COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Coleman Argued at Chesapeake, Virginia

JAMES ERVIN HOLLEY OPINION BY v. Record No. 0509-03-1 J UDGE ROBERT J. HUMPHREYS NOVEMBER 2, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge Von L. Piersall, III (Levin, Le vin & Tuthill, P.C., on brief), for appellant. Steven A. Witmer, Assistant Atto rney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

James E. Holley appeals his conviction, follo wing a bench trial, for attempted malicious wounding of a law enforcement officer (i n violation of Code §§ 18.2-26 and 18.2-51.1). 1 Specifically, Holley advances the following Ques tion Presented: “Was the Commonwealth’s evidence sufficient to prove beyond a reasonable doubt that Mr. Holle y acted with the intent to maim, disfigure, disable or kill as required by Virginia Code S ection 18.2-51[.1] and as alleged

1 Holley was also convicted of grand lar ceny (in violation of Code § 18.2-95), grand larceny of an automobile (in violation of C ode § 18.2-95), eluding police (in violation of Code § 46.2-817), driving in a manner so as to endanger the life, limb, or property of another after having been declared an habitual offender (in violation of Code § 46.2-357), and destruction of property (in violation of Code § 18.2-137). Those convictions are not at issue in this appeal.- 2 - in Count One.” 2 For the reasons that follow, we affi rm Holley’s conviction, but remand solely for the purpose of correcting a cleri cal error in Holley’s sentencing order. 3 I. Background When sufficiency of the evidence is challenge d on appeal, we “review the evidence in the light most favorable to the Co mmonwealth, granting to it all reasonable inferences fairly

deducible therefrom.” Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). So view ed, the evidence establishes that on September 3, 2002, Holley approached an employee, Cindy Anderson, at a Po rtsmouth Food Lion and “said that he needed some boxes.” After failing to find “a few boxes” “ by the dairy department,” Anderson called her assistant manager to ask if they could “get [Ho lley] a box or two.” Anderson’s assistant manager responded, “Yes, send him over here by the gro cery room.” Holley then walked away. A few moments later, Anderson saw Holley le aving the store. Holley was carrying a box.

Anderson observed “cartons of Ma rlboros sticking out of the top of the box.” After asking a cashier if Holley had paid for the cigarettes , Anderson “went out th e door,” observed Holley “jump[] into a van,” and heard him say “Go, go, go.” Anderson told her coworkers to call the police.

2 Count one of Holley’s grand ju ry indictment read as follows: 1. Attempted Malicious Wounding of a Law Enforcement Officer On or about, Tuesday, September 2, 2002, did attempt to maliciously cause bodily injury to Officer J. Quiros, a law enforcement officer engaged in the performance of his/her duties as such by striking with a motor ve hicle with the intent to maim, disfigure, disable or kill in violation of Code §§ 18.2-51.1; 18.2-26; 18.2-10 of the Code of Virginia (1950) as amended.

3 The sentencing order incorrectly re cited that Holley was “found guilty of” “Attempt[ed] Malicious Wounding” in violati on of “Code § 18.2-51” rather than Code § 18.2-51.1. Accordingly, we remand solely for th e purpose of correcting the clerical error.- 3 - Officer Jorge Quiros, of the Portsmouth Police Department, happened to be “doing a direct patrol” at the shopping cen ter at that time. Officer Quir os was driving a “marked police

K-9 Unit” and was in “full uniform.” As he wa s “driving around,” he noticed a blue van parked “near the front of the shopping center close to the Food Lion.” He observed a woman wearing a “Food Lion type uniform” waving at him and pointing at Holley. Quiros saw that Holley was walking toward the blue van at a “quick pace.” As Quiros drove his patrol unit toward the van, he could hear Holle y “yelling.” Quiros rolled down his window, and the Food Lion employ ee (Anderson) advised Qu iros that “[Holley] had just stolen some merchandise from the st ore.” “As this conversation was taking place,” Quiros observed Holley approach the van, “yelli ng and screaming.” Offi cer Quiros then saw people emerging from the van, and “it appeared . . . that [Holley] extracted a young lady out of the vehicle.” Anderson yelled, “Look out!” Quiros then realized that Ho lley had started the van motor and begun to accelerate. The woman Ho lley had “extracted” from the van yelled, “He’s stealing my van.” Quiros had to move his “K-9 tr uck out of the way before” the van struck him. The van “took off at a high rate of speed,” and Quiros pursued after activating his “lights and

sirens.” Holley drove the van “around [the] little shoppi ng area twice at a high rate of speed,” despite the fact that “[ i]t was a very busy night for that s hopping center” and “there were people scattering.” Without slowing, Holley exited onto Portsmouth Boulevard, causing “traffic to lock up with brakes and skid.” Holley then accele rated and “forced traffic to open up for him,” apparently ignoring the red light at the intersection. Holley c ontinued driving, “jump[ing] the median” several times and driving in the wrong di rection on busy roads. At one point, Holley

turned and drove back in the direction he had co me from. Because of hi s earlier erratic driving, traffic was “congested,” a nd several cars “were actually in a ‘V’ where they had [earlier] been- 4 - forced off onto the sidewalk and to the median.” “It was so tight” there that Holley had to bring the van to a complete stop. At that time , Officer Quiros “came around facing him head-on approximately 15 to 20 feet away.” As Officer Qu iros stepped out of his patrol unit and drew his weapon, Holley “looked in [his] di rection, accelerated th e van, and came right at [him],” passing between two cars. Quiros had to “dive back in to his K-9 truck,” slamming the door shut behind him, to “avoid being struck.” The van “pa ssed within inches of [Quiros’s] truck.” Due to the “traffic and everybody else around [h im],” Quiros realized “there was no way [he] could continue that pursuit on [Holley].” Accordingly, Quiros called to request a marked unit to take over the pursuit. Holley was ultimately apprehended after Offi cer Roberta Monell, also of the Portsmouth Police Department, joined in the pursuit. Mone ll was able to stop Holley when she “moved [her] police car forward and pushed the rear of his van against [a] gua rdrail so he could not proceed anymore” – all of this occurring after Holley had al ready backed into Monell’s police car in an effort to “get away from [Monell].” Holley was charged with one c ount of eluding police, one count of driving in a manner so as to endanger the life, limb, or property of a nother after having been declared an habitual offender, one count of destruction of property, on e count of grand larceny of an automobile, one count of grand larceny, and two counts of attempted malicious wounding of a police officer. During his trial, Holley made a motion to stri ke with respect to bot h charges of malicious wounding of a law enforcement officer. Holley’s counsel argued that th e Commonwealth failed to produce evidence that Holley possessed the requisi te intent to maliciously wound the officers and that, instead, the evidence merely proved that hi s intent was to “get away from the police.” The trial court denied the motion and ultimately found Holley guilty of all the charges, with the- 5 - exception of the charge of attempted malicious wounding of Officer Monell. In dismissing that count, the trial court held that “the evidence [was] insufficient as it relate[d] to Officer Monell.” II. Analysis On appeal, Holley contends that the trial co urt erred in finding the evidence sufficient “to prove beyond a reasonable doubt that [Holley] acted with the intent to maim, disfigure, disable or kill” Officer Quiros, “as re quired by Virginia Code Sectio n 18.2-51[.1] and as alleged in Count One” of the indictment. Holley asks us to reverse and dismiss his conviction for attempted malicious wounding. Code § 18.2-51.1 states, in relevant part: If any person maliciously causes bodily injury to another by any means including the means set out in § 18.2-52, with intent to maim, disfigure, disable or kill, and knowing or having reason to know that such other person is a law-enforcement officer . . . , such person shall be guilty of a fel ony punishable by imprisonment for a period of not less than five years nor more than 30 years and, subject to subsection (g) of § 18.2-10, a fine of not more than $100,000. Upon conviction, the sent ence of such person shall include a mandatory minimum term of imprisonment of two years. Accordingly, to convict the defendant of a ttempted malicious wounding of a law enforcement officer, the Commonwealth must prove beyond a r easonable doubt that the defendant attempted

the criminal act and that he acted “with intent to maim, disfigure, disa ble, or kill” the law

enforcement officer. Id. “‘An attempt to commit a crime is composed of two elements: (1) The intent to commit it; and (2) a direct, ineffectual act done towards its commission.’” [Merritt v. Commonwealth , 164 Va. 653, 657, 180 S.E. 395, 397 (1935)] (citation omitted). “Intent is the purpose formed in a person’s mind and may be, and frequently is, shown by circumstances. It is a state of mind which may be proved by a person’s conduct or by his statements.” Barrett v. Commonwealth , 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969); see Nobles v. Commonwealth , 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). “[A] person is pres umed to intend the immediate, direct, and necessary consequences of his voluntary act.” Nobles ,- 6 - 218 Va. at 551, 238 S.E.2d at 810. “[W]hether the required intent exists is generally a question for the trier of fact.” Id. Haywood v. Commonwealth , 20 Va. App. 562, 565-66, 458 S.E.2d 606, 607-08 (1995). It is well settled that “[t]he intent required to be proven in an attempted crime is the specific intent in the person’s mind to commit th e particular crime for which the attempt is charged.” Wynn v. Commonwealth , 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987). In this vein, Holley contends the Commonwealth’s evidence presen ts two reasonable hypotheses, one

consistent with his innocence and the other with hi s guilt, and that the evid ence fails to exclude the hypothesis of innocence. Moody v. Commonwealth , 28 Va. App. 702, 706-07, 508 S.E.2d 354, 356 (1998) (citing Haywood , 20 Va. App. at 567, 458 S.E.2d at 608). Specifically, Holley

contends that the Commonwealth’s evidence failed to exclude the reasonable hypothesis that he accelerated toward Officer Quiros, not with the speci fic intention to “maim, disfigure, disable, or kill” him, but with the intention of merely escaping. In support of his argument, Holley relie s upon this Court’s decision in Haywood , 20 Va. App. at 562, 458 S.E.2d at 606. In that case: Haywood, who had been drinking he avily, fled the scene of a public altercation in his truck. On two separate occasions, a police officer positioned his vehicle in th e road so as to block Haywood’s path. On each of these occasions, however, Haywood failed to slow down or change his cour se and, but for the officers’ last-minute evasive actions, would ha ve struck the police vehicles. [Haywood , 20 Va. App. at 564-65, 458 S.E.2d at 607.] On Haywood’s appeal from two c onvictions of attempted capital murder of a police officer, we a ddressed the question of “whether Haywood, while driving his truck, form ed the specific intent to use his vehicle as a weapon for the une quivocal purpose of murdering the police officers.” Id. at 566, 458 S.E.2d at 608. We reversed the convictions because the Co mmonwealth presented no direct evidence that Haywood, by running th e road blocks, intended to kill the police officers and because the circumstantial evidence did not exclude the reasonable hypothe sis of innocence that Haywood- 7 - only intended to avoid police a pprehension by driving through their vehicular roadblocks. Id. at 567-68, 458 S.E.2d at 609. Moody , 28 Va. App. at 707-08, 508 S.E.2d at 357 (explaining Haywood , 20 Va. App. at 564-68, 458 S.E.2d at 607-09). While we recognize Holley clearly sought to escape apprehension, th e evidence in this

case further proves his intent to in jure Officer Quiros in the proce ss of doing so. In the course of his attempted escape, Holley was forced to bring the van to a complete stop. After stopping the van, Holley saw Officer Quiros st anding in his path. Holley then accelerated the van directly towards Officer Quiros, without making any effort to veer or avoid striking Officer Quiros. The fact finder could conclude that Officer Quiros avoided being struck on ly by taking the evasive action of diving into his patrol unit. Thus, the fact finder coul d further conclude that, in his effort to escape, Holley attempted to drive th rough Officer Quiros. Here, we do not have a situation where Holley swerved, from which two inferences can be drawn, one consistent with

innocence and the other consistent with guilt. The fact that Holley may have been attempting to escape, on these facts, is not in consistent with the equally r easonable hypothesis that he was attempting to do so by running over Offi cer Quiros. Code § 18.2-51.1; see also Commonwealth

v. Hudson , 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003) (no ting that the “i ssue upon appellate

review is not whether ‘there is some evid ence to support’” the de fendant’s hypothesis of innocence, but “whether a reasonable [fact finde r], upon consideration of all the evidence, could have rejected [the defendant’s] theories in his defense and found him guilty” beyond a reasonable doubt). Holley’s actions are therefore factually dist inguishable in several respects from those presented in Haywood . Specifically, in Haywood , the defendant never halted his truck, but instead continued driving at a high rate of speed despite the presence of the police cars that had been placed in his path. The evidence did not show that Haywood knew that an officer was in- 8 - the car and that Haywood specificall y intended to maim, disable, disf igure or kill an officer. See Haywood , 20 Va. App. at 564-65, 458 S.E.2d at 607. The circumstances of the present case, however, more closely resemble th e facts in Stevens v. Commonwealth , 38 Va. App. 528, 567 S.E.2d 537 (2002). In Stevens , this Court affirmed a convicti on for the attempted capital murder

of a law enforcement officer where the defendant “came to a stop” approximately ten feet away from a stopped police car, “and, looking right at [the police officer], rapidly accelerated directly

toward him.” Id. at 537, 567 S.E.2d at 541. Because Stevens “deliberately turned his car in [the officer’s] direction and drove to ward him,” we concluded that the evidence was sufficient to prove that Stevens “had the re quisite specific intent to use his vehicle as a weapon for the unequivocal purpose of murder ing Officer Hines.” Id. Although Holley was charged with attempted malicious wounding rather than atte mpted capital murder, the reasoning in Stevens is equally applicable here. Moreover, unlike the defendant in Haywood , Holley “was not attempting to run through an inanimate object; rather, the obstacle in his path consisted” of Officer Quiros visibly standing behind his open patrol unit door. Moody , 28 Va. App. at 708, 508 S.E.2d at 357. In fact, Officer Quiros had parked his patrol unit only 15 to 20 feet away from Holley and had “stepped out of his patrol unit and [drawn] his weapon.” After Holley “looked in [Officer Quiros’s] direction, [he] accelerated the van, and came right at [him].” In order to avoid injury, Quiros had to “dive” into his patrol unit, slamming the door shut behind him. In Haywood , by contrast, the evidence established only that the defendant drove toward parked police cars that had been set up as

roadblocks. In contrast , the trial court here could have reasonably c oncluded that, when Holley aimed the van directly at Officer Quiros – ra ther than the parked police car – Holley had formulated the specific intent to “maim, disfigure, disable, or kill” the officer. Code § 18.2-51.1;

see Moody , 28 Va. App. at 707, 508 S.E .2d at 356 (affirming convicti on for attempted malicious- 9 - wounding where the defendant, “who saw [a pedestri an] blocking the only avenue of his escape, deliberately chose to accelerate his car toward the pedestrian, never decelerating, braking, or swerving to avoid him,” and the pedestrian “was sp ared certain injury only by jumping out of the vehicle’s path at the last moment”). 4 Upon consideration of the evidence, the tr ial court could have reasonably found that Holley accelerated toward Officer Quiros in order to escape apprehen sion by running down the officer. This is not a situation where to accep t the theory that Holley was attempting to escape would necessarily exclude the hypothesis that he wa s also attempting to maim or injure Officer Quiros. The evidence raises the sole inference th at Holley intended to escape even if in so doing he had to drive his accelerating vehicle into th e officer who stood before him. Accordingly, we affirm the conviction for violating Code § 18.2-51.1. We, nevertheless, remand this matter for the purpose of correcting the clerical error reflected in Holley’s sentencing order.

Affirmed and remanded.

4 Cf. Luck v. Commonwealth , 32 Va. App. 827, 832-34, 531 S.E.2d 41, 43 (2000) (finding that a “fact finder could draw the reason able and justified inference that the defendant intended to maim, disfigure, disa ble or kill when he repeatedly rammed the police vehicle while traveling at 80 miles per hour,” a nd noting that “such a finding is c onsistent with the defendant’s claim that he was merely trying to elude the po lice” because “his assertion provide[d] the motive and explanation for his intentional acts, whic h could obviously cause a serious wreck, maiming, disfiguring, disabling, or killi ng anyone involved”); see also Stevens , 38 Va. App. at 537, 567 S.E.2d at 541 (concluding that “the trial court could reasonably infer that [the defendant] intended ‘to run [the police officer ] down’ with his vehicle and that . . . [the defendant’s] act, if not thwarted, would have resulted in the immedi ate, direct, and necessary consequence of [the officer’s] death”).