COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bray 

Argued at Richmond, Virginia 

CRAIG ROLAND BROWDER 

 MEMORANDUM OPINION* BY 

v. Record No. 1499-97-2 JUDGE LARRY G. ELDER 

 DECEMBER 22, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

James F. D'Alton, Jr., Judge 

 Mary Katherine Martin, Senior Assistant 

Public Defender, for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Craig Roland Browder was convicted in a jury trial for 

involuntary manslaughter, attempted murder, discharge of a 

firearm within an occupied building, statutory burglary and use 

of a firearm in the commission of attempted murder and burglary. 

 On appeal, Browder contends the evidence was insufficient to 

support his convictions. For the reasons that follow, we affirm 

the challenged convictions. 

SUFFICIENCY OF THE EVIDENCE 

 Whenever an appellant challenges the sufficiency of the 

evidence to support a conviction, we must view the evidence "in 

the light most favorable to the Commonwealth and give it all 

reasonable inferences fairly deducible therefrom." Higginbotham 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 

 The weight which should be given to evidence 

and whether the testimony of a witness is 

credible are questions which the fact finder 

must decide. However, whether a criminal 

conviction is supported by evidence 

sufficient to prove guilt beyond a reasonable 

doubt is not a question of fact but one of 

law. 

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 

601 (1986). 

 1. 

Involuntary Manslaughter

 Browder contends the evidence was insufficient to support 

his conviction for involuntary manslaughter because the death of 

the man shot by Young, the store owner, was not a foreseeable 

consequence of Browder's actions. Browder argues that "because 

his weapon contained no ammunition," he "did not have the means 

to kill anyone" and he "could not foresee that [his actions] 

would lead to the death of a third party." We disagree. 

 As the Supreme Court previously has held: 

 To convict [an accused] of involuntary 

manslaughter, the Commonwealth [must] . . . 

prove that [the accused] committed "acts of 

commission or omission of a wanton or willful 

nature, showing a reckless or indifferent 

disregard of the rights of others, under 

circumstances reasonably calculated to 

produce injury, or which make it not 

improbable that injury will be occasioned, 

and the offender knows, or is charged with 

the knowledge of, the probable result of his 

acts." The Commonwealth must also prove that 

[the accused's] criminally negligent acts 

were a proximate cause of the victim's death. 
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Gallimore v. Commonwealth, 246 Va. 441, 445-46, 436 S.E.2d 421, 

424 (1993) (citation omitted). 

 Here, the evidence was sufficient to prove these elements. 

It showed that Browder entered the store and fired a shotgun at 

the store owner. Although Detective Lauter found no bullet or 

pellet holes in the store, he testified that the shotgun shell 

Browder fired contained gunpowder but no pellets. Lauter opined 

that "[s]omeone that would take the pellets out of a shotgun 

shell is really doing it to make noise and not really . . . to 

shoot somebody." However, he further testified that a person 

firing a shotgun could not determine, just by looking at the 

shotgun, whether the shells loaded in the gun contained pellets. 

 That person would have to remove the shells and examine them. 

 Detective Lauter further testified that, if a person had 

been standing close enough to the shotgun, "the [muzzle blast] 

could [burn] and powder could embed in [the] skin," and the 

cardboard or plastic wad "would enter [that person] just like a 

bullet." 

 This evidence was sufficient to prove that Browder's firing 

the shotgun could have killed or seriously injured a person. 

Furthermore, no evidence proved that Browder knew the shotgun did 

not contain ordinary ammunition. Given that Browder actually 

fired the shotgun at the store owner, the evidence was sufficient 

to prove Browder acted with wanton and reckless disregard of 

others under circumstances reasonably calculated to produce 
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injury. See id.

 Furthermore, the evidence proved Browder threatened "to kill 

somebody" when he entered the store with a shotgun. He should 

reasonably have anticipated that these actions might prompt the 

store's owner or other occupants to respond in self-defense. As 

the Supreme Court observed, "an intervening event, even if a 

cause of the harm, does not operate to exempt a defendant from 

liability if the intervening event was put into operation by the 

defendant's negligent acts." Id. at 447, 436 S.E.2d at 425. 

Therefore, we hold that the jury was not plainly wrong in 

concluding that Young's firing in self-defense, resulting in the 

death of a bystander, were foreseeable consequences of Browder's 

reckless behavior. 

 Accordingly, the evidence was sufficient to convict Browder 

of involuntary manslaughter. 

 2. 

Attempted Murder

 "To sustain a conviction for attempted murder, the evidence 

must establish both a specific intent to kill . . . and an overt 

but ineffectual act committed in furtherance of the criminal 

purpose." Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 

193, 198 (1987). "The state of mind of an accused may be shown 

by his acts and conduct." Sandoval v. Commonwealth, 20 Va. App. 

133, 137, 455 S.E.2d 730, 732 (1995). 

 The evidence proved that Browder entered the store, said he 
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was "going to kill somebody," and fired the shotgun at the store 

owner. Furthermore, no evidence proved that Browder was the 

person who had removed the pellets from the shotgun shell or that 

he was aware the pellets had been removed. 

 In addition, Browder's own evidence provided a possible 

motive for Browder to kill. The jury could have believed beyond 

a reasonable doubt that Browder was so enraged by his earlier 

confrontations with Young's nephew that he armed himself with a 

shotgun and entered the store seeking revenge. Upon this 

evidence, the jury could have found beyond a reasonable doubt 

that Browder fired his shotgun intending to kill. 

 3. 

Discharge of a firearm within an occupied building

 It is unlawful for "any person [to] maliciously discharge[] 

a firearm within any building when occupied by one or more 

persons in such a manner as to endanger the life or lives of such 

person or persons." Code § 18.2-279. "Traditionally, a firearm 

is considered to be any weapon 'from which a shot is discharged 

by gunpowder.'" Jones v. Commonwealth, 16 Va. App. 354, 356, 429 

S.E.2d 615, 616 (citation omitted), aff'd on reh'g en banc, 17 

Va. App. 233, 436 S.E.2d 192 (1993). 

 Browder argues that because the shells he fired from the 

shotgun had no pellets or other shot, no lives were placed in 

danger. We disagree. The shotgun was a firearm as contemplated 

by the statute. Gunpowder residue on the damaged merchandise 
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proved that Browder discharged the shotgun inside the convenience 

store. Furthermore, Detective Lauter testified that despite the 

absence of shot in the shells, Browder's weapon discharged a wad 

that would enter a person standing nearby "just like a bullet." 

 We have previously ruled that the "sho[oting of a] gun into 

[a] ceiling while in close proximity to . . . persons within a 

confined space . . . constitute[s] a reckless act that 

endanger[s] lives." Strickland v. Commonwealth, 16 Va. App. 180, 

182, 428 S.E.2d 507, 508 (1993). Therefore, we hold the record 

contained sufficient evidence to support Browder's conviction for 

discharging a firearm in a manner that endangered the lives of 

those in the store. 

 4. 

Statutory Burglary

 Browder also argues that the evidence is insufficient to 

sustain the conviction for statutory burglary because (A) "the 

alleged offense occurred during normal business hours and 

[Browder] had never been banned from the property prior to the 

offense alleged," and (B) "the evidence failed to show the 

requisite specific intent to commit the crimes outlined in [Code 

§ 18.2-91]." We address each of these arguments in turn. 

 A. 

 "If any person [enters any shop in the nighttime without 

breaking] . . . with [the] intent to commit larceny, or any 

felony other than murder, rape, robbery or arson . . . or [enters 
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any shop in the nighttime without breaking] . . . with [the] 

intent to commit assault and battery, he shall be guilty of 

statutory burglary . . . ." Code § 18.2-91; see also Code 

§ 18.2-90. Browder argues that because the store was open for 

business when he entered, he cannot be convicted of burglary. 

However, we rejected that argument in Clark v. Commonwealth, 22 

Va. App. 673, 472 S.E.2d 663 (1996), aff'd on reh'g en banc, 24 

Va. App. 253, 481 S.E.2d 495 (1997), in which we held that "under 

Code § 18.2-90, a person who enters a store [during business 

hours] intending to commit robbery therein, enters the store 

unlawfully" and is guilty of statutory burglary. 22 Va. App. at 

674, 472 S.E.2d at 663. That holding is dispositive of Browder's 

claim that he could not be guilty of burglary because he entered 

the store during business hours. 

 B. 

 Browder next argues that, because the jury found he had the 

requisite specific intent to commit attempted murder, he could 

not have had the specific intent required to commit statutory 

burglary under Code § 18.2-91, which requires proof of intent to 

commit "any felony other than murder, rape, robbery or arson." 

Code § 18.2-91 (emphasis added). If the evidence proved that 

Browder intended to commit only murder, then his argument would 

be persuasive. However, the record contained sufficient evidence 

to prove that Browder also intended to commit two felonies other 

than murder--discharge of a firearm within an occupied building 
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and criminal assault. See Martin v. Commonwealth, 13 Va. App. 

524, 527, 414 S.E.2d 401, 402 (1992) (en banc) (defining 

"[c]riminal assault . . . [as] 'any attempt or offer with force 

or violence to do corporal hurt to another'" (citation omitted)). 

 The evidence was sufficient to support a finding beyond a 

reasonable doubt that Browder had the requisite specific intent 

to commit both these offenses, each of which is a crime 

encompassed within Code § 18.2-91. 

 CONCLUSION 

 For these reasons, we conclude the evidence was sufficient 

to support Browder's convictions for involuntary manslaughter, 

attempted murder, discharge of a firearm within an occupied 

building, statutory burglary and use of a firearm in the 

attempted murder and burglary. We therefore affirm Browder's 

convictions. 

 Affirmed. 
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Benton, J., concurring in part and dissenting in part. 

 I concur in the opinion except for Part A of the discussion 

concerning statutory burglary and the ruling upholding the 

conviction for statutory burglary. For the reason stated in 

Clark v. Commonwealth, 22 Va. App. 673, 678, 472 S.E.2d 663, 665 

(1996) (Benton, J., dissenting), I would reverse the statutory 

burglary conviction and the corresponding charge of use of a 

firearm in the commission of burglary.