COURT OF APPEALS OF VIRGINIA
Present: Judges Decker, Malvea ux and Senior Judge Clements Argued at Richmond, Virginia

GREGORY ANTHONY TAYLOR MEMORANDUM OPINION * BY v. Record No . 1390-16-2 JUDGE MARLA GRAFF DECKER JANUARY 9, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY Donald C. Blessing, Judge M. Paul Valois (James River Legal Associates, on brief), for appellant. J. Christian Obenshain, Assista nt Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Gregory Anthony Taylor appeals his conviction for using a fire arm in the commission of first-degree murde r in violation of Code § 18.2-53.1. 1 On appeal, he argues that the evidence was insufficient to support his convi ction because it failed to pro ve that a firearm was “used against” the victim, who died of knife wounds. We hold that the evidence, v iewed under the proper standard, supports a finding that the appellant used or attempted to use a firearm or displayed one in a threatening manner wh ile committing or attemp ting to commit fir st-degree murder of the victim. Consequently, we affirm the challenged conviction.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 The appellant was also convict ed of a second count of using a firearm in the commission of a felony, capital m urder, two counts of first-deg ree murder, and possession of a firearm by a convicted felon. He was sentenced to two terms of life in prison for the murder convictions, as well as three year s for the use-of-a-firearm co nviction and two years for the felon-in-possession conviction. T hese convictions and sentence s are not before the Court in this appeal.UNPUBLISHED- 2 - I. BACKGROUND 2 At the appellant’s trial for cap ital murder, two counts of firs t-degree murder, and related firearm offenses, the eviden ce proved that on November 23, 2014 , the appellant killed Kenneth Beasley and Radford Ranson in the b asement of Ranson’s home. B easley had both a gunshot wound and numerous stab wounds, eith er of which would have beenfatal. Beasley’s autopsy revealed that the bullet ente red his back and appeared to have been fired from a distance. 3 Ranson sustained several knife wounds, including multiple defen sive wounds. He was killed by a knife wound that severed an arter y in his arm. On the baseme nt floor near Ranson’s body, law enforcement found two knives a nd a .357 magnum revolver, all of which were “covered in blood.” 4 The revolver had been fired twice. An officer also found a . 38 caliber bullet near the basement stairs that appeared t o have ricocheted off the wall. The .38 caliber bullet was “consistent with what would be fir ed from [the .357] revolver.” Ballistics testing indicated that although the bullet recovered fro m the basement and “test fires taken from the submitted revolver . . . exhibit[ed] the same general rifling characteris tics,” microscopic examination was “inconclusive” regarding whethe r the .38 caliber bullet was fir ed from the revolver. Fragments of a bullet that had pa ssed through the basement ceiling were a lso recovered. Laboratory analysis identified blood on the gun ’s cylinder that fit Ranson ’s DNA profile and blood on its

2 When the sufficiency of the e vidence is challenged on appeal, the Court views the evidence and all reasonable infe rences flowing from it in the l ight most favorable to the Commonwealth, the party who preva iled in the trial court. Rowl and v. Commonwealth, 281 Va. 396, 399, 707 S.E.2d 331, 333 (2011).

3 The bullet entered Beasley’s lef t lower back and exited the ri ght side of his abdomen. “No bullet or bullet fragments were left inside the body.”

4 The crimes were investigate d by the Buckingham County Sheriff’ s Department with the assistance of the Virginia De partment of State Police.- 3 - barrel that fit the profile s of both Ranson and Beasley. No bl ood from the appellant was identified in either location. Law enforcement officers arrive d at the scene in response to a 911 call made at 4:38 a.m. by a person who identified himsel f as Beasley. The caller repo rted that he had been shot and said his attacker ha d fled. Shortly after arriving, the office rs encountered the appellant outside the house. He was “literally c overed from head to toe in blood [,] . . . like he was painted in [it],” but his only notable injury w as a wound on the back of his hand . He told one of the sheriff’s deputies that “he didn’t need t o be looked at” but “the fuckers inside [the house] needed an ambulance.” The appellant claime d that the two victims tried t o force him to make methamphetamine and then attempted to kill him. He said that t hey put a gun in his mouth and he feared for his life. He adm itted to gaining control of the gun and firing two shots, claiming that he did so as one of the men c ame toward him. He explained that after he fired the weapon at the approaching man the first time, the man grabbed his stomachand “came at him again.” The appellant said that, in response , he “fired a second time.” He suggested that “he had to kill . . . them because it was either them or him.” While still at the sc ene, the appellant also told officers on multiple occasions that he had “killed those two motherfucke rs.” Additionally, he repeated that the victims, who were larg er than him, “thought they were Superman” but he was “their kryptonite.” About two weeks later, the appella nt told a sheriff’s departme nt investigator that immediately before he killed the two men, Beasley threatened to kill him and he saw Ranson reach for a gun. The appellant cla imed that he grabbed the gun before Ranson could do so, closed his eyes, and “just shot ” as Beasley came toward him. H e said that Beasley “wrestled the gun from” his grasp and that he then drew his knife and began s tabbing Beasley. He claimed- 4 - that Beasley then wrestled the knife away from him and cut him with it. The appellant admitted that it was not true that th e victims had put a gun in his mouth. Additional evidence included tex t messages sent by the appella nt and Beasley in the hours immediately preceding the mur ders. Two messages were sen t in rapid succession from the appellant’s phone shortly before 3: 00 a.m. The first said, “I g0t [sic] jumped in i dont w [sic].” The second one said, “They fucked me up bad.” A message sent f rom Beasley’s phone at 4:17 a.m. said, “I’m over here at [Ranson’s], done beat the shit out of this fuck that disrespected [Ranson].” At the close of the Commonwealth ’s evidence, the appellant mov ed to strike the charge of using a firearm in the commi ssion of a felony against Ransonbecause no evidence indicated that Ranson was shot. The prosecu tor responded that after the appellant had shot Beasley, Beasley and Ranson were “trying t o get the gun before” the appe llant could “do[] more harm with that second bullet. ” He also pointed out that after they managed to take the gun away from the appellant, the appellant use d his knives to s tab the two me n. The Commonwealth argued as a result that the appellant “displ ay[ed]” the firearm against Ran son. The trial court denied the motion. The appellant testified in hi s own behalf, stating that he sug gested making methamphetamine to impress the two men but then changed his min d. He said that Beasley hit him and then told Ranson to “get the gun” so that they could “k ill [him].” The appellant further claimed that he saw Rans on look at a gun lying nearby and he wa s able to grab the gun before Ranson did so. According to the appellant, he then closed his eyes and fired only one shot, intending to hit Beas ley, who he said was coming toward him. A lmost simultaneously, Ranson grabbed him from behind and choked him. The appellant suggeste d that he then somehow lost the gun, so he used one of two knive s belonging to him to fight the men off and escape. He said- 5 - that he was “happy to be alive af ter what they tried to do to [ him].” He admitted, however, that he bragged to law enforcement a bout fighting the men off, that he had not seen either of the men with a knife, and that they ne ver put the gun in his mouth as h e had previously reported. The trial court convicted the appellant of capital murder, two counts of first-degree murder, two counts of use of a f irearm in the commission of a f elony, and one count of possession of a firearm by a c onvicted felon, in violation of C ode §§ 18.2-31, -32, -53.1, and -308.2. The court stated gene rally that it did not “think . . . the defense” th eory of the case was “credible.” More specifically, the court accepted the appe llant’s account that he “got ahold of that gun and he had it pointed.” However, it rejected the appellant’s claim that he then “closed his eyes,” saying, “I don’ t think that’s credible. I d on’t think that is c onsistent with what you’d do if you have been the subje ct of an attack in this inst ance.” The court also held, despite the appellant’s claims to the c ontrary, that he had “ample oppo rtunities to leave” or avoid the confrontation with the victims. Additionally, the court noted that DNA evidence from both victims was found on the barrel of the gun, that Beasley was sh ot in the back from a distance, and that both victims sustained de fensive wounds from the appel lant’s attack of them with his knives. Further, it pointed to t he degree of force employed incommitting the killings. Finally, the court held that the eviden ce supported a finding that the a ppellant intended to kill Ranson or, even if he did not “specificall y intend” to kill Ranson, that h e acted with an inten t to kill Beasley that was transferred to Ranson. The court sentenced the appellan t to two terms of life in pris on for the murder convictions. 5 The appellant also received a s entence of three years for eac h of the use-of-a-firearm convictions and two years for the felon-in-pos session conviction.

5 The court imposed no punishment for the appellant’s first-degr ee murder of Ranson.- 6 - II. ANALYSIS The appellant argues that the e vidence was insufficient to sup port his conviction for using a firearm in the first-degr ee murder of Ranson. In support of the argument, he points out that Ranson “died of knife wounds.” He s uggests that the “record is devoid of evidence” that the appellant used, attempted to use or displayed anyactual or simulated firearm against Ranson “at any time,” including during the tim e when he murdered Ranson wi th a knife. The Commonwealth responds that the e vidence, viewed under the prope r standard, was sufficient to prove all elements of the offense. 6 When the sufficiency of the e vidence is challenged on appeal, the Court reviews the evidence and all reasonable infe rences flowing from it in the l ight most favorable to the Commonwealth as the prevaili ng party at trial. E.g., Towler v. Commonwealth, 59 Va. App. 284, 290, 718 S.E.2d 463, 466 (2011). On appellate review, the Court asks only if, “after viewing the evidence in the lig ht most favorable to the prosecu tion, any rational trier of fact could have found the essential elements of the crime beyond a r easonable doubt.” Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quo ting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The appella nt was tried by the circ uit court, sitting without a jury. Consequently, that court was th e fact finder, and its judgment is afforded the same weight as a jury verdict. Preston v. Commonwealth, 281 Va. 52, 57, 704 S.E .2d 127, 129 (2011). Additionally, “[i]n a bench trial, a judge’s ‘major role is the determination of fact, and with experience in fulfilling that ro le comes expertise.’” Burton v . Commonwealth, 58 Va. App. 274,

6 The Commonwealth argues that t he appellant waived this assignm ent of error by failing to cite adequate legal authority to support the challenge as re quired by Rule 5A:20(e). We assume without deciding that the appellant’s citation to the st atute and case law setting out the standard of review for sufficien cy-of-the-evidence claims, coup led with brief ar gument regarding how he alleges the evidence fails t o prove the elements of the offense, is sufficient to satisfy the requirements of Rule 5A:20(e).- 7 - 282, 708 S.E.2d 444, 448 (2011) (quoting Haskins v. Commonwealt h, 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004)). Accordingly, the appellate court will not set aside the trial court’s judgment unless it is “plainly w rong or without evidence to sup port it.” Towler, 59 Va. App. at 290, 718 S.E.2d at 466 (quoting Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005)). For purposes of the sufficienc y analysis, we are guided by othe r well-established legal principles. The trier of fact i s entitled to reject an appella nt’s claims of innocence and his self-serving statements to lawenforcement. See, e.g., Rawls v . Commonwealth, 272 Va. 334, 350, 634 S.E.2d 697, 705 (2006) (rejecting the defendant’s stat ement to police). Additionally, determining the credibility of the witnesses and the weight aff orded the testimony of those witnesses are matters left to the trier of fact, who has the ab ility to see and hear them as they testify. See Parham v. Commonwealth, 64 Va. App. 560, 565, 770 S.E.2d 204, 207 (2015). “In its role of judging witness cred ibility, the fact finder is ent itled to disbelieve the self-serving testimony of the accused . . . .” Marable v. Commonwealth, 27 Va. App. 505, 509, 500 S.E.2d 233, 235 (1998). Further, the fact finder may “accept the part s of a witness’ testimony it finds believable and reject other part s as implausible.” Moyer v. Co mmonwealth, 33 Va. App. 8, 28, 531 S.E.2d 580, 590 (2000) ( en banc ). Finally, where the trier of fact rejects the testimony of t he accused, it may treat his “prevarications as ‘affirmative evide nce of guilt.’” Sierra v. Commonwealth, 59 Va. App. 770, 784, 722 S.E.2d 656, 663 (2012) (quoting Armstead v. Commonwealth, 56 Va. App. 569, 581, 695 S.E.2d 561, 567 (2010))

. Code § 18.2-53.1 provides that “[i]t shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or o ther firearm or display suc h weapon in a threatening manner while committing or attempting to c ommit” any of several enumer ated crimes, including- 8 - murder. 7 The recognized purpose of the s tatute is “to deter violent cr iminal conduct” by “‘preventing actual physical injur y or death’” as well as “‘dis courag[ing] criminal conduct that produces fear of physical harm.’ ” Rose v. Commonwealth, 53 Va. App. 505, 513, 673 S.E.2d 489, 493 (2009) (quoting Holloman v . Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980)). The statute as applicable here permits conviction under either of two theories. See Du v. Commonwealth, 292 Va. 555, 566, 790 S.E.2d 493, 500 (2016) (not ing that where the trial court does not articulate the “specifi c reason” for its ruling, the a ppellate court need not determine that reason and “may rely upon any reasonab le basis in the record th at supports the trial court’s decision”). The first involves “us[ing] or attempt[ing] to use ” the firearm. Code § 18.2-53.1. Controlling case law interpreting the statute provides that a “ person ‘uses’ [or attempts to use] a firearm” within the meaning of Code § 18.2-53.1 “if he or she e mploys [or attempts to employ] it.” See Rowland v. Commonwealth, 281 Va. 396, 401, 707 S.E.2d 331, 334 (2011). The second theory involves “display[i ng]” the firearm “in a threate ning manner.” Code § 18.2-53.1. “A person ‘displays’ a firearm if he or she manifests it ‘to any of a victim’s senses.’” Rowland, 281 Va. at 401-02, 707 S.E.2d at 334 (quoting Cromite v. Common wealth, 3 Va. App. 64, 66, 348 S.E.2d 38, 39 (1986)). Further, with regard to either theo ry, the use, attempted use, or threatening display must occur “during” the commission or attem pted commission of the enumerated felony. Id. at 400- 01, 707 S.E.2d at 333 (equating the statute’s use of “while” with “during”). Manifestly, the re quirement of use or display “‘dur ing’” the underlying felony “does

7 The relevant indictment track s this language, charging the app ellant with “us[ing], attempt[ing] to use, or display[i ng] in a threatening manner, afirearm, while committing or attempting to commit” first-deg ree murder. The appellant’s con viction for the first-degree murder of Ranson is not at issue in this appeal, and it is ther efore undisputed for purposes of our analysis that the appellant committed the elements of that offe nse.- 9 - not encompass [the period] ‘before’ [or] ‘after’ [it].” Id. at 401, 707 S.E.2d at 334 (quoting Harward v. Commonwealth, 229 Va. 363, 366, 330 S.E.2d 89, 91 (1 985)). Contrary to the appellant’s contention, none of the methods of proof requires evidence that the victim was in fact kill ed with a firearm. Instead, th e statute requires only that the defendant used, attempted to use , or displayed a firearm in a threatening manner during the commission or attempted commissi on of the relevant enumerated f elony. See Code § 18.2-53.1. Consequently, the fact that Ra nson was not shot and instead die d from a knife wound is not dispositive of the appellant’s guilt for this offense. An attempt requires proof of the requisite intent and a direct or overt act in furtherance of the commission of the underlyi ng offense. E.g., Tharrington v. Commonwealth, 2 Va. App. 491, 493-94, 346 S.E.2d 337, 339 (1986). Intent is a question of fa ct that may and often must be proved through circumstantial evid ence such as a defendant’s co nduct and statements. See Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 ( 1977). “[L]ike any element of a crime, [it] may be proved by [ direct or] circumstantial ev idence as long as th[e] evidence [as a whole] excludes all reasonabl e hypotheses of innocence flowin g from it.” Creamer v. Commonwealth, 64 Va. App. 185, 205, 767 S.E.2d 226, 235 (2015). Regarding the direct or overt act requirement, case law makes c lear that “mere preparation” is insufficient. Tharrington, 2 Va. App. at 494, 346 S.E.2d at 339. Generally, “preparation consists [of] . . . arranging the means or measure s necessary for the commission of the offense,” and “the attempt is the direct movement toward th e commission after the preparations are made.” S iquina v. Commonwealth, 28 Va. App. 6 94, 701, 508 S.E.2d 350, 354 (1998) (alterations in original ) (quoting Granberry v. Commonwe alth, 184 Va. 674, 678, 36 S.E.2d 547, 548 (1946)). To establish t he requisite direct act , however, the act proved “need not be the last proximate act to the consummation of the crime in c ontemplation.” Wilson v.- 10 - Commonwealth, 249 Va. 95, 101-02, 452 S.E.2d 669, 674 (1995) (q uoting Granberry, 184 Va. at 678, 36 S.E.2d at 548). The rationale for requiring pr oof of an overt act is that, with out such proof, “too much uncertainty [may exist] as to the accused’s actual intent. How ever, if ‘the design of a person to commit a crime is clearly show n, slight acts done in furtheranc e of this design will constitute an attempt.’” Tharrington, 2 Va. App. at 494, 346 S.E.2d at 339 ( citation omitted) (quoting State v. Bell, 316 S.E.2d 611, 616 (N.C. 1984)). Thus, if the defendant ’s intent is clear, the overt act used to prove an attempt nee d not be a significant one. See id

. In the appellant’s case, the evi dence, viewed in the light most favorable to the Commonwealth, supports the appe llant’s conviction because it pr oves that he attempted to “use” a firearm “during” an attempt to kill Ranson. See Rowland, 281 Va. at 400-01, 707 S.E.2d at 333. The evidence also proves that he “display[ed]” the firear m “in a threatening manner” during the attempt. See Code § 18.2-53.1. The appellant texted someone t o indicate that during the hours immediately prior to the murders, he “g0t [sic] jumped in” and “[t]hey fucked [him] up b ad.” Beasley, too, texted someone while at Ranson’s home wi th the message “done beat the shit out of this [person] that disrespected [Ranson].” In addi tion to the substantive informa tion conveyed in the texts, they indicate that the violence ceased long enough for the appellant and Beasley to communicate with others about it, which they di d by texting others between about 3:00 a.m. and 4:15 a.m. Despite this fact, no evidence indicates t hat the appellant attempted t o obtain help via text or to leave Ranson’s home before the events that led Beasley to call 911 at 4:38 a.m. The trial court expressly rejected portions of the appellant’s testimony and fo und that he had ample opportunity to leave the home in order to avo id the confrontation that ende d in the murders.- 11 - Additionally, the appellant made statements indicating that he “had to kill” the victims and that they “thought they were Superman” but he was “their kryptonite.” From these statements and other evidence, the trial court found that the a ppellant acted with an intent to kill both men and did so with premed itation. See generally Rhodes v . Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989) (noting that first-degree murder as proscribed by Code § 18.2-32 requires proof of premeditation). Finally, the evidence showed that the appe llant shot Beasley inthe back, from a distance, and fired a second shot that lodged in the basement ceiling. T he appellant admitted that Ranson was nearby when he fired. The appellant also admitted that he immediately became embroiled in a physical fight with one of the m en and that he relinquished c ontrol over the firearm only because one of the men succeeded in wresting it away from him. Further, he said that he pulled his knives and continued to str uggle with both men. When law e nforcement arrived, the appellant was “literally cove red from head to toe” in blood, “l ike he was painted in” it, although he appeared to have only a si ngle knife wound. Also, the gun a nd the two knives were covered in blood. Although the appellant cla imed that he was defending himself when he attacked the victims with his knives, the tri al court found the evidence pro ved that the knife wounds the victims sustained were defensive wounds. Additionally, it note d that DNA evidence showed that Ranson’s blood was on both the cyl inder and barrel of the gun. This evidence supports the conclu sion that the appellant violat ed Code § 18.2-53.1 in multiple ways. First, the appellant “display[ed]” the firearm “in a threatening manner” toward Ranson when he grabbed the fir earm as Ranson looked on, shot Be asley in the back from an apparent distance, fired a sec ond bullet while Ranson was also present in the room, and then became embroiled in a physical struggle for the gun in which th e appellant ultimately employed two knives. See Code § 18.2-53.1. He did so in a way that pla ced Ranson in fear of physical- 12 - harm by “manifest[ing]” the fire arm not only to Ranson’s sense of sight but als o to his hearing, based on the sound of the two gunshots. See Rowland, 281 Va. a t 401-02, 707 S.E.2d at 334 (reasoning that a pers on “‘displays’ a firearm if he or she man ifests it ‘to any of a victim’s senses’” (quoting Cromite, 3 Va. App. at 66, 348 S.E.2d at 39)) . Further, the appellant did so during a course of criminal conduct constituting at least the attempted commission of the murder of Ranson. In light of the trial court’s rejection of the appe llant’s claim of self-defense, his statement that he “had to kill” the victims “because it was eit her them or him” proved that he formed the intent to murder th e men. Cf. Sizemore v. Commonwea lth, 218 Va. 980, 983, 986, 243 S.E.2d 212, 214-16 (1978) (holding tha t the evidence establ ished that the defendant committed a sufficiently direct act with the requisite intent t o prove attempted murder where he obtained a loaded gun, aimed it, m ade repeated threats to kill the victim, and “advanced” on him before relinquishing the weapon w ithout firing it). Moreover, the appellant’s ongoing struggle against Beasley and Ranson for the gun, coupled with his decisi on to pull two different knives on the men during the melee when he lost control of the gun, provi ded not only additional evidence of his ongoing intent but also evide nce of the necessary direct act. Cf. id. Second, this same evidence supports a finding that during an ob vious fray, when the appellant first fired the revol ver and hit Beasley in the back from a distance, he intended to “use” the firearm to kill both me n. See Code § 18.2-53.1. It also s upports a finding that he engaged in an overt act toward the commi ssion of the offense by firing the second bullet while Ranson was nearby and then using the two knive s against Beasley and Ransonwhen the struggle for the gun ensued. Thus, the evidence prove s at least an “ attempt[ed] . . . use” of the firearm against Ranson while attempting to kill him. See id. The presence of Ranson’s blood on the gun’s cylinder and barrel supports a f inding that the gun was still p art of the altercation when the appellant attacked Ranson with the knives. This same evidence supports a finding that this was- 13 - an unbroken series of events motiv ated by the single intent to kill both men. Compare Rowland, 281 Va. at 402, 707 S.E.2d at 334 (revers ing the defendant’s co nviction for using a firearm in the commission of statutory burgl ary where no one saw the defendant enter the restaurant and the elements of burglary were complete before he “used or displayed a firearm” toward the restaurant’s occupants), with Smith v. Commonwealth, 61 Va. App . 690, 694, 739 S.E.2d 280, 282 (2013) (distinguishing Rowla nd where the victim heard knock ing at her door, watched as the defendant entered without a n invitation, and began screaming wh en she “immediately” noticed a firearm at the defendant’s sid e, which he put to her head to si lence her). While the gun was not the sole means by which the appellant perpetrated the murder of Ranson, Virginia case law contains no such requirement, a nd the record supports the trial court’s finding that the firearm was part of the ongoing course of c onduct through which Ranson’ s murder was ultimately committed.
III. CONCLUSION The evidence proves that the appe llant “display[ed]” a firearm in a threatening manner “while committing or attempting to commit” the murder of Ranson as required by Code § 18.2-53.1. It also proves that the appellant violated the st atute by “us[ing] or attempt[ing] to use” the firearm “while committing or attempting to commit” tha t offense. Consequently, we affirm the challenged conviction. Affirmed.