COURT OF APPEAL S OF VIRGINIA

Present: Judges Benton, Clemen ts and Senior Judge Coleman Argued at Rich mond, Virginia

GEORGE LINWOOD STEV ENS, JR., A/K/A SQUENCHIE OPINION BY v. Record No. 0846-01-2 JU DGE JEAN HARR ISON CLEMENTS AUGUST 6, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Craig W. Stallard, As sistant Public Defender (Office of the Public Defender, on brief), for appellant. Paul C. Galanides, As sistant Attorn ey General (Randolph A. Beales, At torney General, on brief), for appellee.

George Linwood Stevens, Jr., was convicted in a bench trial of attempted capital murder of a police officer, in violation of Code §§ 18.2-25 and 18.2-31(6). 1 On appeal, he contends the evidence was insufficient to sustain the conviction because the Commonwealth failed to prove he had the requisite specific intent to kill a law-enforcement officer. We disagree and affirm the conviction.

1 Based on his guilty pleas, Stevens was also convicted of driving after having been declared an habitual offender and of attempting to elude the police. He challenges neither of these convictions on appeal.I. BACKGROUND On January 26, 1999, at approximately 10:25 a.m., Richmond Police Officer Steve Hines was in uniform on patrol on a marked police motorcycle when he observed Stevens driving a black Ford automobile with a cracked windshield. Although he knew Stevens, Hines did not initially recognize him as the driver. Hines saw Stevens stop his car in traffic at the intersection of Maury Street and 15th Street in Richmond with his right-turn signal on. Upon seeing Hines, however, Stevens drove forward through the intersection with his right-turn signal still on. When Hines pulled his motorcycle into traffic directly behind Stevens' car and activated his emergency lights and siren, Stevens sped away. As Hines followed, Stevens drove at "a very fast pace," nearly hitting other vehicles and running several red lights. Eventually, Stevens reached Interstate 95, where he drove at speeds in excess of one hundred miles per hour. With Hines in pursuit, Stevens weaved in and out of traffic and drove on the shoulder. He then abruptly exited the interstate onto the exit ramp at Bells Road, still travelling between eighty and ninety miles per hour. Hines followed him onto the exit ramp, passing at least one large truck near the entrance of the ramp. As he pursued Stevens around the curve at the middle of the ramp, Hines noticed Stevens' car begin to slow rapidly and come to an abrupt halt. Unable to stop as quickly, Hines veered to the left and went around Stevens. He ended up approximately ten feet beyond Stevens' car and to its left. Stevens' car straddled two lanes on the ramp and was pointed - 2 -slightly to the right, away from Hines and his motorcycle. Hines testified that all other traffic on the ramp had stopped and there were no other people or vehicles near them. Thus, Hines testified, there was nothing in front or to the right of Stevens that would obstruct him from proceeding in those directions. Because Stevens was straddling two lanes of traffic, he had, according to Hines, "pretty much the entire travel lane on the right" to use if he wished. Officer Hines, who was still on his motorcycle "in second or third gear with the clutch in" and "trying to put the kickstand down," drew his pistol and, pointing it at Stevens, ordered him to get out of his car. At that point, Hines saw "movement in [Stevens'] vehicle," and the car started moving forward. Accelerating "pretty rapid[ly]," the car turned to the left and headed directly at Hines. Hines saw Stevens sitting up in the driver's seat looking at him. Convinced the car was going to crash into his motorcycle and hit him, Hines lifted his exposed leg and fired his weapon in an attempt "to repel [Stevens] away from him." Stevens' car immediately veered to the right away from Hines. As the car went by "about a foot and a half" to his left, Hines fired a second shot, hitting the car's left front tire. Ducking down in the car, Stevens made a wide U-turn and got back on the interstate, driving in the wrong direction on a flat tire. Eventually, Stevens wrecked his car and fled on foot. He was apprehended by Officer Hines in the nearby woods. In a statement to the police, Stevens indicated he initially fled from the police because he had several outstanding warrants and his driver's license had been revoked. He further indicated - 3 -that, after coming to a stop on the exit ramp, he first turned his car to the left in Hines' direction because he was blocked by a large truck on the right side. He never intended, he told the police, to hit Officer Hines. He admitted in his statement to the police that he and Hines "did not have a good relationship" and that they had "had problems in the past," but further stated that he did not know the police officer pursuing him was Hines. Finding Stevens had the "intent . . . to run [Hines] down [until] . . . the bullet scared him off and he went to the right," the trial court found Stevens guilty of attempted capital murder. This appeal followed.

II. ANALYSIS When the sufficiency of the evidence is challenged on appeal, we determine whether the evidence, viewed in the light most favorable to the Commonwealth, the party prevailing below, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense. See Moore v. Commonwealth , 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr v. Commonwealth , 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991). "In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Watkins v. Commonwealth , 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). We will not reverse the findings of the trial court, sitting as the finder of fact in a bench trial, unless they are plainly wrong or without evidence to support them. See Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). - 4 -We are further m indful that the "credibi lity of a witness, the weight accorded the testimony, and th e inferences to be drawn from proven facts are ma tters solely for the fact finder's determination." Crawley v. Commonwealth , 29 Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). Code § 18.2-31(6) pr ovides that "the willfu l, deliberate, and premeditated killing of a law-enforcement of ficer . . . when such killing is for the purpo se of interfering with the performance of [the officer's] official duties" constit utes capital murder. To prove an attempt of that offense, the Commonwealth must establish beyond a reasonable do ubt that (1) the accu sed had the intent to commit capital murder and (2) made "some direct, but ineffectual, act toward its comm ission sufficient to amo unt to the commencement of the consummation of the crime." Brown v. Commonwealth , 33 Va. App. 296, 311, 533 S.E.2d 4, 11 (2000); see also Wynn v. Commonwealth , 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987) (noting that the "inte nt required to be pro ven in an attempted crime is the specific intent in the person's mind to commit the particular crime for w hich the attempt is ch arged"). "A person cannot be guilty of an attempt to commit mu rder unless he has a specific intent to kill." Haywood v. Commonwealth , 20 Va. App. 562, 565, 458 S.E.2d 6 06, 607 (1995) (citing Merritt v. Commonwealth , 164 Va. 653, 661, 180 S.E. 395, 398 (1935)). Here, Stevens ch allenges, on appeal, o nly the sufficiency of the evidence to prove the requisite inte nt. Relying on Haywood , he argues the Commonwe alth failed to prove he intended to kill Officer Hines. He cla ims the Commonwealth pr esented "no evidence . . . to show . . . [he] ever ai med his vehicle at [Hines]." To - 5 -the contrary, he argues, "the ev idence showed . . . [he] steered away from and around the officer, negating any i ntent to harm him." Alternati vely, Stevens argue s, the Commonwealth's evidence failed to exclude the hypothesis th at he merely inten ded, like the defendant in Haywood , to avoid police apprehension "b y driving in a reckless manner, ind ifferent to the consequences in risking a collision, because he believed . . . he could crash through any vehicle in his way or . . . the police woul d move out of his way." The question before us, therefore, is whether the evidence presented was sufficie nt, as a matter of la w, to prove beyond a reasonable doubt that Stevens had the "specif ic intent to use his vehicle as a weapon fo r the unequivocal pur pose of murdering" Officer Hines. Id. at 566, 458 S.E.2d at 608. "A motor vehicle, wrongfully used," the Su preme Court has observ ed, "can be a weapon as deadly as a g un or a knife." Essex v. Commonwealth , 228 Va. 273, 281, 322 S.E.2d 2 16, 220 (1984). Howe ver, "'[i]t is not sufficient that [St evens'] act, had it p roved fatal, would have been murder.'" Merritt , 164 Va. at 661, 180 S .E. at 399 (quoting 1 Bishop on Criminal Law 521-22 (9th ed.)). To be guilty of attempted capital mu rder, Stevens had to have specifically intended "to take [Hines'] life." Id. "[W]hether the requir ed intent exis ts is general ly a question for the trier of fact." Nobles v. Co mmonwealth , 218 Va. 548, 551, 238 S.E.2d 808, 810 (1 977). "Intent is the purpose formed in a person's mind which ma y, and often must, be inferred from the facts and circumstances in a particular case. The state of mind of an alleged offen der may be shown by his acts and conduct." Ridley v. Commonwealth , 219 Va. 834, 836, 252 S.E.2d 313, 314 - 6 -(1979). The fact finder may draw reasonable and justified inferences from proven facts, in cluding the infe rence "that a person intends t he immediate, di rect, and necessary consequences of his volunta ry acts." Moody v. Commonwealth , 28 Va. App. 702, 706-07, 508 S.E.2d 354, 356 (1998). "[W]hen the fa ct finder draws such inferences reasonab ly, not arbitrarily, they will be upheld." Id. at 707, 508 S.E.2d at 356. "Circumstantial evidence is as compet ent and is entitled to as much weight as dire ct evidence, provided it is sufficiently convincing to ex clude every reas onable hypothesis except that of guilt." Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). "Howev er, 'the Commonweal th need only exclude reasonable hypot heses of innocen ce that flow from the evidence, not those that spring from the imagin ation of the defendant.' Whether an alternat ive hypothesis of innoce nce is reasonable is a question of fact and, therefore, is binding on appeal unless plainly wrong." Archer v. Co mmonwealth , 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997) (quoting Hamilton v. Commonwealth , 16 Va. App. 751, 755, 433 S.E .2d 27, 29 (1993)). "W hen facts are equally susceptible to more than one interpret ation, one which is consistent with the in nocence of the accused, the trier of fact cannot arbitrarily ad opt an inculpatory interpretation." Moody , 28 Va. App. at 706, 508 S.E.2d at 356.

In Haywood , the defendant, who had been drinking heavily, fled the scene after h itting the hood of anot her person's vehicle with a baseball bat. Three officers in separate vehicles attempted to stop the defendant, who drove do wn the middle of the road at a high rate of speed. Twic e, individual officers set up - 7 -roadblocks by posit ioning their vehicles in the defendant's path, but, each time, the de fendant kept dri ving without sl owing down or changing his course. Only last-second e vasive acti on by the officers allowed them to avoid a collision. The defendant was convicted of two counts of attempted capital murder of a police officer. We reversed the convictions on appeal, finding that the Commonwealth's evid ence did not exclude a reasonable hypothesis of innocence; namely, that the defendant was me rely attempting to avoid apprehension. Haywood , 20 Va. App. at 5 67-68, 458 S.E.2d at 609. In reaching that decision, we noted, ho wever, that "[t]here was no evidence that [the defendant] ever swerved or aimed his truck to hit the police cars when they pulled out of his path or that he turned h is truck around in an at tempt to hit the police cars after passi ng by them." Id. at 567, 458 S.E.2d at 608-09.

In Moody , the defendant was leaving the scene in his truck after breaking into a car in a high scho ol parking lot. A teacher who had heard the sound of sh attering glass observed the defendant's vehicle mo ving toward the parking lot's only exit. With the defendant's t ruck still more than th irty feet away, the teacher stepped int o the defendant's path and signaled for him to stop. Instead of st opping, however, the de fendant accelerated toward the teacher and motioned for him to get out of the way. With little time to sp are, the teacher was forced to jump out of the way as the defenda nt accelerated out of the parking lot. The defendant was convicted of attempted malici ous wounding. In finding the evidenc e sufficient to prove th e requisite intent, we noted that, despite se eing the teacher on fo ot, the defendant deliberately chose to accelerate his car - 8 -toward the ped estrian, never decelerating, braking, or swerving to avoid him, even when [the teacher] was only five to t en feet away from being struck. [T he teacher] was spared certain injury o nly by jumpin g out of the vehicle's path at the last moment. Although [the defendant] warned [the te acher] to move out of his way with a wave, this act does not negate the trial court's reasonable inference that [the defendant] h ad formed the specific intent to run over [the teacher] should the pedestrian not move out of his way. Moody , 28 Va. App. at 707, 508 S.E.2d at 356. We furt her noted that, unlike in Haywood , the defendant in Moody was not "attempting to run th rough an inanimate object; rather, the obstacle in his path c onsisted exclus ively of a ped estrian." Id. at 708, 508 S.E. 2d at 357. In the present case, the evide nce, when viewed in the light most favorable to the Commonwealth, establish es that Hines came to a stop on his motorcyc le approximately ten fe et beyond and to the left of Stevens' stopp ed car, which was point ing slightly to the right. Stevens then tur ned his car to the le ft, away from a clear travel lane, and, looking right at Hines, rapidly accelerated directly toward him. Convinced Stevens was going to run him over, Hines fired his weapon at Stevens. Only then did Stevens turn away, narrowly missing Hines. Moreover, Stevens' assertion that he merely inte nded to avoid apprehensi on is clearly belied by the evidence that he could have driven from the scene without steering his car toward Hines. The evidence proved that, to get away, Stevens could ha ve simply drive n straight ahe ad or to the right, in the directi on his car was poin ted. Instead, he deliberately turned hi s car in Hines' direc tion and drove toward him.

- 9 -From this evidence, the trial court could reasonably infer that Stevens intended "to run [Hines] down" with his vehicle and that, with little or no protection aff orded Hines by his motorcycle, Stevens' act, if not thwarted, wo uld have resulted in the immediate, dire ct, and necessary consequence of Hines' death. We hold, therefore, that the evidence pr esented at trial was sufficient, as a matter of law, to prove beyo nd a reasonable doubt that Stevens had the r equisite specific intent to us e his vehicle as a weapon for the unequivocal purpose of murdering Officer Hines. Accordingly, we affir m Stevens' conviction. Affirmed.

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