Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, 

JJ., and Koontz, S.J.∗

CORDERO BERNARD ELLIS OPINION BY 

SENIOR JUSTICE LAWRENCE L. KOONTZ, JR. 

v. Record No. 100506 March 4, 2011 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal, the principal issue we consider is 

whether, in order to prove a violation of Code § 18.2-279, 

which makes it a criminal offense to discharge a firearm at or 

against any occupied building, the Commonwealth must establish 

that the defendant had a specific intent to shoot at a 

particular building. 

BACKGROUND 

The pertinent facts are not in dispute. Consistent with 

well-established principles of appellate review, we consider 

those facts in the light most favorable to the Commonwealth, 

the prevailing party in the circuit court. Hamilton v. 

Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010). 

On November 10, 2008, Cordero Bernard Ellis was indicted 

by the grand jury in the Circuit Court of the City of Newport 

News for the offense of maliciously discharging a firearm at 

 

∗

 Justice Koontz presided and participated in the hearing 

and decision of this case prior to the effective date of his 

retirement on February 1, 2011; Justice Kinser was sworn in as 

Chief Justice on February 1, 2011. 
or against an occupied building in violation of Code § 18.2-

279, a Class 4 felony.1 A bench trial on this indictment was 

held in the circuit court on January 9, 2009. The court 

ultimately convicted Ellis of the lesser included offense of 

unlawfully discharging a firearm at or against an occupied 

building, a Class 6 felony. 

The evidence adduced at Ellis’ trial established that at 

approximately 6 p.m. on the afternoon of August 16, 2008, Evan 

D. Claude and his child nephew exited a convenience store 

located in the 4700 block of Marshall Avenue in the City of 

Newport News, where Claude had gone to purchase cigarettes. 

They crossed Marshall Avenue and proceeded through an open 

space between two buildings directly opposite the convenience 

store. An individual, who Claude recognized as “D.A.,” walked 

past them toward Marshall Avenue. 

 

1

 Ellis was also indicted for attempted malicious wounding 

of Evan D. Claude, Code § 18.2-51, and use of a firearm in the 

commission of that offense, Code § 18.2-53.1. The malicious 

wounding charge apparently was premised on a theory of 

transferred intent since the victim named in the indictment 

was a bystander, not the intended victim, whose exact identity 

was not known. The circuit court, applying Crawley v. 

Commonwealth, 25 Va. App. 768, 773, 492 S.E.2d 503, 505 

(1997), ruled that the doctrine of transferred intent was 

inapplicable to the crime of attempted malicious wounding, and 

dismissed the indictment for that offense and the use of a 

firearm offense. 

2
Approximately 10 to 20 feet further away, Claude saw 

Ellis, known to Claude as “Moosey,” draw a pistol and call out 

to “D.A.” Ellis then began firing the pistol at “D.A.” 

Claude and the child were “in the path of the fire.” Claude 

estimated that the total distance separating Ellis and “D.A.” 

was “about 30 or 40 feet.” 

During Claude’s testimony, the Commonwealth introduced an 

aerial photograph showing the convenience store and the 

surrounding area. On the photograph, Claude marked the 

approximate locations of where he, “D.A.,” and Ellis were 

standing when the shooting occurred. 

Aja Lani, the assistant manager of the convenience store, 

testified that at the time of the shooting there were three 

employees and at least three customers in the store. Lani 

testified that as soon as he and the others heard gunfire they 

“laid down on the floor” of the store. Lani further testified 

that one bullet entered the store through a glass door. 

Officer Luley2 of the Newport News Police Department 

testified that in investigating the August 16, 2008 shooting, 

he recovered two bullets, one from where it had impacted the 

wall of the convenience store and another from inside the 

store. In the open area across Marshall Avenue from the 

 

2

 The record does not disclose Officer Luley’s full name. 

3
store, Officer Luley recovered eight shell casings. Although 

Officer Luley was able to identify the approximate location 

where he recovered the casings, he could not state the exact 

distance from the store to that location. 

At the conclusion of the Commonwealth’s case, Ellis made 

a motion to strike the Commonwealth’s evidence and dismiss the 

charge relating to a violation of Code § 18.2-279, asserting 

that the evidence failed to show that Ellis intended to shoot 

“at or against” the convenience store. The circuit court took 

Ellis’ motion to strike under advisement, directing the 

parties to be prepared to address whether the gravamen of the 

offense defined by Code § 18.2-279 required the Commonwealth 

to prove that Ellis had the specific intent to shoot at the 

building in which the store was located. Ellis did not 

present any evidence. 

On March 3, 2009, the circuit court conducted a hearing 

to receive additional argument on Ellis’ motion. Relying on 

Fleming v. Commonwealth, 13 Va. App. 349, 412 S.E.2d 180 

(1991), Ellis’ counsel maintained that the Commonwealth was 

required to prove that Ellis had the specific intent to fire 

“at or against” the store in order to sustain a charge under 

Code § 18.2-279, because that language was included in the 

indictment. The court stated that it did not agree with 

counsel’s interpretation of Fleming, finding instead that the 

4
case stood for the proposition that Code § 18.2-279 was a 

general intent crime. Counsel responded that she agreed that 

Fleming stood for the proposition that unlawfully shooting at 

an occupied building required only a showing of general 

intent.3 She contended, however, that because the indictment 

in this case charged the precise offense of maliciously

shooting “at or against” an occupied building, the 

Commonwealth was required to prove a specific intent to shoot 

at or against the convenience store with the malicious intent 

of injuring one of the occupants. Asserting that the evidence 

did not prove either of these elements, counsel contended that 

Ellis was at most guilty of unlawfully discharging a firearm.4 

 

3

 The Commonwealth contends that when Ellis’ counsel 

acknowledged her agreement with the circuit court’s 

interpretation of Fleming, she conceded that Ellis could be 

convicted of unlawfully shooting at an occupied building as a 

general intent crime and that any argument to the contrary on 

appeal is an improper attempt to “approbate and reprobate.” 

See, e.g., Rowe v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 

161, 164 (2009). In the context of the colloquy between the 

court and counsel on this point, however, it is clear that 

counsel was only acknowledging the court’s reading of Fleming

and did not intend to concede that Ellis could be convicted of 

unlawfully shooting into an occupied building under the 

indictment and evidence in this case, as was made clear by her 

subsequent argument. 

4

 Presumably counsel was referring to Code § 18.2-280, 

which prohibits the “willful” discharge of a firearm “in any 

street in a city or town, or in any place of public business 

or place of public gathering,” a Class 1 misdemeanor unless 

the incident occurs in or within a specified distance of a 

school, which raises the offense to a Class 4 felony. 

5
In effect, Ellis’ counsel contended that by indicting Ellis 

for the greater offense defined by Code § 18.2-279, which she 

contended required proof of specific intent to shoot at the 

building with malicious intent to wound a person inside, the 

Commonwealth was bound by the indictment to prove that Ellis 

had specific intent with respect to every aspect of the crime. 

Thus, according to counsel, the Commonwealth could not assert 

that Ellis was guilty of the lesser offense based on a theory 

of general intent. 

The circuit court, while agreeing with Ellis’ counsel 

that the element of malice was not proven by the evidence, 

disagreed that the “at or against” language of the indictment, 

which tracked the statute, required proof of a specific intent 

to shoot “at or against” the convenience store in order to 

obtain a conviction. Accordingly, the court convicted Ellis 

of the lesser included offense of unlawfully shooting at an 

occupied building. Following the preparation of a presentence report, the court sentenced Ellis to five years 

imprisonment, suspending two years of that sentence. 

Ellis noted an appeal to the Court of Appeals, which 

refused his petition for appeal in an unpublished order. 

Ellis v. Commonwealth, Record No. 1281-09-1 (December 9, 

2009). The Court found, in accord with Fleming, that the 

evidence was sufficient to support a reasonable inference by 

6
the circuit court as fact finder that Ellis “ ‘knew or should 

have known that the [convenience store] was in the line of 

fire, even if [Ellis] did not specifically intend to shoot at 

or into the [store].’ ” Id., slip op. at 1 (quoting Fleming, 

13 Va. App. at 354, 412 S.E.2d at 183). We awarded Ellis this 

appeal. 

DISCUSSION 

Ellis contends that the circuit court erred in failing to 

find that the language of the indictment required the 

Commonwealth to prove that Ellis had a specific intent to fire 

“at or against” the convenience store. Ellis asserts that, 

regardless of the level of the offense under Code § 18.2-279 

for which he was convicted, the Commonwealth could not rely 

upon Ellis’ apparent intent to fire at “D.A.” to establish 

that Ellis also intended to shoot at the store because “D.A.” 

was “not in the store and located an unknown distance away 

from the store.” Ellis further contends that even if the 

Commonwealth was not required to prove that Ellis had the 

specific intent to shoot at the store, the Court of Appeals 

nonetheless erred in holding that the evidence was sufficient 

to support the circuit court’s finding that Ellis knew or 

should have known that the store was in his direct line of 

fire. For the reasons that follow, we disagree with Ellis on 

both points. 

7
Code § 18.2-279 provides in relevant part: 

If any person maliciously discharges a firearm . . . 

at or against any . . . building when occupied by 

one or more persons, whereby the life or lives of 

any such person or persons may be put in peril, the 

person so offending is guilty of a Class 4 

felony. . . . 

If any such act be done unlawfully, but not 

maliciously, the person so offending is guilty of a 

Class 6 felony. 

This Court first addressed the application of Code 

§ 18.2-279 in Dowdy v. Commonwealth, 220 Va. 114, 255 S.E.2d 

506 (1979). In Dowdy, we held that the statute was “a 

legislative declaration that human lives may be endangered 

when a deadly weapon is maliciously discharged at or against a 

building occupied by people and that such conduct is 

felonious.” Id. at 117, 255 S.E.2d at 508. 

Since Dowdy was decided, the Court of Appeals has 

reviewed numerous convictions under Code § 18.2-279, beginning 

with Fleming. In that case, the defendant was convicted as a 

principal in the second degree for unlawfully shooting at an 

occupied building. Id. at 350, 412 S.E.2d at 181. While not 

disputing that his actions were sufficient to prove that he 

was present and gave assistance to the first degree principal, 

Fleming contended that the Commonwealth had not proven that 

the first degree principal had the requisite intent to shoot 

at the building. The Court of Appeals rejected Fleming’s 

8
argument, holding “that the offense as defined by the statute 

is not a specific intent crime; rather, it is a general intent 

offense.” Id. at 354, 412 S.E.2d at 183. The Court went on 

to explain that 

[a] violation of the statute may be established upon 

proof that a person unlawfully discharged a firearm 

at or in the direction of an occupied [building] if 

the person knew or should have known that the 

[building] was in the line of fire, even if the 

person did not specifically intend to shoot at or 

into the [building]. The fact finder may infer that 

the perpetrator had an unlawful intent from the 

commission of an unlawful act. 

Id. (emphasis added). Since deciding Fleming, the Court of 

Appeals has consistently interpreted Code § 18.2-279 in accord 

with this holding. See, e.g., Armstead v. Commonwealth, 55 

Va. App. 354, 361, 685 S.E.2d 876, 879 (2009) (applying 

rationale of Fleming to Code § 18.2-154, which prohibits 

maliciously or unlawfully shooting into a vehicle); King v. 

Commonwealth, 40 Va. App. 193, 199, 578 S.E.2d 803, 806 

(2003). 

The rationale of Fleming is consistent with the view 

expressed in Dowdy that the legislative purpose of the statute 

is meant to prohibit unlawful conduct, whether malicious or 

merely criminally reckless, which has the potential to 

endanger the lives of persons inside occupied buildings, 

without regard to the shooter’s actual motive or intent in 

unlawfully discharging a firearm. Accordingly, applying that 

9
rationale here, we hold that to sustain a conviction under 

Code § 18.2-279, the Commonwealth need not prove that the 

defendant had the specific intent to shoot at or against a 

particular building. Rather, the evidence need only show that 

a defendant who unlawfully discharges a firearm knew or should 

have known that an occupied building or buildings were in his 

line of fire. 

Ellis contends, however, that even under this general 

intent standard the evidence was not sufficient for the 

circuit court to find that he knew or should have known that 

the convenience store was within his line of fire. This is 

so, Ellis contends, because the evidence showed only that he 

and “D.A.” were walking toward Marshall Avenue at an 

undetermined distance from the store when he fired his weapon 

at “D.A.” Thus, Ellis asserts that there was “[n]o evidence 

. . . presented to even suggest that [he] even knew where the 

building was located or that it was occupied.” 

During oral argument of this appeal, the Commonwealth 

conceded that Code § 18.2-279 is not a strict liability crime, 

and that factors such as visibility, time of day, the 

character of the neighborhood, and, most especially, the 

distance between the shooter and the building struck could 

impact the fact finder’s determination of whether the 

defendant reasonably should have known that he was shooting at 

10
an occupied building. The Commonwealth further acknowledged 

that the nexus between the shooter and the building struck 

could become so attenuated as to be legally insufficient to 

support a conviction under Code § 18.2-279. The Commonwealth 

contends, however, that the evidence in this case was 

sufficient to permit the circuit court to find that the 

Commonwealth’s evidence was legally sufficient, and, as the 

trier of fact, to make the further determination that Ellis 

knew that the convenience store was in his line of fire or 

should have realized that the natural, probable consequences 

of his actions was that stray shots were likely to strike 

occupied buildings. We agree. 

It is permissible for the fact finder to infer that every 

person intends the natural, probable consequences of his or 

her actions. See, e.g., Schmitt v. Commonwealth, 262 Va. 127, 

145, 547 S.E.2d 186, 198-99 (2001). In Fleming, the shots 

were fired “at a truck located directly in front of an 

occupied residence from a distance of sixty feet.” 13 Va. 

App. at 355, 412 S.E.2d at 184. The Court of Appeals 

determined that it was reasonable for the jury to infer that 

the shooter in that case, despite his statement that his 

intent was to fire at the truck, had the general intent to 

shoot at the dwelling that was also in his direct line of 

fire, because this was a natural, probable result of his 

11
discharging a firearm rapidly and indiscriminately in the 

vicinity of the dwelling. Id.

 Examining the aerial photograph that was admitted into 

evidence in this case, it is apparent that Ellis was only a 

short distance from the convenience store when he fired at 

“D.A.” Moreover, the photo clearly shows that there were 

other buildings immediately behind and to Ellis’ right and 

left on either side of the open area where the shooting 

occurred. Claude’s testimony established that the character 

of the neighborhood was of mixed residential and commercial 

use. Since Claude knew both Ellis and “D.A.” by sight, the 

circuit court could reasonably have inferred that Ellis was 

familiar with the neighborhood. It was also reasonable for 

the circuit court to infer that Ellis would have known that 

the convenience store would have been open for business and 

therefore occupied by employees, if not employees and 

customers. 

The evidence also showed that the shooting occurred at a 

time of day in the summer when it would still be full 

daylight. Although no evidence was adduced as to the exact 

character of the weather on the day of the incident, there was 

no assertion that it was inclement such that visibility would 

have been in any way obscured. 

12
 Given these facts, we hold that the Commonwealth’s case 

was legally sufficient to survive Ellis’ motion to strike and 

that the circuit court, as the fact finder, could reasonably 

infer from the character of the neighborhood, the presence of 

others in the vicinity, and the density of the surrounding 

development, that Ellis knew or should of known that an 

occupied building would be in his line of fire when he 

unlawfully discharged his weapon toward “D.A.” In this 

instance, it was not necessary for the Commonwealth to prove 

by direct evidence that Ellis was actually aware that the 

convenience store was within his line of fire or that it was 

occupied at the time, because it was reasonable for the fact 

finder to infer from the evidence that these elements of the 

offense were established beyond a reasonable doubt. 

CONCLUSION 

For these reasons, we hold that the circuit court did not 

err in finding that the Commonwealth was not required to prove 

that Ellis had the specific intent to fire at or against the 

convenience store and that the Court of Appeals did not err in 

finding that the evidence was sufficient to support Ellis’ 

conviction. Accordingly, we will affirm Ellis’ conviction 

under Code § 18.2-279 for unlawfully shooting at or against an 

occupied building. 

Affirmed. 

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