COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray Argued by Teleconference
BRUCE ELLIOTT DAVIS MEMORANDUM OPINION * BY v. Record No. 1244-95-3 JUDGE LARRY G. ELDER MARCH 25, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE Martin F. Clark, Jr., Judge Rickey G. Young for appellant.
John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Bruce Elliott Davis (appellant) appeals his convictions of
attempted capital murder and use of a firearm in the commission
of a felony. He contends that the evidence was insufficient to
support either conviction. For the reasons that follow, we
affirm.
Appellant contends that the evidence was insufficient to
support his conviction of attempted capital murder. Appellant
argues that the evidence failed to prove that he had the specific
intent to kill Corporal Thomas or that his actions constituted
more than mere preparatory acts. We disagree.
"[W]hen the question of the sufficiency of the evidence is
raised on appellate review, we must determine whether a
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. reasonable fact finder could have found from the evidence before
it that guilt had been proved beyond a reasonable doubt.
Furthermore, when reviewing the sufficiency of the evidence, we
must view the evidence in the light most favorable to the
Commonwealth, granting all reasonable inferences fairly deducible
from the evidence." Crump v. Commonwealth, 20 Va. App. 609, 617,
460 S.E.2d 238, 241-42 (1995). "The judgment of a trial court
sitting without a jury is entitled to the same weight as a jury
verdict and will not be set aside unless it appears from the
evidence that the judgment is plainly wrong or without evidence
to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
To sustain a conviction for attempted capital murder, the
evidence must establish "'both a specific intent to kill the
victim and an overt but ineffectual act committed in furtherance
of the criminal purpose.'" 1 Martin v. Commonwealth, 13 Va. App.
524, 527, 414 S.E.2d 401, 402 (1992) (quoting Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987)).
In a prosecution for attempted capital murder, it is well
established that: [t]he act must be done with the specific intent to commit a particular crime. . . . To do an act with intent to commit one crime cannot be an attempt to commit another crime, though it might result in such other 1 Capital murder includes "[t]he willful, deliberate, and premeditated killing of a law-enforcement officer . . . when such killing is for the purpose of interfering with the performance of his official duties." Code § 18.2-31(6).
-2- crime. . . . [T]o be guilty of an attempt to murder there must be a specific intent to kill.
Thacker v. Commonwealth, 134 Va. 767, 770-71, 114 S.E. 504, 506
(1922). [S]pecific intent may, like any other fact, be shown by circumstances. Intent is a state of mind which can be evidenced only by the words or conduct of the person who is claimed to have entertained it. The inferences to be drawn from proven facts, so long as they are reasonable, are within the province of the trier of fact. The fact finder may infer that a person intends the immediate, direct, and necessary consequences of his voluntary acts.
Bell v. Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452
(1991) (citations omitted).
We hold that the evidence was sufficient to prove that
appellant had the specific intent to kill Corporal Thomas. The
record shows that appellant had previously eluded arrest for
murder by jumping from a second story window after stating that
he would resist any attempts to "take [him] to jail." When the
police surrounded appellant in Martinsville several weeks later,
he sat in the car with his loaded gun for about four minutes,
defying the repeated orders of the police to display his hands.
Then, within a span of about ten seconds, he sprang to his feet,
pointed his gun at Corporal Thomas, who immediately backed away,
and scampered across the front seat to the open driver's side
door. When appellant emerged from the car, rather than
continuing his attempt to escape, he looked at Corporal Thomas,
-3- pivoted in his direction and then started bringing his gun
towards him. Although appellant's prior actions and words during
his escape from Roanoke indicate only that his state of mind was
to elude capture, his intent to kill could reasonably be inferred
from the fact that he interrupted his flight from the car to
pivot towards Corporal Thomas. Corporal Thomas was only four
feet away from appellant and presumably in position to tackle him
unless appellant's escape from the car was swift. Instead of
continuing his forward movements from the car door, appellant
turned toward his left and started moving his gun towards
Corporal Thomas. In these circumstances, it was reasonable for
the trial court to infer that appellant had formed the specific
intent to fire his weapon and kill Officer Thomas. Appellant's reliance on Martin is misplaced. 13 Va. App.
524, 414 S.E.2d 401 (1992). In Martin, we reversed the
defendant's conviction for attempted capital murder even though
the evidence showed that the defendant swung a knife just under
the chin of a police officer after saying "I'm going to kill
you." Id. at 526, 414 S.E.2d at 402. Appellant contends that we
held in Martin that the evidence was insufficient to prove
specific intent to kill. However, appellant misstates both the
issue and holding in Martin. The issue in Martin was the trial
court's failure to give a jury instruction proposed by the
defendant, not the sufficiency of the evidence to prove specific
intent. We held that the evidence, when viewed in the light most
-4- favorable to the defendant, supported an instruction on the
lesser-included charge of simple assault. Id. at 527-29, 414
S.E.2d at 402-04. Because the issue in this case is the
sufficiency of the evidence, for which we view the evidence in
the light most favorable to the Commonwealth, Martin has no
application to this case.
In a prosecution for attempt, the act shown by the
Commonwealth "need not . . . be the last proximate act to the
consummation of the crime in contemplation." Sizemore v.
Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 214 (1978).
Instead, it "is sufficient if it be an act apparently adopted to
produce the result intended. It must be something more than mere
preparation." Id. [T]he question of what constitutes an attempt is often intricate and difficult to determine, and . . . no general rule can be laid down which will serve as a test in all cases. Each case must be determined on its own facts.
Id. at 985, 243 S.E.2d at 215.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray Argued by Teleconference
BRUCE ELLIOTT DAVIS MEMORANDUM OPINION * BY v. Record No. 1244-95-3 JUDGE LARRY G. ELDER MARCH 25, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE Martin F. Clark, Jr., Judge Rickey G. Young for appellant.
John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Bruce Elliott Davis (appellant) appeals his convictions of
attempted capital murder and use of a firearm in the commission
of a felony. He contends that the evidence was insufficient to
support either conviction. For the reasons that follow, we
affirm.
Appellant contends that the evidence was insufficient to
support his conviction of attempted capital murder. Appellant
argues that the evidence failed to prove that he had the specific
intent to kill Corporal Thomas or that his actions constituted
more than mere preparatory acts. We disagree.
"[W]hen the question of the sufficiency of the evidence is
raised on appellate review, we must determine whether a
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. reasonable fact finder could have found from the evidence before
it that guilt had been proved beyond a reasonable doubt.
Furthermore, when reviewing the sufficiency of the evidence, we
must view the evidence in the light most favorable to the
Commonwealth, granting all reasonable inferences fairly deducible
from the evidence." Crump v. Commonwealth, 20 Va. App. 609, 617,
460 S.E.2d 238, 241-42 (1995). "The judgment of a trial court
sitting without a jury is entitled to the same weight as a jury
verdict and will not be set aside unless it appears from the
evidence that the judgment is plainly wrong or without evidence
to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
To sustain a conviction for attempted capital murder, the
evidence must establish "'both a specific intent to kill the
victim and an overt but ineffectual act committed in furtherance
of the criminal purpose.'" 1 Martin v. Commonwealth, 13 Va. App.
524, 527, 414 S.E.2d 401, 402 (1992) (quoting Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987)).
In a prosecution for attempted capital murder, it is well
established that: [t]he act must be done with the specific intent to commit a particular crime. . . . To do an act with intent to commit one crime cannot be an attempt to commit another crime, though it might result in such other 1 Capital murder includes "[t]he willful, deliberate, and premeditated killing of a law-enforcement officer . . . when such killing is for the purpose of interfering with the performance of his official duties." Code § 18.2-31(6).
-2- crime. . . . [T]o be guilty of an attempt to murder there must be a specific intent to kill.
Thacker v. Commonwealth, 134 Va. 767, 770-71, 114 S.E. 504, 506
(1922). [S]pecific intent may, like any other fact, be shown by circumstances. Intent is a state of mind which can be evidenced only by the words or conduct of the person who is claimed to have entertained it. The inferences to be drawn from proven facts, so long as they are reasonable, are within the province of the trier of fact. The fact finder may infer that a person intends the immediate, direct, and necessary consequences of his voluntary acts.
Bell v. Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452
(1991) (citations omitted).
We hold that the evidence was sufficient to prove that
appellant had the specific intent to kill Corporal Thomas. The
record shows that appellant had previously eluded arrest for
murder by jumping from a second story window after stating that
he would resist any attempts to "take [him] to jail." When the
police surrounded appellant in Martinsville several weeks later,
he sat in the car with his loaded gun for about four minutes,
defying the repeated orders of the police to display his hands.
Then, within a span of about ten seconds, he sprang to his feet,
pointed his gun at Corporal Thomas, who immediately backed away,
and scampered across the front seat to the open driver's side
door. When appellant emerged from the car, rather than
continuing his attempt to escape, he looked at Corporal Thomas,
-3- pivoted in his direction and then started bringing his gun
towards him. Although appellant's prior actions and words during
his escape from Roanoke indicate only that his state of mind was
to elude capture, his intent to kill could reasonably be inferred
from the fact that he interrupted his flight from the car to
pivot towards Corporal Thomas. Corporal Thomas was only four
feet away from appellant and presumably in position to tackle him
unless appellant's escape from the car was swift. Instead of
continuing his forward movements from the car door, appellant
turned toward his left and started moving his gun towards
Corporal Thomas. In these circumstances, it was reasonable for
the trial court to infer that appellant had formed the specific
intent to fire his weapon and kill Officer Thomas. Appellant's reliance on Martin is misplaced. 13 Va. App.
524, 414 S.E.2d 401 (1992). In Martin, we reversed the
defendant's conviction for attempted capital murder even though
the evidence showed that the defendant swung a knife just under
the chin of a police officer after saying "I'm going to kill
you." Id. at 526, 414 S.E.2d at 402. Appellant contends that we
held in Martin that the evidence was insufficient to prove
specific intent to kill. However, appellant misstates both the
issue and holding in Martin. The issue in Martin was the trial
court's failure to give a jury instruction proposed by the
defendant, not the sufficiency of the evidence to prove specific
intent. We held that the evidence, when viewed in the light most
-4- favorable to the defendant, supported an instruction on the
lesser-included charge of simple assault. Id. at 527-29, 414
S.E.2d at 402-04. Because the issue in this case is the
sufficiency of the evidence, for which we view the evidence in
the light most favorable to the Commonwealth, Martin has no
application to this case.
In a prosecution for attempt, the act shown by the
Commonwealth "need not . . . be the last proximate act to the
consummation of the crime in contemplation." Sizemore v.
Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 214 (1978).
Instead, it "is sufficient if it be an act apparently adopted to
produce the result intended. It must be something more than mere
preparation." Id. [T]he question of what constitutes an attempt is often intricate and difficult to determine, and . . . no general rule can be laid down which will serve as a test in all cases. Each case must be determined on its own facts.
Id. at 985, 243 S.E.2d at 215.
appellant committed acts towards the commission of capital
murder. The evidence showed that appellant sat in the front seat
of the car with a loaded gun for four minutes, refusing to comply
with the fervent orders of the police to show his hands. While
still inside the car, appellant pointed his gun at Corporal
Thomas, who was blocking the open driver's side doorway. Then,
after Corporal Thomas backed away and appellant emerged from his
-5- cleared escape route, appellant pivoted in the direction of
Corporal Thomas and began raising his weapon toward him.
Although appellant was unable to perform the last proximate act
of firing his gun, a fact finder could reasonably conclude that
appellant's movements to reposition himself and his firearm were
adopted to produce his intended result, the murder of Corporal
Thomas.
Appellant contends that the evidence is insufficient to
prove an overt act because he neither contained, threatened nor
fired upon Officer Thomas. However, in Bottoms v. Commonwealth,
we held that the evidence was sufficient to prove that the
defendant committed acts in furtherance of his intent to murder
even though he did none of the acts that appellant argues are
necessary to support his conviction in this case. 22 Va. App.
378, 383, 470 S.E.2d 153, 156 (1996) (holding that approaching a
police officer in a car and attempting to lure him to the
driver's window while holding a loaded revolver constituted overt
acts sufficient to support conviction for attempted capital
murder).
We also disagree with appellant that this case is altogether
distinguishable from Sizemore. In Sizemore, the defendant
approached the police officer with a loaded rifle, aimed it at
him and threatened repeatedly to kill him. 218 Va. at 985, 243
S.E.2d at 215. Even though the defendant never actually fired
his rifle, the Virginia Supreme Court held that these actions
-6- "were all acts which the trial court could have found were done
in furtherance of the intent previously formed by the defendant
to murder [the officer]." Id. at 986, 243 S.E.2d at 215-16.
Similarly, in this case, appellant aimed his loaded gun at
Corporal Thomas while he was in the car and attempted to aim at
him again after he partially emerged from the car. Even though
appellant did not also verbally threaten Corporal Thomas, the
trial court could have reasonably concluded that appellant's
actions amounted to the commencement of the consummation of his
murder of Corporal Thomas. Appellant's sole contention regarding his conviction for use
of a firearm in the commission of a felony is that the
Commonwealth failed to prove the underlying felony of attempted
capital murder. Code § 18.2-53.1. Because we affirm appellant's
conviction of attempted capital murder, we hold that the evidence
was sufficient to support his conviction under Code § 18.2-53.1.
For the foregoing reasons, we affirm the convictions. Affirmed.
-7-