COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Clements 

Argued at Richmond, Virginia 

ANTHONY C. HUDGINS, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0960-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 SEPTEMBER 25, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

James A. Luke, Judge 

 James Wicker Traylor (James R. Traylor and 

Associates, on brief), for appellant. 

 Susan M. Harris, Assistant Attorney General 

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

for appellee. 

 Anthony C. Hudgins, Jr. (appellant) was convicted in a bench 

trial of malicious wounding, in violation of Code § 18.2-51. On 

appeal, he contends that the evidence was insufficient to prove 

his guilt. We agree and reverse his conviction. 

I. 

 "When the sufficiency of the evidence is challenged on 

appeal, we determine whether the evidence, viewed in the light 

most favorable to the Commonwealth, and the reasonable 

inferences fairly deducible from that evidence support each and 

every element of the charged offense." Reynolds v. 

Commonwealth, 30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999). 
 The evidence so viewed established that on August 25, 1999, 

appellant, Tavares Spratley, Aaron Spratley, the codefendant, 

and Dionco Byrd were driving in the City of Hopewell. They 

drove past Kenneth Stith, Lewis Walker and Frederico Harris 

twice. Walker identified appellant and Aaron Spratley as two of 

the four people in the car.1 Harris and Stith were unable to 

identify any of the four people in the car. A short time after 

passing them, a car reappeared at the top of the hill. Five or 

six shots were fired from the driver's side back seat of the 

vehicle. Stith was hit with a bullet and taken to the hospital. 

After the shots were fired, the car sped off. 

 Officers Gregory Peck, Harry Mars, and James Morrison heard 

the shots and drove toward the sound. Within 30 seconds of 

hearing the shots, they observed a car travelling at a high rate 

of speed run a stop sign. The officers initiated a chase of the 

vehicle that reached speeds of 100 to 110 miles per hour. 

During the chase, Officer Mars observed "a plain object, which 

[he] thought was a gun. The first thing that came to [his] mind 

was a gun after [they] heard shots fired. And then, when it hit 

the ground it created a spark." Although he saw the object come 

from the passenger's side, he could not determine whether it 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

 Walker indicated he could identify the other two people in 

the vehicle but they were not present in the courtroom during 

the trial. 

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came from the front or rear seat.2 The chase ended when the 

vehicle crashed in a ditch. The police cars were so close to 

the crash that the officers reached the vehicle before any of 

the four men could get out. The rear passenger window was down 

when the vehicle stopped in the ditch. Appellant was in the 

front passenger seat, Tavares Spratley was in the driver's seat, 

Byrd was in the back seat on the driver's side, and Aaron 

Spratley was in the rear passenger side seat. 

 Although the officers returned to the area where Mars 

observed an item thrown from the passenger side of the car, no 

gun was located. There was very little traffic through this 

area at the time. Tests for gunpowder residue were performed on 

all four men and on the car, but no gunpowder residue was found. 

 A search of the area where the shooting took place revealed 

a number of 9mm shell casings. No fingerprints were recovered 

from the casings. No evidence was introduced as to what type of 

bullet hit Stith. Appellant and codefendant Spratley were 

convicted of malicious wounding. Appellant appeals from this 

conviction. 

 2

 Dionco Byrd testified that appellant made a motion towards 

the window during the chase but did not see appellant throw 

anything out the window. Dionco Byrd also testified that 

earlier that day, appellant showed him a small caliber gun. 

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II. 

The sole issue raised is whether the evidence was 

sufficient to convict appellant of maliciously wounding Kenneth 

Stith. Appellant contends the Commonwealth failed to prove that 

appellant fired the gun that injured Stith and the evidence 

proved only that he was in the vehicle with three other men. 

"The burden is upon the Commonwealth . . . to prove beyond 

a reasonable doubt that [appellant] was the perpetrator of the 

crimes. Additionally, circumstantial evidence is as competent, 

and entitled to the same weight, as direct testimony if such 

evidence is sufficiently convincing." Derr v. Commonwealth, 242 

Va. 413, 424, 410 S.E.2d 662, 668 (1991). When the 

Commonwealth's case rests entirely upon circumstantial evidence, 

the evidence must not only be consistent with guilt, but it also 

must exclude every reasonable hypothesis of innocence. See

Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 

822 (1977). "[T]he circumstantial evidence of criminal agency 

must 'point unerringly' to the defendant. [This is] no more and 

no less than a requirement that the evidence must exclude every 

reasonable hypothesis of innocence." Cook v. Commonwealth, 226 

Va. 427, 433, 309 S.E.2d 325, 329 (1983). 

In the instant case, the evidence proved that appellant was 

in a vehicle with three other men and a shot was fired from the 

car. The shot came from the back seat on the driver's side, 

where Byrd was sitting. Appellant was in the front passenger 

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seat. The gun used in the shooting was never found. No 

gunpowder residue was found on appellant or the three other men 

or in the vehicle. Thus, at best, the evidence established that 

appellant was one of four men in a vehicle from which a gun was 

fired. Based on the evidence as a whole, the Commonwealth did 

not prove beyond a reasonable doubt that appellant was the 

criminal agent. In fact no evidence placed him in the position 

of the shooter. The evidence did not exclude the reasonable 

hypothesis that one of the three other men in the vehicle fired 

the gun that injured Stith. "Suspicion . . . no matter how 

strong, is insufficient to sustain a criminal conviction." 

Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 

(1981). Furthermore, the Commonwealth presented no evidence 

that appellant encouraged, aided or abetted the shooting.3

 Accordingly, we reverse and dismiss appellant's conviction. 

 Reversed and dismissed.

 3

 Although it is true that the Commonwealth established that 

appellant made a throwing motion toward the window and an 

officer saw an object, possibly a gun, come out the passenger 

side window, there was no evidence that the object was a gun. 

Furthermore, the evidence did not establish that appellant threw 

anything out the window. In fact, the open window was in the 

rear seat, not the front seat where appellant was seated. 

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