COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
GEORGE LINWOOD STEVENS, JR., A/K/A
SQUENCHIE
OPINION BY
v. Record No. 0846-01-2 JUDGE JEAN HARRISON CLEMENTS
AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Craig W. Stallard, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Paul C. Galanides, Assistant Attorney General
(Randolph A. Beales, Attorney 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
1
Code §§ 18.2-25 and 18.2-31(6). 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 mindful that the "credibility of a witness, the
weight accorded the testimony, and the inferences to be drawn from
proven facts are matters 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) 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
[the officer's] official duties" constitutes capital murder. To
prove an attempt of that offense, the Commonwealth must establish
beyond a reasonable doubt that (1) the accused had the intent to
commit capital murder and (2) made "some direct, but ineffectual,
act toward its commission sufficient to amount 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 "intent required to be proven in an attempted
crime is the specific intent in the person's mind to commit the
particular crime for which the attempt is charged"). "A person
cannot be guilty of an attempt to commit murder unless he has a
specific intent to kill." Haywood v. Commonwealth, 20 Va. App.
562, 565, 458 S.E.2d 606, 607 (1995) (citing Merritt v.
Commonwealth, 164 Va. 653, 661, 180 S.E. 395, 398 (1935)).
Here, Stevens challenges, on appeal, only the sufficiency of
the evidence to prove the requisite intent. Relying on Haywood,
he argues the Commonwealth failed to prove he intended to kill
Officer Hines. He claims the Commonwealth presented "no evidence
. . . to show . . . [he] ever aimed his vehicle at [Hines]." To
- 5 -
the contrary, he argues, "the evidence showed . . . [he] steered
away from and around the officer, negating any intent to harm
him." Alternatively, Stevens argues, the Commonwealth's evidence
failed to exclude the hypothesis that he merely intended, like the
defendant in Haywood, to avoid police apprehension "by driving in
a reckless manner, indifferent to the consequences in risking a
collision, because he believed . . . he could crash through any
vehicle in his way or . . . the police would move out of his way."
The question before us, therefore, is whether the evidence
presented was sufficient, as a matter of law, to prove beyond a
reasonable doubt that Stevens had the "specific intent to use his
vehicle as a weapon for the unequivocal purpose of murdering"
Officer Hines. Id. at 566, 458 S.E.2d at 608. "A motor vehicle,
wrongfully used," the Supreme Court has observed, "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). However, "'[i]t is not
sufficient that [Stevens'] act, had it proved 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 murder, Stevens had to have specifically
intended "to take [Hines'] life." Id.
"[W]hether the required intent exists is generally a question
for the trier of fact." Nobles v. Commonwealth, 218 Va. 548, 551,
238 S.E.2d 808, 810 (1977). "Intent is the purpose formed in a
person's mind which may, and often must, be inferred from the
facts and circumstances in a particular case. The state of mind
of an alleged offender 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, including the inference "that a
person intends the immediate, direct, and necessary consequences
of his voluntary acts." Moody v. Commonwealth, 28 Va. App. 702,
706-07, 508 S.E.2d 354, 356 (1998). "[W]hen the fact finder draws
such inferences reasonably, not arbitrarily, they will be upheld."
Id. at 707, 508 S.E.2d at 356.
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983). "However, 'the Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant.'
Whether an alternative hypothesis of innocence is reasonable is a
question of fact and, therefore, is binding on appeal unless
plainly wrong." Archer v. Commonwealth, 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)). "When facts are equally
susceptible to more than one interpretation, one which is
consistent with the innocence of the accused, the trier of fact
cannot arbitrarily adopt 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 hitting the hood of another person's vehicle
with a baseball bat. Three officers in separate vehicles
attempted to stop the defendant, who drove down the middle of the
road at a high rate of speed. Twice, individual officers set up
- 7 -
roadblocks by positioning their vehicles in the defendant's path,
but, each time, the defendant kept driving without slowing down or
changing his course. Only last-second evasive action 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 evidence did not exclude a reasonable hypothesis of
innocence; namely, that the defendant was merely attempting to
avoid apprehension. Haywood, 20 Va. App. at 567-68, 458 S.E.2d at
609. In reaching that decision, we noted, however, 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 his truck around in an attempt to hit the police
cars after passing 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 school parking lot. A teacher
who had heard the sound of shattering glass observed the
defendant's vehicle moving toward the parking lot's only exit.
With the defendant's truck still more than thirty feet away, the
teacher stepped into the defendant's path and signaled for him to
stop. Instead of stopping, however, the defendant accelerated
toward the teacher and motioned for him to get out of the way.
With little time to spare, the teacher was forced to jump out of
the way as the defendant accelerated out of the parking lot. The
defendant was convicted of attempted malicious wounding. In
finding the evidence sufficient to prove the requisite intent, we
noted that, despite seeing the teacher on foot, the defendant
deliberately chose to accelerate his car
- 8 -
toward the pedestrian, never decelerating,
braking, or swerving to avoid him, even when
[the teacher] was only five to ten feet away
from being struck. [The teacher] was spared
certain injury only by jumping out of the
vehicle's path at the last moment. Although
[the defendant] warned [the teacher] to move
out of his way with a wave, this act does not
negate the trial court's reasonable inference
that [the defendant] had 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 further noted
that, unlike in Haywood, the defendant in Moody was not
"attempting to run through an inanimate object; rather, the
obstacle in his path consisted exclusively of a pedestrian." Id.
at 708, 508 S.E.2d at 357.
In the present case, the evidence, when viewed in the light
most favorable to the Commonwealth, establishes that Hines came to
a stop on his motorcycle approximately ten feet beyond and to the
left of Stevens' stopped car, which was pointing slightly to the
right. Stevens then turned his car to the left, 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 intended to avoid apprehension 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 have simply driven straight ahead or to the
right, in the direction his car was pointed. Instead, he
deliberately turned his car in Hines' direction 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 afforded Hines by his
motorcycle, Stevens' act, if not thwarted, would have resulted in
the immediate, direct, and necessary consequence of Hines' death.
We hold, therefore, that the evidence presented at trial was
sufficient, as a matter of law, to prove beyond a reasonable doubt
that Stevens had the requisite specific intent to use his vehicle
as a weapon for the unequivocal purpose of murdering Officer
Hines.
Accordingly, we affirm Stevens' conviction.
Affirmed.
- 10 -