PRESENT: All the Justices
OPINION BY
DEMETRIUS D. BALDWIN JUSTICE G. STEVEN AGEE
v. Record No. 061264 June 8, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Demetrius D. Baldwin appeals from the judgment of the Court
of Appeals of Virginia, which affirmed his conviction in the
Circuit Court of Chesterfield County for attempted murder in
violation of Code §§ 18.2-32 and 18.2-26. The sole issue in
this appeal is whether the evidence was sufficient to prove the
necessary intent to kill to support a conviction for attempted
murder. For the reasons set forth below, we will reverse the
judgment of the Court of Appeals.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Under well-settled principles of appellate review, we
consider the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party below. “We
also accord the Commonwealth the benefit of all inferences
fairly deducible from the evidence.” Riner v. Commonwealth, 268
Va. 296, 303, 601 S.E.2d 555, 558 (2004).
The evidence adduced at trial showed that on the June 16,
2004, Mark D. Bowen, a Chesterfield County police officer,
observed Baldwin traveling approximately 25 miles per hour over
the posted speed limit in a residential area. Bowen followed
Baldwin in his police cruiser and both vehicles turned onto
Route 10 before Bowen activated his emergency equipment.
Baldwin brought his car to a stop on the paved right-hand turn
lane of the road with a clear path in the turn lane in front of
his vehicle. Bowen parked “about a vehicle and a half length”
behind Baldwin, and then approached Baldwin’s vehicle on foot.
Bowen stopped by the “driver’s side rear passenger window” and
“the driver’s door” of Baldwin’s vehicle, keeping his “hand down
on the vehicle in case [Baldwin] tried to pop the vehicle or
open his door.”
Bowen observed Baldwin speaking on a cellular telephone, so
he tapped on Baldwin’s window. Rather than acknowledging Bowen,
Baldwin “put both hands on the steering wheel and turned his
vehicle towards [Bowen], and then proceeded over two lanes of
traffic and sped off.” In order to prevent the back wheels of
Baldwin’s vehicle from running over his feet as the car
accelerated, Bowen perceived he “had to push off the back of the
car.” Joined by several other police officers, Bowen then
pursued Baldwin and was able to stop and arrest him
approximately seven miles from the location of the initial stop.
At trial in the Circuit Court of Chesterfield County,
Baldwin testified he fled from the initial stop after
“panick[ing]” because of an outstanding warrant for his arrest
for violating the terms of his probation for a DUI conviction.
2
Baldwin testified he last saw Bowen “[a]t the rim of [Baldwin’s]
car” and that he did not hear Bowen tap on the window. Baldwin
also denied intending to strike Bowen with his vehicle.
After a bench trial, the circuit court convicted Baldwin of
attempted murder, in violation of Code §§ 18.2-32 and 18.2-26,
and eluding police, in violation of Code § 46.2-817.1 The
circuit court sentenced Baldwin to 15 years incarceration on the
attempted murder conviction, with 11 years suspended. Baldwin
appealed his conviction for attempted murder to the Court of
Appeals. Upon reviewing “all the facts and circumstances” in
the record, and noting “[h]ad [Baldwin] intended only to escape,
he could have driven away in the turn lane without turning the
car in Bowen’s direction,” the Court of Appeals determined “the
evidence was sufficient to prove beyond a reasonable doubt that
appellant possessed the intent to kill Bowen by striking him
with a motor vehicle.”2
We awarded Baldwin this appeal.
II. ANALYSIS
Baldwin makes the same argument on appeal to this Court as
he made in the Court of Appeals: that because the evidence does
1
Baldwin did not appeal his conviction for eluding police.
2
The Court of Appeals also remanded the case to the circuit
court for resentencing because the “sentence imposed upon
[Baldwin] for his conviction of attempted murder under Code
§§ 18.2-26 and 18.2-32 exceed[ed] the statutory maximum for a
Class 4 felony.”
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not show he had the specific intent to kill Bowen, he cannot be
guilty of attempted murder. Baldwin contends Bowen’s testimony
supports the reasonable hypothesis that Baldwin merely panicked
and was fleeing the scene rather than taking any action directed
toward Bowen. In particular, Baldwin draws attention to Bowen’s
testimony that he was standing beside Baldwin’s vehicle and “had
to push off the back of the car so [Baldwin’s vehicle’s] back
wheels didn’t run over [his] feet.” (Emphasis added.) Baldwin
asserts “given Officer Bowen’s position beside and behind
[Baldwin’s] vehicle, [Baldwin] could not have even intended to
run over Bowen for being in his way.”
Baldwin distinguishes other vehicle-pedestrian cases in
which defendants have been convicted for attempted murder based
on the evidence in those cases that “the defendant[s]
deliberately pointed [their] vehicle[s] toward a potential
victim.” Baldwin analogizes the facts in the case at bar to
those in Haywood v. Commonwealth, 20 Va. App. 562, 458 S.E.2d
606 (1995), where the Court of Appeals reversed Haywood’s
conviction “because the Commonwealth presented no direct
evidence that Haywood in running the road blocks intended to
murder the police officers and because its circumstantial
evidence did not exclude a reasonable hypothesis of innocence.”
Id. at 568, 458 S.E.2d at 609.
4
The Commonwealth responds the evidence supports the fact-
finder’s conclusion as to Baldwin’s intent, which must be given
deference on appeal. It contends the evidence supports the
reasonable inference that “Baldwin intended to kill [Bowen] to
effectuate his escape.” This is so, the Commonwealth avers,
because “[n]othing prevented Baldwin from ‘going straight’ as he
pulled away,” yet Baldwin “grabbed the steering wheel with both
hands, turned his car toward [Bowen] and sped away.” The
Commonwealth concludes the circuit court was free to weigh the
credibility of witnesses and ignore Baldwin’s self-serving
explanation in light of Bowen’s testimony supporting the
conviction.
When reviewing the sufficiency of the evidence to support a
conviction, this Court will “affirm the judgment of the circuit
court unless that judgment is without evidence to support it or
is plainly wrong.” Burns v. Commonwealth, 261 Va. 307, 337, 541
S.E.2d 872, 892 (2001). Under this standard, we find the Court
of Appeals erred in affirming Baldwin’s conviction for attempted
murder because the evidence does not support the conclusion that
Baldwin had the intent to kill Bowen with his vehicle. “[W]hile
a person may be guilty of murder though there was no actual
intent to kill, he cannot be guilty of an attempt to commit
murder unless he has a specific intent to kill.” Merritt v.
Commonwealth, 164 Va. 653, 660, 180 S.E. 395, 398 (1935); see
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also Howard v. Commonwealth, 221 Va. 904, 906, 275 S.E.2d 602,
603 (1981) (evidence “must establish a specific intent to commit
the crime”). The Commonwealth thus had the burden of proving
beyond a reasonable doubt at trial that Baldwin acted with the
specific intent to kill Bowen. This, it failed to do.
Bowen and Baldwin were the only two witnesses to testify at
trial. By Bowen’s own account, he was standing beside and
slightly behind the driver’s side door when Baldwin “put both
hands on the steering wheel and turned his vehicle towards me, .
. . proceed[ing] over two lanes of traffic and [speeding] off,
at which time [he] had to push off the back of the car so [the
vehicle’s] back wheels didn’t run over [his] feet.” (Emphasis
added.) And on cross-examination Bowen agreed that Baldwin
“didn’t put the car in reverse and try to strike [Bowen] with
[the] vehicle” and that Baldwin “never tried to strike [Bowen’s]
vehicle with his vehicle.” Bowen’s testimony simply does not
support the circuit court’s finding that Baldwin formed the
intent to kill Bowen by using his vehicle as a weapon.
The case at bar is clearly distinguished from Coles v.
Commonwealth, 270 Va. 585, 621 S.E.2d 109 (2005), and cases from
the Court of Appeals affirming convictions for attempted murder
in somewhat similar circumstances involving a motor vehicle as a
potential weapon. In Coles, a case with unique facts, the Court
observed:
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Important [to the conclusion that Coles formed
the requisite specific intent] are the relative
positions of [Coles’ vehicle], [the police officer’s]
cruiser, and [the police officer] when the vehicles
were stopped and before [Coles] accelerated [his
vehicle].
[The police officer and his vehicle were located
at an angle to the left and front of the defendant’s
vehicle.]
As [the officer] was confronting the defendant,
[Coles] assumed a surrender position, and [the
officer] believed the pursuit had ended. . . .
[Coles’] contention [that he was merely trying to
escape] is belied by the clear evidence that [Coles]
drove [his vehicle], not straight ahead where there
was plenty of room to make a right turn, but swerved
to the left and aimed the [vehicle] directly toward
the officer and the police vehicle.
Id. at 590-91, 621 S.E.2d at 112.3 Thus, in Coles, the defendant
“aimed [his vehicle] directly toward” the police officer, who
was standing in front of the defendant’s vehicle. In contrast,
the evidence in the case at bar shows that Baldwin turned his
car into traffic in order to flee while Bowen was standing
toward the rear of the vehicle and slightly behind the driver’s
side door. There was no evidence that Baldwin aimed his vehicle
directly toward Bowen or otherwise had any intent to inflict
bodily harm on Bowen, much less that he had formed the intent to
murder Bowen. Indeed, Bowen’s testimony indicates that even if
3
See also Holley v. Commonwealth, 44 Va. App. 228, 604
S.E.2d 127 (2004) (defendant accelerated toward police officer
standing in defendant’s path); Stevens v. Commonwealth, 38 Va.
App. 528, 567 S.E.2d 537 (2002) (defendant turned his vehicle
toward police officer, who was riding a motorcycle, and
accelerated rapidly); Moody v. Commonwealth, 28 Va. App. 702,
508 S.E.2d 354 (1998) (defendant accelerated toward pedestrian).
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he had not pushed away from Baldwin’s vehicle, the vehicle would
at most have struck his feet. When viewed in the light most
favorable to the Commonwealth, this evidence does not support
the conclusion that Baldwin possessed the requisite specific
intent to kill Bowen necessary to support a conviction for
attempted murder.
As Baldwin contends, the facts of this case are more
analogous to Haywood, which only supported the conclusion that
the defendant was attempting to escape. Similarly, the facts
before us in this case are insufficient as a matter of law to
prove an intent to kill. Thus, the Commonwealth failed to prove
a necessary element of the crime of attempted murder.
Accordingly, the Court of Appeals erred in affirming Baldwin’s
conviction for attempted murder because the evidence does not
show Baldwin possessed the requisite specific intent to kill
Bowen.
III. CONCLUSION
For the reasons set forth above, we will reverse the
judgment of the Court of Appeals and dismiss the indictment.4
Reversed and dismissed.
4
In light of our disposition on the merits of Baldwin’s
conviction, the portion of Court of Appeals’ judgment regarding
the trial court’s error in sentencing Baldwin beyond the
statutory maximum becomes moot. Neither this opinion nor the
Court of Appeals’ judgment has any effect on Baldwin’s
contemporaneous conviction for eluding the police, in violation
of Code § 46.2-817.
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