COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

JEFFREY ALLEN MORRIS
OPINION BY
v. Record No. 1423-94-2 JUDGE JAMES W. BENTON, JR.
DECEMBER 5, 1995
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge

Willis J. Spaulding for appellant.

Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Jeffrey Allen Morris was convicted of two counts of
discharging a firearm from a motor vehicle so as to create the
risk of injury or death to another person in violation of Code
18.2-286.1. He contends that the evidence was insufficient to
sustain the convictions. For the reasons that follow, we
reverse.
I.
The evidence proved that after 11:45 p.m., Aretha Watkins
was driving thirty-five to forty miles per hour on a two lane
rural highway. The posted speed limit was fifty-five miles per
hour. Watkins testified that the highway had many curves and she
was not in a hurry. Paul Williams sat in the passenger seat and
conversed with Watkins. Williams' daughter was sleeping in the
back seat.
Morris was driving on the highway and began to follow
Watkins. Watkins testified the automobile was close on her
bumper. Williams said it was "a couple of car lengths" behind.
The highway had solid yellow lines that prohibited passing.
After following Watkins' automobile for five miles, Morris passed
her.
As Morris' automobile was passing, a passenger in Morris'
automobile made an offensive finger gesture. Morris' automobile
continued on the highway. When Watkins traveled several miles
down the road, she noticed that Morris' automobile had come
almost to a stop in the road. Watkins began to slow down.
Williams observed a rifle barrel come out of the driver's
side of Morris' vehicle. Williams testified that the gun was
fired twice toward the woods. He observed that the gun was
pointed perpendicular to Morris' automobile and not toward the
automobile he occupied. After the shots, Morris' automobile sped
away. Williams stated that he and Watkins were upset and Watkins
felt nauseous.
Watkins heard and saw the gunfire. She also saw the gun
barrel being withdrawn after the firing but did not see the
barrel come out of the car initially. Watkins testified that she
"panicked" after the gunfire and wrote down the license number of
Morris' automobile.
A witness testified that he saw Morris later that night.
Morris stated in the witness' presence that "he was coming down
Route 20 South and there was a car that was tailgating him and to
stop the car from tailgating he held a rifle out the window and
fired it." Morris said that after the gun was fired "the car got
off his bumper."
At the conclusion of the evidence, the jury was instructed
on the elements of the offense as follows:
The defendant is charged with the crime of
shooting from a vehicle. The Commonwealth
must prove beyond a reasonable doubt each of
the following elements of that crime:

(1) That the defendant intentionally
discharged a firearm while in or
on a motor vehicle; and
(2) That the defendant thereby created
a risk of injury or death to
Aretha Watkins.

A similar instruction was given naming Williams as an object of
the offense. The jury found "Morris, guilty of shooting from a
vehicle and thereby creating a risk of injury or death to Aretha
Watkins" and Paul Williams.
II.
Morris was indicted and tried for violation of the following
statute:
Any person who, while in or on a motor
vehicle, intentionally discharges a firearm
so as to create the risk of injury or death
to another person or thereby cause another
person to have a reasonable apprehension of
injury or death shall be guilty of a Class 5
felony. Nothing in this section shall apply
to a law-enforcement officer in the
performance of his duties.

Code 18.2-286.1. However, the jury was instructed only that
the elements of the offense were "intentionally discharg[ing] a
firearm while in . . . a motor vehicle . . . thereby creat[ing] a
risk of injury or death." The instruction as drafted and given
to the jury charged one of the two possible offenses specified
within Code 18.2-286.1 in the disjunctive. It became the law
of the case. See Spencer v. Commonwealth, 240 Va. 78, 89, 393
S.E.2d 609, 616, cert. denied, 498 U.S. 908 (1990); Owens-
Illinois, Inc. v. Thomas Baker Real Estate Ltd., 237 Va. 649,
652, 379 S.E.2d 344, 346 (1989).
The evidence proved that while Morris was in the automobile
he discharged a gun in the direction of woods. The gun was
pointed out the driver's side of the automobile and was held
perpendicular to the side of the automobile while it was fired
into the woods adjoining the highway. The evidence further
proved that Watkins and Williams were in an automobile travelling
behind Morris' automobile. Williams' testimony clearly
established that the gun was not aimed at or in the direction of
the automobile occupied by Watkins and Williams. Although
Watkins and Williams both testified that they were upset by the
incident and that Watkins "panicked," this evidence tended to
prove apprehension in Watkins and Williams. However, that aspect
of Code 18.2-286.1 was not charged in instructions to the jury
as an element of the offense.
The evidence showed that Watkins' vehicle was in the same
lane of travel and behind Morris' vehicle. No evidence proved
the distance between the two automobiles. The evidence proved
that Watkins was not attempting to pass Morris' automobile when
the gun was discharged. No evidence proved that Watkins' driving
was affected by the shooting. The evidence failed to prove
beyond a reasonable doubt that a risk of injury or death to
Watkins or Williams arose by virtue of the gun being discharged
into the woods.
Accordingly, the convictions are reversed.
Reversed.

	ROMINGER LEGAL
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