COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
BRENT MAURICE CRAWLEY
OPINION BY
v. Record No. 1385-96-2 JUDGE LARRY G. ELDER
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Robert H. Morrison (Bennett & Morrison, on
brief), for appellant.
Ruth Ann Morken, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Brent Maurice Crawley ("appellant") appeals his conviction
of attempted malicious wounding. He contends the evidence was
insufficient to prove that he intended to wound Michelle Newman
("Newman"). For the reasons that follow, we reverse.
I.
FACTS
Appellant was charged with maliciously wounding Randy Tyrone
Acree ("Acree"), attempting to maliciously wound Newman, and
using a firearm in the commission of a felony. Although he was
convicted of all three charges, on appeal, appellant only
challenges his conviction of attempting to maliciously wound
Newman.
At trial, the evidence, when viewed in the light most
favorable to the Commonwealth, proved that appellant and his
cousin, Benny Yancy ("Yancy"), had an ongoing conflict with
Acree. Acree testified that appellant and another person once
attempted to "jump" him. Appellant testified that, in early
June, 1995, Acree "chased [him] down through the woods."
On June 10, 1995, Acree was driving with Newman and her
two-year-old daughter in a car to pick up Newman's mother when
his car was "bumped" from behind by a truck occupied by appellant
and Yancy. Acree stopped his car in the middle of the highway,
and appellant and Yancy stopped their truck just behind Acree's
car. Acree, Newman, Yancy, and appellant met between the two
stopped vehicles and conversed for a few minutes. Appellant was
carrying a pistol, and Acree was holding a rifle. During the
conversation, Yancy told Acree, apparently in reference to his
earlier altercation with appellant, "You don't know who you
messing with; you messing with my cousin." Newman asked Yancy to
"leave [her and Acree] alone" so they could meet Newman's mother.
Yancy responded by telling Newman that "[she] was the cause of
the whole problem." Newman then said, "I'm not the cause of
nothing," and asked appellant if he thought she had "anything to
do with what was going on." Appellant responded by saying she
"didn't have anything to do with it."
The conversation ended when Newman "pushed" Acree back to
the driver-side door of their car. Appellant and Yancy returned
to their truck. When appellant reached the passenger-side door
of the truck, he turned, drew his gun, and fired three times at
Acree, striking him in the hip. At the time of the shooting,
-2-
Newman was standing "right beside" Acree on the driver-side of
the car "within reaching distance" of him. None of the bullets
fired by appellant struck Newman.
II.
SUFFICIENCY OF THE EVIDENCE REGARDING SPECIFIC INTENT
Appellant contends the evidence was insufficient to prove
that he attempted to maliciously wound Newman. He concedes that
he fired his pistol at Acree. He argues that the circumstantial
evidence regarding his intent does not support the trial court's
conclusion that he intended to shoot Newman. We agree.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). This Court does
not substitute its judgment for that of the trier of fact. See
Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220
(1992). Instead, the trial court's judgment will not be set
aside unless it appears that it is plainly wrong or without
supporting evidence. Josephs v. Commonwealth, 10 Va. App. 87,
99, 390 S.E.2d 491, 497 (1990) (en banc).
"'An attempt to commit a crime is composed of two elements:
(1) The intent to commit it; and (2) a direct, ineffectual act
done towards its commission.'" Haywood v. Commonwealth, 20 Va.
App. 562, 565, 458 S.E.2d 606, 607-08 (1995) (quoting Merritt v.
Commonwealth, 164 Va. 653, 657, 180 S.E. 395, 397 (1935)). In
-3-
order to convict an accused of attempted malicious wounding, the
Commonwealth must prove that the accused: (1) intended to
"maliciously shoot, stab, cut or wound any person or by any means
cause bodily injury with the intent to maim, disfigure, disable
or kill"; and (2) committed a direct but ineffectual act toward
this purpose. See Code § 18.2-51.
"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." Wynn v. Commonwealth, 5
Va. App. 283, 292, 362 S.E.2d 193, 198 (1987); see also Thacker
v. Commonwealth, 134 Va. 767, 770, 114 S.E. 504, 506 (1922)
(stating that "to do an act from general malevolence is not an
attempt to commit a crime, because there is no specific intent,
though the act according to its consequences may amount to a
substantive crime"). "Intent is the purpose formed in a person's
mind and may be, and frequently is, shown by circumstances. It
is a state of mind which may be proved by a person's conduct or
by his statements." Barrett v. Commonwealth, 210 Va. 153, 156,
169 S.E.2d 449, 451 (1969); see also Nobles v. Commonwealth, 218
Va. 548, 551, 238 S.E.2d 808, 810 (1977). "[A] person is
presumed to intend the immediate, direct, and necessary
consequences of his voluntary act." Nobles, 218 Va. at 551, 238
S.E.2d at 810.
"[W]hether the required intent exists is generally a
question for the trier of fact." Id. "The inferences to be
-4-
drawn from proved facts are within the province of the [trier of
fact], so long as the inferences are reasonable and justified."
Barrett, 210 Va. at 156, 169 S.E.2d at 451. Where, as here, the
Commonwealth relies solely on circumstantial evidence to prove
the intent of the accused, the evidence must exclude every
reasonable hypothesis of innocence. See Coffey v. Commonwealth,
202 Va. 185, 188, 116 S.E.2d 257, 259 (1960).
All necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence. It is not sufficient that the
evidence create a suspicion of guilt, however
strong, or even a probability of guilt, but
must exclude every reasonable hypothesis save
that of guilt.
Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).
The Commonwealth concedes that the doctrine of transferred
intent has no application to the charge of attempted malicious
wounding, the crime at issue in this appeal. Under the common
law doctrine of transferred intent, if an accused attempts to
injure one person and an unintended victim is injured because of
the act, the accused's intent to injure the intended victim is
transferred to the injury of the unintended victim, even though
this wounding was accidental or unintentional. See Long v.
Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989)
(citing Riddick v. Commonwealth, 226 Va. 244, 248, 308 S.E.2d
117, 119 (1983)); see also People v. Scott, 14 Cal.4th 544,
548-51, 927 P.2d 288, 291-92, 59 Cal.Rptr.2d 178, 181-82 (1996)
-5-
(discussing history and purpose of the doctrine of "transferred
intent"); William L. Prosser, Transferred Intent, 45 Tex. L. Rev.
650, 652-53 (1967) (same). Indeed, had appellant missed Acree
and shot Newman, or shot both Acree and Newman, appellant would
have been found guilty of maliciously wounding her, even if he
only intended to wound Acree. However, Newman was not injured
when appellant shot Acree. Because in this case appellant did
not escape criminal liability, neither the express terms of the
doctrine nor its underlying policy dictate that it apply. See
Scott, 14 Cal.4th at 551, 927 P.2d at 292, 59 Cal.Rptr.2d at 182
(stating that policy of doctrine of transferred intent is to
ensure that accused is "subject to the same criminal liability
that would have been imposed had he hit his intended mark"); see
also Harvey v. State, 111 Md. App. 401, 423-24, 681 A.2d 628,
639, cert. denied, 344 Md. 330, 686 A.2d 635 (1996) (citation
omitted) (stating that the doctrine of transferred intent is
inapplicable when there is no harm to the unintended victim).
Thus, the Commonwealth was required to prove that the appellant
specifically intended to wound Newman.
We hold that the evidence was insufficient to support the
trial court's conclusion that appellant specifically intended to
wound Newman when he fired his gun. Although the fact that
appellant fired his gun at Acree while Newman was standing next
to Acree raised a suspicion that appellant also intended to wound
Newman, the other circumstantial evidence regarding appellant's
-6-
state of mind at the time of the shooting indicates that Acree
was his only intended target. Both Acree and appellant testified
that they had developed animus toward each other as a result of
an ongoing conflict between them. The record indicates that this
conflict was the primary impetus for the confrontation on the
highway that led to the shooting. During the conversation that
preceded the shooting, Yancy told Acree, "You don't know who you
messing with; you messing with my cousin." In addition, just
minutes before he shot Acree, appellant stated that Newman was
not the subject of his ire. Newman testified that she asked
appellant if she had "anything to do with what was going on" and
that appellant replied that she "didn't have anything to do with
it." No other evidence established the nature of appellant's
relationship with Newman. Despite Newman's close proximity to
Acree at the time of the shooting, the totality of the
circumstantial evidence regarding appellant's intent failed to
exclude as a reasonable hypothesis the possibility that his sole
purpose when he fired his gun was to shoot Acree.
For the foregoing reasons, we reverse appellant's conviction
of attempted malicious wounding.
Reversed and dismissed.
-7-