COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Annunziata and Bumgardner 

Argued at Norfolk, Virginia 

BERACE RICARDO BENNETT, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0613-98-1 JUDGE SAM W. COLEMAN III 

 MAY 18, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Christopher W. Hutton, Judge 

(Kevin P. Shea, on brief), for appellant. 

Appellant submitting on brief. 

Ruth M. McKeaney, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Berace Ricardo Bennett, Jr., was convicted by a jury of first 

degree murder and use of a firearm in the commission of murder. 

On appeal, Bennett contends that the evidence was insufficient to 

support a finding that the shots he fired at the victim were 

fatal. We disagree and affirm the convictions. 

BACKGROUND

 At 12:45 a.m., Roderick Newby and Phgero (“Maurice”) Bernard 

argued in the parking lot of a movie theater while Edward Collins, 

who was Newby’s friend, and Berace Bennett, who was Bernard’s 

friend and roommate, looked on. Collins testified that Newby’s 
back was turned to them, but Bernard faced them. Bennett said to 

Collins, referring to Newby, “get your man, get your man.” In an 

effort to avoid a fight, Collins took Newby by the arm and said, 

“come on man, it’s cold out here, you know we ain’t got time to 

argue, whatever.” Newby replied, “all right, I’m coming, I’m 

coming,” but as Newby took a step and turned, Bennett started 

shooting. After five or six shots, Newby collapsed, and the 

defendant stood over the fallen body shooting at him six or seven 

more times. The defendant then fled. 

 Some witnesses testified that after the defendant fled, a 

second unidentified assailant ran from the opposite direction that 

Bennett had fled, and repeatedly shot the victim as he lay on the 

ground. 

 Immediately after the shooting, Collins ran to a nearby hotel 

lobby and asked the clerk to telephone for assistance. He then 

ran back to Newby where he discovered him “dazed . . . gurgling 

. . . and . . . looking up at the sky.” 

 Bernard and Bennett had been drinking before and during the 

movie they had just attended. Although Bennett now admits firing 

shots at Newby, Bernard, a convicted felon, testified that neither 

he nor Bennett was armed or fired shots at Newby. Bernard 

testified that Newby pulled a gun on him and began to wave it at 

him, after which Bernard turned and walked about ten steps away 

before he heard numerous rapid fire gunshots. After hearing the 

shots, Bernard ran to his car. As he approached the car, Bennett 

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came running toward him. Bernard testified that he could not 

drive because a bullet had hit his foot, so he jumped in the 

passenger seat while Bennett got in the driver’s seat. According 

to Bernard, the gunshots continued as Bennett drove them away. 

Joaquin Cruz testified that one of the shooters ran and jumped 

into the passenger seat of Bernard’s car which sped off driving 

over a sidewalk and running a red light. 

 Sergeant Edgar Browning confirmed that two nine millimeter 

handguns were fired at the scene. Forensic technician Linda Woods 

testified that she recovered twenty-one casings from the scene 

-- thirteen nine millimeter W.I.N. Luger casings, and eight nine 

millimeter R.P. Luger casings. Medical examiner Dr. Leah Bush 

testified that Newby’s body showed eight separate gunshot entry 

wounds. Dr. Bush stated that four of those wounds were lethal. 

She defined a lethal wound as “meaning one that produced 

significant bleeding inside the body that would cause his death.” 

Two of these lethal bullet entry wounds were to Newby’s back. 

 At trial, Bennett made no motions to strike the evidence. 

After trial, Bennett moved to set aside the verdict on the ground 

that it was without evidence to support it. After oral arguments, 

the trial court denied the motion and Bennett appealed. 

ANALYSIS

 The Commonwealth argues that Bennett, having failed to move 

the court to strike the evidence during trial has failed to 

preserve this issue for appeal. We disagree. 

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 A motion to set aside the verdict is an accepted procedure to 

test the sufficiency of the evidence. See Gabbard v. Knight, 202 

Va. 40, 43, 116 S.E.2d 73, 75 (1960); McGee v. Commonwealth, 

4 Va. App. 317, 321, 357 S.E.2d 738, 740 (1987). When the 

appealing party articulates specific objections to the 

sufficiency of the evidence in a motion to set aside the 

verdict, the appeals court may review the trial court’s ruling 

on that motion. See McGee, 4 Va. App. at 321, 357 S.E.2d at 

740. At oral argument on the motion to set aside the verdict, 

Bennett argued that the evidence at trial was insufficient to 

prove that Bennett fired any of the fatal gunshots that struck 

Newby. Accordingly, he preserved that issue for appeal. 

 When an appellant challenges the sufficiency of the 

evidence, we view the evidence in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom. See Higginbotham v. Commonwealth, 

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

court must discard all the accused’s evidence that is in 

conflict with the Commonwealth’s, and accept as true all 

credible evidence of the Commonwealth. See Bobblett v. 

Commonwealth, 10 Va. App. 640, 651, 396 S.E.2d 131, 137 (1990). 

The jury has the opportunity to see and hear the witnesses and, 

therefore, it is the jury’s exclusive function to evaluate the 

credibility of their testimony. See Coppola v. Commonwealth, 

220 Va. 243, 252, 257 S.E.2d 797, 803 (1979). Moreover, 

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“[j]urors are not required to accept in full the testimony of 

any witness. They may accept what they believe credible, and 

reject that which they think not worthy of belief. Their duty 

is to settle the matter in dispute.” Henry v. Commonwealth, 195 

Va. 281, 290, 77 S.E.2d 863, 869 (1953). 

 Bennett admits that he fired shots at Newby. Furthermore, 

the evidence proved that Newby died of four fatal gunshot 

wounds. However, the evidence also showed that two weapons were 

fired at the scene, and some testimony indicated that an 

unidentified assailant also fired at Newby. Thus, the 

dispositive issue on appeal is whether the circumstantial 

evidence presented was sufficient to prove either that Bennett 

fired at least one fatal shot or alternatively, that even if he 

did not fire fatal shots, he acted in concert with the 

unidentified second gunman who may have shot Newby. 

 “Circumstantial evidence may establish the elements of a 

crime provided it excludes every reasonable hypothesis of 

innocence.” Lovelace v. Commonwealth, 27 Va. App. 575, 586, 500 

S.E.2d 267, 272 (1998). Whether a particular hypothesis is 

reasonable, is a question of fact binding on appeal unless 

plainly wrong. See id. at 586, 500 S.E.2d at 273. If, based on 

all the evidence, no reasonable hypothesis of innocence existed, 

then we must affirm. 

 According to Bennett, the Commonwealth has failed to 

exclude the possibility that a second gunman inflicted all four 

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fatal wounds. However, the requirement that the Commonwealth 

exclude every reasonable hypothesis of innocence does not 

require that the evidence disprove every remote possibility of 

innocence. See Avent v. Commonwealth, 209 Va. 474, 164 S.E.2d 

655 (1968). When, as here, the appellant presents an hypothesis 

of innocence on appeal, the burden is on the appellant to show 

that no reasonable finder of fact, based on the evidence 

presented, could have excluded the hypothesis. See generally

Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 

387 (1991) (“The burden is on the party who alleges reversible 

error to show by the record that reversal is the remedy to which 

he is entitled.”). Thus, Bennett must show that the facts as 

established in the record, viewed in the light most favorable to 

the Commonwealth, do not exclude a reasonable hypothesis of 

innocence that flows from the evidence. 

 We find that Bennett has failed to show that he is entitled 

to reversal. The evidence presented supports three theories of 

what could have occurred, under any one of which Bennett is 

criminally culpable. Thus, the evidence excluded every 

reasonable hypothesis of innocence. 

 First, the fact finder could have found that Bennett was 

the sole assailant. Joaquin Cruz testified that he saw only one 

gunman. Additionally, Collins testified that Bennett was the 

only gunman. Accordingly, the jury could have adopted that 

testimony to the exclusion of the conflicting evidence. 

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 Second, the jury could have found that two gunmen fired 

shots, but that Bennett fired at least two of the four fatal 

shots. Bennett’s initial shots dropped Newby. Then, after 

Bennett fled, according to Antonio Harris, the second gunman 

approached and fired at Newby on the ground. The only evidence 

describing Newby while he was on the ground places him on his 

back, looking up. Thus, based on this account, the jury could 

reasonably infer that the gunshots to Newby’s back were fired by 

Bennett. Since two of the fatal shots entered Newby’s back, the 

evidence proved to the exclusion of a reasonable hypothesis of 

innocence that Bennett fired at least two of the fatal shots. 

 Finally, the jury could have determined that although there 

were two gunmen, they were acting in concert. If the defendant 

and another unidentified assailant acted in concert, the crime 

is attributable to both. See Spradlin v. Commonwealth, 195 Va. 

523, 528, 79 S.E.2d 443, 445 (1954). Bernard’s girlfriend had 

dated Newby for four years which caused them to argue that 

evening. According to Bernard, he and Bennett were close 

friends and they had been drinking together that evening. They 

left the scene together immediately after the shooting. Bernard 

testified that he got into the passenger’s side of his own 

vehicle as he and Bennett rushed to leave the scene. Joaquin 

Cruz testified that a gunman jumped into the passenger side of 

Bernard’s vehicle. 

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 Considering the totality of the evidence, the jury 

reasonably could have concluded that Bernard was the second 

gunman and that he acted in concert with Bennett. Under those 

circumstances, as the trial court instructed the jury, Bennett 

and Bernard would both be criminally responsible for the fatal 

gunshots. 

 In summary, we find that the evidence was sufficient to 

permit the jury to exclude all reasonable hypotheses of 

innocence. Accordingly, we affirm the convictions. 

Affirmed.

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