmed

Virginia Lawyers Weekly//April 10, 2023

Malicious shooting convictions affirmed

Virginia Lawyers Weekly//April 10, 2023

Where appellant shot the victim three times in a mall food court, he was properly charged and convicted of voluntary manslaughter and three counts of maliciously shooting within an occupied building.

Background

Taylor, his mother and sister, and Taylor’s two-year-old son went shopping at a mall. Taylor had a backpack he used as a diaper bag. He also had a handgun in the backpack. Taylor did not have a concealed weapons permit.

Taylor left his family in the food court and went to the car to put away his son’s stroller and some packages.

On his way out, “Taylor saw Donovan and two of Donovan’s friends at a table in the food court. Taylor and Donovan had never met in person, but three years before this encounter Taylor confronted Donovan in a video call after discovering that Taylor’s then-girlfriend had been talking to Donovan.

“Taylor loaded the items into the car and returned to the mall, still carrying the backpack. He approached Donovan and mentioned the former girlfriend’s name. Donovan stood and moved toward Taylor.

“Taylor threw the diaper bag to the floor, and then struck Donovan in the face, prompting a fistfight that Donovan had the better of until Donovan’s friend separated Donovan from Taylor.

Taylor went to his bag and got the gun. He held it to his side. “Donovan approached Taylor, and the two began fighting again.

“Taylor then fired his gun three times in quick succession, twice hitting Donovan in the abdomen and buttocks. One of the shots also injured Taylor’s sister.”

Donovan died from his wounds. A jury convicted Taylor of voluntary manslaughter, three counts of maliciously discharging a firearm within an occupied building, unlawful wounding, felony child neglect and carrying a concealed weapon.

Multiple shooting charges

“Taylor was found guilty of three counts of violating Code § 18.2-279, which provides that if a person ‘maliciously discharges a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons … the person so offending is guilty of a Class 4 felony.’

“Taylor argues that there was ‘insufficient separation in [the] discharge[s] of his weapon to warrant his conviction for three separate crimes,’ because he fired each shot in the same location (the mall food court) at the same target (Donovan). …

“At core, Taylor’s argument is that when Code § 18.2-279 says ‘maliciously discharges a firearm,’ the offense is incident-specific, not projectile-specific. …

“In concluding that the legislature intended Code § 18.2-279 to be bullet-specific, we are persuaded by three things: our Supreme Court’s analysis of the similar malicious shooting at an occupied vehicle statute, the independent risk carried by each bullet, and the statute’s unambiguous use of the word ‘discharge.’ …

“Code § 18.2-154 makes it a crime to ‘maliciously shoot[] at, or maliciously throw[] any missile’ at a vehicle or other specified type of transportation.

First, in Stephens v. Commonwealth, 263 Va. 58 (2002), “the defendant shot at another car at least twice, hitting the driver twice. …

“Our Supreme Court rejected the argument that ‘in the absence of a showing that the shots constituted separate and distinct acts performed at separate times, [the defendant] cannot be convicted of two counts of violating Code § 18.2-154, instead concluding that each shot the defendant fired was a ‘“separate, identifiable act.”’ …

“[W]e see no meaningful distinction between someone who ‘maliciously shoots’ and someone who ‘maliciously discharges a firearm’ where the facts show, as they do here, that the trigger of the firearm was pulled multiple times. …

“Second, the essence, or gravamen, of an offense under Code § 18.2-279 is the risk of endangerment or death to another as a result of discharging a firearm. … The life of another is endangered with the discharge of each shot, even if multiple shots are discharged in rapid succession. …

“Given the unique harm a firearm may pose, it is logical that the legislature would intend to more severely punish a person firing multiple shots in the same occupied location in quick succession than someone who fires a single shot. …

“Finally, we observe that the statute criminalizes the ‘discharge’ of a firearm. Black’s Law Dictionary defines ‘discharge’ as ‘[t]he expulsion of a bullet from a firearm; esp. the shooting of a gun.’ … (emphasis added). This ‘bullet-specific’ definition reinforces our conclusion, and has persuaded other jurisdictions interpreting similar statutes.”

Shootings not subsumed by manslaughter

“Taylor argues that his convictions for malicious shooting in an occupied building are subsumed by his conviction for voluntary manslaughter.

“He relies on the text of Code § 18.2-279, which makes the basic offense of malicious shooting within an occupied building a Class 4 felony, but then states that ‘[i]n the event of the death of any person, resulting from such malicious shooting … the person so offending is guilty of murder in the second degree.’

“Because two of the three shots Taylor fired hit and killed Donovan, he contends two of his malicious shooting convictions are lesser-included offenses to his voluntary manslaughter conviction.

“While Taylor’s argument finds some support in the text of the statute, we are bound to reject it by our decision in Proctor v. Commonwealth, 40 Va. App. 233 (2003).” Proctor rejected the same argument and the facts of that case are “indistinguishable” from this one.

Self-defense

“Self-defense ‘in Virginia is an affirmative defense.’ … Because the absence of self-defense is ‘not an element of murder,’ and in pleading self-defense ‘a defendant implicitly admits the killing was intentional,’ a defendant bears a burden, in practice, to produce some evidence to support a claim of self-defense. …

“However this burden of production must be distinguished, as always, from the ultimate burden of persuasion borne exclusively by the Commonwealth. …

“This distinction has been teased out in numerous opinions on whether jury instructions have correctly conveyed the respective burdens. Today we break no new ground in applying this well-established caselaw.

“It is error for a self-defense instruction to affirmatively require the accused to carry the burden of proof. … On the other hand, it is not necessary to instruct the jury that the Commonwealth ‘must disprove beyond a reasonable doubt every fact constituting’ a claim of self-defense. …

“If a court properly instructs the jury that ‘[t]here is no burden on the defendant to produce any evidence,’ it is not error to refuse an ‘additional instruction on the burden of proving affirmative defenses.’ …

“Taylor suggests the model instruction on self-defense was like that in Jones [v. Commonwealth, 187 Va. 133 (1948), which ‘took from the accused his right to acquittal if the jury, after considering all the evidence, entertained a reasonable doubt whether he acted in self-defense or not.’ …

“But Taylor has not identified any misleading aspect of the instruction given here. That this instruction does not discuss burden at all does not change the analysis because Instruction 2 informed the jury that ‘“[t]here is no burden on the defendant to produce any evidence’ and that the presumption of innocence required the jury to find the ‘defendant not guilty unless the Commonwealth proves each and every element of the crime beyond a reasonable doubt.’

“Instruction 13 also squarely, and correctly, placed the burden to prove any degree of murder solely at the feet of the Commonwealth: ‘If you have a reasonable doubt as to whether he is guilty at all, you shall find him not guilty.’ Together, the instructions fully and fairly covered the relevant principles of law[.]”

Affirmed.

Taylor v. Commonwealth, Record No. 0422-22-2, March 28, 2023. CAV (published opinion) (Lorish; Chaney concurring in part and dissenting in part.). From the Circuit Court of Chesterfield County (McCallum). Todd M. Ritter for appellant. Leah A. Darron, Jason S. Miyares for appellee. VLW 023-7-121, 25 pp.

VLW 023-7-121

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