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MAY 29, 2001

Record No. 0507-00-1

Present: Judges Benton, Bray and Frank

Argued at Chesapeake, Virginia





Thomas S. Shadrick, Judge


Christopher Todd Hedrick (David D.Dickerson
& Associates, on brief), for appellant.

Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

A jury convicted Aubrey Thomas (defendant) of
"intentionally [causing] . . . injury"
"to property" in violation of Code ? 18.2-137(B),
a Class 1 misdemeanor. On appeal, he contends the trial court
erroneously refused to instruct the jury on the "lesser
offense" of "unlawfully . . . damag[ing] . . . property," a Class 3 misdemeanor proscribed
by Code ? 18.2-137(A). Finding no error, we affirm the

The parties are fully conversant with the
record, and this memorandum opinion recites only those facts
necessary to a disposition of the appeal. In accordance with well
established principles, we consider the evidence in the light
most favorable to the prevailing party below, the Commonwealth in
this instance.


Viewed accordingly, the record discloses
defendant was confined in an "isolation cell" at the
Virginia Beach jail at the time of the subject offense and, like
all prisoners in isolation, denied "contact with
. . . anybody but deputies." Each isolation cell
was equipped with a surveillance camera that "scan[ned] through" at intervals of "fifteen to twenty
seconds," with the images televised to and monitored by jail
personnel stationed in "Main Control." Additionally, a
"flap" in the doorway of the cells facilitated a
routine "thirty minute [visual] check" of inmates by

For fire protection, each cell was equipped
with a "sprinkler head," located in the ceiling, eight
feet from the floor and "eight to twelve inches straight up
and over" from the prisoner’s "bunk." Activated
either by heat or "impact," the sprinklers would
automatically release "approximately 11,000 gallons" of
water per minute and trigger an audio/visual "alert" at
"Main Control" that indicated the location of an
activated sprinkler.

At approximately 5:40 a.m. on August 27, 1999,
an "alert" signaled the operation of the sprinkler in
cell C-280, then occupied by defendant. An immediate "camera
check" revealed "water rushing, water on the floor and
water coming out of the cell," and defendant "standing
on his bunk." Scans of the cell preceding the alarm had
disclosed nothing "out of the ordinary." Deputy P.F.
Barnes was promptly dispatched to C-280 and, upon arrival,
observed "water coming out at the cell," defendant
"standing on top of the bed" and water flowing from the
"sprinkler head," "bent like it was struck,"
"broken." The water, which "had [then] been
running . . . three or four minutes," had flooded
the cell to "about six inches" and "leaked into
the hallway," blanketing "everything" with a
"black . . . oily substance."

Several hours earlier, Deputy Barnes had
conducted a search of C-280, investigating a report that
defendant was in possession of "contraband." When
"some pencils," prohibited items in "restrictive
housing," were discovered and removed from the cell,
defendant had protested, "it wasn’t right and so
forth," and became "very belligerent, yelling and
screaming profanities." Barnes recalled the "sprinkler
head" was "in perfect order" at that time.

Deputy Donald Stanley, assigned to the
maintenance department of the jail, described the damage
resulting from the water and related "grime and stuff"
and the necessary repairs. Stanley, familiar with the
construction and operation of the sprinklers, testified that none
had malfunctioned during his tenure at the jail, dating from
1993, and opined, without objection, that the subject
"head" had been "opened by impact." Stanley
totaled the water damages to the jail at $430.

Defendant, previously convicted of eleven
felonies, testified he had occupied C-280 for "probably
seven months before the" incident and was "laying on
the floor" when, suddenly, "water was coming
down." He claimed "water was running" "about
an hour before" authorities intervened. Although defendant
acknowledged "various problems" during his
"stay" in the jail, he denied tampering with the
sprinkler and offered no explanation for the occurrence.

The trial transcript reflects a
"recess" at the conclusion of the evidence to permit
the court "to get together with the lawyers . . .
and look at . . . jury instructions," followed
immediately by the court’s inquiry of defendant’s counsel,
"What [have] you got for instructions?" The transcript
then parenthetically notes a "sidebar conference
. . . by the court and counsel out of the hearing of
the court reporter." The record further reflects a granted
instruction, embracing intentional damage to property,
together with the attendant penalty, and a refused instruction,
offered by defendant, addressing unlawful damage and the
lesser penalty. The jury subsequently convicted defendant for
"Destruction of Property" and fixed a punishment
appropriate to intentional damage. The court subsequently
"confirmed" the verdict and imposed the recommended

Defendant complains on appeal that "the
trial court should have accepted [his] jury instruction which
would have allowed the jury to consider" a sentence for
either intentional or unlawful damage. In response, the
Commonwealth contends defendant failed to present an adequate
record to permit appellate review of the instruction issue but,
nonetheless, the evidence did not support the instruction on the
lesser offense.


Rule 5A:18 provides, in pertinent part:

No ruling of the trial court . . .
will be considered as a basis for reversal unless the objection
was stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice.

The "judgment of the lower court is
presumed to be correct and the burden is on the appellant to
present us a sufficient record from which we can determine
whether the lower court has erred in the respect complained
of." Smith v. Commonwealth, 16 Va. App. 630, 635, 432
S.E.2d 2, 6 (1993). Thus, an appellate court "cannot base
its decision upon appellant’s petition or brief, or statements of
counsel in open court. We may act only upon facts contained in
the record." Id. (citation omitted).

Here, the record, including the transcript of
the proceedings, fails to set forth the argument advanced by
defendant in support of the proffered instruction or reasons the
trial court refused it. Thus, we have nothing before us to
indicate either the issues presented to the court in compliance
with Rule 5A:18 or attendant rulings. Under such circumstances,
we are unable to properly consider the appeal for error.

Nevertheless, defendant, at oral argument,
relied upon Martin v. Commonwealth, 13 Va. App. 524, 414
S.E.2d 401 (1992), in support of his contention that submission
of the instruction on the "lesser offense," without
more, sufficiently presented the issue to the trial court. In Martin,
an appeal of a conviction for attempted capital murder, we found
that, "[b]y tendering [an] assault instruction, Martin fully
alerted the trial judge and the Commonwealth that simple assault
is a lesser-included offense of attempted capital murder,"
together with the attendant argument that "sufficient
evidence supported granting the instruction." Id. at
530, 414 S.E.2d at 404. However, even if we assume, without
deciding, that defendant properly raised the lesser-included
offense issue by simply proffering the disputed instruction, his
appeal must fail.

"The principles governing our review of a
trial court’s decision refusing a jury instruction are
well-settled. ‘If any credible evidence in the record supports a
proffered instruction on a lesser included offense, failure to
give the instruction is reversible error.’ ‘Such an instruction,
however, must be supported by more than a mere scintilla of
evidence.’" Brandau v. Commonwealth, 16 Va. App. 408,
411, 430 S.E.2d 563, 564 (1993) (citations omitted). Thus,
"'[a] defendant is entitled to have the jury instructed only
on those theories of the case that are supported by the
.’" Connell v. Commonwealth, 34 Va. App.
429, 436, 542 S.E.2d 49, 52 (2001) (citation omitted) (emphasis
added); see Stewart v. Commonwealth, 10 Va. App.
563, 570, 394 S.E.2d 509, 513 (1990) (accused not entitled to
lesser-included offense instruction inconsistent with theory of
defense); see also Delacruz v. Commonwealth,
11 Va. App. 335, 338, 398 S.E.2d 103, 105 (1990) (court must
instruct on "defendant’s theory of defense," if
supported by the evidence). "Although the Commonwealth
prevailed at trial, the appropriate standard of review requires
that we view the evidence with respect to the refused instruction
in the light most favorable to the defendant." Boone v.
, 14 Va. App. 130, 131, 415 S.E.2d 250, 251

Here, the record is bereft of evidence to
support an instruction on the lesser-included offense of unlawful
damage to property. Uncontradicted credible testimony established
that the sprinkler located in the ceiling of a cell, occupied
only by defendant, was in "perfect working order" until
"broken" and "bent" by "impact."
Defendant, angered by jail personnel only hours before the
incident, was observed standing on his bunk below the damaged
sprinkler, moments after the alarm sounded. Significantly,
defendant testified that he had done nothing to cause the damage,
and was resting on the floor when the device suddenly and
inexplicably activated. Such evidence clearly justified an
instruction that defendant "intentionally cause[d] such
injury," as contemplated by Code ? 18.2-137(B), while
providing no support for an instruction on unlawful damage, a
theory of the case inconsistent even with defendant’s evidence.
Hence, the court correctly refused the disputed instruction.

Accordingly, we affirm the conviction.


Benton, J., dissenting.

Aubrey Thomas was arraigned and tried by jury
on a warrant charging that he "did unlawfully in violation
of [Code] Section 18.2-137 . . . destroy, deface, or damage
sprinkler head, mattress, and paint on walls of [the] jail cell .
. . with the value of, or damage to, such property being less
than $1,000." In pertinent part, the statute provides as

A. If any person unlawfully destroys, defaces,
damages or removes without the intent to steal any property, real
or personal, not his own, . . . he shall be guilty of a Class 3
misdemeanor . . . .

B. If any person intentionally causes such
injury, he shall be guilty of (i) a Class 1 misdemeanor if the
value of or damage to the property, . . . is less than $1,000 . .
. .

Code ? 18.2-137.

At the conclusion of the evidence, the
pertinent portions of which are cited in the majority opinion,
Thomas’ counsel offered a jury instruction that addressed both
parts of the statute. I would hold that the trial judge erred in
refusing the instruction.

Among the instructions granted by the trial
judge was the following submitted by the Commonwealth:

The Court instructs the jury that the defendant
is charged with the crime of damaging property. The Commonwealth
must prove beyond a reasonable doubt each of the following
elements of that crime:

(1) That the defendant intentionally damaged
property which was not his own; and

(2) That the property damaged was of a value of
$1,000.00 or less.

If you find from the evidence that the
Commonwealth has proved beyond a reasonable doubt each of the
above elements of the offense as charged, then you shall find the
defendant guilty and fix his punishment at:

(1) Confinement in jail for a specific time but
not more than twelve (12) months; or

(2) A fine of a specific amount, but not more
than $2,500.00.

(3) Confinement in jail for a specific time but
not more than twelve (12) months, and a fine of a specific amount
but not more than $2,500.00.

If you find that the Commonwealth has failed to
prove either or both elements of the offense beyond a reasonable
doubt, then you shall find the defendant not guilty.

The following instruction was tendered by
Thomas and refused by the trial judge:

You have found the defendant guilty of the
misdemeanor of damaging property. Upon consideration of all the
evidence you have heard, you shall fix the defendant’s punishment

1. If you find that the defendant unlawfully
damaged the property, you shall fix the defendant’s punishment at
a fine of a specific amount, but not more than $500.00.

2. If you find that the defendant intentionally
damaged the property, you shall fix the defendant’s punishment

(a) Confinement in jail for a specific time,
but not more than twelve (12) months; and/or,

(b) A fine of a specific amount, but not more
than $2,500.00.

By tendering this instruction which detailed
the alternative offenses proscribed by Code ? 18.2-137,
Thomas’ counsel unambiguously alerted the trial judge that he was
seeking an instruction that would have informed the jury of the
greater and the lesser-included offenses of Code
? 18.2-137.

We addressed this circumstance in Martin v.
, 13 Va. App. 524, 414 S.E.2d 401 (1992). There,
we ruled as follows:

The primary function of Rule 5A:18 is to alert
the trial judge to possible error so that the judge may consider
the issue intelligently and take any corrective actions necessary
to avoid unnecessary appeals, reversals and mistrials. Campbell
v. Commonwealth
, 12 Va. App. 476, 477, 405 S.E.2d 1, 2 (1991)
(en banc). By tendering the assault instruction, Martin fully
alerted the trial judge and the Commonwealth that simple assault
is a lesser-included offense of attempted capital murder and
sufficient evidence supported granting the instruction. At this
point in the proceedings, the trial judge had an affirmative duty
to include the instruction. See Jimenez v. Commonwealth,
241 Va. 244, 250, 402 S.E.2d 678, 681 (1991).

13 Va. App. at 530, 414 S.E.2d at 404.
Significantly, in this case, unlike in Martin, the record
clearly reflects that Thomas’ counsel did object to the trial
judge’s refusal to give the instruction. Indeed, the trial judge
affirmatively stated that "exception to the Court’s ruling
was noted by defense counsel." In other words, Thomas
complied more clearly with the contemporaneous objection rule
than did Martin, whose conviction we reversed.

Although the Commonwealth argues, and the
majority holds, that Thomas is procedurally barred from arguing
on appeal that the trial judge erred in refusing the instruction,
the Commonwealth concedes the obvious fact that Code
? 18.2-137(A) (proscribing unlawful conduct) is a
lesser-included offense of Code ? 18.2-137(B) (proscribing
intentional conduct). Moreover, the record clearly establishes
that the warrant charged and the trial judge arraigned Thomas on
the charge of "unlawfully" acting in violation of Code
? 18.2-137. Nevertheless, the trial judge rejected Thomas’
instruction, which included the lesser offense that was
specifically charged in the criminal warrant and recited at the
arraignment. On the other hand, the Commonwealth’s instruction,
which the trial judge accepted, informed the jury only of the
greater of the two statutory offenses, which was not specifically
referenced in the warrant. I would hold that Rule 5A:18 has been
satisfied and that this issue is properly before us for decision.

Viewing the evidence pertinent to the refused
instruction in the light most favorable to Thomas, see Blondel
v. Hays
, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991), we can
only conclude that no evidence proved how or under what
circumstances the sprinkler head was damaged. The Commonwealth
sought to have the jury infer from the evidence that Thomas
damaged the sprinkler head intentionally. That same evidence, or
lack of evidence, is reasonably susceptible to the inference that
Thomas damaged the sprinkler head unlawfully and not
intentionally. No direct evidence proved Thomas had been striking
or otherwise touching the shower head. Thus, despite the
Commonwealth’s contentions, the evidence provided a basis for a
conviction of the lesser-included offense (unlawful damage) as
much as for the greater offense (intentional damage).

As we noted in Martin:

The Commonwealth argues that because
"there is no factual dispute," the trial judge did not
err in refusing the instruction. We disagree with the premise
that a factual dispute did not exist. The disputed factual
element in this case was the intent . . . . Although [Thomas’] words and actions were not disputed, his mental state was very
much at issue. "The intent required to be proven in an
attempted crime is the specific intent in the person’s
mind." The specific intent in the person’s mind may, and
often must, be inferred from that person’s conduct and

* * * * * * *

The inferences that flow from the facts do not
solely favor the Commonwealth’s theory of the case. It is
fundamental that:

"[t]he jury is not required to accept, in
toto, either the theory of the Commonwealth or that of an
accused. They have the right to reject that part of the evidence
believed by them to be untrue and to accept that found by them to
be true. In so doing, they have broad discretion in applying the
law to the facts and in fixing the degree of guilt, if any, of a
person charged with a crime."

Consequently, "[i]f a proffered
instruction finds any support in credible evidence, its refusal
is reversible error."

13 Va. App. at 527-28, 414 S.E.2d at 402-03
(citations omitted).

The instruction Thomas tendered would have
given the jury an opportunity to apply the law to the evidence
proved at trial. No evidence proved how or under what
circumstances the water sprinkler was damaged. The cameras did
not show whether Thomas was hitting the sprinkler or hanging
clothes on it or using it for an exercise bar. The jury was
required to infer from the damage to the sprinkler and Thomas’
sole presence in the room the means by which the damage occurred.
Clearly, the inference of unlawful conduct is as likely and as
reasonable from this evidence as is the inference of intentional
conduct. "If any credible evidence in the record supports a
proffered instruction on a lesser included offense, failure to
give the instruction is reversible error." Boone v.
, 14 Va. App. 130, 132, 415 S.E.2d 250, 251
(1992). The refusal of Thomas’ instruction was plain error.

The instruction Thomas tendered would have
informed the jury of both statutory offenses and the alternative
punishments available. Although Thomas’ rejected instruction is
premised upon the jury’s finding that Thomas was guilty of
damaging property, it was obviously intended to accompany the
general instructions concerning the elements of the offense.
While the instruction may have required a revision to fit within
the context of the other instructions, it otherwise properly
stated the law. The Supreme Court has consistently ruled,
"that when the principle of law is materially vital to a
defendant in a criminal case, it is reversible error for the
trial [judge] to refuse a defective instruction instead of
correcting it and giving it in the proper form." Whaley
v. Commonwealth
, 214 Va. 353, 355-56, 200 S.E.2d 556, 558
(1973). Accord Jimenez, 241 Va. at 250-51, 402
S.E.2d at 681; Nelson v. Commonwealth, 143 Va. 579,
589-91, 130 S.E. 389, 392 (1925). The revision of the instruction
was a minor matter that could have been accomplished by counsel
and the trial judge. Thus, I would hold that "it was not
sufficient for the [judge] simply to have refused the instruction
instead of correcting it and giving it in the proper form." Id.

For these reasons, I would reverse the
conviction and remand for a new trial.


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