THE CIRCUIT COURT OF ROCKINGHAM COUNTY Bruce D. Albertson,
C. Graves for appellant.
J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Chief Judge Huff, Judges Chafin and Decker Argued at
GRAFF DECKER JUDGE.
Marie Bryant appeals her conviction for unlawfully
discharging a firearm within an occupied building in
violation of Code § 18.2-279. She argues that the
evidence was insufficient to support her conviction because
it did not prove that she intended to fire the gun. The
appellant also contends that the trial court erred by denying
her proposed jury instruction regarding accident. For the
reasons that follow, we conclude that the evidence supports a
factual finding that the appellant discharged the firearm in
violation of Code § 18.2-279. In addition, the trial
court did not err in rejecting the appellant's proposed
jury instruction that the jury could find her guilty only if
the Commonwealth proved that the discharge of the gun was not
accidental. Consequently, we affirm the conviction.
August 8, 2015, the appellant took a .45 caliber handgun from
a friend and drove to a hotel intending to commit suicide.
Officers of the Rockingham County Sheriff's Department
were dispatched to check on the appellant's welfare. They
arrived at the hotel and attempted to make contact with her
in her first floor room. When the appellant did not respond
to the officers, Corporal Thomas James, Deputy Terry Hoopes,
and Sergeant Mike Deeds attempted to open the hotel room
door. The appellant told them that she had a gun and would
shoot herself if they came into the room.
officers described her as "upset, " "angry,
" and "loud." They tried to calm her. They
believed that they were making progress and that she began to
"de-escalat[e]." After about ten minutes, the
officers were surprised by a gunshot from within the
appellant's hotel room. Sergeant Deeds asked the
appellant several times through the door if she "was
okay." She responded that she was not hurt.
officers instructed the appellant to put down the gun, open
the window curtains at the rear of the room, and put her
hands on the window. Investigators Douglas Miller, Jr., and
Wesley Burgoyne stood with Deputy Hoopes to the sides of the
window. Miller and Burgoyne saw the appellant point a gun at
them through the window. Hoopes saw her "wave" the
gun. Shortly thereafter, the appellant put the gun down, and
the officers forced entry into the room.
appellant was arrested and taken into custody. She had an
injury on her hand. The injury was "indicative"
that she "had [her] hand too close to the slide [of the
firearm] as the slide ejected [a ]round when the slide came
back." There was a bullet hole in the floor of the hotel
appellant testified in her defense. She said that she was
depressed over the loss of her job and her mother's
death. The appellant acknowledged that she had put her finger
on the trigger with the gun pointed at her head and started
to press the trigger. She intended to kill herself but then
changed her mind. The appellant explained that as she started
to put the gun down, she had her finger on the trigger and
then heard the gun fire. She said that she did not mean to
fire the gun. According to the appellant, she did not recall
whether she had the gun in her hand when she was at the
window after it fired.
James estimated that the "trigger pull weight" on
the seized firearm was seven pounds. He explained that even
if the trigger had been pulled partially back, it would still
take seven pounds of pressure on the trigger to fire the
weapon. However, James noted that he did not know if the gun
"was in single or double action" when the appellant
discharged it, which would affect the "amount of trigger
pull." The law enforcement witnesses also testified that
they were trained not to put their fingers on the triggers of
their firearms unless they intended to fire their weapons.
James explained that otherwise the trigger may be pulled
through a "sympathetic response" because if a
person squeezes one hand, the other hand "is more than
likely going to squeeze, " resulting in an accidental
Hoopes testified that after the incident, the appellant told
the deputy that she was familiar with firearms and routinely
fired them at the shooting range. At trial, however, the
appellant testified that she did not recall making these
statements, was not familiar with firearms, and had not
previously fired a gun.
completion of the evidence, the appellant proffered a jury
instruction that the Commonwealth was required to prove that
the shooting was not accidental. The court refused the
instruction as not supported by the law and unnecessarily
confusing. The appellant nevertheless argued to the jury in
closing that the firearm discharged accidentally. In
contrast, the prosecutor argued that the appellant
intentionally fired the gun.
jury found the appellant guilty of unlawfully discharging a
firearm within an occupied building in violation of Code
§ 18.2-279. It did not impose a term of incarceration
and instead fixed the appellant's sentence at a fine of
zero dollars. The trial ...