MEMORANDUM OPINION* BY v. Record No. 0344-17-1 JUDGE ROBERT P. FRANK FEBRUARY 13, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS C. Peter Tench, Judge

Joshua A. Goff (Goff Voltin, PLLC, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Jamar Dominic Green, appellant, was convicted in a jury trial of use of a firearm in the commission of a felony in violation of Code § 18.2-53.1 and discharge of a firearm in a public place in violation of Code § 18.2-280. He argues on appeal that Code § 18.2-280(E) precluded the Commonwealth from charging him with both firearm offenses, that the evidence was insufficient to convict him, and that the trial court erred in refusing to instruct the jury on self-defense, accidental wounding of another while acting in self-defense, duress, and the right to arm. We hold that the jury was properly instructed and the evidence was sufficient to convict appellant, but we find the trial court erred in not requiring the Commonwealth to elect which firearm offense it would prosecute. Thus, we remand appellant’s convictions under Code

§§ 18.2-53.1 and 18.2-280 with direction for the Commonwealth to elect which one of the firearm convictions should be set aside.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND The evidence established that on the evening on March 3, 2016, Michael Griffin went to Club Paradise in Newport News with some friends. Griffin saw appellant sitting at the bar with some other men, but was not acquainted with appellant and had no interaction with him. At some time after 11:00 p.m., Griffin testified he went outside to put some food he had ordered in his car and then stood outside the club to smoke a cigar. Video excerpts from the club’s surveillance cameras, which were played at trial, showed that as Griffin re-entered the club, a man and a woman left the club and got into an SUV that was parked on the left side of the club toward the rear of the building. The man turned on the vehicle’s lights as though he “was ready to go,” but he did not leave immediately. The club owner testified that the man had argued with the woman earlier in the evening after seeing her talk with appellant and that the man grabbed the woman and “yanked” her out of the club. The video further revealed appellant exited the club and stood outside near the front door. About a minute later, Griffin and another man, who was wearing a knit hat and had been seen inside the club with appellant, came out of the club. Griffin testified he walked toward the parked SUV, intending to talk to the man about playing more pool, as they had played earlier in the evening. While the man with the knit hat stood at the front door of the club, holding it partially open, appellant walked to the passenger side of appellant’s car, which was parked near the left corner of the building, and retrieved an item from the car before returning to the walkway at the corner of the building. Appellant appeared to be hiding something. The video revealed that as soon as appellant returned to the “balcony” of the club, he turned around with a gun in his hand. The club owner, who was watching the incident in real time on the surveillance cameras inside the club, testified that appellant retrieved his gun from his vehicle, returned to the front of the club, turned around, and was “aiming to shoot” the man in the SUV, but before he could do so, “[t]he [SUV] guy got [appellant] first.” Appellant ran into the club after he was shot. The man in the knit hat grabbed appellant’s gun and then stood at the partially opened front door and fired at the departing SUV. Appellant left the premises before police arrived at 12:38 a.m.

Griffin was the only person in the parking lot when the police arrived.

Griffin was shot in his left hip as he was standing by the driver’s side of the SUV talking

with the driver. Griffin testified at trial that immediately before he was shot, the man driving the SUV told him to “get out the way.” Griffin said he was shot before he saw the SUV driver pull out a gun and start shooting, as the SUV fled the parking lot at a high rate of speed. The driver did not aim his gun at Griffin. Griffin heard “a whole lot of shooting” as he ducked for cover behind a nearby parked car.

The officers investigating the crime initially thought that appellant was a victim of the shooting. When interviewed at the hospital a few days after the incident, before he was a suspect, appellant told the police he had not had a gun at the time of the shooting, had not fired

any shots, and did not know who the shooter was. After watching the surveillance video, the police determined appellant had fired the first shot and did not follow up on other possible suspects. The persons in the SUV were never identified or located.

The police did not recover any weapons, but they found nineteen cartridge cases at the scene, most of which were located within nineteen feet of the front door of the club and on the left side of the parking lot. Two cars belonging to persons who were at the club, which were parked on the left side of the lot near the street, were hit by bullets.

At the conclusion of the Commonwealth’s case in chief, appellant moved to strike the charges, arguing the evidence showed that he had acted in self-defense and that Code

§ 18.2-280(E) precluded the Commonwealth from prosecuting him for discharging a firearm in public as well as aggravated malicious wounding and the related use of a firearm in the commission of that offense. The Commonwealth argued that the offenses had different elements, and the court denied the motion. Appellant presented no evidence and renewed his motion on the same grounds, which the court again denied.

This appeal followed.

ANALYSIS

I. Code § 18.2-280(E)

Code § 18.2-280 criminalizes the willful discharge of firearms in public places.

Depending on where the act occurs and whether anyone is injured, the offense may be punished as a Class 1 misdemeanor, or a Class 4 or a Class 6 felony. Here, appellant was charged with a

Class 6 felony under Code § 18.2-280(A), namely, that he willfully discharged a firearm in a public place, which resulted in bodily injury to another person. Appellant also was charged with

aggravated malicious wounding and the related use of a firearm. The jury acquitted appellant of aggravated malicious wounding but convicted him of discharging a firearm in public under Code

§ 18.2-280 and use of a firearm in the commission or attempted commission of aggravated malicious wounding or malicious wounding under Code § 18.2-53.1.

Code § 18.2-280(E) states: “Nothing in this statute shall preclude the Commonwealth from electing to prosecute under any other applicable provision of law instead of this section.”

According to appellant, this subsection “does not allow the Commonwealth to charge a defendant with discharging a firearm in public causing bodily injury and another crime involving an injury that occurred from the same gunshot.”

The sole issue presented in the assignment of error is the construction of Code

§ 18.2-280(E). On appeal, we consider questions of statutory interpretation de novo. Warrington v. Commonwealth, 280 Va. 365, 370, 699 S.E.2d 233, 235 (2010); Le v. Commonwealth, 65

Va. App. 66, 76, 774 S.E.2d 475, 488 (2015).

Appellant contends that the unambiguous language of subsection (E) requires the Commonwealth to choose either to prosecute under Code § 18.2-280(A), (B), or (C) or to prosecute under “any other applicable provision of law instead of [Code § 18.2-280].”

Specifically, appellant argues that a prosecution for aggravated malicious wounding and a related charge for use of a firearm bars a prosecution for discharging a firearm under Code

§ 18.2-280(A). The Commonwealth responds that appellant’s interpretation would create absurd results, as it would bar the Commonwealth from prosecuting a clear violation of Code

§ 18.2-280(A) in a case where a perpetrator shot a victim during the course of a robbery, causing permanent and significant physical impairment. The Commonwealth also posits that appellant’s interpretation would limit the Commonwealth to prosecuting the perpetrator only for discharging

a firearm under Code § 18.2-280(A), rather than for the more serious offenses of robbery and aggravated malicious wounding.

Under well-established principles of statutory construction, when a statute . . . is clear and unambiguous[,] . . . a court may look only to the words of the statute to determine its meaning. The intention of the legislature must be determined from those words, unless a literal construction would result in a manifest absurdity. Thus, when the legislature has used words of a clear and definite meaning, the courts cannot place on them a construction that amounts to holding that the legislature did not intend what it actually has expressed.

Hubbard v. Henrico Ltd. Pshp., 255 Va. 335, 339-40, 497 S.E.2d 335, 337 (1998) (citations omitted). Also, “[w]ords in a statute should be interpreted, if possible, to avoid rendering words superfluous.” Cook v. Commonwealth, 268 Va. 111, 114, 597 S.E.2d 84, 87 (2004).

Code § 18.2-280(E) states the Commonwealth is not precluded “from electing to prosecute under any other applicable provision of law instead of this section.” (Emphasis

added). “Generally, the words and phrases used in a statute should be given their ordinary and usually accepted meaning . . . .” Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530, 534 (1994). “Elect” is defined as “to pick out; to select from two or more; to choose; to determine in favor of.” Webster’s New Universal Unabridged Dictionary 582 (2d ed. 1983).

“Instead” is defined as “an alternative or substitute,” used “in place of the person or thing mentioned.” Id. at 951.

There is no ambiguity in Code § 18.2-280(E), and no further interpretation is necessary.

“When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that language.” Vaughn, Inc. v. Beck, 262 Va. 673, 677, 554 S.E.2d 88, 90 (2001). The Commonwealth’s interpretation of the statute renders the words “elect” and “instead”

superfluous. See Cook, 268 Va. at 114, 597 S.E.2d at 87. Thus, Code § 18.2-280(E) requires the Commonwealth to choose to prosecute under Code § 18.2-280(A), (B), or (C) or choose to prosecute under any other applicable provision of law.

Furthermore, the Commonwealth’s hypothetical fails. Code § 18.2-280(E) does not limit

the Commonwealth to prosecuting only the discharge of a firearm offense if a perpetrator commits that offense while committing murder or robbery. The statute simply gives the Commonwealth a choice as to which offense to prosecute and the Commonwealth can proceed with the murder and robbery charges, if it so chooses.

A statute should be construed consistent with legislative intent, as determined from the words used in the statute. See Turner v. Commonwealth, 65 Va. App. 312, 323, 777 S.E.2d 569, 575 (2015). If the legislature had intended the statute to mean what the Commonwealth asserts it means, the legislature could have said so. For example, Code §§ 18.2-36.1 and 18.2-36.2, which provide that a person is guilty of involuntary manslaughter if he causes the death of another while driving or operating a watercraft while under the influence of alcohol or drugs, state that

“[t]he provisions of this section shall not preclude prosecution under any other homicide statute.”

Code §§ 18.2-36.1(C) and 18.2-36.2(C). Code § 18.2-108.01, which proscribes the commission of larceny with the intent to sell or distribute stolen property, contains a provision specifying that

“[a] violation of this section constitutes a separate and distinct offense.” Code § 18.2-108.01(C).

In his motion to strike, appellant challenged the sufficiency of the evidence but also raised his argument regarding Code § 18.2-280. Appellant’s motion to strike was not the proper

vehicle for raising a statutory interpretation issue. “The office of a motion to strike the evidence, made at the conclusion of the Commonwealth’s case, is to challenge the sufficiency . . . of the evidence.” Poole v. Commonwealth, 211 Va. 258, 260, 176 S.E.2d 821, 823 (1970). See also

Rule 3A:15(a) (stating in part: “After the Commonwealth has rested its case or at the conclusion of all the evidence, the court on motion of the accused may strike the Commonwealth’s evidence if the evidence is insufficient as a matter of law to sustain a conviction.”).

Appellant should have challenged the indictments for the firearm offenses before trial and required the Commonwealth to elect which offense it intended to prosecute. See Code

§ 19.2-266.2 (providing that defense motions seeking to dismiss indictment must be made in writing not later than seven days before trial, but court may allow motion to be raised later “for good cause shown and in the interest of justice”). We assume without deciding that appellant’s

statutory construction argument, which he made during the motion to strike, was both timely and an inartful but separate motion that the Commonwealth make the election required by Code

§ 18.2-280(E). We find then, for the reasons stated, the trial court erred in not granting appellant’s motion and requiring the Commonwealth to elect which offense it would prosecute.

We remand appellant’s convictions under Code §§ 18.2-53.1 and 18.2-280 with direction for the Commonwealth to elect which of the two convictions should be set aside.

II. Motion to Strike – Self-Defense

Essentially, appellant challenges the sufficiency of the evidence, contending the evidence did not exclude the reasonable theory of innocence that he fired his weapon in self-defense. It is important to note that appellant is not challenging the jury’s finding of fact, but only the trial court’s failure to grant his motion to strike.

A motion to strike challenges whether the evidence is sufficient to submit the case to the jury. What the elements of the offense are is a question of law that we review de novo. Whether the evidence adduced is sufficient to prove each of those elements is a factual finding, which will not be set aside on appeal unless it is plainly wrong. If reviewing that factual finding, we consider the evidence in the light most favorable to the Commonwealth and give it the benefit of all reasonable inferences fairly deducible therefrom.

Lawlor v. Commonwealth, 285 Va. 187, 223-24, 738 S.E.2d 847, 868 (2013) (citations omitted).

After viewing the evidence, the Court asks

whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In sum, if there is evidence to support the conviction, the reviewing court is not permitted to substitute its judgment, even if its view of the evidence might differ from the conclusions reached by the finder of fact at the trial.

Id. at 224, 738 S.E.2d at 868 (quoting Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d

733, 735 (2011) (citations, internal quotation marks, and alterations omitted)).

The court’s role, in evaluating whether to grant the motion to strike, is to determine whether the evidence is sufficient to convict appellant of the charges. “Whether an accused proves circumstances sufficient to create a reasonable doubt that he acted in self-defense is a question of fact.” Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993).

Put differently, the question is whether the evidence is sufficient for the jury to acquit appellant

because he acted in self-defense.^[1] Further, while a “scintilla of evidence” is relevant in determining whether to grant a jury instruction, it is not the standard used to evaluate a motion to strike.

Virginia law recognizes two forms of self-defense to criminal acts of violence: self-defense without fault (“justifiable self-defense”) and self-defense with fault (“excusable self-defense”). “Justifiable homicide in self-defense occurs where a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself.” Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958). On the other hand,

[e]xcusable homicide in self-defense occurs where the accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm. Id.

Bell v. Commonwealth, 66 Va. App. 479, 487, 788 S.E.2d 272, 275-76 (2016).2 See also

Cortez-Hernandez v. Commonwealth, 58 Va. App. 66, 81, 706 S.E.2d 893, 901, aff’d on reh’g en banc, 59 Va. App. 37, 716 S.E.2d 484 (2011).

Appellant’s theory is that he acted in justifiable self-defense, not excusable self-defense.

He frames his self-defense argument on his claim that he did not fire the first shot and was not the aggressor. According to appellant, “[i]t simply cannot be determined from the available evidence whether [appellant] fired first or fired only after he was fired upon.” Appellant also asserted with respect to his claim that the jury should have been instructed on self-defense that

“[t]he surveillance footage, which the detective acknowledged was central to his charging decision, did not show what was happening at the moment [appellant] fired his weapon[,] whether [appellant] was shot prior to allegedly discharging his firearm.” Appellant argued at trial during his motion to strike that the video did not show who was the first person to brandish or fire a firearm, as appellant was “struck almost instantly several times” and then “an unknown person” fired a weapon3 and “undoubtedly there’s firing coming from the vehicle as well, but

[the video does not show] the timeline in which that occurred.” Appellant also argued there was no evidence as to why the shooting occurred or “who started it.”

Self-defense is an affirmative defense and the defendant “assumes the burden of introducing evidence of justification or excuse . . . .” McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). It was appellant’s burden to show that he fired only after he was shot. He failed to do so. By appellant’s own argument, the evidence did not show he was not the aggressor.

Additionally, other evidence in the case established appellant was the aggressor. The club owner testified at trial that the man in the SUV had argued with his supposed girlfriend after

she had spoken with appellant inside the club and the man had then “yanked” the woman out of the club. There was no evidence, however, that this incident caused appellant to fear death or bodily harm was imminent, thus necessitating that he arm himself for protection.

Griffin testified that he was standing by the side of the SUV talking with the male driver when the man told him to “get out the way” and immediately after that, Griffin was shot in his left hip. Griffin said he was shot before he saw the SUV driver pull out a gun, which he did not aim at Griffin. Griffin ducked for cover behind a nearby parked car, from where he heard “a whole lot of shooting.”

The video excerpts from the club’s surveillance cameras showed appellant leave the club

after the man in the SUV left the club. Appellant then retrieved an item from his car and returned to the walkway in front of the club. Appellant stood at the corner of the club’s building