Della Small Wilson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 3, 1998
• Docket: 0118972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Overton Argued at Richmond, Virginia

DELLA SMALL WILSON MEMORANDUM OPINION * BY v. Record No. 0118-97-2 JUDGE LARRY G. ELDER MARCH 3, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Robert W. Duling, Judge Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Daniel J. Munroe, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Della Small Wilson (appellant) appeals her conviction of

attempted murder of a police officer with the intent of

interfering with the performance of his official duties. She

contends that the evidence was insufficient to support her

conviction. She argues that the evidence failed to support the

trial court's conclusion that she specifically intended (1) to

"kill" Officer Carnes or (2) to interfere with the performance of

his official duties when she threw a large butcher knife at him.

For the reasons that follow, we affirm.

"On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. inferences fairly deducible therefrom." Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). This Court does

not substitute its judgment for that of the trier of fact. See

Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220

(1992). Instead, the trial court's judgment will not be set

aside unless it appears that it is plainly wrong or without

supporting evidence. Josephs v. Commonwealth, 10 Va. App. 87,

99, 390 S.E.2d 491, 497 (1990) (en banc). "'An attempt to commit a crime is composed of two elements:

(1) The intent to commit it; and (2) a direct, ineffectual act

done towards its commission.'" Haywood v. Commonwealth, 20 Va.

App. 562, 565, 458 S.E.2d 606, 607-08 (1995) (quoting Merritt v.

Commonwealth, 164 Va. 653, 657, 180 S.E. 395, 397 (1935)). Code

§ 18.2-31(6) states that the crime of capital murder includes the

"willful, deliberate, and premeditated killing of a

law-enforcement officer . . . for the purpose of interfering with

the performance of his official duties."

"The intent required to be proven in an attempted crime is

the specific intent in the person's mind to commit the particular

crime for which the attempt is charged." Wynn v. Commonwealth, 5

Va. App. 283, 292, 362 S.E.2d 193, 198 (1987); see also Merritt,

164 Va. at 660-61, 180 S.E. at 398-99 (stating that "while a

person may be guilty of murder though there was no actual intent

to kill, he cannot be guilty of an attempt to commit murder

unless he has a specific intent to kill"). "Intent is the

2 purpose formed in a person's mind and may be, and frequently is,

shown by circumstances. It is a state of mind which may be

proved by a person's conduct or by his statements." Barrett v.

Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969); see

also Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808,

810 (1977). "[A] person is presumed to intend the immediate,

direct, and necessary consequences of his voluntary act."

Nobles, 218 Va. at 551, 238 S.E.2d at 810. "[W]hether the required intent exists is generally a

question for the trier of fact." Id. "The inferences to be

drawn from proved facts are within the province of the [trier of

fact], so long as the inferences are reasonable and justified."

Barrett, 210 Va. at 156, 169 S.E.2d at 451. Where, as here, the

Commonwealth relies solely on circumstantial evidence to prove

the intent of the accused, the evidence must exclude every

reasonable hypothesis of innocence. See Coffey v. Commonwealth,

202 Va. 185, 188, 116 S.E.2d 257, 259 (1960).

All necessary circumstances proved must be consistent with guilt and inconsistent with innocence. It is not sufficient that the evidence create a suspicion of guilt, however strong, or even a probability of guilt, but must exclude every reasonable hypothesis save that of guilt.

Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).

Appellant's intent to kill Officer Carnes could be

reasonably inferred from her conduct during the confrontation in

her bedroom on June 7. The record established that, after

3 appellant retrieved the eleven-inch-long knife from the right

side of her bed, she waved it angrily in the air and appeared

"angry" and "hysterical." Officer Carnes was standing about

eight feet from where appellant was sitting in her bed. When

Officer Carnes ordered her to put down the knife, appellant

refused to comply. Instead, she told Officer Carnes that she

"would let him have it" and threw the knife at the officer's

chest. She threw the knife by extending her arm "straight out"

while holding the handle of the knife. The manner in which

appellant released the knife caused the blade and the handle to

flip "end-over-end" as it traveled through the air toward Officer

Carnes. The knife struck Officer Carnes in the left side of his

chest with the blade pointing toward the officer. Officer Carnes

was not harmed by the impact of the knife as it hit the strap of

his bullet-proof vest. The dangerous manner in which appellant

released the knife, her decision to aim her throw at the left

side of Officer Carnes' chest while sitting about eight feet away

from the officer, and the nature of the object she chose to throw

-- a large knife with a six-and-a-half-inch blade -- support the

trial court's conclusion that she specifically intended to kill

Officer Carnes. This evidence likewise excludes as a reasonable

hypothesis the theory that appellant's sole intent when she threw

the knife at Officer Carnes was merely to commit an assault and

battery upon the officer. We also hold that the evidence was sufficient to prove that

4 appellant intended to interfere with the exercise of Officer

Carnes' official duties. The record established that Officer

Carnes was on duty and in uniform when he entered appellant's

bedroom in response to an earlier call from her apartment.

Appellant threw the knife at Officer Carnes' chest after he

ordered her to put it down. The trial court could have

reasonably inferred from appellant's actions that her attempt to

kill Officer Carnes was also an attempt to thwart his effort to

neutralize the dangerous confrontation between herself and the

others in the bedroom. For the foregoing reasons, we affirm appellant's conviction

of attempted capital murder.

Affirmed.