Miles v. Commonwealth

78 Va.App. 73

889 S.E.2d 663

Timothy MILES, s/k/a Timothy L. Miles v. COMMONWEALTH of Virginia

Record No. 0288-22-2

Court of Appeals of Virginia, Richmond.

July 25, 2023

Norman H. Lamson, Charlottesville, for appellant.

Lucille M. Wall, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Ortiz, Chaney and Senior Judge Haley

OPINION BY JUDGE JAMES W. HALEY, JR.

A jury convicted Timothy Miles of six counts of unlawfully discharging a firearm in an occupied building, in violation of Code § 18.2-279. ¹ Miles contends that the trial court erred by failing to instruct the jury that the term "unlawful" refers to criminal negligence. He also asserts that the trial court erred by sustaining his convictions because the apartment where he fired a gun at a police officer was not "occupied" within the intendment of Code § 18.2-279 merely because the officer was present. Moreover, even assuming that the building was "occupied," Miles maintains that the evidence proved only a single violation of Code § 18.2-279 because, although he shot six times, he fired "aimlessly in quick succession." For the following reasons, we affirm the trial court's judgment.

BACKGROUND

On appeal, we recite the facts "in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth , 74 Va. App. 225, 231, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady , 300 Va. 325, 329, 863 S.E.2d 858 (2021) ). In doing so, we "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady , 300 Va. at 329, 863 S.E.2d 858 (quoting Commonwealth v. Perkins , 295 Va. 323, 324, 812 S.E.2d 212 (2018) ).

The relevant facts, framing the issues raised, can be concisely stated. Following a report of shots fired at a Charlottesville apartment complex, Corporal Huber received information at the scene suggesting Miles was the shooter. When Huber confronted Miles in an apartment, Huber and Miles exchanged gunfire. Miles, who was armed with a semi-automatic handgun, fired six times, wounding Huber. Huber and Miles were the only individuals in the apartment when Miles opened fire. A second officer reached the apartment doorway as the gunfire erupted. The incident was recorded on the second officer's body worn camera.

At trial, Miles denied any recollection of shooting his gun, but he admitted that he knew Huber was in the apartment immediately before he exchanged gunfire with the officer and disregarded the officer's commands to raise his hands. He also admitted that he knew he could not lawfully possess a firearm because he was a convicted felon and that, before he fired at Huber, the officer told Miles he had outstanding warrants. A firearm expert testified that Miles's 9mm firearm was a semi-automatic pistol, "meaning that it only fire[d] when you pull the trigger."

After the evidence closed, the parties submitted jury instructions to the court. With respect to the discharge of a firearm offenses, the Commonwealth submitted only a malicious discharge instruction, but Miles offered an instruction that included unlawful discharge as a lesser-included offense. When the trial court offered to hear argument from the parties, Miles replied that the Commonwealth had agreed to his instruction, which the Commonwealth confirmed. The trial court agreed to give the proffered instruction. Miles also agreed that the jury should be instructed regarding the circumstances under which "heat of passion excludes malice."

The jury convicted Miles of six counts of unlawful discharge of a firearm in an occupied building and recommended a sentence of twelve years’ incarceration. Miles filed several post-verdict motions challenging his convictions. Miles argued that the evidence had failed to prove that the building was "occupied" when he fired his weapon because Huber was neither a resident nor a guest there. Further, Miles maintained that the evidence failed to prove six separate counts of unlawfully discharging a firearm because he fired all six bullets in rapid succession. Moreover, Miles asserted that the jury instructions failed to inform the jury that "unlawful" referred to criminal negligence, thereby allowing the jury to convict him of a "non-existent" offense, "heat of passion" discharge of a firearm in an occupied building. The trial court denied each of Miles's motions and entered a final sentencing order imposing the jury's verdict. Miles appeals.

ANALYSIS

I. Jury Instructions on Unlawful Discharge

We do not disturb a trial court's judgment denying a motion to set aside a jury verdict "unless it is plainly wrong or without evidence to support it." Ferguson Enters., Inc. v. F.H. Furr Plumbing, Heating & Air Conditioning, Inc. , 297 Va. 539, 548, 830 S.E.2d 917 (2019) (quoting Parson v. Miller , 296 Va. 509, 524, 822 S.E.2d 169 (2018) ). We review a trial court's refusal to set aside a verdict based on allegedly erroneous jury instructions for abuse of discretion.

Boyd v. Weisberg , 75 Va. App. 725, 736-37, 879 S.E.2d 613 (2022). Nevertheless, "[i]nstructions given without objection become the law of the case and thereby bind the parties in the trial court and ... on [appellate] review." Id. at 736-37, 879 S.E.2d 613 (second and third alterations in original) (quoting Smith v. Commonwealth , 296 Va. 450, 461, 821 S.E.2d 543 (2018) ). "Even if a party makes a motion to set aside the verdict, ‘this does not save him from his failure to object to the instructions which submitted the issues ... to the jury.’ " Id. at 737, 879 S.E.2d 613 (alteration in original) (quoting Smith , 296 Va. at 462, 821 S.E.2d 543 ).

"As a general rule, the matter of granting and refusing jury instructions rests ‘in the sound discretion of the trial court.’ " Pena Pinedo v. Commonwealth , 300 Va. 116, 121, 860 S.E.2d 53 (2021) (quoting Cooper v. Commonwealth , 277 Va. 377, 381, 673 S.E.2d 185 (2009) ). "Our sole responsibility in reviewing [jury instructions] is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises." Id. (alteration in original) (quoting Cooper , 277 Va. at 381, 673 S.E.2d 185 ). "[W]hether a jury instruction accurately states the relevant law is a question of law that we review de novo." Watson v. Commonwealth , 298 Va. 197, 207, 835 S.E.2d 906 (2019) (quoting Payne v. Commonwealth , 292 Va. 855, 869, 794 S.E.2d 577 (2016) ).

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." Specifically, Miles maintains that "a claim of conviction for a non-existent offense can be made at any time," just as subject matter jurisdiction or an indictment's failure to charge an offense may be raised at any time. ² Moreover, he contends that a trial court lacks subject matter jurisdiction to enter a conviction when a jury instruction misstates the elements of the offense. We disagree.

"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." Cangiano v. LSH Bldg. Co. , 271 Va. 171, 181, 623 S.E.2d 889 (2006). "The doctrine protects a basic tenet of fair play: No one should be permitted, in the language of the vernacular, to talk through both sides of his mouth."

W. Refin. Yorktown, Inc. v. Cnty. of York , 292 Va. 804, 826, 793 S.E.2d 777 (2016) (quoting Wooten v. Bank of Am., N.A. , 290 Va. 306, 310, 777 S.E.2d 848 (2015) ). "The approbate-reprobate doctrine is broader and more demanding than Rule 5A:18." ³ Alford v. Commonwealth , 56 Va. App. 706, 709, 696 S.E.2d 266 (2010). Thus, a defendant does not suffer a "grave injustice" when he concurs with or invites the trial court's ruling. ⁴ Id. 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. ⁵

II. "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 Huber neither lived nor slept there. Miles maintains that Code § 18.2-279 "is not designed for the protection of police officers who enter dwellings for the purpose of investigating crimes." ⁶

We apply a de novo standard of review to the trial court's interpretation of a statute. Hall v. Commonwealth , 296 Va. 577, 582, 821 S.E.2d 921 (2018). "[W]e owe no deference to the circuit court's interpretation of the statutory scheme." Cannaday v. Commonwealth , 75 Va. App. 707, 716, 879 S.E.2d 604 (2022) (alteration in original) (quoting Esposito v. Va. State Police ,...