COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
DONTAE RENEE HOLTON
MEMORANDUM OPINION * BY
v. Record No. 2369-96-2 JUDGE LARRY G. ELDER
OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Dontae Renee Holton (appellant) appeals her convictions of
attempted capital murder of a police officer and of using a
firearm during the commission of this attempt. She contends that
the evidence was insufficient to sustain her convictions. For
the reasons that follow, we affirm.
I.
FACTS
On February 27, 1996, Detective Ronald Paul McClarin was
working undercover attempting to solicit sexual intercourse for
money in order to make arrests for prostitution. At
approximately 9:45 p.m., he spotted appellant standing on a
street corner and approached her in his car. Following a brief
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
conversation, appellant agreed to have sexual intercourse with
the detective in exchange for twenty dollars.
Appellant entered the detective's car, and he drove to a
nearby field. When they arrived at the field, Detective McClarin
gave appellant twenty dollars and told her to "go ahead and get
ready." Appellant responded by "taking her trousers down."
Detective McClarin reached into his pocket and fumbled around
"looking for a condom." Appellant looked suspiciously at the
detective. Sensing that appellant "was going to bolt," Detective
McClarin pulled out his badge, placed it in front of appellant's
face and said, "Richmond Vice, you're under arrest." Appellant
jumped out of the car, and Detective McClarin pursued her through
the passenger-side door, grabbing his service pistol in the
process. Appellant was a few feet ahead of the detective,
hopping and struggling to pull up her pants, and screaming, "no,
no don't arrest me. Don't arrest me."
While carrying his gun in his left hand, Detective McClarin
grabbed appellant with his right hand and the two "began to
struggle or tussle." Detective McClarin told appellant that he
had a gun and said, "Don't fight, you're under arrest." After he
announced that he was carrying a gun, the nature of the struggle
with appellant changed. Appellant ceased struggling to escape
from the detective and instead "went directly for the gun" in the
detective's hand. Appellant then "interlocked" her hand in the
detective's right hand and "turned the firearm completely around
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and pointed the barrel at [the detective's] stomach." Detective
McClarin felt appellant's finger searching for the finger of his
hand that was on the gun's trigger. Detective McClarin twisted
his right hand so that the pistol pointed away from his
midsection and down toward the ground. "[H]alf a second" later,
appellant found the trigger of the gun with her finger and pulled
it. The gun discharged into the ground, injuring no one.
After a few more minutes of struggling, during which
appellant continued her attempt to gain control of the
detective's pistol, Detective McClarin managed to handcuff and
arrest appellant.
At the conclusion of the Commonwealth's case-in-chief and
again after her case, appellant made a motion to strike. The
trial court denied both motions and convicted her as charged.
II.
SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was insufficient to
prove that she attempted to murder Detective McClarin. She
argues that the evidence failed to support the trial court's
conclusion that she specifically intended to kill the detective
during their struggle. We disagree.
"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
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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)). Code
§ 18.2-31(6) states that the crime of capital murder includes the
"willful, deliberate, and premeditated killing of a
law-enforcement officer . . . for the purpose of interfering with
the performance of his official duties."
"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 Merritt,
164 Va. at 660-61, 180 S.E. at 398-99 (stating that "while 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"). "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
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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
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).
We hold that the evidence was sufficient to prove that
appellant specifically intended to kill Detective McClarin. The
evidence proved that appellant's initial intent was merely to
avoid apprehension by Detective McClarin. After the detective
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displayed his badge and announced to appellant that she was under
arrest, appellant jumped from the detective's car, screamed
"Don't arrest me[,]", and then struggled to elude the detective's
grasp. However, appellant's subsequent conduct established that
she specifically intended to kill the detective. When Detective
McClarin announced to appellant that he had a gun, appellant
lunged for the detective's hand in which the gun was held and
pushed it downward until the barrel of the gun was pointed at the
detective's stomach. Then, while still struggling with Detective
McClarin, appellant began searching for the gun's trigger with
her fingers. When she found the detective's finger that was on
the gun's trigger, she pressed down on it, causing the gun to
discharge. The gun fired a "half a second" after the detective
had twisted it away from his body. Based on this conduct, we
cannot say that the trial court's inference that appellant
specifically intended to kill the detective was either
unreasonable or unjustified.
We disagree with appellant that the evidence failed to
exclude as a reasonable hypothesis the theory that her sole
intent when she pushed the detective's gun downward was to
protect herself from a perceived threat to her physical safety.
Both appellant's knowledge of the detective's identity and the
details of appellant's conduct banish this possibility from the
realm of reasonableness. The record indicates that appellant
knew that the detective was a police officer who was merely
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executing her arrest. Based on this knowledge, appellant had no
reason to believe that the detective posed a threat to her
physical safety if she ceased struggling against him. Moreover,
appellant's conduct after she forced the detective's gun downward
indicates that her intent encompassed more than just
self-defense. Rather then simply pushing the detective's gun
away from her, appellant proceeded to turn the pistol toward
Detective McClarin and then attempt to fire it into his stomach.
In light of appellant's knowledge that she was struggling with a
police officer, the details of her conduct exclude as a
reasonable hypothesis of innocence the possibility that her
intent was limited to either avoiding arrest or defending herself
against a reasonable apprehension of bodily harm.
For the foregoing reasons, we affirm appellant's convictions
of attempted capital murder of a police officer and of using a
firearm during the commission of this attempt.
Affirmed.
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