Home / Uncategorized / SAUNDERS v. COMMONWEALTH (56152)


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JANUARY 18, 2000

Record No. 1929-98-2






Present: Chief Judge Fitzpatrick, Judges
Coleman and Bray

Argued at Richmond, Virginia

Robert G. O’Hara, Jr., Judge

(Andrew E. Weaver; Traylor, Morris &
Wornom, on brief), for appellant. Appellant submitting on brief.

(Mark L. Earley, Attorney General; Eugene
Murphy, Assistant Attorney General, on brief), for appellee.
Appellee submitting on brief.


Eric Donnell Saunders (defendant) was convicted
by a jury for "writ[ing] or compos[ing] and send[ing]"
a letter to another "containing a threat to kill or do
bodily injury" to such person, a violation of Code
? 18.2-60(A). On appeal, he complains that the trial court
erroneously refused to instruct the jury on the element of
malice. We disagree and affirm the conviction.

Code ? 18.2-60(A) provides, in pertinent

If any person write or compose and also send or
procure the sending of any letter . . . , so written or
composed, . . . to any person, containing a threat to
kill or do bodily injury to the person to whom such letter or
communication was sent or to kill or do bodily injury to any
member of his or her family, the person so writing or composing
and sending or procuring the sending of such letter or
communication shall be guilty of a Class 6 felony.

Accordingly, the court instructed the jury, in
pertinent part:

The defendant is charged with the crime of
threatening bodily injury to another person. The Commonwealth
must prove beyond a reasonable doubt the following elements of
that crime: (1) That the defendant wrote or composed a letter or
written communication signed or unsigned to [another]; and
(2) That the letter or written communication contained a
threat to do bodily harm to [such other] or his family; and (3)
That the defendant sent such letter or written communication to

Arguing that malice was indispensable to the
"unlawful mens rea" implicit in the
statutory offense, defendant proffered an instruction which
required the Commonwealth to prove that he committed the
proscribed acts "with malice," together with a
companion instruction defining malice. In refusing both
instructions, the court noted that the statute did not
"contain . . . the word malicious."

"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 the issues
which the evidence fairly raises.’ It is elementary that a jury
must be informed as to the essential elements of the offense; a
correct statement of the law is one of the ‘essentials of a fair
trial.’" Darnell v. Commonwealth, 6 Va. App. 485,
488, 370 S.E.2d 717, 719 (1988) (citations omitted). "An
instruction should not be given which incorrectly states the
applicable law or which would be confusing or misleading to
. . . the jury." Bruce v. Commonwealth, 9
Va. App. 298, 300, 387 S.E.2d 279, 280 (1990) (citation omitted).

Malice is "that state of mind which
results in the intentional doing of a wrongful act to another
without legal excuse or justification, at a time when the mind of
the actor is under the control of reason." Lynn v.
, 27 Va. App. 336, 344-45 n.1, 499 S.E.2d 1, 5-6
n.1 (1998); see also 1 Virginia Model Jury
Instructions – Criminal 33.220 (1998 repl. ed. with 1999
Supp.). Thus, "[m]alice is evidenced either when the accused
acted with a sedate, deliberate mind, and formed design, or
committed any purposeful and cruel act without any or without
great provocation." Branch v. Commonwealth, 14 Va.
App. 836, 841, 419 S.E.2d 422, 426 (1992). The legislature has
expressly required malice as an element of numerous statutory
offenses. See, e.g., Code ?? 18.2-77, -79,
-80, -86, -127, -152.7(B), -212, and -279.

In contrast, mens rea or scienter
is simply the unlawful intent or design necessary to any criminal
act that is not a strict liability offense. See Reed v.
, 15 Va. App. 467, 424 S.E.2d 718 (1992); 1 Wayne
R. LaFave, Substantive Criminal Law ? 3.4
(1986); Livingston v. Commonwealth, 184 Va. 830, 36 S.E.2d
561 (1946). Thus, although malice is a species of mens rea,
see Christian v. Commonwealth, 221 Va. 1078, 227
S.E.2d 205 (1981); Berkley v. Commonwealth, 19 Va. App.
279, 451 S.E.2d 41 (1994), mens rea does not always
evince malice. See e.g., Mosby v. Commonwealth,
23 Va. App. 53, 473 S.E.2d 732 (1996) (criminal negligence); Fortune
v. Commonwealth
, 12 Va. App. 643, 406 S.E.2d 47 (1991)
(unlawful behavior). Hence, a wrongful act done intentionally is
not always malicious. See Mason v. Commonwealth, 7
Va. App. 339, 373 S.E.2d 603 (1988). Although Code
? 18.2-60(A) makes no mention of malice, defendant,
nevertheless, relies on Perkins v. Commonwealth, 12 Va.
App. 7, 402 S.E.2d 229 (1991), to infer malice as an element of
the offense. In Perkins, the accused challenged Code
? 18.2-83(A)
[1] as unconstitutionally overbroad because it required no mens
rea to complete the crime. We disagreed, reasoning that:

In Maye v. Commonwealth, 213 Va. 48, 189
S.E.2d 350 (1972) the Supreme Court of Virginia stated:

A claim that a statute on its face contains no
requirement of mens rea or scienter is no
ground for holding the statute unconstitutional since such
requirement will be read into the statute by the court when it
appears the legislature implicitly intended that it must be

213 Va. 48, 49, 189 S.E.2d 350, 351
(1972). . . . Therefore, ? 18.2-83 can be read as
requiring mens rea. Such a narrowing construction
of this statute prevents overbreadth. Only an individual who maliciously
"makes and communicates . . . any threat"
prohibited by the statute will be punished.

Id. at 15, 402 S.E.2d at 234 (emphasis

Defendant acknowledges that Perkins
clearly instructs that mens rea or scienter
"will be read into a [criminal] statute" to satisfy
constitutional imperatives. Additionally, however, he construes
dicta in Perkins, "[o]nly an individual who maliciously"
engages in conduct "prohibited by [Code ? 18.2-83(A)] will be punished," to also graft the element of malice onto
the subject Code ? 18.2-60(A), a statute similar to Code
? 18.2-83(A). Perkins, 12 Va. App. at 15, 402 S.E.2d
at 234 (emphasis added).

We are not persuaded that this Court in Perkins
intended to equate mens rea with malice, a concept
clearly at odds with well-established jurisprudence, and,
therefore, decline defendant’s invitation to imply both mens
rea and malice as elements of Code
? 18.2-60(A). "We may not add to a statute language
which the legislature has chosen not to include." County
of Amherst Bd. of Supervisors v. Brockman
, 224 Va. 391, 397,
297 S.E.2d 805, 808 (1992) (citations omitted).

Accordingly, we affirm the conviction.




[1] Code ? 18.2-83(A) prohibits
any person from "mak[ing] or communicat[ing] to another by
any means any threat to bomb, burn, destroy or in any manner
damage any place of assembly, building or other structure."