COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Bray 

Argued at Norfolk, Virginia 

TOMMIE HAYWOOD, JR. 

v. Record No. 0401-94-1 OPINION BY 

 CHIEF JUDGE NORMAN K. MOON 

COMMONWEALTH OF VIRGINIA JULY 5, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Nelson T. Overton, Judge 

 Charles E. Haden for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Tommie Haywood, Jr. appeals his bench trial convictions of 

two counts of attempted capital murder of a police officer based 

upon his acts of driving his vehicle through two roadblocks. We 

hold that the evidence was insufficient to prove the specific 

intent required to convict Haywood of the attempted willful, 

deliberate, and premeditated killing of the two police officers 

and reverse his convictions. 

 Near dusk on April 21, 1993, after drinking heavily, Haywood 

hauled his boat behind his truck to a Hampton city park where he 

intended to go boating. However, Haywood was frustrated in his 

attempt to get his boat into the water. About the same time, 

another boater, Wolkowich, and his family were taking their boat 

out of the water. 

 Upon hearing Haywood use profanity, Wolkowich told Haywood 

to watch his language in front of children. Haywood became 
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belligerent and, arguing with Wolkowich, took a baseball bat out 

of his truck and hit the hood of Wolkowich's vehicle. Haywood 

then got in his truck and sped off toward the park exit pulling 

his boat. Wolkowich promptly called the police on his cellular 

phone. 

 Several Hampton police officers were near the park and 

responded to the call. The first officer saw Haywood driving at 

a high rate of speed down the middle of the park road. The 

officer realized Haywood was not slowing down and pulled his car 

to the road side. 

 A second officer confronted Haywood only a short distance 

down the park road by putting his vehicle in Haywood's path as 

Haywood attempted to exit the park. Haywood was going about 

fifty-five miles-per-hour and did not appear to be slowing down 

despite the officer's roadblock. Realizing this, the officer 

pulled his vehicle out of the way, narrowly avoiding a collision. 

 As if oblivious to the officer's roadblock, Haywood drove on 

without slowing down. 

 Finally, a third officer in the vicinity saw Haywood 

approaching at a high rate of speed. Flashing her headlights and 

activating her siren and red lights, the officer stopped her 

vehicle in her lane of travel with the front end aimed toward the 

middle so that Haywood would know to stop. Again, Haywood failed 

to slow down and the third officer took evasive action to avoid 

being hit head-on. 

 Haywood kept driving with police cars in pursuit, but 
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eventually wrecked his truck and trailer in a ditch. Haywood 

abandoned his truck and ran to his home where he barricaded his 

front door with a sofa. Police later gained entrance to 

Haywood's home and arrested him after they found Haywood naked, 

hiding under his waterbed. 

 Based on Haywood's near collisions with the second and third 

officers, Haywood was indicted on and, in a bench trial, found 

guilty of two counts of attempted capital murder of a police 

officer. 

 Code § 18.2-31.6 states that the "willful, deliberate, and 

premeditated killing of a law-enforcement officer . . . when such 

killing is for the purpose of interfering with the performance of 

his official duties" shall constitute capital murder. A person 

cannot be guilty of an attempt to commit murder unless he has a 

specific intent to kill. Merritt v. Commonwealth, 164 Va. 653, 

661, 180 S.E. 395, 398 (1935). 

 "`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.'" Id. at 657, 180 S.E. at 397 

(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 presumed to 

intend the immediate, direct, and necessary consequences of his 
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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. 

 In examining the issue in Merritt, which discussed both an 

attempt and murder, the Supreme Court stated 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." 164 Va. at 660, 180 S.E. at 

398. 

 A common example illustrating this principle is: "If 

one from a housetop recklessly throw down a billet of 

wood upon the sidewalk where persons are constantly 

passing, and it fall upon a person passing by and kill 

him, this would be by the common law murder. But if, 

instead of killing, it inflicts only a slight injury, 

the party could not be convicted of an assault with 

intent to commit murder." 

Id. at 660-61, 180 S.E. at 398. 

 

 "Where the substantive crime intended requires a 

specific intent, though this intent does not in the 

same sense as in the other case aggravate what is done, 

still it adds a culpability which mere general 

malevolence could not give. . . . When we say that a 

man attempted to do a given wrong, we mean that he 

intended to do it specifically; and proceeded a certain 

way in the doing. The intent in the mind covers the 

thing in full; the act covers it only in part. 

 

 * * * To commit murder, one need not intend to take 

life; but to be guilty of an attempt to murder, he must 

so intend. It is not sufficient that his act, had it 

proved fatal, would have been murder." 

Id. at 661, 180 S.E. at 398-99 (emphasis added); also see Hancock 

v. Commonwealth, 12 Va. App. 774, 783, 407 S.E.2d 301, 306 

(1991). 

 Therefore, the question in this case is not whether 
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Haywood's acts might have resulted in the murder of the police 

officers. Rather, the question is whether Haywood, while driving 

his truck, formed the specific intent to use his vehicle as a 

weapon for the unequivocal purpose of murdering the police 

officers. 

 In finding Haywood guilty of attempted capital murder of the 

police officers, the trial judge stated: 

 Under this evidence it can be inferred that at the same 

time but in tandem [Haywood] reached a conclusion that 

he was going to run over whoever was in front of him. 

First it was Corporal Fullman and then Officer Bowman. 

The trial judge inferred from Haywood's acts that he intended to 

kill the police officers. However, Haywood's convictions were 

based solely on circumstantial evidence and, therefore, all 

necessary circumstances proved must be consistent with guilt and 

inconsistent with innocence. Behrens v. Commonwealth, 3 Va. App. 

131, 137, 348 S.E.2d 430, 433 (1986). Here, while the evidence 

may support an hypothesis that Haywood acted with malice and 

intended to run over or through anyone or anything that got in 

his way, the Commonwealth's evidence failed to exclude another 

reasonable hypothesis of Haywood's acts which, if true, would 

exonerate him of the charges of attempted capital murder of the 

police officers. 

 That Haywood, who was in trouble with the law, merely 

attempted to run a roadblock to avoid apprehension is a 

reasonable hypothesis of innocence which the Commonwealth's 

evidence failed to exclude. At trial, Haywood testified that he 
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fled from the park and drove at a high rate of speed because he 

"was driving on a suspended driver's license and [] had been 

drinking and [] was in ASAP and [] owned [his] own business [] 

didn't want to throw it all away." There was no evidence that 

Haywood ever swerved or aimed his truck to hit the police cars 

when they pulled out of his path or that he turned his truck 

around in an attempt to hit the police cars after passing by 

them. 

 "[W]here a fact is equally susceptible of two 

interpretations one of which is consistent with the innocence of 

the accused, [the trier of fact] cannot arbitrarily adopt that 

interpretation which incriminates him." Corbett v. Commonwealth, 

210 Va. 304, 307, 171 S.E.2d 251, 253 (1969). From the 

Commonwealth's evidence, it is just as likely, if not more 

likely, that Haywood attempted to avoid police apprehension by 

driving toward their cars, indifferent to the consequences in 

risking a collision, because he believed that he could crash 

through any vehicle in his way or that the police would move out 

of his way, which they did. Thus, because the Commonwealth 

presented no direct evidence that Haywood in running the road 

blocks intended to murder the police officers and because its 

circumstantial evidence did not exclude a reasonable hypothesis 

of innocence, we reverse Haywood's convictions. 

 Reversed.