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No instructional error in unlawful shooting case

Virginia Lawyers Weekly//August 15, 2023

No instructional error in unlawful shooting case

Virginia Lawyers Weekly//August 15, 2023//

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Where appellant shot six times at a police officer inside an apartment, he was correctly convicted of six counts of unlawful discharge of a firearm in an occupied building.

“The jury acquitted Miles of attempted capital murder and use of a firearm in the commission of a felony.” Miles appeals the occupied building shootings.

Jury instruction

“Miles contends that the trial court erred by denying his post-verdict motion challenging his convictions because the court simultaneously instructed the jury that heat of passion excludes malice, while failing to instruct it that criminal negligence is the scienter requirement for ‘unlawfully’ discharging a firearm.

“Miles maintains that, because the trial court did not inform the jury that ‘unlawful’ refers to criminal negligence, he was convicted of a non-offense: ‘heat of passion’ discharge of a firearm.

“As he did below, Miles concedes that he agreed to the unlawful discharge instruction and ‘insisted on’ the ‘heat of passion language’; however, to the extent that his post-verdict objection was untimely, he asks that we consider his argument under either the good cause or ends of justice exceptions in Rule 5A:18.

“Although Miles agreed to these instructions, he asserts that the ‘invited error’ doctrine is inapplicable because a conviction for a ‘non-offense’ is a ‘fundamental error that can be raised at any time.’ …

“‘A party may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.’ …

“Thus, a defendant does not suffer a ‘grave injustice’ when he concurs with or invites the trial court’s ruling. …Because Miles requested the very instructions about which he now complains – and because Miles was responsible for the lack of instruction on “criminal negligence” – we will not consider his arguments under either exception to Rule 5A:18.”

‘Occupied’ building

“Miles asserts that the evidence failed to prove that he fired his gun in an ‘occupied’ building in violation of Code § 18.2-279 because the only individual in the apartment when he fired was a police officer, as opposed to a guest or a resident. He contends that Huber did not “occupy” the apartment because [Officer] Huber neither lived nor slept there. …

“[T]o prove a violation of the statute, the Commonwealth need not establish that ‘human life was, in fact, endangered.’ … Instead, the Commonwealth must establish only ‘that the discharge of the firearm may have put [the victim’s] life in peril.’ …

“[T]he statute contemplates that ‘any building’ can be ‘occupied,’ and does not limit its application to ‘dwelling house[s]’ where individuals eat and sleep. …

“Given the legislature’s intent to protect all people inside any building against physical harm, we hold that the term ‘occupied’ in Code § 18.2-279 refers to the physical presence of any individual in the building when a firearm is discharged. …

“Accordingly, as Huber was in the building when Miles discharged his weapon, the evidence was sufficient to prove beyond a reasonable doubt that Miles unlawfully discharged a firearm in an occupied building.”

Six convictions

“Although the evidence is undisputed that Miles fired his gun six times, he contends that the evidence was insufficient to prove six violations of Code § 18.2-279 because the shots were not separated by a ‘lapse’ of time and placed only a single individual (Huber) at risk.

“He stresses that the [body cam] footage depicted ‘rapid fire shots [that] lasted but a few brief seconds at most, and then ceased entirely.’ …

“We recently held that the term ‘discharge’ in Code § 18.2-279 is ‘bullet-specific,’ meaning each shot fired from a gun constitutes a separate discharge; and, thus, a separate offense. Taylor v. Commonwealth, 77 Va. App. 149, 161-64 (2023).

“We noted that ‘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’ and that ‘[t]he life of another is endangered with the discharge of each shot, even if multiple shots are discharged in rapid succession.’ …

“As Miles concedes, Taylor is dispositive of his argument. Under Taylor, the undisputed evidence supports the jury’s reasonable conclusion that Miles was guilty of six counts of unlawfully discharging a firearm in an occupied building because Miles fired six times.”


Miles v. Commonwealth, Record No. 0288-22-2 July 25, 2023. CAV (published opinion) (Haley Jr.) From the Circuit Court of the City of Charlottesville. (Bouton) Norman H. Lamson for appellant. Lucille M. Wall, Jason S. Miyares for appellee. VLW 023-7-281, 16 pp.

Editor’s note: A version of this digest that appeared in the Aug. 14, 2023, print issue misidentified the case as VLW No. 023-7-280.

VLW 023-7-281

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