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Howsare v. Commonwealth

Supreme Court of Virginia

June 1, 2017

MARK THOMAS HOWSARE
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

          PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Russell, S.J.

          OPINION

          CHARLES S. RUSSELL, SENIOR JUSTICE

         This appeal presents the question whether, in a homicide case, the jury was improperly instructed on the issue of intent.

         FACTS AND PROCEEDINGS

         In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial. Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608, 608 (2016) (citing Baldwin v. Commonwealth, 274 Va. 276, 278, 645 S.E.2d 433, 433 (2007)).

         Mark Thomas Howsare lived alone in his house in Stafford County. His nephew, William Conner, Jr., lived nearby and had a good relationship with him. Conner frequently helped Howsare around the house and ran errands for him. On the evening of January 19, 2014, Howsare asked Conner to return an air mattress to a store from which it had been purchased. Connor agreed to go and, with his girlfriend, Cheyanne Henry, took the mattress to the store. They were unsuccessful in returning it because the store refused to accept it from them, insisting on Howsare's personal presence to make the exchange. Conner and Henry began driving back to Howsare's house and called him, telling him of the problem and that they were coming to pick him up. Howsare responded, "Like hell you are" and hung up. Conner called him back and Howsare made it clear he did not want to go. An argument ensued in which Howsare told Conner that he "was going to hurt" him. Neither Connor nor Henry took the threat seriously. They continued to the house, parked Conner's truck and walked up onto the front porch. Finding the door locked, Conner knocked and called on Howsare to come out. Howsare had been drinking. He refused to come out and an argument ensued through the closed door, in which Howsare told Conner that he had a gun, that it was loaded and that he was going to shoot Conner. Conner told Henry to return to the truck, which she did. Conner continued pounding on the door. Henry, from the truck, heard the door open followed by three to five gunshots and a sound of breaking glass.

         Henry looked back at the door and saw Howsare standing there with a gun in his hand. She saw Conner stagger off the front porch and fall on the ground. She called to Conner but he made no reply. She ran down the driveway and called 911 on her cell phone. When the police arrived, they determined that Conner was dead. He was lying on his back about 25 feet from the house, with gunshot wounds in his shoulder and abdomen. An autopsy later revealed that the shoulder wound had been the cause of death, having passed laterally through the lungs and heart. The police investigation also indicated that the front door had been open when the shots were fired, but they had passed through an outer storm door, shattering the glass.

         Before entering the house, the police tried unsuccessfully to communicate with Howsare by telephone and by a public-address system. They then broke in through a side window and saw him directly ahead of them, sitting in a bathroom and pointing a gun at them. They shouted at him to drop the gun and step outside. He complied.

         When later interviewed by a detective at the sheriff's office, Howsare stated that he told Conner over the phone to "[c]all it a day, " to "[c]all it good" and to just leave him alone. With regard to the shooting, he said that he had "pulled the trigger on a .357 four or five times" but that "there was no intent to maim, to hurt, just go away." He said that he "just wanted to go to bed" but that Conner "just kept pounding on the door" and that Howsare "just kind of snapped." He said that he had "shot high" as he fired. The detective testified that when told that Conner was dead, Howsare "acted shocked."

         Howsare was indicted by a Stafford County grand jury for first-degree murder, aggravated malicious wounding, and use of a firearm during the commission of a felony. Tried by a jury, he was convicted of second-degree murder, aggravated malicious wounding, and use of a firearm during the commission of a felony. At the conclusion of the trial, in accordance with the jury verdict, the court entered judgment imposing a total sentence of 28 years' incarceration.

         At trial, the Commonwealth offered a proposed jury instruction that read: "Intent is the purpose formed in a person's mind which may, and often must, be inferred from the facts and circumstances of a particular case. The state of mind of the defendant may be shown by his acts and conduct." Defense counsel objected on the grounds that it was not a model jury instruction and was an incomplete statement of the law because it failed to mention inferences that could be drawn from the defendant's statements. Overruling the objection to the instruction, the court granted it as Instruction 7. Without objection, the court also granted Instruction 20, which read: "The statements presented to you as having been made by the defendant are submitted for your consideration along with all the other evidence. The weight, value, credibility and reliability of those statements are questions for your determination." Also, over Howsare's objection but not assigned as error on appeal, the court granted Instruction 6, which reads "You may infer that every person intends the natural and probable consequences of his acts."

         Howsare's appeal to the Court of Appeals was unsuccessful. Howsare v. Commonwealth, Record No. 0106-15-4, slip op. at 1 (Sept. 21, 2015) (unpublished). He petitioned this Court for an appeal, asserting eight assignments of error. We awarded him an appeal limited to his ...


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