Brandau v. Commonwealth

In Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563, 564 (1993), the Court held that the trial court did not err by refusing to give a lesser-included assault and battery instruction in an attempted murder prosecution. Brandau testified that he was merely trying to scare the person at his door, who he did not know to be a police officer, when he intentionally emptied his gun through the door at a height positioned to strike a person standing outside his door. The shots wounded the police officer standing behind the door. Brandau argued that he was entitled to an assault and battery instruction, because if the jury believed his testimony that he intended only to scare the person, it could have found that he did not intend to kill the officer. In upholding the denial of an assault and battery instruction, the Court held that the only conclusion that reasonably could be reached, on those facts and circumstances, was that by intentionally shooting at the person several times, Brandau intended to kill the officer. The Court said that "no more than a mere scintilla of evidence" supported Brandau's contention that he only intended to scare the person at his door. Brandau, 16 Va. App. at 412-15, 430 S.E.2d at 565-67.