COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judge O’Brien and Senior Judge Humphreys PUBLISHED

Argued by videoconference

EVAN PATRICK BENNETT OPINION BY v. Record No. 0453-24-2 CHIEF JUDGE MARLA GRAFF DECKER MAY 13, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY B. Elliott Bondurant, Judge

Kevin Purnell (Kevin D. Purnell, PLLC, on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General; Matthew P. Dullaghan,1 Senior Assistant Attorney General, on brief), for appellee.

Evan Patrick Bennett appeals his convictions, rendered in a jury trial, for malicious

wounding and strangulation in violation of Code §§ 18.2-51 and -51.6. Bennett argues that the Commonwealth failed to prove he acted with malice and suggests instead that he acted in self-

defense. He also contends that the trial court should have declared a mistrial when a juror initially stated that she disagreed with the guilty verdicts and that it compounded the error by giving an Allen charge2 when it directed the jury to deliberate further. We hold the trial court did not err and affirm Bennett’s convictions.

Matthew P. Dullaghan became an employee of this Court on February 10, 2025. He has had no involvement in the Court’s review of this case.

The term “Allen charge” derives from Allen v. United States, 164 U.S. 492, 501-02 (1896), “the seminal case approving the use of a jury instruction encouraging each juror to reconsider and listen to the conclusions of the other jurors in order to reach a unanimous verdict,” if unanimity can be achieved “without surrendering [one’s] conscientious opinion.” Drexel v. Commonwealth, 80 Va. App. 720, 745-46, 746 n.8 (2024).

BACKGROUND3

Bennett and Charles E. Seay, Jr., the victim, lived next door to each other in a semi-rural area. Their relationship was contentious at times. The criminal convictions at issue stem from

Bennett’s brutal attack on Seay.

One afternoon in August 2021, Seay returned home while Bennett was mowing his lawn.

When Seay left his home a short time later, he had a handgun in a holster at his waist, under his shirt, as he always did.^[4] As he drove along his driveway toward the road, he noticed that Bennett stopped mowing his lawn.

Seay got out of his truck near the edge of his property to retrieve mail from his mailbox.

Bennett, who was at his own mailbox about sixty-five yards away, quickly approached Seay, walking along the road while yelling “aggressive[ly].” Seay could not understand what Bennett was saying and yelled back, “Come on man, what’s your problem.” Although Bennett continued to approach, Seay turned to get back into his truck. Bennett grabbed his shirt from behind and jerked him backward, causing Seay to fall to the ground in his driveway. Seay got up, and the two exchanged punches.^[5] They then both fell to the ground, with Bennett straddling Seay. Bennett “kneed,” hit, and kicked him. With both hands around Seay’s throat, Bennett choked him with hard pressure for eight to ten seconds. Seay could not breathe, and his vision became “splotchy.” Bennett exclaimed that

“he was going to kill” Seay. At that point, Seay reached for his firearm, but it was not in his holster.

He managed to get Bennett off him briefly, and the men rolled down a slope. Bennett wrapped an arm around Seay’s neck from behind and placed him in a “choke hold” for twenty to thirty seconds.

Seay was “gasping for air” and “going in and out of consciousness.” Bennett’s wife arrived and pulled him off Seay. But Bennett “stomped” on Seay’s foot as he and his wife left for their home.

Still gasping for air, Seay struggled to stand. He found his gun beside his truck, got back into the truck, and called the police.

Deputies from the King William County Sheriff’s Office arrived and questioned Bennett, who claimed that Seay “brandished a firearm” and he “fear[ed] for [his] life.” Bennett suggested that Seay started the altercation by calling him insulting names. He also said that Seay reached for his firearm during the incident but did not remove it from the holster.

In the days after the attack, Seay experienced extreme throat soreness and difficulty swallowing. He experienced facial numbness that lasted for months. Seay also sustained a broken orbital bone, abrasions to his nose, face, forehead, and scalp, bruising adjacent to both eyes, and bleeding in his right eye. Seay had several discolored abrasions around his throat.

Additionally, he sustained burst blood vessels in his left eye and mouth consistent with strangulation. The back neck area of his t-shirt was ripped, and the front neck area was stretched.

Bennett was indicted for malicious wounding and strangulation. At trial, Seay described

Bennett’s unprovoked attack.^[6] Testimony from a neighbor, Richard Jones, supported Seay’s account that Bennett advanced toward Seay near Seay’s truck. Jones, who was driving by when the fight began, testified that Bennett was the first one to “throw[] punches” and that he “did not see any firearm.”

At the close of the Commonwealth’s case-in-chief, Bennett moved to strike the evidence.

He argued that he acted in self-defense rather than with malice and that Seay was not credible.

The trial court denied Bennett’s motion.

Bennett testified in his own defense, contending that the fight occurred on his property, not in Seay’s driveway. According to Bennett, Seay, without provocation, “rushed” at him and challenged him to fight. Bennett claimed that Seay reached for his firearm and he responded by putting his arms around Seay to stop him from pulling the gun. He testified that the two then rolled around on the ground as Seay continuously attempted to reach for his gun and punched

Bennett. Bennett said he yelled at Seay to stop reaching for the gun. He admitted that he could have choked Seay while trying to get the gun away from him. He believed Seay wanted to kill him and asserted that once he realized the gun was no longer a threat, he withdrew from the fray.

He acknowledged that Seay never pointed the gun at him and, in fact, that he never saw the gun outside the holster.

Bennett’s wife testified that “a commotion” drew her outside. Bennett and Seay were wrestling, and as she approached them, she heard Bennett telling Seay not to grab the gun. After the fight, she and Bennett returned home while Seay searched the brush for something. Bennett told her repeatedly that Seay had a gun, and she knew that Seay “conceal[ed] carrie[d].”

At the close of all the evidence, Bennett renewed his motion to strike, which the trial court denied. After deliberating for about ninety minutes, the jury informed the trial court that it

had reached a verdict. Immediately after the clerk read the verdicts—finding Bennett guilty of malicious wounding and strangulation—Juror 25 spontaneously remarked, “[T]hat is not what I

voted for.” The trial court then polled the jury, asking each juror if “this [is] your verdict.” Juror 25 answered, “No.” After the poll, the jury returned to the jury room at the trial court’s direction.

Outside the jury’s presence, the Commonwealth argued that, in light of Juror 25’s

comments, the jury should be directed to deliberate further. Bennett contended that giving the jury an Allen charge would not cure the problem and the court should grant a mistrial instead, arguing that Juror 25 would be pressured by the others if they were forced to continue deliberating. The court concluded that it was appropriate to direct the jury to deliberate further and it had the authority to do so. In keeping with that ruling, the court brought the jury back into the courtroom and gave them an Allen charge. It instructed the jurors that it was their duty to reach a unanimous verdict if they could “possibly . . . do so” without “giv[ing] up [their] honest opinion[s] as to the evidence.” A short time later, the jury returned verdicts finding Bennett

guilty of the two offenses.^[7] This time, all the jurors, when polled individually, confirmed that the verdicts were unanimous.

Bennett renewed his motion for a mistrial, adding that the jury’s short period of additional deliberations after the Allen charge further supported the motion. He also made a motion to set aside the verdicts based on the arguments raised in his motions to strike. The trial

court denied both motions and sentenced Bennett to a total of seventeen years’ incarceration, with fourteen years suspended.

ANALYSIS

Bennett challenges his convictions on two grounds. First, he contends that the trial court erred by holding that the evidence was sufficient to support his conviction for malicious wounding.

Second, he suggests that it erroneously denied his motion for a mistrial. We examine these claims in turn.

I. Sufficiency of the Evidence

“[W]hen reviewing whether the evidence was sufficient to convict a defendant of a criminal offense, an appellate court has a ‘limited’ role . . . .” Commonwealth v. Wilkerson, ___

Va. ___, ___ (Feb. 20, 2025) (quoting Commonwealth v. Garrick, 303 Va. 176, 182 (2024)).

The trial court’s judgment confirming the jury’s verdicts “is presumed correct and will not be

disturbed unless it is ‘plainly wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017) (quoting Code § 8.01-680). The only relevant question on appeal “is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact,” in this case the jury, “could have found the essential elements of the crime beyond

a reasonable doubt.” Commonwealth v. Barney, 302 Va. 84, 97 (2023) (quoting Sullivan v. Commonwealth, 280 Va. 672, 676 (2010)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact . . . .’” McGowan v. Commonwealth, 72

Va. App. 513, 521 (2020) (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).

In assessing the evidence, this Court is mindful that “[d]etermining the credibility of witnesses . . . is within the exclusive province of the [fact finder], which has the unique opportunity to observe the demeanor of the witnesses as they testify.” Maust v. Commonwealth, 77 Va. App.

687, 702 (2023) (en banc) (alterations in original) (quoting Dalton v. Commonwealth, 64 Va. App.

512, 525 (2015)). And “[t]he trier of fact is ‘free to believe or disbelieve, in part or in whole, the testimony of any witness.’” Washington v. Commonwealth, 75 Va. App. 606, 616 (2022)

(quoting Bazemore v. Commonwealth, 42 Va. App. 203, 213 (2004) (en banc)). This principle further permits the jury “to disbelieve the self-serving testimony of the accused and to conclude that [he] is lying to conceal his guilt.” Id. (quoting Flanagan v. Commonwealth, 58 Va. App.

681, 702 (2011)). Credibility determinations simply “will not be disturbed on appeal unless plainly wrong.” Maust, 77 Va. App. at 703 (quoting Towler v. Commonwealth, 59 Va. App. 284, 291 (2011)).

Bennett argues that the Commonwealth failed to prove he acted with malice, thereby precluding his conviction for malicious wounding.^[8] He suggests that the evidence proved he was merely defending himself and supported a conviction of no more than unlawful wounding.^[9] A conviction for malicious wounding necessarily requires proof that the defendant acted with malice. Johnson v. Commonwealth, 58 Va. App. 303, 316 (2011); see Code § 18.2-51. If the evidence instead proves that the accused acted in the heat of passion, the element of malice is negated, supporting a conviction for the lesser-included offense of unlawful wounding. See

Witherow v. Commonwealth, 65 Va. App. 557, 569 n.4 (2015) (recognizing that fear insufficient

to prove justifiable self-defense may nonetheless demonstrate heat of passion). Significantly, whether a defendant acted with malice or in the heat of passion is a question of fact. See Meade v. Commonwealth, 74 Va. App. 796, 814 (2022).

Virginia’s appellate courts “have ‘long defined malice as “the doing of a wrongful act

intentionally, or without just cause or excuse, or as a result of ill will.”’” Shaw v. Commonwealth, ___ Va. ___, ___ (Apr. 17, 2025) (quoting Watson-Scott v. Commonwealth, 298

Va. 251, 255-56 (2019)). Malice is established where a defendant “commit[s] a purposeful and cruel act without any or without great provocation.” Synan v. Commonwealth, 67 Va. App. 173, 187 (2017) (quoting Robertson v. Commonwealth, 31 Va. App. 814, 823 (2000)). This state of mind “may exist alongside and arise from ‘anger, hatred[,] and revenge’ as well as any other

‘unlawful and [unjustified] motive.’” Meade, 74 Va. App. at 813 (alterations in original) (quoting

Watson-Scott, 298 Va. at 256). It “may be either express or implied by conduct.” Watson-Scott, 298 Va. at 256 (quoting Essex v. Commonwealth, 228 Va. 273, 280 (1984)). “[M]alice is implied by law from any deliberate, willful, and cruel act against another, however sudden.”

Witherow, 65 Va. App. at 566 (quoting Epperly v. Commonwealth, 224 Va. 214, 231 (1982)).

“In contrast to the deliberate mind required for malice, ‘[h]eat of passion refers to the furor brevis [that] renders a man deaf to the voice of reason.’ . . . [U]nlike malice, the heat of passion [involv]es ‘. . . act[ing] on impulse without conscious reflection.’” Meade, 74 Va. App. at 814 (first alteration in original) (quoting Rhodes v. Commonwealth, 41 Va. App. 195, 200 (2003)). Even so, that impulse must be based on “reasonable provocation,” such as “rage, fear, or a combination of both.” Barrett v. Commonwealth, 231 Va. 102, 106 (1986); cf. Taylor v. Commonwealth, 77 Va. App. 149, 171 (2023) (noting that an act in self-defense “must be proportional to the threat posed” (quoting Peeples v. Commonwealth, 30 Va. App. 626, 635

(1999) (en banc))).

Bennett argues that Seay instigated the violent altercation by “approach[ing him] while reaching for his firearm” and that Bennett acted merely “to protect himself from harm from

Seay.” He further suggests that Seay’s failure to tell the police he was armed showed that his version of the events was not worthy of belief.

The bottom line here is that the jury was presented with conflicting accounts of what took place and was responsible for determining which one to credit. Seay testified that Bennett was the aggressor. He explained that although he was carrying a firearm in a holster, Bennett started

the fight by rushing him on his own property and attacking him from behind. Seay’s mail and various personal possessions were found on or beside his driveway where he said the attack took place. His account was further bolstered by the testimony of Jones, a neighbor not shown to be biased for or against either man. Jones saw Bennett advance toward Seay and “throw[ the first] punches,” and Jones did not see a firearm. Seay denied calling Bennett any names, brandishing his firearm, or threatening Bennett during the entire attack. In fact, Seay testified that he did not

reach for his firearm until Bennett pinned him to the ground, beat and choked him, and threatened to kill him. Seay further explained that when he reached for his gun at that time, it was not in his holster. Although Bennett claimed that he saw Seay’s gun before the attack, he admitted that he did not see Seay point the weapon at him or even remove it from the holster at that time.

In determining the credibility of the witnesses, the jury was able to consider any omissions in Seay’s description of the incident to law enforcement and inconsistencies between

those descriptions and his testimony. See generally Lockhart v. Commonwealth, 34 Va. App. 329, 342 (2001) (holding that the trier of fact is free to credit a witness’s testimony even if the witness’s prior statements contained inconsistencies). It also had the opportunity to consider Seay’s explanations for those omissions and inconsistencies. Faced with all the evidence, the jury could

reasonably have credited Seay’s account of the attack, supported by other evidence, and concluded that Bennett was not acting in self-defense. See Garrick, 303 Va. at 182; Washington, 75 Va. App. at 615-16.

The circumstances under which Bennett wounded Seay and the severity of the injuries he

inflicted support the jury’s factual finding that Bennett acted with malice. See Burkeen v. Commonwealth, 286 Va. 255, 260-61 (2013). Although Seay had a gun, he did not point it at

Bennett or even intentionally remove it from its holster. Bennett instigated the fight by

approaching Seay in Seay’s own driveway in an angry and aggressive manner. See Virginia v. Commonwealth, 17 Va. App. 684, 688 (1994). When Seay attempted to get back into his truck and leave to avoid the altercation, Bennett pulled him backward with such force that he ripped Seay’s shirt and caused him to fall. Bennett then beat, kicked, and “kneed” Seay, breaking his orbital bone and inflicting other injuries. At one point, Bennett choked Seay with both hands and threatened to

kill him. He continued the attack even after Seay’s gun became dislodged from its holster and was out of reach. He then put Seay in a choke hold, causing him to lapse in and out of consciousness. The combined effects of the beating and choking caused numerous injuries to

Seay’s face, neck, and scalp. Bennett did not stop the attack until his wife pulled him off Seay, who was lying severely injured on the ground. Bennett stomped on Seay’s foot as he was leaving. The violence, brutality, and length of Bennett’s unprovoked attack amply support the - 10 - jury’s finding that he acted with malice. See Ramos v. Commonwealth, 71 Va. App. 150, 162-63

(2019).

In sum, the jury’s finding that Bennett was the aggressor and maliciously wounded Seay was not plainly wrong or without supporting evidence. As a result, the trial court did not err by denying Bennett’s motions to strike the evidence and set aside the malicious wounding verdict.

II. Unanimity of the Jury Verdict

“Under settled principles of appellate review, ‘the party moving for a mistrial . . . has the burden of establishing a manifest probability of prejudice.’” Brown v. Commonwealth, 64 Va. App.

59, 67 (2014) (quoting Perez v. Commonwealth, 40 Va. App. 648, 655 (2003)); see Clark v. Commonwealth, 78 Va. App. 726, 756 (2023). And granting a mistrial is a drastic remedy available only in extreme circumstances. See Prieto v. Commonwealth, 278 Va. 366, 389 (2009).

The appellate court reviews the denial of a motion for a mistrial under an abuse-of- discretion standard. Id. It examines a decision about whether to give a jury instruction, in this case

an Allen instruction, under the same standard. See Drexel v. Commonwealth, 80 Va. App. 720, 742, 746 (2024). “Only when reasonable jurists could not differ can we say an abuse of discretion has

occurred.” Bista v. Commonwealth, ___ Va. ___, ___ (Nov. ^[14], 2024) (quoting Commonwealth v. Swann, 290 Va. 194, 197 (2015)). Under this standard, when a trial court “has a range of choice,” the appellate court will not disturb its decision “as long as it stays within that range and is not influenced by any mistake of law.” Minh Duy Du v. Commonwealth, 292 Va. 555, 563-64

(2016) (quoting Lawlor v. Commonwealth, 285 Va. 187, 212-13 (2013)). “This bell-shaped

curve of reasonability [is based] on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie.” Id. at 564 (quoting Sauder v. Ferguson, 289

Va. 449, 459 (2015)). We apply these clear legal standards here.

- 11 - Bennett contends that the trial court’s response when the jury returned a nonunanimous verdict was error. He suggests that the court should have granted his motion for a mistrial at that time and abused its discretion by instead giving the jury an Allen instruction directing it to deliberate further. We disagree for the reasons that follow. The Virginia Constitution “guarantee[s] criminal defendants ‘the right to a speedy and public trial, by an impartial jury . . . , without whose unanimous consent he cannot be found guilty.’” Richardson v. Commonwealth, 67 Va. App. 436, 442 (2017) (emphasis added) (quoting Va. Const. art. I, § 8). But “when jurors have announced their inability to agree[,] it is within the discretion of the trial court to urge on them an earnest effort to reach an agreement.” Drexel, 80 Va. App. at 746 (quoting Poindexter v. Commonwealth, 213 Va. 212, 215 (1972)). This situation is known as a jury “deadlock,” and the instruction to continue deliberating in an effort to reach agreement is commonly known as an “Allen charge.” Prieto, 278 Va. at 386-87. “In giving this instruction, a trial court can ‘remind[] the jury of the need to reach a verdict if one can be reached without any individual juror giving up his or her conviction[s].’” Drexel, 80 Va. App. at 746 (first alteration in original) (quoting Prieto, 278 Va. at 387). The recognized purpose of the instruction is to balance fairness to the accused against the time and expense of trial and “the fact that in the event of a disagreement the case will [likely] have to be decided by some [other] jury . . . on the same evidence.” Poindexter, 213 Va. at 215 (quoting Petcosky v. Bowman, 197 Va. 240, 252-53 (1955)); see also Prieto, 278 Va. at 389 (recognizing that “granting . . . a mistrial for manifest necessity may become necessary [if] the jury ceases to function as a jury”). A different but related legal principle relevant in this case is that “[o]nce [a] jury has returned its verdict ‘in open court,’ a defendant has a right to have the jury ‘polled individually,’ to confirm that each juror joins in the verdict and that it is, in fact, unanimous.” Bethea v. Commonwealth, 68 Va. App. 487, 506 (2018) (quoting Humbert v. Commonwealth, 29 Va. App. - 12 - 783, 792 (1999)), aff’d on other grounds, 297 Va. 730 (2019). Virginia’s Rules of Court expressly provide that if jurors fail to agree on the outcome when “polled individually” after seeming to return a verdict, “the jury may be directed to retire for further deliberations or may be discharged.”10 Rule 3A:17(d); see Code § 8.01-361 (authorizing a trial court to “discharge the jury when it appears that they cannot agree on a verdict or that there is a manifest necessity for such discharge”). These two different sets of legal standards are well established individually, but the way in which they interact presents a novel issue for appellate court review. Bennett argues that the trial court’s decision to give an Allen instruction after the jury returned the nonunanimous verdict was error. Relatedly, he suggests that the additional time the jury spent deliberating was inadequate to permit those deliberations to be meaningful. A. Allen Instruction Bennett contends that the trial court’s decision to give an Allen instruction was error for two reasons—because the procedural posture of the case did not involve a “deadlocked” jury in the traditional sense and because the identity of the nonunanimous juror was known outside the jury room. On these facts, he suggests that the Allen charge inappropriately “subject[ed Juror 25] to pressure” and “singled [her] out to conform.”11