COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunzia ta and Bumgardner Argued at Norf olk, 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 Bennet t, Jr., was co nvicted by a jury of first degree murder and use of a firearm in the co mmission of murder. On appeal, Bennet t contends that the evidence was insufficient to support a finding that the shots he fire d at the victim were fatal. We disagree and affirm the convictions.
BACKGROUND At 12:45 a.m., Rode rick Newby and Phgero (“Maurice” ) Bernard argued in the pa rking lot of a movie theate r while Edward Collins, who was Newby’s friend, and Bera ce Bennett, wh o was Bernard’s friend and roommate, lo oked on. Collins te stified that Newby’sback was turned to th em, but Bernard faced them. Bennett said to Collins, referring to Ne wby, “get your man, ge t your man.” In an effort to avoid a fight, Collins took Ne wby by the arm and said, “come on man, it’s co ld out here, you know we ain’t got time to argue, whatever.” Ne wby replied, “all ri ght, I’m coming, I’m coming,” but as Newb y took a step and tu rned, Bennet t started shooting. After five or six shots, Newb y collapsed, and the defendant stood ov er the fallen bo dy shooting at him six or seven more times. The de fendant then fled. Some witnesses test ified that after th e defendan t fled, a second unidentified as sailant ran from the opposite direction that Bennett had fled, and repeatedly sh ot the victim as he lay on the ground. Immediately afte r the shooting, Collins ran to a nearby hotel lobby and asked th e clerk to telephone for assistance. He then ran back to Newb y where he discovered hi m “dazed . . . gurgling . . . and . . . lookin g up at the sky.” Bernard and Benn ett had been drinking before and during the movie they had just at tended. Although Benn ett now admits firing shots at Newby, Bernar d, a convicted felon, testified that neither he nor Bennett was ar med or fired shots at Newby. Bernard testified that Newby pu lled a gun on him and began to wave it at him, after which Bernar d turned and walked about ten st eps away before he heard numerous rapid fire guns hots. After hearing the shots, Bernard ran to hi s car. As he approached th e car, Bennett
- 2 -came running toward hi m. Bernard te stified that he could not drive because a bu llet had hit his foot, so he jumped in the passenger seat while Be nnett got in the driver ’s seat. According to Bernard, the gunsho ts continued as Bennet t drove them away. Joaquin Cruz testified that one of the shoo ters ran and jumped into the passenger seat of Bernard’s car wh ich sped off driving over a sidewalk and running a re d light. Sergeant Edgar Browning confir med that two ni ne millimeter handguns were fire d at the scene. Forensic techni cian Linda Woods testified that she re covered twenty-o ne casings from the scene -- thirteen nine mill imeter W.I.N. Luger ca sings, and eight nine millimeter R.P. Luger casings. Medical exam iner Dr. Leah Bush testified that Newby’s body showed eight se parate gunshot entry wounds. Dr. Bush stated that four of those wounds were lethal. She defined a le thal wound as “meaning one that produced significant bl eeding inside the body that would cause his death.” Two of these lethal bu llet entry wounds we re to Newb y’s back. At trial, Bennett ma de no motions to st rike the evidence. After trial, Bennett mo ved to set aside the ve rdict on the ground that it was without evidence to su pport it. After oral arguments, the trial court denied the motion an d Bennett appealed. ANALYSIS The Commonwealth argu es that Bennett, havi ng failed to move the court to strike the evidence during trial has fa iled to preserve this is sue for appeal. We disagree.

- 3 -A motion to se t aside the verdic t 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,

- 4 -“[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

- 5 -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.

- 6 -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.

- 7 -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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