COURT OF APPEALS OF VIRGINIA Present: Judges Kelsey, Petty and Senior Judge Willis Argued at Chesapeake, Virginia

CHRISTOPHER RYAN PIGGOTT MEMORANDUM OPINION * BY v. Record No. 1797-07-1 JUDGE D. ARTHUR KELSEY SEPTEMBER 23, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OFWILLIAMSBURG AND COUNTY OF JAMES CITY

Samuel Taylor Powell, III, Judge Stephen A. Hudgins (Cope & Olson, P.L.C., on brief), for appellant. Susan M. Harris, Assistant Attorn ey General (Robert F. McDonnell, Attorney General, on brief), for appellee.

The trial court found Christopher Ryan Piggott guilty of various offenses, including attempted capital murder of a police officer in violation of Code §§ 18.2-25 and 18.2-31(6). On appeal, Piggott argues that the evidence failed to pr ove his guilt as a matter of law. We disagree and affirm.

I. On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to “discard the evidence of the accu sed in conflict with th at of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.At trial, Officer Jason Sh adrix testified that about 4:00 p.m. on July 22, 2006, a police dispatcher directed him to a gas station conveni ence store to arrest Piggo tt on several outstanding arrest warrants. When Shadrix arrived, he sa w Piggott driving away. Shadrix displayed his emergency flashing lights in an effort to stop Piggott. Piggott ignored the lights, abruptly accelerated, and ran a stop sign. Piggott then slow ed to a rolling stop to allow his passenger to jump out of the vehicle. Piggott again accelerated to about 60 miles per hour and entered the left-hand lane of oncoming traffic, passing multiple stopped cars. Several orange construction barrels had been placed alongside the road to cordon off a 30-foot-wide “construction area” of mixed blacktop material and loose gravel. Piggott drove betw een the barrels into the construction zone. Another officer, Lieutenant Jeremy Barnett, had positioned himself further ahead in a place where he could deploy “stinger spike strips ” to blow out Piggott’s tires. Barnett saw Piggott approaching in a straight line between the cones. When Piggott was within about 30 yards of Barnett, Piggott “abruptly jerked” his ve hicle to the right and “v eered” directly toward Barnett at a 45-degree angle to the curb. Piggott’s vehicle struck Barnett at a speed of about 40 to 50 miles per hour, knocked him to the ground, and ran over his foot. After striking Barnett, Piggott fishtailed his vehicle to the left and contin ued to speed away. Piggott later got out of his vehicle, brandished a firearm at Officer Sh adrix, and then shot himself under his chin. The trial court found Piggott guilty of various charges, including an attempt to kill a police officer in violation of Code §§ 18.2-25 and 18.2-31(6).

II. S UFFICIENCY OF THE E VIDENCE — A TTEMPT TO K ILL “Sufficiency-of-the-evidence review involve s assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable

-2-doubt.” United States v. Powell , 469 U.S. 57, 67 (1984). As an appellate court, we rely “on the adversarial process to sort out the contested and the uncont ested aspects of the case,” Logan v. Commonwealth , 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) ( en banc ), and then review the trial court’s factfinding “with the highest degree of appellate deference,” Thomas v. Commonwealth , 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). It follows that a reviewing c ourt does not “ask itself whether it believes that the evidence at the trial established gu ilt beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 318-19 (1979) (emphasis in original and citation omitted). Instead, we ask only “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Maxwell v. Commonwealth , 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson , 443 U.S. at 319) (emphasis in original). These principles re cognize that an appellate court is “not permitted to reweigh the evidence,” Nusbaum v. Berlin , 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth , 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004). 1 The trial court found Piggott guilty of attempti ng to kill a police officer. Under Code § 18.2-31(6), the “willful, deliberat e, and premeditated killing of a law-enforcement officer” for the purpose of “interfering with the performance of his official duties” constitutes capital murder. Code § 18.2-25 provides that any person who “attempts to commit an offense which is punishable with death” shall be guilty of a Class 2 felony.

1 This deferential standard of review “applie s not only to the histor ical facts themselves, but the inferences from those facts as well.” Crowder v. Commonwealth , 41 Va. App. 658, 663 n.2, 588 S.E.2d 384, 387 n.2 (2003). Thus, a factfinder may “draw reasonable inferences from basic facts to ultimate facts,” Haskins , 44 Va. App. at 10, 602 S.E.2d at 406 (citations omitted), unless doing so would push “into the realm of non sequitur ,” Thomas , 48 Va. App. at 608, 633 S.E.2d at 231 (citation omitted). -3-Criminal attempt requires a specific intent to commit the crime coupled with a direct, though ineffectual, act towards its commission. Coles v. Commonwealth , 270 Va. 585, 589, 621 S.E.2d 109, 111 (2005). An elusive concept, intent is “formed in a person’s mind and may be, and frequently is, shown by circumstances.” Holley v. Commonwealth , 44 Va. App. 228, 234, 604 S.E.2d 127, 130 (2004) (citations omitted). “Such intent may be inferred from the actor’s conduct and the attendant circumstances.” 4 Charles E. Torcia, Wharton’s Criminal Law § 695, at 589-91 (15th ed. 1996). To be sure, “in crim inal attempt cases, ‘the fact finder is often allowed broad latitude in determining the specific intent of the actor.’” Siquina v. Commonwealth , 28 Va. App. 694, 700, 508 S.E.2d 350, 353 (1998) (citation omitted). “A motor vehicle, wrongfully used, can be a weapon as deadly as a gun or a knife.” Coles , 270 Va. at 590, 621 S.E.2d at 111 (citation omitted). 2 Homicidal intent can be inferred when the evidence proves a fleeing suspect “swerv ed” his vehicle and aimed “directly toward” a police officer, Baldwin v. Commonwealth , 274 Va. 276, 281, 645 S.E.2d 433, 435 (2007) (quoting Coles , 270 Va. at 590-91, 621 S.E.2d at 112), partic ularly when the su spect deviates “at an angle” from his path of travel despite having “plenty of room” to travel “straight ahead” to continue his escape, id. (citing Coles , 270 Va. at 590-91, 621 S.E.2d at 112). 3

2 An intent to kill “needs to exist only for a moment.” Porter v. Commonwealth , 276 Va. 203, 242, 661 S.E.2d 415, 435 (2008) (citations omitted). Homicidal intent, therefore, “need not exist for any specified length of time . . . .” Kirby v. Commonwealth , 50 Va. App. 691, 700, 653 S.E.2d 600, 604 (2007) (quoting Remington v. Commonwealth , 262 Va. 333, 352, 551 S.E.2d 620, 632 (2001) (citation omitted)). ‘“The ordina ry suggestion of the words deliberate and premeditated is of a reflective pr ocess,’ Professor Costello expl ains, ‘a weighing of pros and cons which continues over time. That ordinary meaning is not part of the law of first degree murder.’” Id. (quoting John L. Costello, Virginia Criminal Law & Procedure § 3.4-4, at 50-51 (3d ed. 2002)). 3 See , e.g. , Holley , 44 Va. App. at 228, 604 S.E.2d at 127 (h olding that specific intent to kill could be inferred from the fact that the defendant accelerated toward police officer standing in defendant’s path); Stevens v. Commonwealth , 38 Va. App. 528, 567 S.E.2d 537 (2002) (finding evidence sufficient where the defendant turned his vehicle towa rd police officer, who -4-Like Coles , this case involves a fleeing suspect targeting a police officer with his speeding vehicle. Though traveli ng in a straight line up to that point, Piggott “abruptly jerked” his vehicle to the right and “veer ed” directly toward Officer Barn ett at a speed of 40 to 50 miles per hour. When he struck Barnett, Piggott’s ve hicle was at a 45-degree angle to the curb. Afterwards, Piggott fishtailed his ve hicle back into the straight-lin e path of escape. In short, Piggott had to deviate from his route of escape (which would have been a straight line through the construction cones) to hit Barnett. Because “an intent to kill seldom can be proved by direct evidence,” a factfinder must rest his judgment on a “combination of ci rcumstantial factors” suggesting such an intent. Rhodes v. Commonwealth , 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989) (citation omitted). A rationa l factfinder, under the combined circumstances of this case, could reasonably conclude that Piggott attempted to kill Officer Barnett. Piggott objects to this reas oning, claiming his hypothesis of innocence — that he was merely trying to get away, not to kill anyone — was plausible and thus should have resulted in his acquittal. When examining an “alternat e hypothesis of innocen ce in a circumstantial evidence case,” however, the question is not wh ether “some evidence” supports the hypothesis, but whether a rational factfinder could have rejected it as unreasonable. Emerson v. Commonwealth , 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (citing Hudson , 265 Va. at 513, 578 S.E.2d at 785). “Whether the hypothesis of i nnocence is reasonable is itself a ‘question of fact,’ subject to deferential appellate review.” Haskins , 44 Va. App. at 9, 602 S.E.2d at 406 (citations omitted). “Merely because defendant’s theory of the case differs from that taken by the Commonwealth does not mean that every reasonable hypothesis consistent with his i nnocence has not been excluded. What weight should be given evidence is a matter for the [factfinder] to decide.” Miles v. Commonwealth , 205 Va. 462, was riding a motorcycle, and accelerated rapidly); Moody v. Commonwealth , 28 Va. App. 702, 508 S.E.2d 354 (1998) (affirming conviction where the defendant accelerated toward pedestrian). -5--6- 467, 138 S.E.2d 22, 27 (1964); see also Lyons v. City of Petersburg , 221 Va. 10, 13, 266 S.E.2d 880, 881 (1980) (“Circumstantial evidence is sufficient to convict if it excludes every reasonable hypothesis of innocence. This occurs when the trier of facts has an abiding conviction of the guilt of the accused.” (emphasis added)). By finding th e defendant guilty, therefore, the factfinder “has found by a process of elimination that the evidence does not contain a reasonable theory of innocence.” Id. (other citations omitted); see also Blow v. Commonwealth , 52 Va. App. 533, 665 S.E.2d 254 (2008).

III.

Ample evidence supports the trial court’s find ing that Piggott attempted to kill Officer Barnett. We thus affirm Piggo tt’s conviction of attempted capita l murder of a police officer in violation of Code §§ 18.2-25 and 18.2-31(6).

Affirmed.