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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 OPINION BY 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. BACKGROUND 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 - 2 -

shotgun loaded with 00 shot. turkey.

At no time did Lawson say he saw a

Lawson showed Sergeant Baggerly the spot from which he

shot and said he did not know his friend's whereabouts when he fired. 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 "Nothing never moved. I

thought he was shooting at a turkey.

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: - 3 -

[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 other damage. 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. 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 There

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 clearly see. Lawson explained his actions surrounding the shooting. He,

not wearing blaze orange, had spent the morning sitting on a log - 4 -

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 He then heard what he

disturbance as "turkey scratch feeding."

thought was a turkey yelping and started "trying to make a visual." He saw "something black . . . the black object [that "It looked exactly like a

was] kind of bobbing up and down."

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." moved. He got ready to shoot again but nothing

Then he ran down the hill and found Dalton and his dog, Lawson immediately went for help.

both dead.

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. - 5 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 charges. 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. made to the pre-sentence report. No objection was

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 Over objection, the

evidence was to show Lawson's "prior acts." 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 - 6 -

his pretrial discovery motions and the trial court's discovery order. The trial court overruled the objection. ANALYSIS I. Trespass By Hunter

The trial court found Lawson guilty of criminal trespass by a hunter, in violation of Code

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