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Miles v. Commonwealth, Record No. 0288-22-2 (Va. Ct. App. July 25, 2023)

Case Briefs

July 25, 2023

By: Juli M. Porto

Virginia Appellate Law Blog

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The Court of Appeals interprets Rule 5A:18 and two terms within Code § 18.2‑279, which prohibits the discharge of a firearm within an occupied building.


Facts. Corporal Huber confronted Timothy Miles in an apartment building where the two exchanged gunfire. Miles fired six shots, wounding Huber. At the time, no one else was in the building. Miles was charged with, among other things, six counts of discharge of a firearm within an occupied building pursuant to Code § 18.2‑279.

At trial, Miles agreed to two instructions. The first was a malicious discharge instruction that included unlawful discharge as a lesser-included offense. The second was a “heat of passion excludes malice” instruction. The jury convicted Miles of six counts of unlawful discharge of a firearm in an occupied building.

Miles filed post-verdict motions challenging the convictions on three grounds. First, the jury instructions did not tell the jury that and “unlawful” discharge requires criminal negligence, which allowed it to convict him of the “non-existent offense” of “‘heat of passion’ discharge of a firearm in an occupied building.” Second, the building was not “occupied” because Huber, the only “occupant,” was neither a resident nor a guest oof the building. And third, since he had fired all six bullets in rapid succession, he could not be convicted of six separate offenses. The trial court denied all of Miles’ motions, and he appealed.

On Miles’ first point, the Court of Appeals questioned whether he could even challenge the jury instructions since he had requested them. Miles argued that the “invited error” was inapplicable in this case since an indictment’s failure to charge an offense can be raised at any time.


Issues. (1) Whether the “invited error” doctrine applies to an agreed-upon jury instruction where the result is a conviction for a “non-offense.” (2) Whether a building must be occupied by a resident or guest to sustain a conviction under Code § 18.2‑279. (3) Whether there must be a “lapse” of time between shots to sustain multiple violations of Code § 18.2‑279.


Holdings. (1) Yes. A party may not take successive contradictory positions in litigation. (2) No. The term “occupied” in Code § 18.2‑279 refers to the physical presence of any individual in the building. (3) No. The term “discharge” in Code § 18.2‑279 refers to each shot fired.


Notes. (1) The “approbate-reprobate” doctrine prevents a party from taking successive positions during litigation that are either inconsistent or mutually contradictory. This doctrine is “broader and more demanding” than Rule 5A:18, which allows appellate courts to consider error not preserved at the trial level for good cause or to attain the ends of justice. Since Miles agreed to the jury instructions, he could not challenge them on appeal.

(2) Code § 18.2‑279 prohibits shooting “within any building when occupied by one or more persons in such a manger as to endanger the life or lives of such person or persons.” The statute contemplates that any building can be occupied, not just houses where individuals live. Here, Huber occupied the building within which Miles discharged his weapon, therefore the requirements of the statute were met.

(3) This issue was decided by the Court of Appeals in Taylor v. Commonwealth, 77 Va. App. 149 (2023) just a few months before this case was decided. There, the Court held that “discharge” of a firearm is “bullet-specific,” such that each shot is a separate discharge, and therefore separate offense. Here, Miles discharged his weapon six times, so he is guilty of six separate offenses.


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