COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Elder 

Argued at Richmond, Virginia 

DONTAE RENEE HOLTON 

 MEMORANDUM OPINION* BY 

v. Record No. 2369-96-2 JUDGE LARRY G. ELDER 

 OCTOBER 28, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Patricia P. Nagel, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Dontae Renee Holton (appellant) appeals her convictions of 

attempted capital murder of a police officer and of using a 

firearm during the commission of this attempt. She contends that 

the evidence was insufficient to sustain her convictions. For 

the reasons that follow, we affirm. 

 I. 

 FACTS 

 On February 27, 1996, Detective Ronald Paul McClarin was 

working undercover attempting to solicit sexual intercourse for 

money in order to make arrests for prostitution. At 

approximately 9:45 p.m., he spotted appellant standing on a 

street corner and approached her in his car. Following a brief 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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conversation, appellant agreed to have sexual intercourse with 

the detective in exchange for twenty dollars. 

 Appellant entered the detective's car, and he drove to a 

nearby field. When they arrived at the field, Detective McClarin 

gave appellant twenty dollars and told her to "go ahead and get 

ready." Appellant responded by "taking her trousers down." 

Detective McClarin reached into his pocket and fumbled around 

"looking for a condom." Appellant looked suspiciously at the 

detective. Sensing that appellant "was going to bolt," Detective 

McClarin pulled out his badge, placed it in front of appellant's 

face and said, "Richmond Vice, you're under arrest." Appellant 

jumped out of the car, and Detective McClarin pursued her through 

the passenger-side door, grabbing his service pistol in the 

process. Appellant was a few feet ahead of the detective, 

hopping and struggling to pull up her pants, and screaming, "no, 

no don't arrest me. Don't arrest me." 

 While carrying his gun in his left hand, Detective McClarin 

grabbed appellant with his right hand and the two "began to 

struggle or tussle." Detective McClarin told appellant that he 

had a gun and said, "Don't fight, you're under arrest." After he 

announced that he was carrying a gun, the nature of the struggle 

with appellant changed. Appellant ceased struggling to escape 

from the detective and instead "went directly for the gun" in the 

detective's hand. Appellant then "interlocked" her hand in the 

detective's right hand and "turned the firearm completely around 
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and pointed the barrel at [the detective's] stomach." Detective 

McClarin felt appellant's finger searching for the finger of his 

hand that was on the gun's trigger. Detective McClarin twisted 

his right hand so that the pistol pointed away from his 

midsection and down toward the ground. "[H]alf a second" later, 

appellant found the trigger of the gun with her finger and pulled 

it. The gun discharged into the ground, injuring no one. 

 After a few more minutes of struggling, during which 

appellant continued her attempt to gain control of the 

detective's pistol, Detective McClarin managed to handcuff and 

arrest appellant. 

 At the conclusion of the Commonwealth's case-in-chief and 

again after her case, appellant made a motion to strike. The 

trial court denied both motions and convicted her as charged. 

 II. 

SUFFICIENCY OF THE EVIDENCE 

 Appellant contends that the evidence was insufficient to 

prove that she attempted to murder Detective McClarin. She 

argues that the evidence failed to support the trial court's 

conclusion that she specifically intended to kill the detective 

during their struggle. We disagree. 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). This Court does 
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not substitute its judgment for that of the trier of fact. See

Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 

(1992). Instead, the trial court's judgment will not be set 

aside unless it appears that it is plainly wrong or without 

supporting evidence. Josephs v. Commonwealth, 10 Va. App. 87, 

99, 390 S.E.2d 491, 497 (1990) (en banc). 

 "'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.'" Haywood v. Commonwealth, 20 Va. 

App. 562, 565, 458 S.E.2d 606, 607-08 (1995) (quoting Merritt v. 

Commonwealth, 164 Va. 653, 657, 180 S.E. 395, 397 (1935)). Code 

§ 18.2-31(6) states that the crime of capital murder includes the 

"willful, deliberate, and premeditated killing of a 

law-enforcement officer . . . for the purpose of interfering with 

the performance of his official duties." 

 "The intent required to be proven in an attempted crime is 

the specific intent in the person's mind to commit the particular 

crime for which the attempt is charged." Wynn v. Commonwealth, 5 

Va. App. 283, 292, 362 S.E.2d 193, 198 (1987); see also Merritt, 

164 Va. at 660-61, 180 S.E. at 398-99 (stating that "while a 

person may be guilty of murder though there was no actual intent 

to kill, he cannot be guilty of an attempt to commit murder 

unless he has a specific intent to kill"). "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 
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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 

also Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 

810 (1977). "[A] person is presumed to intend the immediate, 

direct, and necessary consequences of his voluntary act." 

Nobles, 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. "The inferences to be 

drawn from proved facts are within the province of the [trier of 

fact], so long as the inferences are reasonable and justified." 

Barrett, 210 Va. at 156, 169 S.E.2d at 451. Where, as here, the 

Commonwealth relies solely on circumstantial evidence to prove 

the intent of the accused, the evidence must exclude every 

reasonable hypothesis of innocence. See Coffey v. Commonwealth, 

202 Va. 185, 188, 116 S.E.2d 257, 259 (1960). 

 All necessary circumstances proved must be 

consistent with guilt and inconsistent with 

innocence. It is not sufficient that the 

evidence create a suspicion of guilt, however 

strong, or even a probability of guilt, but 

must exclude every reasonable hypothesis save 

that of guilt. 

Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963). 

 We hold that the evidence was sufficient to prove that 

appellant specifically intended to kill Detective McClarin. The 

evidence proved that appellant's initial intent was merely to 

avoid apprehension by Detective McClarin. After the detective 
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displayed his badge and announced to appellant that she was under 

arrest, appellant jumped from the detective's car, screamed 

"Don't arrest me[,]", and then struggled to elude the detective's 

grasp. However, appellant's subsequent conduct established that 

she specifically intended to kill the detective. When Detective 

McClarin announced to appellant that he had a gun, appellant 

lunged for the detective's hand in which the gun was held and 

pushed it downward until the barrel of the gun was pointed at the 

detective's stomach. Then, while still struggling with Detective 

McClarin, appellant began searching for the gun's trigger with 

her fingers. When she found the detective's finger that was on 

the gun's trigger, she pressed down on it, causing the gun to 

discharge. The gun fired a "half a second" after the detective 

had twisted it away from his body. Based on this conduct, we 

cannot say that the trial court's inference that appellant 

specifically intended to kill the detective was either 

unreasonable or unjustified. 

 We disagree with appellant that the evidence failed to 

exclude as a reasonable hypothesis the theory that her sole 

intent when she pushed the detective's gun downward was to 

protect herself from a perceived threat to her physical safety. 

Both appellant's knowledge of the detective's identity and the 

details of appellant's conduct banish this possibility from the 

realm of reasonableness. The record indicates that appellant 

knew that the detective was a police officer who was merely 
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executing her arrest. Based on this knowledge, appellant had no 

reason to believe that the detective posed a threat to her 

physical safety if she ceased struggling against him. Moreover, 

appellant's conduct after she forced the detective's gun downward 

indicates that her intent encompassed more than just 

self-defense. Rather then simply pushing the detective's gun 

away from her, appellant proceeded to turn the pistol toward 

Detective McClarin and then attempt to fire it into his stomach. 

 In light of appellant's knowledge that she was struggling with a 

police officer, the details of her conduct exclude as a 

reasonable hypothesis of innocence the possibility that her 

intent was limited to either avoiding arrest or defending herself 

against a reasonable apprehension of bodily harm. 

 For the foregoing reasons, we affirm appellant's convictions 

of attempted capital murder of a police officer and of using a 

firearm during the commission of this attempt. 

 Affirmed.