Jermel Rodney Davis, etc v. Commonwealth

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Senior Judges Duff and Hodges

JERMEL RODNEY DAVIS, a/k/a RODNEY JERMEL DAVIS

v. Record No. 1599-94-3 MEMORANDUM OPINION * BY CHIEF JUDGE NORMAN K. MOON COMMONWEALTH OF VIRGINIA AUGUST 15, 1995

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge

Elizabeth P. Murtagh, Assistant Public Defender (Office of the Public Defender, on brief), for appellant. Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Jermel Rodney Davis appeals his bench trial convictions of

attempted murder and use of a firearm in the commission of

attempted murder arguing that the evidence was insufficient to

support his convictions. We hold that the testimony that Davis

discharged a firearm in the direction of Jones was sufficient to

prove the specific intent required for his conviction of

attempted willful, deliberate, and premeditated murder.

Therefore, we affirm the convictions.

During the early morning hours of February 20, 1994, Davis

patronized an establishment by the name of "The Underground" on

Memorial Avenue in Lynchburg. At closing, security officers,

while clearing the parking lot adjacent to the club, heard Davis

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. "ranting and raving" about "going on a mission," and "being tired

of people messing with him." The officers heard Davis say, "I'm

the mother fucking man, fuck security, fuck the police."

Hearing these statements, one officer followed Davis across

the parking lot. As he did so, the officer noticed something

shiny in Davis's hand and yelled to his supervisor that Davis had

a gun. At that time, Craig Jones, another uniformed security

officer, pulled up and got out of his car. Jones approached

Davis and told him to drop his weapon and place his hands on top

of his head. Davis did not comply and started walking backwards,

away from Jones. Again, Jones told Davis to drop his weapon and

place his hands on top of his head. This time, Davis pointed the

gun at Jones and fired a shot. Jones ducked behind his car and

heard Davis fire three more shots before he stood and returned a

single shot which struck Davis in the leg. Davis fell to the

ground but immediately stood and fled on foot. The officers were

unable to stop Davis who disappeared behind an adjacent business. In characterizing the intent required for a conviction

of attempted murder, the Supreme Court has said:

To commit murder one need not intend to

take life; but to be guilty of an attempt to murder, he

must so intend. It is not sufficient that his act, had

it been fatal, would have been murder.

Merritt v. Commonwealth, 164 Va. 653, 662, 180 S.E. 395, 399

(1935). The Commonwealth "must prove beyond a reasonable doubt

- 2 - both the act and the mental state. Sufficient proof of one element, but not the other, will result in reversal." . . . Intent or mental state is subjective, but it may, and usually must, be proven objectively from the circumstances.

Harrell v. Commonwealth, 11 Va. App. 1, 7, 396 S.E.2d 680, 682

(1990)(other citations omitted).

The circumstances from which intent may be proven include

such things as a person's statements or conduct, and "[a]

person's conduct may be measured by its natural and probable

consequences. The finder of fact may infer that a person intends

the natural and probable consequences of his acts." Campbell v.

Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991). "The

inferences to be drawn from proven facts, so long as they are

reasonable, are within the province of the trier of fact."

Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570, 574

(1968). Moreover, the Supreme Court has stated that the intent

to kill may be inferred from the mere drawing of a gun. Martin

v. Commonwealth, 242 Va. 1, 7, 406 S.E.2d 15, 18 (1991).

Applying the above principles, we hold that the testimony

about Davis's statements and conduct outside the club could be

inferred to establish his hostile state of mind towards the

security personnel at the time he aimed and discharged a gun in

the direction of Jones. This evidence coupled with the evidence

that Davis drew his gun and fired in the direction of Jones was

sufficient to support a finding that Davis intended to kill

Jones. Affirmed.

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