Lea v. Commonwealth , 16 Va. App. 300 ( 1993 )

Benton, J.,

dissenting.

‘ ‘If a proffered instruction finds any support in credible evidence, its refusal is reversible error.” McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975). In determining the propriety of the trial judge’s refusal to instruct the jury on the elements of the offense of breaking and entering with the intent to commit a misdemean- or, we must view the evidence in the light most favorable to Lea. Martin v. Commonwealth, 13 Va. App. 524, 526, 414 S.E.2d 401, 401 (1992). I disagree with the majority’s conclusion that the evidence was not “consistent with intent to commit a simple assault and battery.”

The evidence proved that the victim confronted Lea as Lea was attempting to enter the door of her apartment. She rushed to the door and put her weight against the door to thwart his entry. Because the lights were on in the apartment, she saw his face as she pushed a chair to bar the door. During the struggle in the living room, the victim tried to scream. Lea told the victim to “shut up” and grabbed at the victim’s face, trying to put his hand over her mouth. As he grabbed, he knocked her eyeglasses off and tore an elastic string at the top of her nightgown. The fabric of the nightgown was not tom. He then pushed her and told her to “move.” After the victim screamed, Lea ran from the apartment.

Based on the evidence, the trial judge instructed the jury on the elements of attempted rape and the elements of misdemeanor assault and battery. The instruction informed the jury that ‘ ‘if you have a reasonable doubt as to whether [Gregory Darrell Lea] is guilty of attempted rape . . . you shall find him guilty of assault and battery.” The jury rejected the Commonwealth’s hypothesis that Lea attempted to commit a rape and found, instead, that Lea committed the misdemeanor offense of assault and battery.

The majority’s statement that “[t]here is no evidence, other than the fact that Lea committed an assault and battery, that is consistent with his theory that he entered the apartment with the intent to commit a misdemeanor” states precisely the evidence that supported the instruction. ‘ ‘Where [an offense] has actually been committed [during a burglary] that is the best evidence of the intent with which the breaking was committed.” Smyth v. Morrison, 200 Va. 728, 734, 107 S.E.2d 430, 435 (1959). Thus, the same evidence that supported the instruction of assault and battery supported the instruction that the trial judge refused to give concerning breaking and entering with intent to commit a misdemeanor.

Furthermore, the majority’s reason for upholding the refusal to instruct the jury on the lesser included offense also ignores other principles of Virginia law. It is an elementary and fundamental principle that intent is the purpose formed in a person’s mind, which may be shown by conduct. Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989). The Commonwealth had the burden of proving Lea’s intent, and it sought to prove Lea’s intent through an inference to be drawn from his words and actions. The inferences to be drawn from the evidence were matters that required consideration by the jury.

A jury, not the trial court, weighs the evidence and assesses the credibility of the witnesses. It is immaterial that the jury might have rejected the lesser-included offense; if there is evidence tending to support the lesser offense, a trial court errs in refusing an instruction thereon.

Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986). The jury’s finding that Lea committed an assault and battery established tire level of his conduct. That finding demonstrates the invalidity of the majority’s assertion that no evidence introduced was consistent with intent to commit assault and battery. Clearly, Lea’s actual conduct provided a sufficient evidentiary basis to gauge his intent. See Smyth, 200 Va. at 734, 107 S.E.2d at 435.

The majority simply misapplies Hammer v. Commonwealth, 207 Va. 165, 148 S.E.2d 896 (1966). Lea does not dispute the principle stated in Hammer that:

[t]he evidence that rape was not consummated does not negate original intent to rape. This evidence can be properly interpreted as showing only that [the] plan was abandoned.

Id. at 169, 148 S.E.2d at 898 (emphasis added). Indeed, that principle supports Lea’s argument and is contrary to the majority’s holding. What Lea properly asserts on this appeal is that the interpretation of the evidence for the purpose of inferring his intent was a matter for a properly instructed jury.

The purpose in having a jury hear evidence is to allow the jury to determine whether an accused is guilty or not and to measure the degree of guilt. Smyth, 200 Va. at 734, 107 S.E.2d at 434.

The 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.

Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958) (citations omitted).

Because the trial judge erred in refusing to instruct the jury in accordance with the evidence that supported Lea’s theory of defense, I would reverse the conviction. Accordingly, I dissent.