Holman v. Commonwealth, Record No. 0629-22-2 (Va. Ct. App. Apr. 18, 2023)
Some of us may never hear this phrase again in our legal lifetimes: “The ‘ends of justice’ exception applies.”
Facts. Marcus Holman and his domestic partner Selena Spurlock got into an argument that culminated in Holman driving to Spurlock’s home and trying to enter it. Holman had been hunting and had his shotgun with him. Spurlock called Holman’s sister Nikki, who arrived about twenty minutes later with her boyfriend Shawn. Nikki and Shawn tried to take the gun from Holman while Spurlock, from a second-floor window, told Holman she was calling the police. As Spurlock spoke to the police, Holman fired twice. The pellets hit the side of the house to the left of the window and the windowpane where Spurlock was standing. Spurlock was hit and permanently injured.
Holman was indicted on aggravated malicious wounding and use of a firearm in the commission of a felony in violation of Code § 18.2‑53.1. At the bench trial, Holman testified that he was frustrated and humiliated that Spurlock had called his sister and the police, he did not know where in the house Spurlock was when he fired, and he did not know that Spurlock was injured when he left the house. Testimony from Spurlock, Shawn, and the officer who interviewed Holman corroborated this.
After resting, Holman moved to strike the evidence because the Commonwealth had failed to prove malice and the specific intent necessary for malicious wounding. The trial court granted the motion but proceeded on the less-included charge of unlawful wounding. Through counsel, Holman pled guilty to unlawful wounding and stipulated that the evidence was sufficient to find him guilty of using a firearm in commission of a felony. Without a plea colloquy, the trial court accepted and found him guilty of both charges.
After sentencing, Holman filed a pro se motion to reconsider his conviction for using a firearm in the commission of a felony because unlawful wounding is not an offense listed in Code § 18.2‑53.1 that can support that conviction; the trial court never ruled on his motion. Holman appealed both convictions.
Issue. (1) Whether the evidence was sufficient to prove the requisite intent for unlawful wounding. (2) Whether the ends of justice exception applies to Holman’s conviction for use of a firearm in the commission of a felony.
Holding. (1) Yes. (2) The ends of justice exception negates a conviction for use of a firearm in the commission of a malicious wounding when the trial court affirmatively finds an absence of malice.
Notes. (1) The undisputed evidence showed that Holman drunkenly shot his gun in Spurlock’s direction, and fact finders may infer that every person intends the natural and probable consequences of their actions.
(2) A trial court’s ruling will not be reversed on appeal unless an objection was stated “with reasonable certainty at the time of the ruling.” Rule 5A:18 lists two scarcely applied exceptions to this rule: good cause and the ends of justice. Good cause applies when an appellant did not have the opportunity to object in the trial court. The “narrow” ends of justice exception applies “only in the extraordinary situation where a miscarriage of justice has occurred.” To invoke the ends of justice exception, an appellant must demonstrate that they were convicted for conduct that was not a criminal offense, or the record must affirmatively prove that an element of the offense did not occur. Lack of proof is not affirmative evidence that will trigger the exception.
Code § 18.2‑53.1 lists several predicate offenses that will support a conviction for using a firearm in the commission of a felony. Malicious wounding—which requires proof of malice—is a predicate offense, but unlawful wounding is not. Here, the trial court affirmatively found that Holman did not act with malice when it granted his motion to strike and proceeded only on the lesser-included unlawful wounding charge. Thus, an element of Code § 18.2‑53.1 is missing and the ends of justice exception applies.
Finally, the approbate/reprobate and invited error doctrines do not bar use of the ends of justice exception here because those doctrines do not apply to concessions of law. Holman only stipulated that all elements of the offense occurred, and without more, that is only a concession of law. Though Holman stipulated that he was, in fact, a felon who injured another when he discharged a firearm, he expressly disputed the fact that he did so with malice.