COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Bumgardner 

Argued at Salem, Virginia 

DAVID LEE JONES 

 MEMORANDUM OPINION* BY 

v. Record No. 1393-97-3 JUDGE RUDOLPH BUMGARDNER, III 

 JUNE 16, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

William N. Alexander, II, Judge 

 J. Patterson Rogers, 3rd (Jon I. Davey, on 

brief), for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 David Lee Jones was indicted for murder, use of a firearm in 

the commission of murder, and possession of a firearm after 

having been convicted of a felony. The defendant pleaded guilty 

to possession of a firearm after having been convicted of a 

felony and not guilty to the other two charges. A jury convicted 

him of second degree murder and use of a firearm in the 

commission of murder. He appeals the conviction on the grounds 

there was insufficient evidence to prove murder. Finding no 

error, we affirm the judgment of conviction. 

 Where an appellant challenges the sufficiency of the 

evidence, the evidence must be viewed in the light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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fairly deducible from it. See Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975). 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). 

Unless that finding is plainly wrong, or without evidence to 

support it, it shall not be disturbed on appeal. Code 

§ 8.01-680; George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 

12, 20 (1991), cert. denied, 503 U.S. 973 (1992). 

 The victim, Marguerite Whitfield, was a seventeen-year-old 

girlfriend of the defendant. She picked him up at 4:30 p.m. 

after she finished work. They went to her mother's trailer. 

Justin Rowland, a twelve year old who lived in the trailer park, 

testified he heard running through the trailer, saw the back door 

open and then close. Then he heard hollering before and after 

running, a "pop" within 10-15 seconds, and more running. Another 

resident of the trailer park heard a commotion and heard the 

defendant yell, "I didn't mean to do it." Robert Paggans heard 

the defendant yell for help, observed blood on his shirt and 

heard him hysterically say, "I shot my girlfriend, it was an 

accident." 

 The police found the victim on the floor of the trailer. 

Six inches from her head was a handgun, a 25-caliber automatic, 

with a live projectile stuck in the action of the gun holding the 

receiver half way back. The defendant made three statements to 

the police. On the day of the shooting he told them that he had 
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brought the loaded pistol to the trailer. He placed it on the 

counter. The victim became distraught over breaking up with him, 

picked up the gun, and said she intended to kill herself. Before 

he could reach her, the gun fired and she fell to the floor. 

Later in that first interview, the defendant told police that he 

had tried to grab the gun and it went off. Eventually, he said 

he pulled the gun and it went off. 

 At a second interview, the defendant told police that he was 

going to scare the victim. He pulled the gun, pulled the hammer 

back, and it went off. He admitted pointing the gun, but said it 

was not loaded. During a third statement he repeated the version 

he had given at the second interview. 

 The medical examiner testified that a single gunshot wound 

killed the victim. It pierced her temple and traveled through 

her brain. The muzzle of the gun was touching her skin at the 

time it discharged. 

 The defendant testified in his defense. He stated that he 

had borrowed the gun from his brother because he felt threatened, 

although he never checked to see if the gun was loaded. He did 

not specify the reasons for the threat against him. Jones went 

on to state that he had never fired the weapon and was not 

familiar with its operation. He equivocated about whether the 

gun was loaded. Eventually he stated that he knew there were 

bullets in the magazine but did not know that one was chambered. 

 Jones said he was messing around with the gun. When asked why 
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he was doing that, he answered, "I don't know why." On 

cross-examination he admitted pointing the gun at the victim and 

trying to scare her. He pulled the hammer back to dry fire it, 

but he insisted that he did not know a round was in the chamber. 

 He had no explanation for why he was dry firing it. The 

defendant did not recall making his first statement to police and 

denied that he and the victim were breaking up. 

 The evidence in this case presents a classic case of 

conflicting, at times confusing, pieces of evidence from which 

differing inferences may be made and varying conclusions drawn. 

Determining what happened in fact from the pieces of evidence 

presented at trial can only be determined by the jury 

conscientiously hearing and evaluating the credibility, weight 

and value of that evidence. 

 Suffice it to say, that the evidence and the 

reasonable inferences therefrom were 

sufficient to present the question, whether 

the death of [the victim] was a result of the 

criminal agency of the defendant, or was 

merely an accident for which the defendant 

was not responsible. If the jury believed 

that the evidence disclosed the criminal 

agency of the defendant, they were further to 

ascertain, under the instructions, the grade 

of the offense. These issues were peculiarly 

for the consideration of a jury. 

Harrison v. Commonwealth, 183 Va. 394, 401, 32 S.E.2d 136, 140 

(1944). 

 There is evidence from which reasonable men could find 

beyond a reasonable doubt that the defendant murdered Marguerite 

Whitfield in the second degree. The weapon discharged the fatal 
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bullet when it was pressed against the victim's head. The 

defendant's own words put the gun in his hand when it discharged. 

The permissible inference that malice may be found from the 

deliberate use of a deadly weapon, Satcher v. Commonwealth, 244 

Va. 220, 257, 421 S.E.2d 821, 843 (1992), cert. denied, 507 U.S. 

933 (1993), alone is sufficient to permit the jury to find the 

act was done with malice. 

 Finding that there is sufficient credible evidence to 

support the finding of the jury, we affirm. 

Affirmed.
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Benton, J., dissenting. 

 I would hold that the evidence in this record is 

insufficient to support a finding of malice. Although David Lee 

Jones used a firearm to kill the victim, the circumstances were 

such that the jury could not have inferred beyond a reasonable 

doubt that Jones acted with malice. 

 "Malice is an essential element of murder and is what 

distinguishes it from the crime of manslaughter." Canipe v. 

Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 753 (1997). 

 "Express malice is evidenced when 'one person 

kills another with a sedate, deliberate mind, 

and formed design.' . . . Implied malice 

exists when any purposeful, cruel act is 

committed by one individual against another 

without any, or without great provocation; 

 . . . ." 

Essex v. Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220 

(1984) (citations omitted). Implied malice "may only be 

[inferred] from conduct likely to cause death or great bodily 

harm, wilfully or purposefully undertaken." Id. at 281, 322 

S.E.2d at 220. Thus, it necessarily follows that "if a killing 

results from negligence, however gross or culpable, and the 

killing is contrary to the defendant's intention, malice cannot 

be [inferred]." Id. at 280, 322 S.E.2d at 220. "Whether or not 

an accused acted with malice is generally a question of fact and 

may be proved by circumstantial evidence." Canipe, 25 Va. App. 

at 642, 491 S.E.2d at 753. However, the principle is well 

established that "[i]n making the determination whether malice 
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exists, the fact-finder must be guided by the quality of the 

defendant's conduct, its likelihood of causing death or great 

bodily harm, and whether it was volitional or inadvertent." 

Essex, 228 Va. at 282, 322 S.E.2d at 221. 

 The Commonwealth relied solely on circumstantial evidence to 

prove malice. Direct evidence proved that Jones shot Marguerite 

Whitfield, his romantic friend, but no direct evidence proved 

that he did so maliciously. The jury could only have inferred 

Jones' malicious state of mind through his use of a deadly 

weapon. See Morris v. Commonwealth, 17 Va. App. 575, 578, 439 

S.E.2d 867, 870 (1994) (trier of fact may infer malice from the 

use of a deadly weapon unless the evidence raises a reasonable 

doubt whether malice existed). No other evidence tended to prove 

malice. Indeed, the evidence raised a reasonable doubt that 

malice existed. 

 The only evidence concerning the events that led to the 

shooting came from the statements and testimony of Jones. Jones 

testified that he and Whitfield had been dating for two years. 

The day before the killing, Jones and Whitfield had an argument; 

however, they had resolved their differences that night. Jones 

testified that on the day of the killing, Whitfield drove him 

from a convenience store to Whitfield's mother's trailer where 

they watched videos. Jones had a pistol in his back pocket while 

he and Whitfield watched the videos. 

 Jones testified that his brother had given him the pistol 
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the previous day because Whitfield had told Jones that her cousin 

and brother were threatening to harm him. She told him to "watch 

his back." Jones testified that he had had "problems" with 

Whitfield's cousin and brother. Jones also testified that he had 

never handled this particular gun before, that he did not know if 

the gun was loaded, and that he knew the magazine had bullets in 

it because he assumed his brother wouldn't give him an empty gun 

for protection. 

 Jones testified that after he and Whitfield watched videos, 

they decided to go outside because it was hot in the trailer. 

When he stood to go outside, Jones took the gun out of his pocket 

and was "just messing around with it." As Jones and Whitfield 

walked toward the back door, Whitfield told Jones to stop playing 

with the gun. Jones told her "there weren't nothing in it" and 

pulled the hammer back on the gun. He testified the gun "just 

went off," killing Whitfield. 

 In a taped statement to the police after the incident, Jones 

related several versions of the circumstances surrounding the 

shooting. He said he had the gun because Whitfield's cousin had 

accused him of informing the police of the cousin's drug 

distributions. He initially stated Whitfield grabbed the gun 

from the counter where Jones had left it after removing it from 

his pocket. When Whitfield had the gun, she threatened to kill 

herself and ran towards the back door. Jones ran after her. 

However, the gun fired before he reached her. Later, Jones 
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stated that the gun fired when he tried to grab it from 

Whitfield. Eventually, Jones told the police that he and 

Whitfield were just playing and that he was displaying the gun to 

scare her when the gun fired. 

 In a second taped interview, Jones stated that after he and 

Whitfield watched videos, they began to walk to the door to go 

outside because the trailer was hot. As they got to the door, he 

removed the gun from his back pocket playfully to scare 

Whitfield. He was "messing around" with the gun, pointing it at 

her, and stating nothing was in it. He was about an arm's 

distance away from her when he pulled the hammer, killing her. 

In a third interview with police, he essentially related the same 

events. 

 Although Jones' testimony and statements are confused and 

somewhat contradictory, they provide the only evidence of the 

events surrounding the shooting. Neither of the conflicting 

versions tends to prove a malicious killing. Furthermore, 

although the conflicting statements may raise a suspicion that 

the killing occurred in another manner, "a suspicion of guilt, 

however strong, or even a probability of guilt, is insufficient 

to support a criminal conviction." Bishop v. Commonwealth, 227 

Va. 164, 170, 313 S.E.2d 390, 393 (1984). 

 This evidence fails to prove beyond a reasonable doubt that 

Jones "willfully and deliberated engaged in a cruel act that was 

likely to cause great bodily harm to the victim." Canipe, 25 Va. 
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App. at 644, 491 S.E.2d at 754. "[W]here the Commonwealth's 

evidence as to an element of an offense is wholly circumstantial, 

'all necessary circumstances proved must be consistent with guilt 

and inconsistent with innocence and exclude every reasonable 

hypothesis of innocence.'" Moran v. Commonwealth, 4 Va. App. 

310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted). This 

evidence fails to exclude the reasonable hypothesis that Jones 

acted "carelessly and negligently, but without malice." Mundy v. 

Commonwealth, 144 Va. 609, 615, 131 S.E. 242, 244 (1926); see 

also Essex, 228 Va. at 281, 322 S.E.2d at 220. 

 Because I believe a reasonable jury could not have found 

malice under these circumstances, I would reverse the conviction 

and remand for a new trial.