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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia
KEITH DEAN LAWSON
v. Record No. 1100-00-3 JUDGE G. STEVEN AGEE
JUNE 19, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Mark T. Williams (Williams, Morrison, Light &
Moreau, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On December 20, 1999, a Pittsylvania County grand jury
indicted the appellant, Keith Dean Lawson (Lawson), for
involuntary manslaughter, reckless use of a firearm and trespass
by a hunter. After a bench trial in the Pittsylvania County
Circuit Court on March 22, 2000, Lawson was convicted of all
three charges. On May 2, 2000, Lawson was sentenced to serve
seven years incarceration for involuntary manslaughter, twelve
months incarceration for the reckless use of a firearm and to
pay a fine of $500 for the trespass conviction. He now appeals,
challenging the sufficiency of the evidence for the trespass and
involuntary manslaughter convictions. In addition, he contends
certain evidence was improperly admitted at his sentencing
hearing. For the following reasons, we affirm in part and
reverse in part.
Shortly after noon on October 30, 1998, Sergeant William T.
Baggerly, of the Pittsylvania County Sheriff's Office, received
a dispatch message to go to the property of Kenneth Dalton.
When he arrived, the Life Saving Crew directed him to the
interior of the property where timber had been cut over but now
contained chest high saplings. Sergeant Baggerly found the body
of Kevin Dalton (Dalton) lying on his back, legs draped over a
log as if he had been sitting on it, with a turkey call striker
in one hand and his black and white dog lying at his feet; both
Dalton and the dog were dead. The bodies were close to an area
of standing timber, approximately 200 yards onto the Dalton
property from the edge of the adjoining Rowland property.
Dalton was dressed in camouflage but was not wearing blaze
orange, nor were any blaze orange articles nearby. The autopsy
showed that Dalton had been killed by double aught buckshot
pellet wounds to his back that perforated his spinal column and
spine, both lungs, and his aorta.
Lawson, an experienced hunter, was at the scene and told
Sergeant Baggerly that he "and a friend were turkey hunting and
that he was coming out of the woods when he saw some turkey
scratches. He then heard a turkey call and saw and heard some
movement, and he fired at the movement" with his twelve-gauge
shotgun loaded with 00 shot. At no time did Lawson say he saw a
turkey. Lawson showed Sergeant Baggerly the spot from which he
shot and said he did not know his friend's whereabouts when he
Lieutenant Carl Martin of the Department of Game and Inland
Fisheries examined the area where the shooting occurred and
noted that, from the position where Lawson said he was standing
when he fired, one could only see the end of the log on which
the victim was seated, but not the entire log.
Later that day, in a taped statement to Lieutenant Martin,
Lawson explained that he had been hunting, with permission, on
the adjacent Rowland property. Lawson said he shot once and
thought he was shooting at a turkey. "Nothing never moved. I
walked over and it was a man lying there . . . . " Lawson said
his victim was between fifty and sixty yards from him when he
fired his shotgun.
At trial, the Commonwealth presented hunting experts who
explained that hunting rules stress the importance of
identifying the target before shooting. This rule of
identifying the target is stressed because the hunter often is
required to determine the sex of the animal before he can
legally take it, "[s]o you have to be fully able to identify it,
and where the bullet's going to stop." In addition, the experts
testified about the universal standard for targeting, pointing
and shooting in a hunting situation:
[T]he state manual says you do not shoot at
sounds. You do not shoot at color. You do
not shoot before you have absolutely made
certain that your target is what you are
shooting at, and that the background is such
that if you miss you're not going to do
The experts, when asked how much of a turkey a hunter should see
before he fires, answered, "All of it."
Morgan Rowland testified that he owned "about 60 acres" of
property that adjoined the Dalton property. He testified that
he had given Lawson and a friend permission to hunt on his land.
He told them that the land "where the trees had been cut over"
belonged to Dalton, but he did not specifically point out the
limits of his property. He further testified that there is "no
actual fence or dividing line between" the properties and
referred to an old spring as the limit of his property. There
were several old springs, however, in the general area.
Lawson testified in his own defense and told the court that
he had hunted deer and turkey for fifteen years. Although he
had not taken a hunter safety course, "[b]ecause I'm not
required to," he agreed with the rules of "identifying a target,
making sure you know what it is before shooting." He also
explained that he knew not to point a gun at something he did
not intend to shoot and not shoot at something he could not
Lawson explained his actions surrounding the shooting. He,
not wearing blaze orange, had spent the morning sitting on a log
looking and waiting for a turkey while his friend had gone
elsewhere to hunt. At midday, Lawson was returning toward his
truck to meet his friend for lunch when he saw on his path that
the leaves had been disturbed. He interpreted the vegetation
disturbance as "turkey scratch feeding." He then heard what he
thought was a turkey yelping and started "trying to make a
visual." He saw "something black . . . the black object [that
was] kind of bobbing up and down." "It looked exactly like a
turkey . . . [b]ecause of the way it was going up and down,
doing that number right there like it was scratching at the time
and feeding." "I looked really good and I, I knew this was a
turkey, and I didn't see nothing around the turkey at all, so I
put the gun up, I waited a second, I looked at it, and then I
pulled one shot." He got ready to shoot again but nothing
moved. Then he ran down the hill and found Dalton and his dog,
both dead. Lawson immediately went for help.
Lawson, on cross-examination, agreed that he had not told
Lieutenant Martin that he had seen the black object looking
exactly like a turkey "bobbing up and down," but claimed that
"this is all I've been able to think about for five months, so
I've been able to go over it plenty by myself." He also
admitted that he told Martin that he did not see any colors or
anything to indicate that what he saw was actually a turkey, but
insisted that "before I pulled the trigger I saw a black object
moving up and down like it was feeding. I watched it."
However, he also agreed that he answered, "Yes sir," when
Lieutenant Martin asked him to confirm that, although he saw
movement and heard the sounds he believed to be a turkey, he did
not identify it as a turkey before he shot.
While Lawson objected throughout the trial to the
sufficiency of the evidence, his motions to strike were
overruled, and the trial court found Lawson guilty of all three
At the sentencing hearing, a pre-sentence report was
presented which contained Lawson's prior criminal convictions,
including five game law violations (hunting deer without a
license, etc.) from a November, 1996 incident. No objection was
made to the pre-sentence report. The Commonwealth also elicited
testimony from Lieutenant Martin and Sergeant Baggerly about
another charge brought against Lawson that arose out of the
November, 1996 incident: shooting into an occupied dwelling.
Lawson objected to that testimony on the ground that he had been
acquitted of the charge. The Commonwealth argued that he was
not acquitted, but that there had been a preliminary hearing and
the charge had not been certified. The Commonwealth said the
evidence was to show Lawson's "prior acts." Over objection, the
trial court allowed the testimony. Lawson then objected,
arguing that nothing relating to this prior incident had been
provided in discovery and that while this was a sentencing
hearing he was entitled to notice of prior bad acts by virtue of
his pretrial discovery motions and the trial court's discovery
order. The trial court overruled the objection.
I. Trespass By Hunter
The trial court found Lawson guilty of criminal trespass by
a hunter, in violation of Code 18.2-132. The trial court held
that the offense was "malum prohibitum" and therefore, the
Commonwealth was not required to prove as an element of the
crime that Lawson willfully intended to trespass upon the Dalton
property. On appeal, Lawson argues the trial court erred in
this finding and that the evidence was insufficient to convict
him. The Commonwealth conceded this point on brief and in oral
argument. We agree.
Code 18.2-132 reads, "Any person who goes on the lands,
waters, ponds, boats or blinds of another to hunt, fish or trap
without the consent of the landowner or his agent shall be
deemed guilty of a Class 3 misdemeanor." The section is silent
as to the element of intent. Whether willful intent is a
necessary element of criminal trespass under Code 18.2-132 is
a question of first impression in the Commonwealth, but is
directly answered by a review of the law on criminal trespass
On its face, the criminal trespass statute
appears strikingly similar to common law
civil trespass. As a penal statute,
however, the Virginia criminal trespass
statute has been uniformly construed to
require a willful trespass . . . .
"Criminal intent is an essential element of
the statutory offense of trespass, even
though the statute is silent as to intent
. . . . "
Reed v. Commonwealth, 6 Va. App. 65, 70-71, 366 S.E.2d 274, 278
(1988) (citations omitted). Accord Wise v. Commonwealth, 98 Va.
837, 36 S.E. 479 (1900); Campbell v. Commonwealth, 41 Va. (2
Rob.) 791 (1843); O'Banion v. Commonwealth, 33 Va. App. 47, 531
S.E.2d 59 (2000). If the general criminal trespass statute
requires proof of willful intent, that which specifically
applies to hunters does as well.
Lawson's unrebutted evidence was that he had permission to
be on the adjoining Rowland property and, at the time of the
shooting, he mistakenly thought he was on the Rowland property.
Therefore, Lawson entered upon the Dalton property under a bona
fide claim of right and cannot be convicted of trespass because
his uncontested claim of right defense negates any criminal
intent. See Reed, 6 Va. App. at 71, 366 S.E.2d at 278. We,
therefore, reverse and dismiss Lawson's trespass by a hunter
II. Involuntary Manslaughter
Lawson also claims the trial court erred in finding the
evidence sufficient to convict him of involuntary manslaughter.
When the sufficiency of the evidence is challenged on appeal, we
must consider the record in the light most favorable to the
Commonwealth, giving the Commonwealth's evidence all reasonable
inferences deducible therefrom. DeAmicis v. Commonwealth, 31
Va. App. 437, 440, 524 S.E.2d 151, 152 (2000). The judgment of
the trial court may not be disturbed unless it is plainly wrong
or lacks supporting evidence. See id. We will not substitute
our judgment for that of the trier of fact. See Cable v.
Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
In Cable, a hunting homicide case, the Supreme Court of
Virginia set out the elements of involuntary manslaughter:
Involuntary manslaughter is defined as the
accidental killing of a person, contrary to
the intention of the parties, during the
prosecution of an unlawful, but not
felonious, act, or during the improper
performance of some lawful act. The
"improper" performance of the lawful act, to
constitute involuntary manslaughter, must
amount to an unlawful commission of such
lawful act, not merely a negligent
performance. The negligence must be
criminal negligence. The accidental killing
must be the proximate result of a lawful act
performed in a manner "so gross, wanton, and
culpable as to show a reckless disregard of
243 Va. at 240, 415 S.E.2d at 220 (internal citations omitted).
The Court then described "gross negligence" as follows:
[T]he term "gross, wanton, and culpable"
describes conduct. The word "gross" means
"aggravated or increased negligence" while
the word "culpable" means "deserving of
blame or censure." "'Gross 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."
Lawson contends that his actions amounted to mere simple
negligence and not culpable gross negligence or criminal
negligence. He argues his mistaken identification of a turkey
was not grossly wanton considering the turkey scratch marks in
the vegetation, the realistic turkey sounds, and the fact that
the victim was quietly sitting down and not wearing blaze
orange. Lawson further argues that because he had no reason to
believe anyone else was in the immediate area, it was not
unreasonable for him to believe that the low-lying, bobbing
black object was a turkey. We, however, hold there was
sufficient evidence presented to support the trial court's
finding of guilt.
The evidence shows that Lawson gave a statement to Sergeant
Baggerly and then a recorded statement to Lieutenant Martin
where he denied actually seeing a turkey. He only assumed the
object of his gunfire was a turkey.
LT. MARTIN: O.K. Alright, now, did you
ever see anything or just hear something?
LAWSON: Uh, all I heard, I heard it yelping
and I seen some movement behind a bush. I
heard it yelping and I seen some movement
behind a bush.
LT. MARTIN: But did you see any colors or
anything to indicate that . . . [maybe], it
was a turkey?
LT. MARTIN: You never saw anything?
LAWSON: No. I seen a black something move
and I said well that's a turkey, you know,
'cause he's still (defendant makes turkey
sound) doing like that. And I shot it and I
walked over there and it was none.
LT. MARTIN: Alright, so you saw, you saw
movement but you didn't identify it as a
turkey. You just saw something moving and
you heard the sounds and in your mind you
thought it was a turkey.
LAWSON: Yes sir.
Sergeant Baggerly's testimony as to Lawson's statement was
He heard something and he saw something
move, and he fired at it . . . I asked him
if he had ever saw a turkey and he said no.
This case, therefore, is not one of mistaken identity
because Lawson never properly identified the object as a turkey.
An assumption does not amount to proper identification. See
Gooden v. Commonwealth, 226 Va. 565, 311 S.E.2d 780 (1984).
Lawson's trial testimony was the first time he mentioned a claim
of mistaken identity (a "bobbing black object") as opposed to
his statement at the scene of shooting at movement. The trial
court could have reasonably perceived Lawson's testimony as
self-serving because Lawson testified that he did not see the
log, a foot in diameter, that was exactly where he fired and
would have obscured anything next to it. See Marable v.
Commonwealth, 27 Va. App. 505, 509-510, 500 S.E.2d 233, 235
(1998). Even if Lawson saw a bobbing black object, he
disregarded a mandatory hunting rule which he acknowledged: the
hunter must clearly see and identify his target and what is
beyond. Instead, Lawson aimed his shotgun into thick cover and
fired at sound and movement.
This case is very similar to Cable, where the defendant
heard a squirrel barking off to his right. Cable started
walking towards the sound of the squirrel, thought to be twenty
yards away. He approached "a big old tree" by a ravine. At the
edge of the ravine, Cable stopped, not wanting to proceed
through the thick foliage. He heard something like a squirrel
jumping, whereupon he turned, aimed his gun, and when he saw a
flash of movement, black in color, he shot at the movement. The
shot fatally wounded Cable's hunting partner, dressed in
camouflage, whom Cable believed to be elsewhere. The Supreme
Court held Cable's actions, in failing to identify his target
which resulted in the killing of another hunter, amounted to
involuntary manslaughter. 243 Va. at 241, 415 S.E.2d at 221.
For Lawson to argue that it was reasonable for him to
assume something that low to the ground was an animal and not
another hunter is not credible. Lawson knew his friend was on
the property hunting for turkey; in fact, his first thought when
he realized he had shot another hunter was that the victim was
his friend. Moreover, Lawson had just spent his morning sitting
on a log, in camouflage, waiting to spot a turkey, just as
Dalton was doing when he was killed.
Lawson, as a hunter, had a duty to properly identify his
target and everything in the area prior to firing his firearm.
Id. He failed in this duty, and it cost another hunter his
life. While he did not intend to kill Dalton, his firing into
thick brush without ascertaining if the dark object was actually
a turkey, in an area where he knew at least one other hunter was
present, evidenced a wanton and culpable disregard for human
life amounting to criminal negligence.
We hold that the trial court properly found the evidence
sufficient to convict Lawson of involuntary manslaughter.
III. Discovery at Sentencing
Finally, Lawson challenges the admission of the testimony
regarding part of a 1996 incident that the Commonwealth
presented at his sentencing hearing. Lawson challenges the
admission of the evidence given by Sergeant Baggerly and
Lieutenant Martin regarding that part of the 1996 incident for
which Lawson was not convicted: shooting into an occupied
dwelling. At trial, the Commonwealth argued this testimony was
direct evidence of Lawson's prior acts and was presented in
rebuttal of Lawson's sentencing evidence. Lawson did not and
does not challenge the admission of the other hunting-related
charges for which he was convicted that arose out of the same
incident and were reflected in the pre-sentence report. Lawson
alleges the information on the occupied dwelling shooting should
have been, but was not, provided to him under Rule 3A:11
pursuant to the pretrial discovery order and, thus, it was error
for the trial court to admit that evidence. The Commonwealth
claims, among other arguments, that Rule 3A:11 does not apply to
sentencing in any respect.
There is no general constitutional right to discovery in a
criminal case. Weatherford v. Bursey, 429 U.S. 545 (1977);
Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989);
Moreno v. Commonwealth, 10 Va. App. 408, 392 S.E.2d 836 (1990).
The Commonwealth, however, has granted accused individuals
limited discovery rights which are provided in the Rules of
Court and the Code. These provisions clearly apply only to
felony prosecutions. Lawson contends these provisions and his
pretrial discovery order required the Commonwealth to provide
him with the evidence pertaining to all his actions in 1996.
Under Rule 3A:11, the Commonwealth is required to provide
evidence to the defendant only where the defendant requests such
evidence, and the trial court orders the discovery of the
requested evidence. In this case, Lawson made a pretrial motion
for discovery, requesting information regarding "any criminal
offenses or acts of misconduct other than those charged in the
present indictment . . . which the Commonwealth will attempt to
prove at the trial against the Defendant" and "all information
concerning the Defendant's prior criminal record, including but
not limited to felony and moral turpitude misdemeanor
convictions." Lawson, however, failed to make the discovery
order entered by the trial court a part of the record for this
appeal. Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d
2, 6 (1993) (the appellant has the burden on appeal to provide a
complete record which will enable this Court to fully review a
claim of error). We have, therefore, no basis upon which to
conclude that the trial court granted Lawson's motion for
discovery or, if it did grant the motion, to determine what
information it may have ordered the Commonwealth to provide
Lawson. Accordingly, we find the trial court did not err in
admitting the testimony of Sergeant Baggerly and Lieutenant
Martin. Smith, 16 Va. App. at 635, 432 S.E.2d at 6 (where the
appellant fails to provide a sufficient record, the judgment
will be affirmed).
Lawson also argues that even if the laws of the
Commonwealth do not specifically provide for a right of
discovery at sentencing, due process requires that he be given
an opportunity by notice of the allegations and the intended use
of such at his sentencing hearing. Again, we disagree. The due
process rule of fairness is that exculpatory evidence must be
disclosed upon request. See Brady v. Maryland, 373 U.S. 83
(1963); Goins v. Commonwealth, 251 Va. 442, 470 S.E.2d 114
(1996); Lowe v. Commonwealth, 218 Va. 670, 239 S.E.2d 112
(1977). In this matter, the non-disclosed evidence was in no
way exculpatory, but, in fact, was inculpatory.
We, therefore, affirm the admission at the sentencing
hearing of the evidence pertaining to the 1996 incident.
The convictions for involuntary manslaughter and reckless
handling of a firearm are affirmed. The conviction for criminal
trespass by a hunter is reversed and dismissed.
Affirmed, in part,
reversed and dismissed,
Rule 3A:11. Discovery and Inspection. [(in
(a) Application of Rule. - This Rule
applies only to prosecution for a felony in
a circuit court.
(b) Discovery by the Accused. - (1)
Upon written motion of an accused a court
shall order the Commonwealth's attorney to
permit the accused to inspect and copy or
photograph any relevant (i) written or
recorded statements or confessions made by
the accused, or copies thereof, or the
substance of any oral statements or
confessions made by the accused to any law
enforcement officer, the existence of which
is known to the attorney for the
Commonwealth, and (ii) written reports of
autopsies, ballistic tests, fingerprint
analyses, handwriting analyses, blood, urine
and breath tests, other scientific reports,
and written reports of a physical or mental
examination of the accused or the alleged
victim made in connection with the
particular case, or copies thereof, that are
known by the Commonwealth's attorney to be
within the possession, custody or control of
(2) Upon written motion of an accused a
court shall order the Commonwealth's
attorney to permit the accused to inspect
and copy or photograph designated books,
papers, documents, tangible objects,
buildings or places, or copies or portions
thereof, that are within the possession,
custody, or control of the Commonwealth,
upon a showing that the items sought may be
material to the preparation of his defense
and that the request is reasonable. This
subparagraph does not authorize the
discovery or inspection of statements made
by Commonwealth witnesses or prospective
Commonwealth witnesses to agents of the
Commonwealth or of reports, memoranda or
other internal Commonwealth documents made
by agents in connection with the
investigation or prosecution of the case,
except as provided in clause (ii) of
subparagraph (b)(1) of this Rule.
[Code] 19.2-265.4. Failure to provide discovery.
A. In any criminal prosecution for a
felony in a circuit court or for a
misdemeanor brought on direct indictment,
the attorney for the Commonwealth shall have
a duty to adequately and fully provide
discovery as provided under Rule 3A:11 of
the Rules of the Supreme Court. Rule 3A:11
shall be construed to apply to such felony
and misdemeanor prosecutions. This duty to
disclose shall be continuing and shall apply
to any additional evidence or material
discovered by the Commonwealth prior to or
during trial which is subject to discovery
or inspection and has been previously
requested by the accused.
B. If at any time during the course of
the proceedings it is brought to the
attention of the court that the attorney for
the Commonwealth has failed to comply with
this section, the court may order the
Commonwealth to permit the discovery or
inspection, grant a continuance, or prohibit
the Commonwealth from introducing evidence
not disclosed, or the court may enter such
other order as it deems just under the
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