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. 
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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 

 

 1Capital 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). 
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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, 
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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 
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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. 

 We hold that the evidence was sufficient to prove that 

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 
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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 
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"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.