Coles v. Com.

Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and
Agee, JJ., and Compton, S.J.

COREY DION COLES OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 050107 November 4, 2005

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Indicted for the attempted capital murder of a law-

enforcement officer, in violation of Code § 18.2-25, defendant

Corey Dion Coles was convicted by the trial court sitting

without a jury, and was sentenced to 50 years imprisonment

with 30 years suspended.

In an unpublished per curiam opinion, the Court of

Appeals of Virginia denied defendant's petition for appeal

insofar as he challenged the sufficiency of the evidence to

support the conviction for attempted capital murder. Coles v.

Commonwealth, Record No. 2053-03-1 (April 12, 2004). We

awarded the defendant an appeal from the Court of Appeals'

judgment to consider the question whether the evidence was

sufficient to prove premeditation and the necessary intent to

kill to support that conviction.

According to settled principles of appellate review, we

shall consider the evidence and all reasonable inferences

fairly deducible therefrom in the light most favorable to the

Commonwealth, the prevailing party in the trial court. When a
defendant challenges on appeal the sufficiency of the evidence

to sustain his conviction, the appellate court has the duty to

examine the evidence that tends to support it, and to affirm

the conviction unless it is plainly wrong or without

evidentiary support. Commonwealth v. Presley, 256 Va. 465,

466, 507 S.E.2d 72, 72 (1998).

And, when the sufficiency of the evidence is attacked on

appeal, the judgment of a trial court sitting without a jury

is entitled to the same weight as a jury verdict. McCain v.

Commonwealth, 261 Va. 483, 492, 545 S.E.2d 541, 547 (2001).

Employing these rules, we shall summarize the facts

adduced at trial. In the City of Norfolk on October 8, 2002,

near 3:00 a.m., having received report of the theft of a 1997

Honda Accord automobile, Officer H. E. Warren was patrolling

in his police cruiser and observed the stolen vehicle with two

occupants being operated on a city street.

After other officers were alerted to Warren's discovery,

he began to follow the vehicle. As the Honda was traveling

north on Wide Street approaching its intersection with East

Princess Anne Road, another police cruiser, operated by

Officer R. D. Lean, had stopped headed east on Princess Anne

Road, partially blocking the two northbound lanes of Wide

Street. From behind the Honda, Warren then "activated" the

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lights on his vehicle, the Honda stopped, and its driver

(later identified as the defendant) remained in the vehicle.

At this point in time, the Honda was in the right-hand

northbound lane of Wide close to the intersection. Lean's

marked police cruiser was to the right side of the right-hand

eastbound lane of Princess Anne at a 45-degree angle, facing

generally southeast.

Then, according to Warren's testimony, "Officer Lean got

out of his car and was starting to walk around the front of

[his] vehicle." At this moment, the defendant "raised his

hands in a surrender position." As Lean "started moving

toward" the Honda, according to Warren, the defendant "grabbed

the steering wheel again, put it in gear," accelerated, and

"drove his vehicle into the police unit." Upon impact, the

police cruiser "was pushed towards Officer Lean, and at that

point the [Honda] turned east – to go eastbound, right-hand

turn, on Princess Anne Road," testified Warren.

Officer Lean, who was the subject of the indictment,

testified that he joined the pursuit of the stolen vehicle

and, while traveling east on Princess Anne, observed the Honda

followed by Warren moving north on Wide approaching the

intersection. Lean, accompanied by another officer,

positioned his cruiser in the northbound lane of Wide, leaving

enough space for the "small" Honda "to get by." He said: "I

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didn't block the intersection because that's against our

policies and procedures."

According to Lean, he "exited" his car, "started walking

around the vehicle," and recognized the defendant as the

Honda's driver. Lean testified: "He . . . come rolling up.

I looked right at him. He placed his hands up. The other

police cars were coming up. . . . I made a statement . . . I

thought we ended the pursuit at that time."

Continuing, Lean testified that defendant "put his hands

down. He hit the gas. He nudged into my police vehicle, came

out, took a right . . . heading eastbound on Princess Anne

Road." Lean said defendant "didn't slam into [the police

vehicle]. He accelerated. [The Honda is] not a very powerful

car. I have a very heavy police cruiser. It hit it, pushed

it out back toward me." At the time of impact, the Honda was

traveling "five to ten miles" per hour, "heading straight for

the police cruiser before it swerved," according to Lean.

Lean said that, at the time the Honda began accelerating

toward him, he was standing in front of the number on the

driver's side of the vehicle, "basically right in front of

that between the door and front tire, on the side of the

vehicle." A photograph received in evidence shows the number

on the left side of the police vehicle to be directly above

the left front tire.

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 At impact, Lean said he "was at a very bad spot"

performing "a felony stop," which he ordinarily executes from

behind a vehicle, but this time he "happened to be in front of

it."

Another police officer involved in the pursuit testified

that after Lean positioned his cruiser "in front of the

suspect vehicle," Lean "got out to approach the suspect

vehicle" and was "ordering the driver to stop, show him his

hands." According to the witness, "At that point I could see

Officer Lean react toward – walked toward his car. The

suspect vehicle rammed the front of his police car, then took

off eastbound on Princess Anne Road." Defendant was

apprehended about 15 minutes later.

Code § 18.2-31(6) provides that the "willful, deliberate,

and premeditated killing of a law-enforcement officer . . .

when such killing is for the purpose of interfering with the

performance of his official duties" shall constitute 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.

In this appeal, defendant contends the Court of Appeals

erred in determining that the trial court correctly found

there was sufficient evidence of premeditation and intent to

kill to support the charge of attempted capital murder of

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Officer Lean. He contends that the "premeditation at issue is

not just premeditating the act that leads to the killing (or

attempted killing), but the actual result of death must be

premeditated." He also argues that the evidence fails to show

that defendant "reflected" with a view to determine whether he

would kill or not, and that he decided to kill as a result of

that reflection.

Continuing, defendant says "the evidence is more

consistent with" the hypotheses either that there was "a

simple attempt to escape" or "an attempt to disable the

[police] cruiser."

While we agree with defendant that the actual result of

death must be premeditated, we disagree with defendant's

remaining contentions. Initially, we observe that the issue

upon appellate review in a case like this is not whether there

is some evidence to support defendant's hypotheses. Rather,

the issue is whether a reasonable fact finder, upon

consideration of all the evidence, could have rejected

defendant's theories and found him guilty of the charged

offense beyond a reasonable doubt. Commonwealth v. Hudson, 265

Va. 505, 513, 578 S.E.2d 781, 785 (2003).

Several additional general principles are applicable

here. An attempt to commit a crime is composed of the intent

to commit it and a direct but ineffectual act done towards its

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commission. Merritt v. Commonwealth, 164 Va. 653, 657, 180

S.E. 395, 397 (1935). Intent is the purpose formed in a

person's mind, which may be shown by circumstantial evidence

including the person's conduct. Nobles v. Commonwealth, 218

Va. 548, 551, 238 S.E.2d 808, 810 (1977).

"A motor vehicle, wrongfully used, can be a weapon as

deadly as a gun or a knife." Essex v. Commonwealth, 228 Va.

273, 281, 322 S.E.2d 216, 220 (1984). Indeed, we have

recognized that the premeditated use of an automobile to kill

can be first-degree murder. Harrison v. Commonwealth, 183 Va.

394, 401, 32 S.E.2d 136, 139-40 (1944).

"Premeditation is an intent to kill that needs to exist

only for a moment." Green v. Commonwealth, 266 Va. 81, 104,

580 S.E.2d 834, 847 (2003). Accord Weeks v. Commonwealth, 248

Va. 460, 477, 450 S.E.2d 379, 390 (1994). It usually is a

factual issue. Clozza v. Commonwealth, 228 Va. 124, 134, 321

S.E.2d 273, 279 (1984).

Finally, a person must have the specific intent to kill

in order to be guilty of an attempt to commit murder.

Merritt, 164 Va. at 660, 180 S.E. at 398.

When each of the foregoing factors is applied to the

present case, the evidence manifestly is sufficient to prove

premeditation and the specific intent to kill.

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 Important are the relative positions of the Honda, Lean's

cruiser, and Lean himself when the vehicles were stopped, and

before defendant accelerated the Honda. According to a

diagram introduced in evidence by the defendant, the Honda was

in the center of the right-hand northbound lane of Wide

Street. The police car was at a 45-degree angle facing

southeast on Princess Anne Road blocking the left-hand

northbound lane of Wide, but not the right-hand northbound

lane. Lean was standing near the left front of the cruiser,

with his person exposed to the eventual path of the stolen

vehicle. Contrary to defendant's argument, which ignores the

evidence, Lean was not concealed and protected behind the

police car.

As Lean was confronting the defendant, performing "a

felony stop," defendant assumed a surrender position, and Lean

believed the pursuit had ended. Then, defendant obviously

decided, in that second or two, to ram the police car,

intending to kill the officer in order to avoid apprehension.

The defendant contends he merely was trying to escape.

This contention is belied by the clear evidence that defendant

drove the Honda, not straight ahead where there was plenty of

room to make a right turn, but swerved to the left and aimed

the Honda directly toward the officer and the police vehicle.

This maneuver enabled the small, light Honda, traveling that

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short distance at five to ten miles per hour, to ram the heavy

police cruiser and push it toward Lean, causing him to "jump

back" to avoid injury.

Thus, the defendant, using the motor vehicle as a

dangerous weapon, premeditated after initially indicating he

was surrendering and formed the specific intent to kill the

police officer, in order to avoid apprehension. Coupled with

this intent, the defendant performed a direct but ineffectual

act toward the killing of the police officer.

In sum, the Court of Appeals correctly decided the trial

court reasonably could have concluded, upon consideration of

all the evidence including the defendant's conduct, that he

was guilty of the charged offense beyond a reasonable doubt.

Consequently, the judgment of the Court of Appeals will

be

Affirmed.

JUSTICE KOONTZ, with whom JUSTICE LACY and JUSTICE AGEE join,
dissenting.

I respectfully dissent. No principle is more fundamental

in the criminal law than the requirement that the Commonwealth

prove beyond a reasonable doubt every fact necessary to

constitute the crime charged against the accused. That

principle is of constitutional dimension. In re Winship, 397

U.S. 358, 364 (1970). In the present case, in order to prove

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the charge of attempted capital murder of a law-enforcement

officer the Commonwealth was required to prove beyond a

reasonable doubt that Corey D. Coles acted with the specific

intent to kill Officer R. D. Lean. Merritt v. Commonwealth,

164 Va. 653, 660, 180 S.E. 395, 398 (1934). In my view, when

the evidence and all reasonable inferences fairly deducible

therefrom are considered in the light most favorable to the

Commonwealth, the evidence is insufficient as a matter of law

to prove beyond a reasonable doubt that Coles acted with that

intent. This is so because a reasonable fact-finder upon

consideration of that evidence could not have rejected Coles’

defense theory that he acted only to effect an escape. See

Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785

(2003).

A complete recitation of the facts which led to the

charge of attempted capital murder of a law-enforcement

officer against Coles need not be repeated here in light of

their recitation by the majority. The critical facts are

undisputed. When Coles was stopped, he was operating a 1997

Honda automobile which he had recently stolen. Coles became

virtually surrounded by two occupied police cruisers with

their lights activated. One cruiser was positioned

immediately behind the Honda and the other, operated by

Officer Lean, was positioned so as to partially block the road

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in front of the Honda. Officer Lean recognized Coles. While

Officer Lean was standing near the left front of his cruiser,

with the cruiser between him and the Honda, Coles “nudged” the

Honda into Lean’s heavier cruiser while traveling “five to ten

miles” per hour.* The cruiser “was pushed towards Officer

Lean” and he had to “jump back” in order to avoid injury.

Coles then turned the Honda to the right and drove away while

being pursued by the police.

In addressing these facts, the trial court rejected the

defense theory that Coles “was just trying to get away,”

reasoning that “[t]he reasonable conclusion that can be drawn

*
In previous cases where a defendant has been convicted
of a specific intent crime for driving a vehicle toward
another individual, there was no barrier between the
defendant’s vehicle and the individual. See, e.g., 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 a pedestrian).
The fact that Lean’s police cruiser separated Coles’
vehicle from Officer Lean is more analogous to Haywood v.
Commonwealth, 20 Va. App. 562, 458 S.E.2d 606 (1995), where
the court held that insufficient proof of specific intent
existed where the defendant drove toward two officers’
vehicles while the officers were inside the cars. The
evidence did not discount the hypothesis that “Haywood, who
was in trouble with the law, merely attempted to run a
roadblock to avoid apprehension.” Id. at 567, 458 S.E.2d at
608; see also Moody, 28 Va. App. at 708, 508 S.E.2d at 356
(distinguishing Haywood by stating, “appellant was not
attempting to run through an inanimate object; rather, the
obstacle in his path consisted exclusively of a pedestrian.”).

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is that [Coles], while in custody, decided in order to effect

an escape, that he was going to attempt to kill a law[-

]enforcement officer engaged in his duties. He was

unsuccessful in doing so, only by luck, . . . because the

police car got in his way.”

“[W]here a fact is equally susceptible of two

interpretations one of which is consistent with the innocence

of the accused, [the trier of fact] cannot arbitrarily adopt

that interpretation which incriminates him.” Corbett v.

Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253 (1969).

It is difficult to construct a factual scenario more

consistent with an attempt to escape than that established by

the facts in this case. Coles was operating a Honda that he

had stolen, he was surrounded by the police, and at least one

officer recognized him. The officer that the Commonwealth

asserts Coles specifically intended to kill was standing

behind the police cruiser which Coles only “nudged” with the

Honda. Coles then proceeded to drive away. That Coles merely

intended to effect an escape by pushing the police cruiser out

of its position in the road is just as likely as that he acted

with the specific intent to kill the officer to effect an

escape. Accordingly, because the evidence is equally

susceptible to the interpretation that Coles did not have the

specific intent to kill Officer Lean as it is that he did, the

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evidence is insufficient to prove beyond a reasonable doubt

that Coles acted with the necessary intent to be guilty of

attempted capital murder.

For these reasons, I would reverse the judgment of the

Court of Appeals.

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