Opinion
Record No. 0103-02-1.
May 13, 2003.
Appeal from the Circuit Court of the City of Suffolk, Westbrook J. Parker, Judge.
Andrew G. Wiggin for appellant.
Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Benton, Elder and Senior Judge Coleman.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Nicko Bazemore appeals from convictions of grand larceny, feloniously eluding the police, and second degree murder. He contends (1) the evidence was insufficient to support the convictions, (2) the trial judge erred by refusing to give the jury an instruction defining the word "wanton," and (3) the trial judge failed to properly instruct the jury on the elements of the offense of feloniously eluding the police and, thus, permitted the jury improperly to convict him of feloniously eluding the police and felony homicide. For the reasons that follow, we hold that the judge erred by instructing the jury concerning the offense of feloniously eluding the police. Because the error was not harmless, we reverse the convictions for feloniously eluding the police and second degree murder. We affirm, however, the conviction for grand larceny.
I.
The grand jury's indictment charged that Nicko Bazemore "unlawfully and feloniously while in the prosecution of a felonious act, accidentally, contrary to the intention of the parties, did kill and murder . . . in violation of [Code] §§ 18.2-33, 18.2-32, and 18.2-26." The grand jury also indicted Bazemore for feloniously eluding a police officer in violation of Code "§§ 42.2-817(B); 18.2-10," and for grand larceny "in violation of [Code] § 18.2-95."
At trial, the evidence proved that on the morning of August 4, 2000, Officer M.C. Marshall noticed a broken rear window on a green minivan in the City of Suffolk and received information that the license plates on the vehicle were registered to another vehicle. When the officer activated the siren and lights on his police car, the vehicle continued moving. During the pursuit, which covered a little more than a mile in relatively heavy traffic, the driver failed to heed two stop signs, accelerated to 50 miles per hour, but later decreased his speed "to . . . 10 miles an hour." The vehicle made a series of turns, failed to heed another stop sign, and struck a minivan after entering the intersection. The officer could not estimate the vehicle's speed; however, he testified that his own speed was "approximately 15 to 20 miles an hour" when the vehicle went into the intersection. A witness described the vehicle as "shooting across the intersection."
The minivan that the vehicle hit was travelling on "a thoroughfare that . . . [is] a four lane road." After the vehicle hit the minivan, another van hit the minivan. A passenger in the minivan sustained a fractured cervical spine and died. After the collision, the vehicle the officer was pursuing spun off the road and hit a house.
When the officer approached the vehicle, Greg Shorter exited through the front passenger door. The officer testified that he saw Nicko Bazemore leaving the driver's seat and attempting to exit through the front passenger door. The officer drew his weapon and arrested Shorter and Bazemore. Denise Byron, who was a passenger in the vehicle, had been thrown from the back of the vehicle when it hit the house.
Later, when the rescue squad arrived, Bazemore complained of pain and told the officer he was driving the vehicle when it crashed. Bazemore was wearing one shoe. Inside the vehicle, the officers found Bazemore's other shoe under the brake pedal. They also found a 9-mm handgun, a screwdriver, and a Florida license plate. The vehicle's ignition had been damaged, and a rag was covering the steering column. The evidence proved that the vehicle had been stolen two days earlier in the City of Norfolk and that broken glass was on the pavement after the vehicle had been stolen.
Several hours after the police arrested Bazemore, he waived hisMiranda rights. Bazemore initially told the police that a friend, whom he only knew as Malik, and Shorter offered him a ride at 9:00 p.m. on the night before the accident. Bazemore said that he noticed the screwdriver on the floor and the broken window and that Malik told him he had gotten the van from Norfolk. Bazemore also said he learned within two hours that the vehicle had been stolen. Later, Byron joined them and sat on the rear seat of the vehicle.
Bazemore told the police he began driving the vehicle at 3:00 a.m. He also said that after the officer attempted to stop the vehicle, he believed the vehicle might be stolen. When asked "Why didn't you stop the vehicle?," he responded "I was scared." As the interview progressed, Bazemore said that Malik did not exist and that when he entered the vehicle Shorter was the driver and sole occupant. Bazemore admitted he was driving the vehicle when the accident occurred and could not recall his speed because "it happened so quick."
After the trial judge denied Bazemore's motions to strike the evidence, Bazemore testified that Shorter, who is also called "Malik," was driving the vehicle when he entered it. They spent the hours before the incident driving to various places. Bazemore testified he was driving when Byron joined them at 5:30 or 6:00 in the morning, but he denied seeing the broken steering column. Although he knew Shorter did not own the vehicle and did not have money to buy a vehicle, he did not ask Shorter where he obtained it or who owned it.
Bazemore also testified that, after the police signaled him to stop and began to pursue him, he and Shorter switched places in the moving vehicle. He said that Shorter was driving when the vehicle entered the intersection and that he did not remember telling the police he was driving when the collision occurred. Despite his previous statement to the police that he had not seen a gun in the van, Bazemore testified that Shorter displayed the gun in the vehicle, said he was not going back to prison, and ignored Bazemore's and Byron's requests to stop. Bazemore also testified that after the accident, Shorter crawled across him from the driver seat to get out of the van. He testified that he lied to the police in the interview to protect Shorter because he "was afraid of everything that was going on around him" and afraid of Shorter.
The jury convicted Bazemore of "grand larceny by receiving stolen property," of the "felony . . . of disregarding the signal of a law enforcement officer," and of "felony homicide." The final conviction order denotes the convictions as "Grand Larceny ([Code] § 18.2-95)," "Eluding Police-Endangerment (§ 46.2-81[7](B) (Felony)," and "Second Degree Murder (§ 18.2-32) (Felony)."
II.
Bazemore contends the evidence was insufficient to prove grand larceny by receiving stolen property. Specifically, he argues the evidence was insufficient to prove he knew the vehicle was stolen, intended to permanently deprive the owner of the vehicle, and had dishonest intent.
A.
Bazemore contends on appeal the evidence was insufficient to convict him of violating Code § 18.2-108. The final conviction order recites, however, that the conviction was for grand larceny in violation of Code § 18.2-95, which was the charge specified in the indictment. Although neither Bazemore nor the Commonwealth addressed this discrepancy, we address it for completeness of our decision.
The record reflects that the trial judge's instructions permitted the jury to convict Bazemore of "grand larceny," which was the offense charged in the indictment, or to convict him of other lesser offenses, including "grand larceny by receiving stolen property." The verdict form establishes that the jury convicted Bazemore of "grand larceny by receiving stolen property," which is prohibited by Code § 18.2-108. Following the guilt phase of the trial, the jury fixed Bazemore's punishment at one year in prison for "grand larceny by receiving stolen property." Consistent with the jury's findings, the trial judge entered an order reflecting that the jury convicted Bazemore and fixed his sentence for "grand larceny by receiving stolen property." The final conviction order, however, contains no reference to Code § 18.2-108 and recites only that Bazemore was convicted of "grand larceny ([Code] § 18.2-95)."
The Supreme Court has held that "[r]eceiving stolen goods, knowing the same to be stolen, may be charged as larceny." Clark v. Commonwealth, 135 Va. 490, 498, 115 S.E. 704, 706 (1923). See also Cabbler v. Commonwealth, 212 Va. 520, 524, 184 S.E.2d 781, 783 (1971) (holding that "[l]arceny by receiving stolen goods is a lesser offense which is included in the major one of larceny"). In view of these decisions, the jury's verdict forms, and the trial judge's order entered upon the jury's verdict, we hold that the trial judge's failure to include a reference to Code § 18.2-108 on the final conviction order was a mere clerical error.
B.
Code § 18.2-108 provides that "[i]f any person buy or receive from another person, or aid in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender be not convicted." We have parsed the elements of the offense as follows:
"To convict a defendant under Code § 18.2-108, the Commonwealth must prove that property 'was (1) previously stolen by another, and (2) received by defendant, (3) with knowledge of the theft, and (4) a dishonest intent.' Guilty knowledge 'is sufficiently shown if the circumstances proven are such as must have made or caused the recipient of stolen goods to believe they were stolen.'"
Snow v. Commonwealth, 33 Va. App. 766, 775, 537 S.E.2d 6, 11 (2000) (citations omitted).
"When an appellant challenges the sufficiency of the evidence to sustain his conviction, we review the evidence in the light most favorable to the Commonwealth and grant to it 'all reasonable inferences fairly deducible therefrom.'" Kelley v. Commonwealth, 17 Va. App. 540, 548, 439 S.E.2d 616, 621 (1994) (citation omitted). So viewed, the evidence proved Bazemore confessed to the police that shortly after he entered the vehicle, he learned it had been stolen. He also saw the vehicle's broken window and the screwdriver on the floor. Thus, by Bazemore's own admission, he knew he was driving a stolen vehicle before he failed to heed the officer's signal. The evidence also proved Bazemore admitted to an inmate in jail that he knew the vehicle was stolen. Furthermore, apart from his own confession and the testimony of an inmate, the evidence proved Bazemore was driving the vehicle in daylight and had the opportunity to see the "popped" ignition, the broken steering column, and a rag covering the steering column. Other evidence proved Bazemore knew Shorter did not own the vehicle and Bazemore continued to drive after the officer signaled him to stop.
The jury was not required to accept Bazemore's trial testimony. Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). It was free to believe or disbelieve, in part or in whole, the testimony of any witness. Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). Although Bazemore's testimony differed from his confession, "the jury was 'not obliged to accept' what it obviously found was an unreasonable explanation," Roberts v. Commonwealth, 230 Va. 264, 272, 337 S.E.2d 255, 260 (1985), and was free to believe his confessed participation. We hold the evidence was sufficient for the jury to find beyond a reasonable doubt that Bazemore knew the vehicle was stolen when he drove it.
C.
Bazemore also contends the evidence was insufficient to prove he intended to permanently deprive the owner of the vehicle. Bazemore argues that the evidence establishes he only intended to drive for a short while and then return the vehicle to Shorter's control.
The intent to permanently deprive is not an element of receiving stolen property under Code § 18.2-108. Neither the statute, nor case law requires a showing of an intent to permanently deprive. Moreover, Bazemore's reliance on Moehring v. Commonwealth, 223 Va. 564, 568 S.E.2d 891 (1982), to support his defense that he had no intent to permanently deprive is misplaced. The Supreme Court noted the following in reversing Moehring's conviction:
There is no evidence in the record which demonstrates that Moehring exercised any degree of dominion or control over the stolen truck, or from which the court could have inferred that defendant possessed the truck jointly with Faison. . . . The most that can be said with reasonable certainty is that this defendant-hitchhiker accepted a ride from the first person who stopped and that he knew that person was driving a stolen vehicle.
Id. at 568, 568 S.E.2d at 893. Pertinent to the evidence in this case, the Court restated the well-settled rule that "[b]ecause larceny is a continuing offense, anyone who knows that personal property is stolen and assists in its transportation or disposition is guilty of larceny." Id. The evidence proved beyond a reasonable doubt Bazemore knew the vehicle was stolen and drove it with that knowledge.
D.
Although Bazemore now contends the evidence was insufficient to prove he had dishonest intent, we have consistently held that issues that were not properly preserved at trial cannot be raised on appeal. Andrews v. Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002). Bazemore never raised the argument of dishonest intent in the trial court. Therefore, we will not review the issue for the first time on appeal. Rule 5A:18.
In summary, viewed in the light most favorable to the Commonwealth, the evidence proved beyond a reasonable doubt Bazemore knew the vehicle was stolen. He confessed his knowledge. Furthermore, he could plainly see the damaged steering column, and he drove the vehicle without a key in the ignition. Thus, we hold that the evidence was sufficient to prove beyond a reasonable doubt grand larceny by receiving stolen property.
III.
Bazemore contends that the trial judge failed to instruct the jury on the definition of wanton. He argues that because of this error his convictions for felony eluding the police and felony murder should be reversed. We agree with the Commonwealth that Bazemore is barred from raising this issue on appeal.
To prove a violation of Code § 46.2-817, the Commonwealth had to prove Bazemore drove the "motor vehicle in a willful and wanton disregard" of the officer's signal. Bazemore did not request the judge to instruct the jury concerning the definition of "wanton." Therefore, we will not review the issue for the first time on appeal. Rule 5A:18.
Furthermore, this record provides no basis to consider this claim under the "ends of justice" exception in Rule 5A:18. As the Supreme Court has ruled, the trial judge is not required to define for a jury a statutory term that is not ambiguous and has an ordinary meaning. See Roach v. Commonwealth, 251 Va. 324, 346, 468 S.E.2d 98, 111 (1996); Black v. Commonwealth, 20 Va. App. 186, 192, 455 S.E.2d 755, 758 (1995). When a statutory term is commonly used and has an accepted meaning, the mere absence of a definitional instruction is not reversible error. Clark v. Commonwealth, 220 Va. 201, 211, 257 S.E.2d 784, 790 (1979). In the absence of a request by Bazemore to give the jury an instruction defining wanton, the trial judge did not abuse his discretion in not giving a definition sua sponte. See Coppola v. Commonwealth, 220 Va. 243, 254-55, 257 S.E.2d 797, 805 (1979).
IV.
Bazemore contends the evidence was insufficient to prove he wantonly disregarded the officer's signal to stop. He also contends the trial judge incorrectly instructed the jury concerning the elements of Code § 46.2-817 by placing the elements of "willfull" and "wanton" in the disjunctive rather than in the conjunctive. Consequently, he argues his felony eluding conviction should be reversed and, because his felony murder conviction was contingent upon the felony eluding conviction, it must also be reversed. The Commonwealth contends Bazemore did not preserve for appeal his objection to the sufficiency issue and he failed to object to the mistake in the instruction. Bazemore responds that the "ends of justice" exception applies.
A.
Arguing the motions to strike, Bazemore's trial attorney conceded Bazemore was operating the vehicle. He argued, however, that because Bazemore did not know the vehicle was stolen, the evidence failed to prove grand larceny. Thus, he argued that grand larceny, which he asserted should have been the predicate offense for felony murder, was not proved. He then argued as follows:
I would submit . . . that the eluding is a separate and distinct crime, that the essence of which is [failure] to heed the police signal to stop under circumstances that create danger to the motoring or pedestrian traffic. . . . I would submit, Judge, that that is not a sufficient predicate for felony murder to apply.
At the conclusion of all the evidence, Bazemore's attorney moved to strike the evidence concerning the eluding charge, asserting the evidence failed to prove Bazemore was driving the vehicle. He argued that the credible evidence proved Shorter had switched places with Bazemore and was driving the vehicle when the collision occurred. Summarizing, he argued as follows:
[T]hey have to prove for the reckless endangerment element that the defendant was driving at the time to create a danger to the motoring or pedestrian public. They can't do that. We would have to guess, the Court would have to guess at [the] point that endangerment occurred. So I would submit, Your Honor, that the charge of felony eluding, likewise, has to fall because there is insufficient evidence to support the conclusion that at the relevant time that the defendant was actually driving a car or this van to endanger the motoring public.
As to the felony-murder charge, he argued as follows:
We would also . . . move to strike the Commonwealth's evidence as to second degree murder. It's clear that this was an accident, that whoever was driving that it was not the intended purpose to do that, and . . . the evidence before the Court is that the defendant was not the operator of the vehicle at the time of the collision.
These arguments, which the trial judge rejected, also formed the gist of Bazemore's trial attorney's argument to the jury. Urging the jury to analyze "the elements of the offenses," he discussed in detail the elements of the larceny offense. As to "the eluding," he posed the question, "where is the evidence that Nicko Bazemore was operating . . . the [vehicle] at any time that created a danger to the public?" Thus, he argued:
So, if, indeed, you conclude that [Bazemore] was not the driver of the [vehicle] at the time of the collision, he could not be convicted of felony murder. If you believe that he was not driving at any time when the vehicle presented a danger to the motoring public, he could not be convicted of eluding a felony.
At all stages of the trial, Bazemore contended he was not driving when the vehicle entered the intersection in disregard of the stop sign and collided with the van. At no point, did he object that the evidence was insufficient to prove the element of "wanton." The failure to raise these issues at trial bars our consideration of them on appeal. Rule 5A:18.See Floyd v. Commonwealth, 219 Va. 575, 583-85, 249 S.E.2d 171, 176 (1978) (holding that appellate review of the issue of insufficiency to prove a specific element is barred when that issue was not raised at trial). In view of the arguments Bazemore actually advanced at trial and the evidence produced, we conclude that no basis exists to invoke the "ends of justice" exception to Rule 5A:18.
B.
Bazemore further contends that the trial judge erred in instructing the jury on the elements of the offense of eluding. Although the Commonwealth correctly notes that Bazemore did not object to the flawed instruction, we address this issue because Bazemore's claim falls within a recognized exception to Rule 5A:18.
Code § 46.2-817 provides in pertinent part as follows:
B. Any person who, having received a visible or audible signal from any law-enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal so as to interfere with or endanger the operation of the law-enforcement vehicle or endanger a person is guilty of a Class 6 felony.
(Emphasis added).
The trial judge instructed the jury that the Commonwealth was required to "prove beyond a reasonable doubt . . . that [Bazemore] willfully or wantonly disregarded such signal so as to endanger any person." (Emphasis added). This was an incorrect statement of law. The General Assembly amended Code § 46.2-817 in 1999, effective July 1, 2000, and substituted "and" for "or" preceding the words "wanton disregard." See 1999 Va. Acts, ch. 720. Thus, the statute in effect on the date of this incident expressly required a showing of "willful and wanton disregard of [the officer's] signal." Code § 46.2-817(B) (emphasis added).
The Supreme Court has held that the "ends of justice" exception applies to permit review when there has been a failure to object to an instruction that "omitted some essential element of the offense." Jimenez v. Commonwealth, 241 Va. 244, 251, 402 S.E.2d 678, 681 (1991). We have also held that Rule 5A:18 will not bar our review of an instruction that "allows a jury to convict a defendant without proof of an essential and necessary element of the charged offense." Campbell v. Commonwealth, 14 Va. App. 988, 994, 421 S.E.2d 652, 656 (1992). In this case, the jury instruction concerning the felony of eluding a police officer was so defective that it would have allowed the jury to convict Bazemore if it found that his conduct only was willful.
"[W]hen a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter." Jimenez, 241 Va. at 250, 402 S.E.2d at 681. Obviously, the proper description of the elements of the offense is vital to a defendant. Accordingly, we hold that the trial judge erred in giving the instruction.
C.
The Commonwealth contends that even if the "ends of justice" exception applies, the convictions nevertheless should not be reversed because, in this case, the error was harmless. We disagree.
The Supreme Court has held that the test for nonconstitutional harmless error is as follows:
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but slight effect, the verdict and the judgment should stand. . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand.
Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001). This decision "adopt[s] the Kotteakos [v. United States, 328 U.S. 750 (1946),] harmless-error test" for measuring error under Code § 8.01-678. Clay, 262 Va. at 260, 546 S.E.2d at 732.
Applying that test, the United States Supreme Court recently held that "the principle of Kotteakos [means] that when an error's natural effect is to prejudice substantial rights and the court is in grave doubt about the harmlessness of that error, the error must be treated as if it had a 'substantial and injurious effect' on the verdict." O'Neal v. McAninch, 513 U.S. 432, 444 (1995) (quoting Kotteakos, 328 U.S. at 764-65, 776). Moreover, when a trial error has been shown on direct appeal from a conviction, the government bears the burden of proving harmlessness under this standard. See O'Neal, 513 U.S. at 438. Indeed, the Supreme Court of Virginia has held that "error will be presumed to be prejudicial unless it plainly appears that it could not have affected the result." Caldwell v. Commonwealth, 221 Va. 291, 296, 269 S.E.2d 811, 814 (1980).
To establish a violation of Code § 46.2-817(B), the Commonwealth must prove, according to the statute's express language, that Bazemore operated the vehicle in a "willful and wanton disregard of [the officer's] signal so as to interfere with or endanger the operation of the law-enforcement vehicle or endanger a person." (Emphasis added). Because the trial judge incorrectly instructed the jury concerning the statutory elements by placing the elements of "willful" and "wanton" in the disjunctive, we cannot have any degree of confidence that the jury actually found the element of "wanton" disregard, which it must find beyond a reasonable doubt to sustain the conviction.
In the civil context, the Supreme Court long ago defined willful and wanton conduct as follows:
[W]illfulness and wantonness convey the idea of purpose or design, actual or constructive. . . . [T]hey are used to signify a higher degree of neglect than gross negligence. "In order that one may be held guilty of willful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result."
Thomas v. Snow, 162 Va. 654, 660, 174 S.E. 837, 839 (1934) (citation omitted). See also Infant C. v. Boy Scouts of America Inc., 239 Va. 572, 581, 391 S.E.2d 322, 327 (1990). This definition requires a showing of recklessness plus additional culpability and is consistent with other general authority.
"Wanton differs from reckless both as to the actual state of mind and as to the degree of culpability. One who is acting recklessly is fully aware of the unreasonable risk he is creating, but may be trying and hoping to avoid any harm. One acting wantonly may be creating no greater risk of harm, but he is not trying to avoid it and is indifferent to whether harm results or not. Wanton conduct has properly been characterized as 'vicious' and rates extreme in the degree of culpability. The two are not mutually exclusive. Wanton conduct is reckless plus, so to speak."
Black's Law Dictionary 1576 (7th ed. 1999) (quoting Rollin M. Perkins Ronald N. Boyce, Criminal Law 879-80 (3 ed. 1982)).
Likewise, in the criminal context, the Supreme Court has held that
"[g]ross negligence" is culpable or criminal when accompanied by acts of commission or omission of a wanton or willful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts.
Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992) (citation omitted). It follows, therefore, that "'[w]anton negligence' is of even a higher degree than 'gross negligence' . . . [and is] define[d] . . . as '[m]arked by or manifesting arrogant recklessness of justice, of the rights or feelings of others, . . . merciless; inhumane.'" Forbes v. Commonwealth, 27 Va. App. 304, 310, 498 S.E.2d 457, 459 (1998) (citations omitted).
We have held that a person violated Code § 46.2-817(B) when he ignored a signal to stop, operated a vehicle at a high speed in violation of posted limits, passed three cars, crossed a double solid line, "disregarded a red traffic signal at an intersection with a four-lane highway," and then crashed into a tree after losing control of the vehicle. Tucker v. Commonwealth, 38 Va. App. 343, 347, 564 S.E.2d 144, 146-47 (2002). On the other hand, the Supreme Court has noted "that the intentional violation of a traffic law, without more, will not support a finding of willful and wanton negligence." Alfonso v. Robinson, 257 Va. 540, 545, 514 S.E.2d 615, 618 (1999) (citing Harris v. Harmon, 253 Va. 336, 341, 486 S.E.2d 99, 102 (1997), and Baker v. Marcus, 201 Va. 905, 910, 114 S.E.2d 617, 621-22 (1960)). The evidence in this case is equivocal whether the jury found Bazemore's conduct to be other than willful. We hold, therefore, that we cannot say "the judgment was not substantially swayed by the error." Clay, 262 Va. at 260, 546 S.E.2d at 732.
The evidence proved Bazemore disregarded the officer's signal to stop. He continued to drive for a mile in relatively heavy traffic and failed to heed three stop signs in the process. The evidence, however, does not prove Bazemore exceeded any posted speed limits. The officer testified that at one point, Bazemore accelerated to fifty miles per hour, but the evidence does not establish the posted speed limit at that point. He also testified that Bazemore's speed then decreased "to approximately 10 miles an hour."
The evidence does not suggest Bazemore was violating the posted speed limit when he entered the intersection. Although a witness described the vehicle as "shooting across the intersection," this testimony does not establish Bazemore was exceeding the posted limit when he failed to heed the stop sign. Indeed, the officer pursuing Bazemore testified his own speed was approximately fifteen to twenty miles per hour when Bazemore drove into the intersection. The severity of the collision likely is explained by Bazemore's vehicle hitting a minivan that was travelling fast on a four lane divided highway. In the absence of proof Bazemore was driving at an excessive speed, it is difficult to reasonably conclude that a reasonable jury would have found the necessary mercilessness to justify a finding of wantonness.
Significantly, the jury accepted Bazemore's testimony that he did not steal the vehicle and convicted him of larceny upon his testimony that he knew he was driving a vehicle Shorter had stolen. Therefore, the jury may also have believed Bazemore's testimony that he did not stop because he was "scared" and also afraid that Shorter would have harmed him. If so, this evidence is clearly sufficient to support a finding of willfulness and to support a conviction based on the limited element in the defective instruction. Thus, even though the evidence is perhaps adequate to support a finding of wanton disregard, it is entirely possible that the jury convicted Bazemore solely on a finding of willful disregard of the officer's signal.
The principle is well established that a harmless error analysis is entirely distinct from an analysis of the sufficiency of the evidence. "The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." Kotteakos, 328 U.S. at 765. Consistent with these principles, the Supreme Court of Virginia has held that even if "the other evidence amply supports the . . . verdicts, [error is not harmless when] the disputed [evidence] may well have affected the . . . decision." Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978). See also Hooker v. Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345 (1992) (holding that "a harmless error analysis . . . [is not] simply a sufficiency of the evidence analysis").
We cannot say, "'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole' that it plainly appears that [Bazemore] has had a fair trial and the verdict and judgment were not substantially affected by . . . [the error]." Clay, 262 Va. at 261, 546 S.E.2d at 732. Accordingly, we hold the error was not harmless.
V.
For these reasons, we affirm the grand larceny conviction and remand to the trial judge to correct the final conviction order by inserting a reference to Code § 18.2-108. We reverse the convictions for felony eluding the police and felony homicide, and we remand for a new trial where the jury may be properly instructed.
Affirmed, in part, and remanded and reversed, in part, and remanded.
I concur with the majority's holdings in (1) Part II affirming Bazemore's grand larceny conviction, (2) Part III holding that Rule 5A:18 procedurally barred Bazemore's claim that the trial judge erred by failing to instruct the jury on the definition of "wanton" as to the eluding the police and felony murder charges, and (3) Part IV A holding that Bazemore's insufficiency argument to the eluding and felony murder convictions is procedurally barred by Rule 5A:18.
I disagree with the majority's holdings in Part IV B and C reversing the convictions for felony eluding the police and felony homicide. The majority concludes that the trial judge erred by failing to sua sponte modify the proffered jury instruction on eluding a police officer to read that Bazemore "willfully and wantonly" disregarded the police officer's signal to stop, rather than "willfully or wantonly" disregarded such signal. In my view, Rule 5A:18 bars consideration of this issue and the trial judge was not required to consider the issue when neither counsel objected to the proffered instruction. As the majority notes, the instruction was appropriate prior to the July 1, 2000 amendment to Code § 46.2-817 and, in my opinion, whether the instruction reads in the disjunctive or conjunctive is not so significant to require us to address that issue under the ends of justice exception.
Moreover, on these facts the error was harmless, in my opinion. The majority, in concluding that Bazemore's driving could not be considered "willful and wanton" as a matter of law focused upon the fact that Bazemore may not have driven in excess of fifty miles per hour and that the evidence did not prove the posted speed limit. Regardless of the speed at which Bazemore traveled, the evidence proved he disregarded the police officer's signal to stop, he continued to elude for a mile in relatively heavy traffic, he failed to heed three stop signs, and he drove through an intersection onto a busy four lane divided highway. No reasonable juror could find that Bazemore's driving into the busy intersection without yielding was not both willful and wanton. On these uncontradicted facts, Bazemore's driving into the intersection was an act of his volition and was in disregard of the life and safety and well-being of other motorists. I would hold that any error by the trial judge in failing to modify the jury instruction on eluding was harmless on these facts.