COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Senior Judge Hodges 

Argued at Richmond, Virginia 

JERRY LEE WILLSON 

 MEMORANDUM OPINION* BY 

v. Record No. 2004-98-2 JUDGE LARRY G. ELDER 

 SEPTEMBER 21, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Gregory W. Franklin, Assistant Public 

Defender (David J. Johnson, Public Defender, 

on brief), for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Jerry Lee Willson (appellant) was convicted in a bench 

trial of attempted murder pursuant to Code §§ 18.2-26 and 

18.2-32. On appeal, he contends the evidence is insufficient to 

prove he acted with the specific intent to commit murder when he 

drove his vehicle toward a bank employee standing in the bank's 

automatic teller machine lane. We agree and reverse his 

conviction. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). The judgment of a trial court, sitting 

without a jury, is entitled to the same weight as a jury verdict 

and will be disturbed only if plainly wrong or without evidence 

to support it. See id. The credibility of a witness, the 

weight accorded the testimony, and the inferences to be drawn 

from proven facts are matters solely for the fact finder's 

determination. See Long v. Commonwealth, 8 Va. App. 194, 199, 

379 S.E.2d 473, 476 (1989). 

 To sustain a conviction for attempted murder, the evidence 

must establish both a specific intent to kill the victim and an 

overt but ineffectual act committed in furtherance of this 

criminal purpose. See Hargrave v. Commonwealth, 214 Va. 436, 

437, 201 S.E.2d 597, 598 (1974). In determining whether the 

evidence is sufficient to prove the requisite intent, "the 

question . . . is not whether [the defendant's] acts might have 

resulted in the murder of the [person]. Rather, the question is 

whether [the defendant], while driving his [vehicle], formed the 

specific intent to use his vehicle as a weapon for the 

unequivocal purpose of murdering the [person]." Haywood v. 

Commonwealth, 20 Va. App. 562, 566, 458 S.E.2d 606, 608 (1995). 

 Intent, like any element of a crime, may be proved by 

circumstantial evidence, see Servis v. Commonwealth, 6 Va. App. 

507, 524, 371 S.E.2d 156, 165 (1988), such as a person's conduct 

and statements, see Long, 8 Va. App. at 198, 379 S.E.2d at 476. 

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"Circumstantial evidence is as competent and is entitled to as 

much weight as direct evidence, provided it is sufficiently 

convincing to exclude every reasonable hypothesis except that of 

guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 

864, 876 (1983). "[T]he Commonwealth need only exclude 

reasonable hypotheses of innocence that flow from the evidence, 

not those that spring from the imagination of the defendant." 

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 

29 (1993). "When facts are equally susceptible to more than one 

interpretation, one which is consistent with the innocence of 

the accused, the trier of fact cannot arbitrarily adopt an 

inculpatory interpretation." Moody v. Commonwealth, 28 Va. App. 

702, 706, 508 S.E.2d 354, 356 (1998). 

 We conclude that the evidence here was insufficient to 

prove that appellant acted with the specific intent to kill 

Teresa Musinski when he drove his vehicle through the bank's 

automatic teller machine (ATM) lane. Although the trial court 

was free to conclude that appellant was lying to conceal his 

guilt and to reject appellant's testimony on that basis, see, 

e.g., Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 

98 (1987) (en banc), the remaining evidence was insufficient to 

exclude multiple reasonable hypotheses of innocence. 

Appellant's conviction rested on the theory that appellant knew 

Musinski was a bank employee and was so enraged by his dealings 

with the bank that day that he tried to kill her. However, the 

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evidence left open the reasonable hypothesis that appellant 

never saw Musinski in the bank and did not know she was a bank 

employee. See Robinson v. Commonwealth, 228 Va. 554, 558, 322 

S.E.2d 841, 843 (1984) ("'[A] man cannot be influenced or moved 

to act by a fact or circumstance of which he is ignorant.'" 

(quoting Mullins v. Commonwealth, 113 Va. 787, 789-90, 75 S.E. 

193, 195 (1912)). Although appellant said to someone inside the 

bank, "What the fuck are you looking at," the evidence 

established that Musinski did not participate in appellant's 

transaction with Jennifer Brooks and Gayle Davis and that, 

although Musinski was near Brooks at the teller window, Musinski 

was looking down until appellant made this remark. Neither 

Musinski nor Davis was certain to whom the remark was directed, 

and Brooks believed the remark was directed toward her. 

Although appellant may have seen Musinski inside the bank, the 

evidence was equally susceptible to the interpretation that he 

did not. 

 Regarding Musinski's departure from the bank, the evidence 

established that appellant looked in her direction as she walked 

in front of the drive-through lanes, but no evidence established 

that he actually saw her or, even if he did, that he knew she 

was a bank employee. At that precise instant, appellant was 

engaged in a heated discussion with Brooks about whether she had 

given him the correct sum of money. Again, therefore, the 

evidence is equally susceptible to the interpretation that 

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appellant did not see her and did not know she was a bank 

employee and, therefore, had no motive for attempting to kill 

her. 

 Finally, even assuming appellant knew Musinski worked at 

the bank, no evidence established that appellant knew Musinski 

was in his path in the ATM lane. See 1 Charles E. Friend, The 

Law of Evidence in Virginia § 12-6 (4th ed. 1993) (noting that 

whether an accused has knowledge of particular facts when he 

engages in certain conduct may be relevant in determining 

intent, even where knowledge is not element of offense). It was 

undisputed that appellant was angry and that there were no cars 

in the ATM lane. A reasonable hypothesis of innocence flowing 

from the evidence is that appellant saw no cars at the ATM and, 

although looking straight ahead, was still angry from his 

transaction and merely acted recklessly in failing to watch for 

pedestrians that might also be using the machine as he departed 

the premises. The undisputed evidence established that Musinski 

removed herself from appellant's path, retreating to a position 

of safety on the curb on the ATM's east side, when appellant was 

still eighteen feet away from the machine's west side. Under 

these circumstances, the facts were no more susceptible to the 

conclusion that appellant specifically intended to kill Musinski 

than they were to the interpretation that he acted recklessly in 

failing to keep a proper lookout or that he saw her but intended 

merely to scare her, reasonably believing that she would move 

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out of his path to safety before he reached her, which, in fact, 

she did. 

 Under these circumstances, we conclude the evidence was 

insufficient to support appellant's conviction. 

 The Commonwealth contends that the outcome of this case is 

controlled by our recent decision in Moody v. Commonwealth, 28 

Va. App. 702, 508 S.E.2d 354 (1998), in which we upheld the 

conviction of an automobile driver for attempted malicious 

wounding. In Moody, the defendant broke into a vehicle in a 

parking lot and was attempting to flee the scene of the break-in 

in his vehicle when a pedestrian tried to block his only escape 

route. See id. at 705-06, 508 S.E.2d at 356. The defendant 

admitted seeing the pedestrian trying to stop him, saying "I 

waved him out of the way because I was going out of there." Id.

at 706, 508 S.E.2d at 356. We held that "[a]lthough [the 

defendant] warned [the pedestrian] to move out of his way with a 

wave, [that] act does not negate the trial court's reasonable 

inference that appellant had formed the specific intent to run 

over [the pedestrian] should the pedestrian not move out of his 

way." Id. at 707, 508 S.E.2d at 356. In appellant's case, by 

contrast, no evidence established that appellant ever saw 

Musinski standing in his path before she jumped out of the way. 

Alternatively, even if appellant did see Musinski, unlike Moody, 

he was not fleeing the scene of a crime and made no statement 

indicating his intent to proceed through the ATM lane regardless 

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of whether Musinski moved. Therefore, our holding in Moody is 

not controlling. 

 Because the evidence did not exclude all reasonable 

hypotheses of innocence, we reverse appellant's conviction. 

Reversed and dismissed.

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