Most crimes cannot be proven merely by committing the act — known as actus reus — but also require proof of criminal intent, known as mens rea. Generally, one of four levels of mens rea is required before a conviction may be obtained, namely purposeful, knowing, reckless or negligent intent.

Today, the Virginia Court of Appeals made clear that negligence is the mens rea level needed to obtain a conviction for unlawful discharge of a firearm. Bryant v. Virginia, ___ , Va. App. ___ (April 25, 2017). Tina Marie Bryant was convicted of unlawful discharge of a handgun in an occupied building, under VA Code § 18.2-279. She testified that the discharge was accidental, following her decision, after all, not to commit suicide by handgun at the hotel incident scene. The unlawful firearm discharge statute provides:

“If any person maliciously discharges a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons, or maliciously shoots at, or maliciously throws any missile at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peril, the person so offending is guilty of a Class 4 felony. In the event of the death of any person, resulting from such malicious shooting or throwing, the person so offending is guilty of murder in the second degree. However, if the homicide is willful, deliberate and premeditated, he is guilty of murder in the first degree.

The trial judge declined Bryant’s requested jury instruction about accidental firearm discharge, and the Court of Appeals upheld that denial. Instead, the jury was instructed that in order to
find Bryant guilty, it must find that the Commonwealth proved:

‘“(1) [t]hat the [appellant] discharged a firearm within a building occupied by one or
more persons; and (2) [t]hat the firearm was discharged in such a manner as to endanger the life
or lives of such person or persons’.”

Bryant. 

In concluding that unlawful discharge only requires a negligent mens rea, Bryant compares the Class 6 unlawful discharge count against Bryant to the statute’s more serious crimes of malicious firearm discharge and firearm discharge that leads to death. Moreover, Bryant explains that:

“In determining the definition of ‘unlawful’ as used by the legislature, this Court has previously held that the ‘traditional understanding of the word “unlawfully” and the conduct usually proscribed by that word’ is ‘criminally negligent conduct.’ … Criminal negligence occurs ‘when acts of a wanton or willful character, committed or omitted, show “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 occur].”‘…  In addition, the offender must ‘know[], or [be] charged with the knowledge of, the probable result of [her] act[].’ Conduct that begins as lawful can become unlawful and rise to the level of criminal negligence if it is ‘done without requisite caution.’… The standard for determining whether a defendant acted with criminal negligence is an objective one.”

Fortunately for Bryant, after returning a guilty verdict, the jury set no period of incarceration and set a fine of zero dollars. By not even recommending any fine, it sounds like the jury either felt discomfort about convicting Bryant in the first place, or else felt that she had gone through enough in her progression from going to the hotel to commit suicide and then changing her mind.

In any event, with Virginia’s firearm laws being very protective of the right to bear arms, Bryant is a clear message to all firearm owners to assure that they safely handle and store their firearms.