COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge McClanahan and Senior Judge Willis Argued at Richmond, Virginia
DONNY LYNN SPROUSE, SR. MEMORANDUM OPINION∗ BY v. Record No. 3010-04-2 CHIEF JUDGE JOHANNA L. FITZPATRICK FEBRUARY 7, 2006 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Von L. Piersall, Jr., Judge Designate
Andrea Lantz Harris, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.
Donny Lynn Sprouse (appellant) was convicted in a bench trial of attempted malicious
wounding in violation of Code §§ 18.2-51, 18.2-26 and 18.2-10. On appeal, he contends the
evidence was insufficient to convict him. We affirm the trial court.
I. BACKGROUND
Under familiar principles of appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that Kevin Michael Moore (Moore), appellant’s
nephew, and appellant had a confrontation prior to November 13, 2003. Appellant embraced
Moore’s mother and Moore told him to take his hands off her. Moore stated appellant
was getting violent, telling me what he was going to do and how he was going to whip my butt, how he could knock me out with two
∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. punches or he could kill me in two minutes, just talking how he could hurt me and cause harm to me and how he could pretty much destroy me in a matter of minutes, so I felt, you know, fear.
On that occasion, Moore had a gun, showed it to appellant but did not point it at him, and the
confrontation ended.
At approximately 5:30 p.m. on November 13, 2003, Moore arrived home after passing
appellant leaving a neighbor’s driveway. Moore parked his car in the driveway behind one of
two other parked cars. Appellant stopped on the state road at the end of Moore’s driveway and
as Moore walked toward his house, yelled “[Y]our day is numbered [sic],” “[Y]ou’re going to
get it,” and “[D]o you have your gun now?” at Moore. Appellant drove off, and Moore went
inside his house. A short time later, Moore walked up his driveway to check his mail and get the
newspaper. On his way back to the house and halfway down the driveway, Moore saw
appellant’s truck come “flying” into his driveway at a high rate of speed. Moore ran the
remaining 50 feet and jumped between the two parked cars to avoid being struck by appellant’s
truck. Moore stated that appellant was driving directly towards him and that his truck came
within four or five feet of hitting him. Appellant skidded to a stop near Moore and yelled again
“[W]here’s everybody at now? [sic]” “[W]hat are you going to do now?” “[W]here’s your gun
now?” and “[Y]our days are numbered.” As Moore used his cell phone to call his father,
appellant “took off spinning, throwing gravel and left – just kicked up, spinning in the gravel and
leaving in a hurry, then when he got out on the street, he left a black mark on the street.”
Richard Glenn Spradlin, Moore’s father, testified that he spoke with appellant after the
incident. At that time, appellant said he was going to kill them both. The police took a picture
of the driveway and confirmed fresh skid marks in the gravel. Officer Seitz also spoke to
appellant shortly thereafter and described his physical appearance as “smell[ing] of alcohol, a
little bit of a slurred speech, [and] slow dexterity-wise.”
-2- Appellant denied ever being in Moore’s driveway. He admitted asking him where his
gun was, but denied threatening to kill him or his father. Appellant claimed Moore pointed the
gun at him in the incident involving Moore’s mother. He admitted he drank “a couple of beers
or so” on November 13.
Appellant was convicted of attempted malicious wounding and sentenced to five years in
prison with two years suspended. Appellant appeals from that conviction.
II. ANALYSIS
Appellant’s sole contention on appeal is that the evidence was insufficient to convict him.
He argues that the Commonwealth failed to prove he had the intent to maim, disfigure, disable,
or kill Moore. We disagree.
“When the sufficiency of the evidence is challenged on appeal, we determine whether
the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and
the reasonable inferences fairly deducible from that evidence support each and every element of
the charged offense.” Slade v. Commonwealth, 43 Va. App. 61, 69, 596 S.E.2d 90, 94 (2004)
(citing Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999)). In so
doing, we must “‘“discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom.”’” Stevens v. Commonwealth, 44 Va. App. 122,
127-28, 603 S.E.2d 642, 645 (2004) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 254,
584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335,
348, 494 S.E.2d 859, 866 (1998))).
In considering an appellant’s alternate hypothesis of innocence in a circumstantial evidence case, we must determine “not whether there is some evidence to support” the appellant’s hypothesis of innocence, but, rather, “whether a reasonable [fact finder], upon consideration of all the evidence, could have rejected [the
-3- appellant’s] theories in his defense and found him guilty of [the charged crime] beyond a reasonable doubt.”
Emerson v. Commonwealth, 43 Va. App. 263, 277-78, 597 S.E.2d 242, 249 (2004) (quoting
Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003)). “The statement that
circumstantial evidence must exclude every reasonable theory of innocence is simply another
way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.”
Hudson, 265 Va. at 513, 578 S.E.2d at 785 (citation omitted).
Code § 18.2-51 provides, “[i]f any person maliciously . . . by any means cause him bodily
injury, with the intent to maim, disfigure, disable, or kill he shall . . . be guilty of a Class 3
felony.”
“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.” Holley v. Commonwealth, 44
Va. App. 228, 234, 604 S.E.2d 127, 130 (2004). See also Merritt v. Commonwealth, 164 Va.
653, 657, 180 S.E. 395, 397 (1935); Crawley v. Commonwealth, 25 Va. App. 768, 772, 492
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge McClanahan and Senior Judge Willis Argued at Richmond, Virginia
DONNY LYNN SPROUSE, SR. MEMORANDUM OPINION∗ BY v. Record No. 3010-04-2 CHIEF JUDGE JOHANNA L. FITZPATRICK FEBRUARY 7, 2006 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Von L. Piersall, Jr., Judge Designate
Andrea Lantz Harris, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.
Donny Lynn Sprouse (appellant) was convicted in a bench trial of attempted malicious
wounding in violation of Code §§ 18.2-51, 18.2-26 and 18.2-10. On appeal, he contends the
evidence was insufficient to convict him. We affirm the trial court.
I. BACKGROUND
Under familiar principles of appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that Kevin Michael Moore (Moore), appellant’s
nephew, and appellant had a confrontation prior to November 13, 2003. Appellant embraced
Moore’s mother and Moore told him to take his hands off her. Moore stated appellant
was getting violent, telling me what he was going to do and how he was going to whip my butt, how he could knock me out with two
∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. punches or he could kill me in two minutes, just talking how he could hurt me and cause harm to me and how he could pretty much destroy me in a matter of minutes, so I felt, you know, fear.
On that occasion, Moore had a gun, showed it to appellant but did not point it at him, and the
confrontation ended.
At approximately 5:30 p.m. on November 13, 2003, Moore arrived home after passing
appellant leaving a neighbor’s driveway. Moore parked his car in the driveway behind one of
two other parked cars. Appellant stopped on the state road at the end of Moore’s driveway and
as Moore walked toward his house, yelled “[Y]our day is numbered [sic],” “[Y]ou’re going to
get it,” and “[D]o you have your gun now?” at Moore. Appellant drove off, and Moore went
inside his house. A short time later, Moore walked up his driveway to check his mail and get the
newspaper. On his way back to the house and halfway down the driveway, Moore saw
appellant’s truck come “flying” into his driveway at a high rate of speed. Moore ran the
remaining 50 feet and jumped between the two parked cars to avoid being struck by appellant’s
truck. Moore stated that appellant was driving directly towards him and that his truck came
within four or five feet of hitting him. Appellant skidded to a stop near Moore and yelled again
“[W]here’s everybody at now? [sic]” “[W]hat are you going to do now?” “[W]here’s your gun
now?” and “[Y]our days are numbered.” As Moore used his cell phone to call his father,
appellant “took off spinning, throwing gravel and left – just kicked up, spinning in the gravel and
leaving in a hurry, then when he got out on the street, he left a black mark on the street.”
Richard Glenn Spradlin, Moore’s father, testified that he spoke with appellant after the
incident. At that time, appellant said he was going to kill them both. The police took a picture
of the driveway and confirmed fresh skid marks in the gravel. Officer Seitz also spoke to
appellant shortly thereafter and described his physical appearance as “smell[ing] of alcohol, a
little bit of a slurred speech, [and] slow dexterity-wise.”
-2- Appellant denied ever being in Moore’s driveway. He admitted asking him where his
gun was, but denied threatening to kill him or his father. Appellant claimed Moore pointed the
gun at him in the incident involving Moore’s mother. He admitted he drank “a couple of beers
or so” on November 13.
Appellant was convicted of attempted malicious wounding and sentenced to five years in
prison with two years suspended. Appellant appeals from that conviction.
II. ANALYSIS
Appellant’s sole contention on appeal is that the evidence was insufficient to convict him.
He argues that the Commonwealth failed to prove he had the intent to maim, disfigure, disable,
or kill Moore. We disagree.
“When the sufficiency of the evidence is challenged on appeal, we determine whether
the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and
the reasonable inferences fairly deducible from that evidence support each and every element of
the charged offense.” Slade v. Commonwealth, 43 Va. App. 61, 69, 596 S.E.2d 90, 94 (2004)
(citing Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999)). In so
doing, we must “‘“discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom.”’” Stevens v. Commonwealth, 44 Va. App. 122,
127-28, 603 S.E.2d 642, 645 (2004) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 254,
584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335,
348, 494 S.E.2d 859, 866 (1998))).
In considering an appellant’s alternate hypothesis of innocence in a circumstantial evidence case, we must determine “not whether there is some evidence to support” the appellant’s hypothesis of innocence, but, rather, “whether a reasonable [fact finder], upon consideration of all the evidence, could have rejected [the
-3- appellant’s] theories in his defense and found him guilty of [the charged crime] beyond a reasonable doubt.”
Emerson v. Commonwealth, 43 Va. App. 263, 277-78, 597 S.E.2d 242, 249 (2004) (quoting
Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003)). “The statement that
circumstantial evidence must exclude every reasonable theory of innocence is simply another
way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.”
Hudson, 265 Va. at 513, 578 S.E.2d at 785 (citation omitted).
Code § 18.2-51 provides, “[i]f any person maliciously . . . by any means cause him bodily
injury, with the intent to maim, disfigure, disable, or kill he shall . . . be guilty of a Class 3
felony.”
“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.” Holley v. Commonwealth, 44
Va. App. 228, 234, 604 S.E.2d 127, 130 (2004). See also Merritt v. Commonwealth, 164 Va.
653, 657, 180 S.E. 395, 397 (1935); Crawley v. Commonwealth, 25 Va. App. 768, 772, 492
S.E.2d 503, 505 (1997); Haywood v. Commonwealth, 20 Va. App. 562, 565, 458 S.E.2d 606,
607-08 (1995). “Intent is the purpose formed in a person’s mind and may be, and frequently is,
shown by the circumstances. It is a state of mind which may be proved by a person’s conduct or
by his statements.” Holley, 44 Va. App. at 234, 604 S.E.2d at 130. See also Nobles v.
Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977); Barrett v. Commonwealth, 210
Va. 153, 156, 169 S.E.2d 449, 451 (1969); Crawley 25 Va. App. at 772, 496 S.E.2d at 505;
Haywood, 20 Va. App. at 565-66, 458 S.E.2d at 607-08.
Whether the required intent exists is generally a question for the trier of fact. 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. Where . . . the Commonwealth relies solely on circumstantial evidence to prove the intent of the
-4- [appellant], the evidence must exclude every reasonable hypothesis of innocence.
Crawley, 25 Va. App. at 773, 492 S.E.2d at 505.
“[T]he appellate courts of this Commonwealth have long recognized that circumstantial
evidence is not to be viewed in isolation. While no single piece of evidence may be sufficient,
the combined force of many concurrent and related circumstances, each insufficient in itself,
may lead a reasonable mind irresistibly to a conclusion.” Kelly, 41 Va. App. at 259, 584 S.E.2d
at 448 (internal quotations and citations omitted).
In the instant case, the evidence established that appellant drove his truck down a
100-foot driveway at a high rate of speed. Moore testified he believed that appellant was going
to hit him, and he had to jump between two parked cars to escape being struck. Appellant
admitted threatening Moore, drinking alcohol before the incident, and confirmed that he and
Moore had prior confrontations. Moore’s father also heard appellant’s threats and saw skid
marks in the gravel driveway. The police officer investigating the incident also observed fresh
skid marks and testified the appellant appeared to have been drinking.
It is well settled in Virginia that, “[a] motor vehicle, wrongfully used, can be a weapon as
deadly as a gun or a knife.” Essex v. Commonwealth, 228 Va. 273, 281, 322 S.E.2d 216, 220
(1984). See also Holley, 44 Va. App. 228, 604 S.E.2d 127 (evidence sufficient to prove
defendant’s intent to maim, disfigure, disable, or kill where defendant drove directly at police
officer forcing him to dive back into his vehicle to avoid being struck); Stevens v.
Commonwealth, 38 Va. App. 528, 567 S.E.2d 537 (2002) (evidence sufficient to prove
defendant’s intent where defendant accelerated toward a police officer and only veered away
when fired upon); Moody v. Commonwealth, 28 Va. App. 702, 508 S.E.2d 354 (1998) (evidence
sufficient to prove defendant’s intent where defendant accelerated toward teacher forcing teacher
to jump out of the way). The trial judge, in finding appellant guilty, noted: -5- Apparently, the parties had a history and a pretty violent one, where a gun was displayed, if not more than that, and that on this particular date, [appellant] even admits that [he] stopped and said, where is your gun now, which is sort of a provocative sort of comment to make to a – for a forty-four (44) year old man to be making to an eighteen (18) year old boy who is his nephew there in the street, but it’s apparently – at least, from the testimony of the victim and his father, there was a lot more to it than that. I don’t think there’s any question, at least not in my mind, that [appellant] drove up in the driveway and that the boy, the young man, had to run away to keep from being hit by the car or the truck, and the question is, whether or not that is sufficient to justify a charge of attempted malicious wounding. Certainly, there’s evidence by way of the comments, to indicate there was malice in the relationship and that is further demonstrated by driving up in the driveway when he knew the boy was alone there in the house, causing a lot of skidding and so on. The question is whether or not he was trying to run over the boy or scare him. Based on the testimony of the accusation, [sic] I’m going to kill you and where is your gun now, and so on, I would think that there is – there was evidence on his part – this is evidence on his part that he intended to run over the boy if he didn’t get out of the way, and so, I’m going to find him guilty of attempted malicious wounding.
The trial court’s determination that appellant attempted to run over Moore and cause him
serious bodily injury was not plainly wrong or without evidence to support it.
Accordingly, we affirm.
Affirmed.
-6-