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Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank

Argued at Salem, Virginia

Record No. 3257-02-3






DECEMBER 9, 2003


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
property, Code

? 18.2-137.[2]
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.[3]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.




[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


[2]"If any
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.


[3]The trial
court found:

[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
is not

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.