COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Hu ff, Judges Petty and Beales Argued at Richmond, Virginia

TYRONE LOGAN, S/K/A TYRONE LAMONT LOGAN OPINION BY v. Record No . 0867-16-2 JUDGE RANDOLPH A. BEALES JUNE 20, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Thomas V. Warren, Judge Designate Craig S. Cooley for appellant. Virginia B. Theisen, Senior Assistant Attorney General (Mark R

. Herring, Attorney General, on brief), for appellee.
Following a bench trial on D ecember 29, 2015, the trial court convicted Tyrone Lamont Logan (“appellant”) of one count of attempted murder of Joshua Bryant in violation of Code §§ 18.2-32 and 18.2-26, one count of shooting at an occupi ed vehicle in violation of Code § 18.2-154, and one count of use of a f irearm in the commission of a felony in violation of Code § 18.2-53.1. 1 On appeal, appellant argues th at the trial court erred in fin ding the evidence sufficient to prove that appe llant was the shooter and in findi ng the evidence sufficient to prove that the shooter acted with mali ce. Appellant also contends th at the trial court erred at the sentencing hearing when it refused t o allow appellant to call c ertain witnesses at sentencing and by refusing to allow appellant to pr offer the witnesses’ testim ony for the record on appeal.

1 Appellant was also originally convicted of a second count of a ttempted murder of Mark Crocker in violation of Code §§ 18.2-32 and 18.2-26, but the tr ial court dismissed the charge upon appellant’s motion to set aside the verdict.PUBLISHED- 2 - I. B ACKGROUND We consider the evidence on appeal “in the light most favorabl e to the Commonwealth, as we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60 Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) ( quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E .2d 555, 574 (2004)). So viewed, the evidence showed t hat a social gathering took pla ce on Christmas Eve 2014 at a house located just off a public road in Chesterfield County. Ryan Gooden (“Gooden”), appellant’s stepson, was living in the house with his grandmoth er, his aunt, and the aunt’s boyfriend. Gooden testified that th ere was drinking at the party and that he and appellant had taken “a shot together” that evening. When Joshua Bryant (“Bryant” or “the victim”) arrived in his pi ckup truck at approximately 5:00 p.m., a man name d Mark Crocker (“Crocker”) c limbed into the passenger seat. Bryant, who was confined t o a wheelchair, remained in th e truck and conversed with Crocker. Behind Bryant’s seat was a wheelchair, a shotgun, and a “muzzleloader” firearm. The record indicates that Bryant a nd appellant were the only indivi duals who had firearms, and Bryant unequivocally testified t hat he never removed either of his firearms from behind his seat or even talked about their presence. Several people gath ered around Bryant’s truck, including appel lant. Appellant turned to Gooden and asked, “Is he [Bryant] all right with you?” Gooden answered that he was, and noted their family connection. Bryant testified that appella nt and Gooden walked to the back of Bryant’s truck and continued to talk, raising th eir voices on occasion. Appellant repeatedly asked Gooden if Bryant was “all right” with G ooden. Watching the pair from his rearvi ew mirror, Bryant saw appellant remove a pistol from beneath hi s shirt. Gooden and Giles also each testified that they observed- 3 - appellant holding a firearm out . Gooden also testified that th ey were “[s]tanding there talking. And next thing you know, I’m standi ng there, and I seen a gun.” Donnie Giles testified that he came out of his house and observed t he men speaking loudly. Gi les also testified that he “heard Ryan telling Tyrone [appellant] that everything was okay and wo n’t no problems out there or nothing like that. And then after t hat, I really ain’t -- I th ink then I just remembered him having a gun after that.” Appellant then walked up to the d river’s side of the truck, ope ned the door, and pointed the gun at Bryant. Bryant testif ied that appellant said, “Don’ t nobody move.” Giles testified that appellant had said, “It’s about to get real out here. Don’t no body move.” Giles also testified that he observed appellant “holdi ng [the gun] in one hand and openin g the door of the truck with the other hand. Then after that , Ryan took off running.” Giles te stified that appellant followed Ryan, and “all of us got out of the re after that.” Appellant r an after Gooden and asked, “Where are you going?” Gooden shut the door behind him, but appellantkicked the door open. Bryant testified that he did not see anyt hing after appellant kicked t he door in because he decided he needed to leave. Glenda Jenkins , Gooden’s aunt, testified thatshe saw appellant “coming in the door” as she was sitting on t he floor opening gifts. Bryant immediately started his truck, backed it up to turn aro und, and drove out of the driveway as “fast as he could.” M ark Crocker was still in the passenger’s seat of the truck. Bryant had traveled approximatel y ten yards down the road when he heard gunfire. Four or five shots rang out, one of which pier ced the glass behind the truck cab and lodged in the passenger visor in front of Crocker. No one observed who was shooting atthe vehicle at the time the bullets were being fired. Brya nt testified that he had only dr iven down the road about thirty feet from the driveway when he starte d hearing the shots. The trial court asked Bryant, “So whoever fired the shots ran out into the r oad?” to which Bryant respond ed, “Yes.” Another bullet struck- 4 - the rear bumper of the truck. Wh en Officer Alan Rowlett arrive d at the house to investigate the shooting, he observed that the rear window of the Ford truck ha d been shattered. The police recovered four cartridge casings t hat all matched the same fire arm. One cartridge was found in the driveway of the home, and the o ther three cartridges were c lose by – on the road just past the front yard line.
II. S TANDARD OF R EVIEW When considering the sufficienc y of the evidence presented belo w, “a reviewing court does not ‘ask itself whether it believes that the evidence at t he trial established guilt beyo nd a reasonable doubt.’” Crowd er v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Vir ginia, 443 U.S. 307, 318-19 (1979 )). “Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,” Rine r v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must instead ask whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,’ ” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 44 7 (2003) ( en banc )). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, a nd to draw reasonable infere nces from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.
III. ANALYSIS A. Appellant was the Criminal Agent Who Discharged a Firearm Appellant argues that the C ommonwealth failed to prove who shot at the victim. “[I]n a circumstantial evidence case, s uch as the case currently before us, the accumulation of various facts and inferences, each mounting upon the others, may indeed provide sufficient evidence- 5 - beyond a reasonable doubt . . . .” Ervin v. Commonwealth, 57 Va. App. 495, 505, 704 S.E.2d 135, 140 (2011) ( en banc ). The factfinder was allowed “ to draw reasonable inferences f rom” the facts in this case to conclude t hat appellant was the shooter. Jackson, 443 U.S. at 319. It is beyond dispute that someone shot at the victim’s truck from the vicinity of Gooden’s place of residence because a bullet w as found lodged in the passenger-si de front windshield window visor, the back windshield gla ss was broken, and bullet casings were found at the edge of the driveway and just in the roa d. The record shows no indication that anyone but appellant and Bryant had firearms at the loc ation of the shooting, and there was no evidence to suggest Bryant’s firearms were remove d from behind his seat in his truc k. Appellant was the only individual seen handlin g a firearm, appellant was seen with the firearm shortly before the shooter fired at the truck, and appella nt was the only one who threaten ed Bryant and pointed his gun at Bryant. Appellant relies on Commonwealth v. Smith, 259 Va. 780, 529 S.E .2d 78 (2000), and on an unpublished case from this C ourt, Hines v. Commonwealth, No. 0514-12-2, 2013 Va. App. LEXIS 1 (Va. Ct. App. Jan. 8, 2013), to argue that the Commonwe alth failed to prove beyond a reasonable doubt that appellant was the individual who shot at the occupied truck in this case. Both cases are highly distinguish able from the instant case. In Smith, the victim remembered being hit with a fist, but he d id not remember being stabbed, he did not recall seeing appellant with a knife, and o nly remembered walking away from appellant before losing cons ciousness. In Hines, the vict im remembered getting into an argument with her boyfriend one e vening and that he threw a bot tle at the wall near her, but her next memory was of speaking to po lice in the early hours of the next morning. The police had found her – with serious injuries to her face – in a hotel lobb y (although she recalled last being in her hotel room).- 6 - Thus, both cases involve situations in which the only evidence pointing to the defendant’s culpability was that the defenda nt was an earlier aggressor, bu t that some unknown amount of time passed between the time of i nitial aggression and when the victim became aware of his or her injury. Moreover, another im portant distinction is that th e victims in both cases had no clear recollection of what happened t o them. They were intoxicated a nd lost consciousness for a stretch of time. In the present case, the victim observed appe llant threatening him by pointing a gun directly at him very close in time to when the victim’s veh icle was shot as he fled in it. Appellant was heard by multiple witnesses to be threatening the victim, and appellant expressed anger toward the victim. 2 Here, unlike in Smith and Hines , the victim was conscious thr oughout the course of this continuous enc ounter. A rational factfinder certainly could have concluded that appellant pulled a gun on the victim, that appellant becam e distracted from the victim when Gooden attempted to run away, and t hat appellant followed Goode n to the house, calling, “Where are you going?” A rationa l factfinder co uld also reason ably infer that the victim’s attempt to drive away drew appe llant’s renewed attention – and that appellant was able to leave the house and run through the yar d, firing his weapon at the vi ctim and hitting his truck. As nothing in the record indicate s that any other individuals ( besides appellant and the fleeing victim) had firearms, no one e lse had threatened Bryant , and no one else was observed to bear any ill will toward Bryant, the factfinder in this case co uld have concluded that appellant was the shooter.
B. Appellant Shot into the Vehicle with Malice Appellant argues, “Aside from f ailing to establish that defenda nt Logan was the criminal agent, the evidence failed to e stablish the shooter (whoever th at was) discharged the firearm with

2 While appellant seemingly disput es this fact, the trial court rejected appellant’s characterization of events and s aid, “I don’t acce pt the propos ition that there was no ‘beef’ between the defendant and t he driver [Bryant].”- 7 - malice. . . . The evidence must exclude the potentials of accid ent and/or recklessness or that the shooter unlawfully (rather than m aliciously) fired at the vehic le - for example to damage the vehicle.” Whether an accused acted with ma lice “is generally a question o f fact and may be proved by circumstantial evidence.” K night v. Commonwealth, 61 Va. Ap p. 148, 156, 733 S.E.2d 701, 705 (2012) (quoting Canipe v. C ommonwealth, 25 Va. App. 629, 64 2, 491 S.E.2d 747, 753 (1997)). “Malice inheres in the ‘doing of a wrongful act inten tionally, or without just cause or excuse, or as a result of ill will.’” Tizon v. Commonwealth, 6 0 Va. App. 1, 11, 723 S.E.2d 260, 265 (2012) (quoting Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947)). Viewing the evidence in the li ght most favorable to the Commonw ealth, the trial court’s determination that appellant ac ted with malice is not plainly w rong or without evidence to support it. Malice “may be inferre d ‘from the deliberate use o f a deadly weapon unless, from all the evidence,’ there is a reasona ble doubt as to whether malice existed.” Williams v. Commonwealth, 64 Va. App. 240, 249, 767 S.E.2d 252, 257 (2015) (quoting Avent v. Commonwealth, 279 Va. 175, 201-02, 688 S.E.2d 244, 259 (2010)). The record is replete with facts supporting the trial court’ s determination – appellant threatened the victim, appellant pointed a firearm at the victim , and appellant then shot at the truck four times, narrowly missing the passenger’s head. Based on thi s evidence, we hold that a r ational factfinder could find that appellant shot at the victim with malice.
C. The Trial Court Erred When it Precluded Appe llant from Proffering Anticipated Witness Testimony “[N]ecessarily great latitude mus t be allowed to trial courts i n the matter of examining witnesses . . . .” Nels on v. Commonwealth, 153 Va. 909, 919, 1 50 S.E. 407, 410 (1929) (quoting Murphy’s Hotel v. Cuddy’s Admr, 124 Va. 207, 97 S.E. 794, 798 ( 1919)). Appellant argues that here, however, the trial court a bused its considerable discreti on when it limited the number of- 8 - appellant’s witnesses at the sentencing hearing and would not a llow appellant the opportunity to proffer what their testimony would have been. The court had th e following exchange with appellant’s attorney: THE COURT: One more witness, Mr. Cooley. MR. COOLEY: Well, is thata question or a direction? THE COURT: Five witnesses at the sentencing on these circumstances is enough, unless so mething extraordinary comes u p that I haven’t heard abou t in this man’s life. MR. COOLEY: Judge, I’ll just t ell you, these folks have come back several times, as you know it was continued the last time, and they wanted the Court to hear what they had to say. THE COURT: Well, they’re not parties to the suit, nobody is entitled to come to a hearing and s ay what they want to say in unlimited numbers. When appellant’s last witness had then finished testifying, Mr. Cooley asked the trial court to allow him to proffer testimony from the other witnesses (who ha d not testified) at the conclusion of the hearing after the judge ha d left in order to preserve th eir testimony for the record so that he could appeal the trial court’s ruling. The following exchange occurred: MR. COOLEY: Judge, again, I woul d, after the Court leaves, I would like the opportunity to jus t call one after another to sa y what they have to say so that it’s on the record, because that’s the only way I can preserve the record. THE COURT: Enough is enough. MR. COOLEY: You’re declining to let me proffer? THE COURT: I’m declining any mor e witnesses t o testify in the courtroom. MR. COOLEY: I’m not asking them to testify at the sentencing hearing, I’m asking that I be all owed to call them after the Co urt leaves and to proffer what their testimonies would have been as the Supreme Court says, that’s the on ly way I can preserve the issu e. THE COURT: I’m not going to allow you to do that. MR. COOLEY: Then note my exception. We find that the trial court er red when it denied appellant the opportunity even to present a proffer of evidence. “[M]any trial issues are resol ved with proffered evidence, . . . [and] counsel and the trial court must ensure [that such] proffers contain all of the information necessary” to achieve two purposes: to a llow- 9 - the trial court a fair opportunit y “to resolve the issue at tri al” and “to provide a sufficient recor d for . . . review [on appeal].” Creamer v. Commonwealth, 64 Va. App. 185, 195, 767 S.E.2d 226, 230 (2015) (quoting Albert v. Albert, 38 Va. App. 284, 290 n.1, 563 S.E.2d 389, 392 n.1 (2 002)) (alterations in original) (italics added). In this case, the trial court erred when it f ailed to allow appellant the opportunity to proffer his evidence so that this Court could engage in appe llate review of t he trial court’s decision to exclude the testimony of some of appellant’s senten cing witnesses. 3 In Brown v. Commonwealth, 246 Va. 460, 437 S.E.2d 563 (1993), the Supreme C ourt stated, “[E]ven though Brown sought to make a proffer in the manner required by our pr ecedent, he was denied the opportunity to do so. Therefore, we must reverse the judgment of the trial court because, without a proffer, we are unable to ascer tain whether the questions tha t Brown sought to ask Sydow [a witness] would have been prope r.” Id. at 465, 437 S.E.2d at 56 5. The trial court has the authority to limit cumulative evidence, but we have no way of k nowing now on appeal whether the refused testimony was cumulative. The Commonwealth argues that eve n if the trial court erred, suc h error should be harmless. However, because there is no way – without knowing w hat evidence appellant would have proffered – to determine whethe r the trial c ourt erred in denying appellant’s request to present additional witnesses, w e cannot say that such error in denying appellant’s proffer was harmless. See id. (finding that the trial court’s preclusion o f appellant’s proffer was not harmless error). Therefore, we must rever se the trial court’s sentencin g order, and we remand only for new sentencing proceedings consis tent with this opinion as the excluded testimony at the sentencing hearing could have a ffected only appellant’s sentenc ing – not his convictions.

3 The Court’s opinion today should no t be read to preclude the t rial court from exercising its considerable discretion in limiting appellant’s number of w itnesses at sentencing. That is certainly a matter committed to the trial court’s discretion an d reviewable upon an abuse of discretion sta ndard on appeal.- 10 - IV. C ONCLUSION In summary, this Court holds that the evidence was sufficient for a rational factfinder to conclude that appellant was the shooter and that appellant shot at Bryant’s truck with malice. Consequently, we affirm appellan t’s convictions for attempted m urder of Joshua Bryant in violation of Code §§ 18.2-32 and 18.2- 26, for shooting at an oc cupied vehicle in violation of Code § 18.2-154, and for use of a fir earm in the commission of a felony in violation of Code § 18.2-53.1. However, because we conclude that it was rev ersible error for the trial court to prevent appellant from eve n proffering the testimony of his proposed additional sentencing witnesses, we must reverse the trial court on this issue and re mand the matter for new sentencing proceedings consistent with this opinion. Affirmed in part, reversed in part , and remanded for resentenci ng.