Kurebia Marie Hampton v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judge Willis and
Senior Judge Overton
Argued at Alexandria, Virginia
KUREBIA MARIE HAMPTON
OPINION BY
v. 	Record No. 0597-00-4 	JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
William J. Baker for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from her conviction of second-degree murder, in
violation of Code § 18.2-32, Kurebia Marie Hampton contends that
the trial court erroneously (1) granted Instruction 5 on
"concert of action," (2) granted Instruction 9 on the use of a
"deadly weapon," (3) granted Instruction 15 on causation, and
(4) refused her proposed Instruction B defining lesser-included
offenses of malicious wounding and assault and battery. 	We find
no error and affirm the judgment of the trial court.
I. 	BACKGROUND
On June 29, 1999, Mary Ann Giles, accompanied by her niece,
Natalie Giles Davis, and several children, drove through a
residential area of Prince William County on their way to

church. 	They came upon a car that was stopped in the street
blocking their passage. 	The driver of the car was Lisa Dixon.
Hampton was a passenger. 	Lisa Dixon's sister, Julia, and two
cousins, Erica and Teresa Dixon, were standing in the street by
the car. 	Ms. Giles blew her horn, and the young women became
hostile.
Lisa Dixon walked over to Ms. Giles' car and asked, "What's
the problem?" 	Ms. Giles asked her to move her car. 	Lisa Dixon
replied, "Suppose I don't want to move my car," and cursed Ms.
Giles. 	Ms. Giles said that she did not want any trouble, and
she asked if the young women standing around the car would move
so she could pass. 	Eventually, they moved and Ms. Giles drove
by them. 	Ms. Davis, who was seated in the rear of Ms. Giles'
car, exchanged words with the group of young women. 	She said,
"Don't be disrespecting my aunt. 	I live around here and I'll be
back."
Ms. Giles traveled about a block and one-half when Lisa
Dixon's car passed her and came to a sudden stop in front of
her, causing her to stop. 	Lisa Dixon exited her car and
approached Ms. Giles, called her a "bitch" and told her to get
out of the car. 	Ms. Giles again stated that she did not want
any trouble.
Hampton exited the Dixon car and approached Ms. Giles' car.
Ms. Davis exited Ms. Giles' car. 	Hampton and Ms. Davis walked
toward the curb and began to fight.
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Ms. Davis fell to the ground. 	Hampton went down on top of
her. 	She grabbed Ms. Davis' head and banged it against the
sidewalk curb several times. 	Hampton then got up and repeatedly
kicked Ms. Davis in the abdomen.
Teresa Dixon came over and kicked Ms. Davis in the head
several times. 	Hampton and the other young women then left in
Lisa Dixon's car. 	Ms. Davis was taken to the hospital where she
died several days later.
At trial, Dr. Frances Patricia Field, who performed an
autopsy on Ms. Davis' body, testified that the cause of death
was "[b]lunt force trauma to the head." 	Dr. Field testified
that the bruising of the victim's brain, which ultimately caused
her death, could have been caused by blows to either the left or
the right side of the head, but that it was more likely that the
blows had been to the left side.
Hampton testified that Ms. Davis initiated the fight and
that Ms. Davis fell against the curb during the fight. 	Hampton
claimed that she kicked Ms. Davis on the right jaw. 	She stated
that two seconds later, Teresa Dixon kicked and stomped Ms.
Davis on the left side of her face and head. 	She denied asking
Teresa Dixon to help her in the fight.
At the conclusion of the trial, Hampton was convicted of
second-degree murder, and this appeal followed.
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II. 	JURY INSTRUCTIONS
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" 	Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)). 	"'Both the Commonwealth and
the defendant are entitled to appropriate instructions to the
jury of the law applicable to each version of the case, provided
such instructions are based upon the evidence adduced.'"
Stewart v. Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509,
514 (1990) (quoting Simms v. Commonwealth, 2 Va. App. 614, 616,
346 S.E.2d 734, 735 (1986)). 	The evidence relied on to support
an instruction must amount to "more than a scintilla." 	Morse v.
Commonwealth, 17 Va. App. 627, 633, 440 S.E.2d 145, 149 (1994)
(citation omitted). 	In determining whether the evidence
warranted a particular instruction, we view the evidence in the
light most favorable to the party offering the instruction. 	See
Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198,
200 (1991).
A. 	INSTRUCTION 5: 	"CONCERT OF ACTION"
Over Hampton's objection, the trial court instructed the
jury:
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INSTRUCTION NO. 5
If there is concert of action with the
resulting crime one of its incidental
probable consequences, then whether such
crime was originally contemplated or not,
all who participate in any way in bringing
it about are equally answerable and bound by
the acts of every other person connected
with the consummation of such resulting
crime.
"Concerted action is defined as '[a]ction that has been
planned, arranged, adjusted, agreed on and settled between
parties acting together pursuant to some design or scheme.'"
Rollston v. Commonwealth, 11 Va. App. 535, 542, 399 S.E.2d 823,
827 (1991). 	"All participants in such planned enterprises may
be held accountable for incidental crimes committed by another
participant during the enterprise even though not originally or
specifically designed." 	Berkeley v. Commonwealth, 19 Va. App.
279, 283, 451 S.E.2d 41, 43 (1994).
Hampton contends that the evidence did not support a
"concert of action" instruction. 	She argues that the evidence
failed to prove that she encouraged or requested Teresa Dixon to
kick the victim. 	Therefore, she argues, she could not have
participated in a "concert of action" with Teresa Dixon.
When two or more persons act together or "in concert," they
are jointly liable for their conduct as confederates "connected
with the consummation of the resulting crime." 	Ascher v.
Commonwealth, 12 Va. App. 1105, 1128, 408 S.E.2d 906, 920
(1991). 	The evidence supports a finding that Hampton and Teresa
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Dixon acted in concert. 	Together, they were a part of the group
that blocked the road, causing the initial confrontation.
Together, they pursued Ms. Giles' car and its occupants, causing
the car to stop and reviving the confrontation. 	Together, they
assaulted the victim. 	The murder was an incidental, probable
consequence of their concerted actions. 	Therefore, the trial
court did not err when it instructed the jury on "concert of
action."
B. 	INSTRUCTION 9: 	"DEADLY WEAPON"
Over Hampton's objection, the trial court instructed the
jury:
INSTRUCTION NO. 9
You may infer malice from the
deliberate use of a deadly weapon unless,
from all the evidence, you have a reasonable
doubt as to whether malice existed.
A "deadly weapon" is any object or
instrument, not part of the human body, that
is likely to cause death or great bodily
injury because of the manner and under the
circumstances in which it is used.
Hampton contends that a sidewalk curb cannot be a "deadly
weapon."
The parties have cited no Virginia authority, and we have
found none, addressing the question whether a sidewalk curb may
be used as a "deadly weapon." 	However, in Pannill v.
Commonwealth, 185 Va. 244, 254, 38 S.E.2d 457, 462 (1946), the
Supreme Court said:
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"A deadly weapon is one which is likely to
produce death or great bodily injury from
the manner in which it is used, and whether
a weapon is to be regarded as deadly often
depends more on the manner in which it has
been used than on its intrinsic character."
Id. (quoting 40 C.J.S. Homicide § 25).
This definition is broad enough to include a sidewalk curb.
Because a sidewalk curb has the potential to inflict death or
great bodily injury, it may, when so used, be deemed a "deadly
weapon."1
Ms. Davis did not merely fall to the street, incidentally
striking her head. 	Hampton did not simply throw Ms. Davis down.
Rather, Hampton employed the concrete curb as a device against
which she bashed Ms. Davis' head. 	Thus, she employed the curb
as an implement or weapon with which to inflict injury upon Ms.
Davis.2
1 Our decision is in accordance with other jurisdictions,
which have considered whether a stationary object may be a
weapon. 	See United States v. Murphy, 35 F.3d 143, 147 (4th Cir.
1994), cert. denied, 513 U.S. 1135 (1995) (steel cell bars);
People v. Galvin, 481 N.E.2d 565 (N.Y. 1985) (sidewalk); People
v. Coe, 564 N.Y.S.2d 255 (N.Y. App. Div. 1990) (plate-glass
window); People v. O'Hagan, 574 N.Y.S.2d 198 (N.Y. App. Div.
1991) (cell bars); State v. Brinson, 448 S.E.2d 822 (N.C. 1994)
(cell bars and floor); State v. Reed, 790 P.2d 551 (Or. Ct. App.
1990) (sidewalk). 	But see Edwards v. United States, 583 A.2d
661 (D.C. 1990) (bathroom fixtures); State v. Legendre, 362
So.2d 570 (La. 1978) (concrete parking lot).
2 "'Whether the pitcher hits the stone or the stone hits the
pitcher, it will be bad for the pitcher.'" 	Reed, 790 P.2d at
552 (quoting Cervantes, Don Quixote, Part II, ch. 43 (1615)).
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"Generally, unless a weapon is per se a deadly one, the
fact finder should determine whether it, and the manner of its
use, place it in that category, and the burden of showing these
things is upon the Commonwealth." 	Pritchett v. Commonwealth,
219 Va. 927, 929, 252 S.E.2d 352, 353 (1979) (citations
omitted). 	Instruction 9 defined "deadly weapon" in accordance
with Virginia law. 	The evidence permitted the jury to conclude
that Hampton used the sidewalk curb as a "deadly weapon."
Therefore, the trial court did not err in granting Instruction 9
on the use of a "deadly weapon."
C. 	INSTRUCTION 15: 	CAUSATION
Over Hampton's objection, the trial court instructed the
jury:
INSTRUCTION NO. 15
When a defendant inflicts an injury to
the victim, the defendant is criminally
responsible for the victim's death when that
death was caused by the injury indirectly
through a chain of natural effects and
causes.
An intervening event, even if a cause
of death, does not exempt the defendant from
responsibility when that event was put into
operation by the defendant's initial
criminal acts.
The evidence supported the giving of Instruction 15.
Although Ms. Davis died from "[b]lunt force trauma to the head,"
Dr. Field could not determine whether Hampton or Teresa Dixon
inflicted the fatal blow. 	Therefore, the Commonwealth relied on
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a concert of action theory. 	Under this theory, even though the
jury may have believed that Teresa Dixon's kicking actually
caused Ms. Davis' death, if it further found beyond a reasonable
doubt that Hampton's launching the attack and striking Ms.
Davis' head on the sidewalk initiated a "chain of natural
effects and causes," which culminated in the lethal kicking and
Ms. Davis' death, it could properly charge Hampton with
responsibility for the fatal kick. 	Instruction 15 properly
addressed that theory of the case.
D. 	INSTRUCTION B: 	LESSER-INCLUDED OFFENSES
Over Hampton's objection, the trial court refused
Instruction B, as follows:
INSTRUCTION NO. B
If you are not convinced beyond a
reasonable doubt that the Defendant's
actions resulted in the death of Natalie
Giles Davis but you are convinced beyond a
reasonable doubt:
(1) 	That the Defendant wounded;
Natalie Giles Davis and
(2) 	That such wounding was with intent
to maim, disfigure, disable or
kill Natalie Giles Davis and
(3) 	That the act was done with malice.
If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the
offense as charged, then you shall find the
defendant guilty [of] Malicious Wounding;
If you find from the evidence that the
Commonwealth has proven beyond a reasonable
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doubt each of the first two elements of the
offense as charged, but that the act was
done unlawfully, and not maliciously, then
you shall find the Defendant guilty of
unlawful wounding;
If you find that the Commonwealth has
failed to prove beyond a reasonable doubt
either malicious wounding; or unlawful
wounding; but you do find beyond a
reasonable doubt;
(1) 	That the Defendant inflicted some
bodily hurt on Natalie Giles Davis
and
(2) 	That the act was done in an angry,
rude or vengeful manner;
then you shall find the Defendant guilty of
assault and battery[;]
If you find that the Commonwealth has
failed to prove beyond a reasonable doubt
any of the above offenses then you shall
find the Defendant not guilty.
Citing Kauffmann v. Commonwealth, 8 Va. App. 400, 382
S.E.2d 279 (1989),3 Hampton contends that the evidence supported
the giving of the foregoing instruction, defining the
lesser-included offenses of malicious wounding, unlawful
wounding, and assault and battery. 	She argues that if the jury
was not convinced beyond a reasonable doubt that she either
directly, or through concerted action with Teresa Dixon,
inflicted the lethal blow, she could, at most, have been found
3 Kauffmann does not address whether malicious wounding is a
lesser offense included within homicide. 	As relevant to this
case, it stands only for the proposition that an accused is
entitled to instructions on lesser-included offenses supported
by the evidence.
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guilty under the murder indictment of one of those lesser
offenses. 	Thus, she argues, she was entitled to have those
offenses presented to the jury through the tendered instruction.
We disagree.
To support a conviction for murder or manslaughter, the
evidence must establish that a death occurred. 	Malicious
wounding requires proof of no such element. 	The required
elements to establish malicious wounding are a malicious
shooting, stabbing, cutting or wounding or bodily injury by any
other means with the intent to maim, disfigure, disable or kill.
See Code § 18.2-51. 	The intent to maim, disfigure, disable or
kill is not necessarily included in the definition of murder or
manslaughter. 	Each crime contains an element not contained in
the other. 	Thus, malicious wounding is not a lesser-included
offense embraced within the crime of murder or manslaughter.
Furthermore, an indictment charging Hampton with malicious
wounding was nolle prossed. 	Thus, that accusation was not on
trial. 	Its elements and the sufficiency of the evidence to
prove those elements were not matters before the jury.
Hampton argues that the jury could have found that the
Commonwealth failed to prove beyond a reasonable doubt that the
lethal blow and the victim's death were chargeable to her.
Under those circumstances, she argues, she could have been
convicted of no more than malicious wounding, unlawful wounding
or assault and battery. 	She argues that the refusal of her
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proffered instruction denied her the benefit of suffering
conviction of a lesser offense than homicide. 	She overlooks the
totality of the trial court's instructions, particularly
Instruction No. 6. 	This instruction, which defined for the jury
the crimes of first-degree murder, second-degree murder, and
voluntary manslaughter, all requiring as necessary elements
proof that Hampton was chargeable with the lethal blow,
concluded by admonishing the jury that if the Commonwealth
failed to prove any of the elements of those three offenses,
they should find Hampton not guilty. 	Thus, under the trial
court's instructions, if the jury found that the Commonwealth
failed to prove that Hampton was chargeable with the lethal
blow, the jury would have found her not guilty. 	Thus, refusal
of Instruction No. B denied Hampton no benefit to which she was
entitled.
The judgment of the trial court is affirmed.
Affirmed.
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