Herring v. Commonwealth

Present: All the Justices

COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 130989 JUSTICE LEROY F. MILLETTE, JR.
June 5, 2014
TONY MARK HERRING, JR.

TONY MARK HERRING, JR.

v. Record No. 131059

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In these appeals we consider the sufficiency of

assignments of error and whether evidence supported the

defendant's convictions for abduction, attempted murder, and

use of a firearm during the course of an attempted felony.

I. Facts and Proceedings

In December 2010, Tony Mark Herring, Jr., lived with his

wife Heather Renee Herring and their three children in

Greenville, Augusta County, Virginia. Tony's father,

grandfather to the three children, lived with the family.

Although Heather's mother also lived with the Herrings, only

Tony, Heather, the three children, and the grandfather were

present in the house at the time of the incident giving rise to

these appeals.

On December 14, 2010, Heather confronted Tony with her

suspicions of Tony having an affair, which began a lengthy

dispute between Heather and Tony. Although Tony and Heather
initially only engaged in a verbal argument, the dispute

escalated to the point of physical violence and Tony

brandishing two different weapons while verbally threatening

Heather's life.

Based on these events, Tony was indicted for attempted

first degree murder of Heather pursuant to Code §§ 18.2-26 and

18.2-32, abduction of the grandfather and each of Tony's three

children pursuant to Code § 18.2-47, and use of a firearm while

attempting to murder Heather pursuant to Code § 18.2-53.1.

Tony pled not guilty to each of the charges and waived a jury

trial. At the conclusion of the bench trial, the circuit court

found Tony guilty of each offense. After considering a pre-

sentence report, the circuit court sentenced Tony to (1) ten

years for the attempted murder conviction with two years

suspended, (2) five years for each abduction conviction with

all five years of each conviction suspended, and (3) three

years for the use of a firearm conviction.

Tony timely appealed to the Court of Appeals, arguing that

the evidence was insufficient to support his convictions. In

an unpublished opinion, the Court of Appeals affirmed Tony's

convictions for attempted first degree murder of Heather and

use of a firearm during the commission of an attempted felony,

but reversed Tony's convictions for abduction of the

grandfather and Tony's three children. Herring v.

2
Commonwealth, Record No. 1430-12-3 (April 16, 2013). The Court

of Appeals denied both Tony's and the Commonwealth's petitions

for rehearing en banc. Herring v. Commonwealth, Record No.

1430-12-3 (May 29, 2013).

Tony and the Commonwealth timely filed petitions for

appeal with this Court. We combine these appeals, and address

the assignments of error and the arguments of the parties to

the extent they direct us to resolve the following:

1. Should Tony's appeal to the Court of Appeals have
been dismissed under Rule 5A:12(c)(1)(ii), and Tony's
appeal to the Supreme Court of Virginia be dismissed
under Rule 5:17(c)(1)(iii), because Tony's assignment
of error in each court is insufficient?

2. Did the Court of Appeals err in holding that the
evidence was not sufficient to support the circuit
court's judgment in finding Tony guilty of abduction
of the grandfather and Tony's three children?

3. Did the Court of Appeals err in holding that the
evidence was sufficient to support the circuit
court's judgment in finding Tony guilty of attempted
first degree murder of Heather and guilty of use of a
firearm during the commission of that attempted
felony?

II. Discussion

A. Standard of Review

"When reviewing a defendant's challenge to the sufficiency

of the evidence to sustain a conviction, this Court reviews the

evidence in the light most favorable to the Commonwealth, as

the prevailing party at trial, and considers all inferences

fairly deducible from that evidence." Allen v. Commonwealth,

3
287 Va. 68, 72, 752 S.E.2d 856, 858-59 (2014) (alterations

omitted). "The lower court will be reversed only if that

court's judgment is plainly wrong or without evidence to

support it." Id. at 72, 752 S.E.2d at 859 (internal quotation

marks omitted).

"To the extent we interpret a statute or the Rules of the

Supreme Court, these are questions of law that we review de

novo." Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d

309, 311 (2014).

B. Tony's Assignments of Error

The Commonwealth contends that Tony's assignments of error

contain four separate insufficiencies which require us to

reverse the judgment of the Court of Appeals reversing Tony's

abduction convictions, and to dismiss Tony's appeal to this

Court.

1. Tony's Assignment of Error in the Court of Appeals as Set
Forth in Tony's Petition for Appeal to the Court of Appeals

The Court of Appeals held that Tony's assignment of error

was sufficient to invoke its appellate jurisdiction. Rule

5A:12(c)(1)(ii) governs the sufficiency of assignments of error

in the Court of Appeals. That Rule provides that "[a]n

assignment of error which does not address the findings or

rulings in the trial court . . . , or which merely states that

the judgment or award is contrary to the law and the

4
evidence[,] is not sufficient." Rule 5A:12(c)(1)(ii). Tony's

single assignment of error in his petition for appeal to the

Court of Appeals reads:

1. The trial court erred by failing to grant the
defendant[']s motion to strike the Commonwealth's
evidence as being insufficient as a matter of law to
sustain his convictions for attempted murder,
abduction[,] and the use of a firearm in the
commission of a felony.

a. The Assignment of Error Addresses the Circuit Court's
Findings or Rulings

The Commonwealth argues that this assignment of error is

insufficient because it "does not address the findings or

rulings in the trial court" because Tony never made a motion to

strike the evidence. Rule 5A:12(c)(1)(ii).

"In the context of a bench trial, we have previously

recognized that a challenge to the sufficiency of [the]

evidence may be preserved for appeal when made in closing

argument." Preferred Sys. Solutions, Inc. v. GP Consulting,

LLC, 284 Va. 382, 394-95, 732 S.E.2d 676, 682-83 (2012); see

also Little v. Cooke, 274 Va. 697, 718, 652 S.E.2d 129, 141-42

(2007). Tony waived his right to a jury and was tried in a

bench trial. During closing argument, Tony's counsel asserted

that the Commonwealth's evidence was insufficient to find that

Tony was guilty beyond a reasonable doubt, and specifically

moved to strike the Commonwealth's case:

5
 I would make that . . . motion to strike the
Commonwealth's case with respect to the attempted
murder charge as well as all of the abduction
charges. With respect to the firearm charge in the
commission of a felony, I would say that fails as
well, Judge.

(Emphasis added.) It is clear that this was a motion to strike

the Commonwealth's evidence made during closing argument in a

bench trial, which sufficiently preserved Tony's insufficiency

of the evidence argument. Thus, Tony's assignment of error in

the Court of Appeals did address the findings or rulings in the

trial court.

b. The Assignment of Error Does Not Merely State that the
Judgment Is Contrary to the Law and the Evidence

The Commonwealth argues that this assignment of error is

insufficient because it "merely states that the judgment is

contrary to the law and the evidence." Rule 5A:12(c)(1)(ii).

We find the holding in Findlay v. Commonwealth, 287 Va.

111, 752 S.E.2d 868 (2014), to be dispositive of this issue.

In that case, we addressed whether the appellant's single

assignment of error in the Court of Appeals was sufficient

under Rule 5A:12(c)(1)(ii). Id. at 113-15, 752 S.E.2d at 870-

71. We held that the single assignment of error challenging

"the trial court's denial of [the appellant's] Motion to

Suppress all of the seized videos" was not insufficient because

it did not "merely allege that [the appellant's] convictions

are contrary to the law" nor did it "state generally that the

6
evidence is insufficient." Id. at 113, 116, 752 S.E.2d at 870-

71. Instead, we recognized that the assignment of error

"points to a specific . . . ruling of the trial court . . .

that [the appellant] believes to be in error." Id. at 116, 752

S.E.2d at 871. In confirming the sufficiency of the assignment

of error, we said that "[s]uch specificity adequately puts the

court and opposing counsel on notice" regarding what alleged

errors the appellant sought to have reversed, and thus

prevented both the court and opposing counsel from having to

search through the entire record. Id. (citing First Nat'l Bank

of Richmond v. William R. Trigg Co., 106 Va. 327, 341, 56 S.E.

158, 163 (1907)).

Similarly, Tony's assignment of error in the Court of

Appeals points to the circuit court's specific ruling that Tony

believes to be in error: the court's failure to grant Tony's

motion to strike. Moreover, this assignment of error connects

that alleged error to Tony's claim that the Commonwealth failed

to prove the elements of specific convictions. Tony's

assignment of error in the Court of Appeals therefore does not

"merely state[] that the judgment or award is contrary to the

law and the evidence." Rule 5A:12(c)(1)(ii). Tony instead

satisfies the plain language of Rule 5A:12(c)(1)(ii) by

"lay[ing] his finger on the error in his assignment of error."

7
Findlay, 287 Va. at 115, 752 S.E.2d at 871 (internal quotation

marks and alteration omitted).

Seeking to distinguish Findlay, the Commonwealth observes

that this case involves an insufficiency of the evidence claim

rather than a challenge to the suppression of evidence, and is

therefore directly addressed by the plain language of Rule

5A:12(c)(1)(ii). When it comes to insufficiency of the

evidence claims, the Commonwealth argues that appellants should

be required to provide greater substance than what Findlay

outlined for an assignment of error to be sufficient.

The plain language of Rule 5A:12(c)(1)(ii) makes clear

that its terms govern the sufficiency of all assignments of

error in the Court of Appeals. We have already explained why

Tony's assignment of error was not an impermissibly generalized

statement that the evidence was insufficient. Requiring more

would be tantamount to demanding that appellants include a

"because" clause or its equivalent in their assignments of

error to explain why it was error for the trial court to take

the action that it did. We rejected that proposition in the

past, and we reject it again today. See id. at 116, 752 S.E.2d

at 871-72.

The Court of Appeals correctly held that this assignment

of error was sufficient under Rule 5A:12(c)(1)(ii).

8
 2. Tony's Assignment of Error in This Court as Set Forth in
Tony's Petition for Appeal to This Court

Rule 5:17(c)(1)(iii) governs the sufficiency of

assignments of error in the Supreme Court of Virginia. That

Rule provides that "[a]n assignment of error that does not

address the findings or rulings in the trial court or other

tribunal from which an appeal is taken, or which merely states

that the judgment or award is contrary to the law and the

evidence, is not sufficient." Rule 5:17(c)(1)(iii). Tony's

single assignment of error in his petition for appeal to this

Court reads:

1. The Court of Appeal[s] erroneously held that the
trial court had not erred when it failed to grant
Defendant[']s motion to strike the Commonwealth's
evidence as being insufficient as a matter of law to
prove that the Defendant formed a specific intent to
commit malicious premeditated murder and that
subsequently he performed a direct yet ineffectual
act toward the commission of that crime, and that
therefore the defendant used a firearm in the
commission of a felony.

The Commonwealth argues that this assignment of error is

insufficient because it is different than the assignment of

error contained in Tony's petition for appeal to the Court of

Appeals. Rule 5:17(c)(1)(iii) does not prohibit such an

alteration, and we have never held that such an alteration can

make insufficient an otherwise sufficient assignment of error

in this Court. In fact, Rule 5:17(c)(1)(ii), which addresses

appeals from the Court of Appeals to this Court, requires that

9
a petition for appeal to this Court assign error "to

assignments of error presented in, and to actions taken by, the

Court of Appeals." Similarly, Rule 5:17(c)(1)(iii) requires

that an assignment of error in this Court "address the findings

or rulings in the . . . tribunal from which an appeal is

taken." Therefore, at a minimum, an assignment of error in

this Court will vary from an assignment of error in the Court

of Appeals because the petition for appeal to this Court

assigns error to what occurred in the Court of Appeals. 1

The Commonwealth cites our prohibition against allowing

appellants to alter the substance of an assignment of error, as

stated in the appellant's petition for appeal to this Court,

once this Court grants such an assignment of error. See, e.g.,

White v. Commonwealth, 267 Va. 96, 102-03, 591 S.E.2d 662, 665-

66 (2004); Santen v. Tuthill, 265 Va. 492, 497 n.4, 578 S.E.2d

788, 791 n.4 (2003); Cardinal Holding Co. v. Deal, 258 Va. 623,

1
On May 16, 2014, this Court adopted amendments to Rule
5:17(c). These amendments did not alter the Rule language
quoted in this opinion. However, we note that Rule 5:17(c) now
includes the following additional language:

An assignment of error in an appeal from the Court of
Appeals to the Supreme Court which recites that "the
trial court erred" and specifies the errors in the
trial court, will be sufficient so long as the Court
of Appeals ruled upon the specific merits of the
alleged trial court error and the error assigned in
this Court is identical to that assigned in the Court
of Appeals.

Rule 5:17(c)(1)(iii).

10
629, 522 S.E.2d 614, 617-18 (1999); Black v. Eagle, 248 Va. 48,

57-58, 445 S.E.2d 662, 667 (1994); Hamilton Dev. Co. v. Broad

Rock Club, Inc., 248 Va. 40, 43-44, 445 S.E.2d 140, 142-43

(1994). We continue to embrace the rule as set forth and

exemplified in these cases that, once this Court grants an

assignment of error in a petition for appeal, no party may

thereafter alter the substance of that assignment of error

without the permission of this Court – be it in a brief or at

oral argument.

However, this rule cannot be interpreted to prohibit a

petitioner from drafting a different assignment of error in a

petition for appeal to this Court than that which was stated in

the petition for appeal to the Court of Appeals. The rule

against altering assignments of error is predicated on the fact

that we award appeals "based on assignments of error, a

required part of every petition for appeal" to this Court under

Rule 5:17(c)(1). Hamilton Dev., 248 Va. at 44, 445 S.E.2d at

143. We do not award appeals based on the assignments of error

that are a required part of every petition for appeal to the

Court of Appeals under Rule 5A:12(c)(1). Thus, it is not a

basis for dismissal under Rule 5:17(c)(1) when an assignment of

error in the petition for appeal to this Court merely differs

from an assignment of error in the petition for appeal to the

Court of Appeals.

11
 Instead, we will continue to assess the sufficiency of

assignments of error in this Court under the plain terms of

Rule 5:17(c)(1)(iii), just as we assess the sufficiency of

assignments of error in the Court of Appeals under the plain

terms of Rule 5A:12(c)(1)(ii). As the Commonwealth does not

otherwise argue that Tony's assignment of error in his petition

for appeal to this Court is insufficient under Rule

5:17(c)(1)(iii), there is no merit to the Commonwealth's

argument that this assignment of error is insufficient.

3. Tony's Assignment of Error in This Court as Set Forth in
Tony's Opening Brief to This Court

Tony's single assignment of error in his opening brief to

this Court reads:

1. The trial court erred when it failed to grant
Defendant's Motion to Strike the Commonwealth's
evidence as being insufficient as a matter of law to
prove that the Defendant formed a specific intent to
commit malicious premeditated murder and that
subsequently he performed a direct yet ineffectual
act toward the commission of that crime, and that
therefore the Defendant used a firearm in the
commission of a felony.

The Commonwealth argues that this assignment of error is

insufficient because it assigns error to the trial court

instead of to the "tribunal from which [the] appeal is taken,"

that is, to the Court of Appeals. Rule 5:17(c)(1)(iii). The

Commonwealth also argues that, because this assignment of error

is different from the assignment of error as stated in Tony's

12
petition for appeal to this Court, it creates an "uncertainty"

that "disentitles" Tony to relief.

As we have just reaffirmed, once we grant an assignment of

error as stated in a petition for appeal to this Court, if a

material alteration of that assignment of error is made in

subsequent filings or at oral argument without this Court's

permission, then that alteration is impermissible. See, e.g.,

White, 267 Va. at 102-03, 591 S.E.2d at 665-66; Santen, 265 Va.

at 497 n.4, 578 S.E.2d at 791 n.4; Cardinal Holding, 258 Va. at

629, 522 S.E.2d at 617-18; Black, 248 Va. at 57-58, 445 S.E.2d

at 667; Hamilton Dev., 248 Va. at 43-44, 445 S.E.2d at 142-43.

That rule applies regardless of whether the post-grant

alteration would be either a benefit or a detriment to the

appellant. Simply put, we do not recognize any unauthorized

substantive alteration to the assignment of error in the

petition for appeal which was the basis of this Court's order

granting the appeal. 2 See Hamilton Dev., 248 Va. at 44, 445

S.E.2d at 143. Moreover, because Tony's alteration of the

2
We have previously held that, "while it is improper for
an appellant to alter the wording of a granted assignment of
error[,] non-substantive changes to an assignment of error do
not default the issue raised." Northam v. Virginia State Bar,
285 Va. 429, 434 n.*, 737 S.E.2d 905, 907 n.* (2013) (internal
quotation marks and alterations omitted). This is because non-
substantive alterations "do not permit the appellant to argue a
different issue on appeal," and thus "we may properly consider
[such] modified assignments of error." Id.; see, e.g., Hudson
v. Pillow, 261 Va. 296, 301-02, 541 S.E.2d 556, 560 (2001).

13
assignment of error is without effect, there is no uncertainty

as to what the assignment of error is: it is the assignment of

error as set forth in Tony's petition for appeal to this Court

that formed the basis for this appeal.

Tony's appeal to this Court will not be dismissed based on

the Commonwealth's challenge to Tony's ineffective modification

of the assignment of error subsequent to the granting of his

appeal.

C. Tony's Convictions for Abduction

1. Whether the Issue of Intent Was Preserved

Rule 5A:18 governs the preservation of issues for

appellate review in the Court of Appeals, and Rule 5:25 is its

counterpart for the preservation of issues for appellate review

in this Court. Those Rules provide that "[n]o ruling of the

trial court . . . will be considered as a basis for reversal

unless an objection was stated with reasonable certainty at the

time of the ruling." Rule 5A:18; 5:25.

The Commonwealth argues that Tony failed to preserve the

issue of whether the evidence was sufficient to support the

intent element of his abduction convictions because Tony's

counsel, in closing argument, never challenged the sufficiency

of the evidence to prove Tony's intent to deprive the

grandfather and Tony's three children of their personal

liberty.

14
 During closing argument, Tony's counsel stated:

I would make that . . . motion to strike the
Commonwealth's case with respect to . . . all of the
abduction charges. . . . I don't think that the
Commonwealth has proved that [Tony] had any specific
intent based on the two witnesses who were there,
that he had any intent to kill anybody, and that he
did not . . . abduct anybody according to the
statute.

When Tony's counsel challenged the Commonwealth's evidence

by making a motion to strike, Tony's counsel argued that the

evidence was insufficient to prove abduction "according to the

statute," and therefore challenged all of the elements of the

statute. Cf. Washington v. Commonwealth, 216 Va. 185, 192, 217

S.E.2d 815, 822 (1975) (holding that a defendant knows, "from

the invocation of the statute and its subsection, [of] the

essential elements of the case against him"). The statute in

question is Code § 18.2-47(A), which sets forth the elements

the Commonwealth must prove beyond a reasonable doubt to

convict a defendant of abduction, and which includes, among

other elements, the element of intent. By arguing that the

abduction statute in its entirety was not satisfied, Tony's

counsel preserved his challenge to the sufficiency of the

evidence as to every statutory element of abduction, including

intent to deprive the victims of their personal liberty.

15
 2. Whether the Evidence Was Sufficient to Support Tony's
Abduction Convictions

A person is guilty of abduction if, "by force,

intimidation[,] or deception, and without legal justification

or excuse, [he or she] seizes, takes, transports, detains[,] or

secretes another person with the intent to deprive such other

person of his personal liberty or to withhold or conceal him

from any person, authority[,] or institution lawfully entitled

to his charge." Code § 18.2-47(A). The Court of Appeals held

that although the evidence was sufficient to satisfy the

element that the grandfather and Tony's three children were

"detain[ed]" by "intimidation," the evidence was insufficient

to satisfy the element that Tony had the "intent to deprive

such other person[s] of [their] personal liberty."

On appeal before this Court, the Commonwealth disputes the

insufficiency of the evidence to support the elements of

detention by intimidation and intent to detain. 3 We address

3
The plain language of Code § 18.2-47(A) does not provide
a general exemption for parents from being charged with
abduction of their children. Taylor v. Commonwealth, 260 Va.
683, 688, 537 S.E.2d 592, 594-95 (2000). In contrast to the
facts considered in Taylor, however, in this case Tony was a
father who, with full parental rights over his three children,
"detain[ed]" his children simply by keeping them within the
house in which they lived with their father and mother.
Compare id. at 685-87, 537 S.E.2d at 593-94. Because no party
has argued the issue, we decline to address whether the facts
of this case provide any support for a claim that the father
had a "legal justification or excuse" to "detain[]" his
children, under the exemption language of Code § 18.2-47(A).

16
both elements and find that, when the evidence is viewed in the

light most favorable to the Commonwealth, the circuit court's

judgment in convicting Tony of abducting the grandfather and

Tony's three children was not "without evidence to support it."

Allen, 287 Va. at 72, 752 S.E.2d at 859 (internal quotation

marks omitted). Therefore, we will reverse the Court of

Appeals' judgment as to the abduction convictions, and direct

that the circuit court's judgment be affirmed.

a. The Evidence Was Sufficient to Prove Detention by
Intimidation

For purposes of Code § 18.2-47(A), a defendant "detains" a

victim by having that victim "remain in a certain location, or

even in a certain position" through the use of force,

intimidation, or deception. Burton v. Commonwealth, 281 Va.

622, 628, 708 S.E.2d 892, 895 (2011). For purposes of Code

§ 18.2-47(A), it is possible to "detain[]" a victim by having

that victim remain within a house. See, e.g., Joyce v.

Commonwealth, 210 Va. 272, 274, 170 S.E.2d 9, 11 (1969)

(discussing the predecessor to Code § 18.2-47(A)).

In this case, the evidence was sufficient to prove that

Tony used intimidation to force the grandfather and Tony's

three children to remain in the home. Tony had a heated verbal

argument with Heather, leading to Tony physically abusing and

threatening to kill Heather. Thereafter, Tony armed himself

17
with a shotgun and another firearm. After Heather fled the

house, Tony threatened "I will [expletive] kill you Heather

Renee," and fired the shotgun outside. Once back inside, Tony

paced throughout the home while still armed. Tony also

threatened to kill the police, the grandfather, and Tony's

children. During Tony's rampage, Tony's daughters hid in the

laundry room until their grandfather put them in his bedroom

with their brother and locked the door. After the grandfather

struck Tony in order to distract him, the grandfather hustled

the children out of the house and out of harm's way, telling

them to go to his truck in the front yard and to lie on the

floorboard.

Viewed in the light most favorable to the Commonwealth,

this evidence supported the circuit court's judgment that Tony

detained the grandfather and Tony's three children through

intimidation as required under Code § 18.2-47(A).

b. The Evidence Was Sufficient to Prove Intent

"Intent is the purpose formed in a person's mind and may,

like any other fact, be shown by circumstances." Howard v.

Commonwealth, 207 Va. 222, 228, 148 S.E.2d 800, 804 (1966).

"Intent is a state of mind which can be evidenced only by the

words or conduct of the person who is claimed to have

entertained it." Burkeen v. Commonwealth, 286 Va. 255, 259,

749 S.E.2d 172, 175 (2013) (internal quotation marks omitted).

18
 We reject the Commonwealth's argument that simply because

the grandfather and children were detained, and because a

person can be presumed to intend the natural and probable

consequences of his actions, the intent element is therefore

satisfied. The General Assembly saw fit to include both a

detention and a specific intent element in Code § 18.2-47(A),

and we will give effect to each statutory element rather than

allow part of the statute to become mere surplusage. BBF, Inc.

v. Alstom Power, Inc., 274 Va. 326, 331, 645 S.E.2d 467, 469

(2007) ("[W]e are not free . . . to ignore language[] contained

in statutes." (internal quotation marks omitted)); see also

Travelers Prop. Cas. Co. of Am. v. Ely, 276 Va. 339, 345, 666

S.E.2d 523, 527 (2008) (noting the "settled rule in this

Commonwealth that every provision in or part of a statute shall

be given effect if possible"). Thus, we have previously

refused to conflate these two elements, and instead continue to

recognize that "although proof of either element may be used to

establish the other, the evidence presented must establish both

elements beyond a reasonable doubt." Burton, 281 Va. at 628,

708 S.E.2d at 895.

In contrast with the facts in Burton, the evidence in this

case was independently sufficient to prove that Tony intended

to detain the grandfather and Tony's three children. In

concluding that Tony intended to detain the grandfather and

19
Tony's three children by force or intimidation, the circuit

court relied upon the evidence establishing that Tony was

walking around the house with a shotgun which had already been

discharged, that Tony had another firearm either on or near his

person, that Tony had told at least one of his daughters that

he was going to shoot her, her sister, her brother, her

grandfather, and himself, and that Tony declared to the

grandfather that he was "going to have to shoot you" as the

grandfather was leaving the home. In recounting these facts,

the circuit court found "what [it] need[ed] to know about what

[Herring's] intent was with respect to keeping them there [in

the house]." And from these facts, the court "infer[red] that

[Herring] intended those people not to leave." We must "defer

to the[se] findings of fact made by [the] trial judge at [the]

bench trial [because] there is evidence to support" those

findings and they are not plainly wrong. Sullivan v.

Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010); see

also Mongold v. Woods, 278 Va. 196, 204, 677 S.E.2d 288, 293

(2009) ("We will defer to the circuit court's determination of

the facts unless unsupported by evidence or plainly wrong

because an appellate court lacks the fact-finder's ability to

hear and see the witnesses and assess their credibility.").

Viewed in the light most favorable to the Commonwealth,

this evidence supported the circuit court's judgment that Tony

20
intended to deprive the grandfather and Tony's three children

of their personal liberty as required under Code § 18.2-47(A).

D. Tony's Conviction for Attempted First Degree Murder

"An attempt in criminal law is an apparent unfinished

crime, and hence [contains] two elements[:] (1) [t]he intent to

commit a crime[,] and (2) [an overt] act done towards its

commission, but falling short of the execution of the ultimate

design." Sizemore v. Commonwealth, 218 Va. 980, 983, 243

S.E.2d 212, 214 (1978) (quoting Glover v. Commonwealth, 86 Va.

382, 385-86, 10 S.E. 420, 421 (1889)). The overt act "need not

. . . be the last proximate act to the consummation of the

crime in contemplation, but is sufficient if it be an act

apparently adopted to produce the result intended." Id. The

Court of Appeals held that the evidence was sufficient to

support both the element that Tony intended to commit first

degree murder of Heather, and the element that Tony committed

an overt act in furtherance of that crime.

On appeal before this Court, Tony disputes the sufficiency

of the evidence to support the elements of intent and an overt

act. We address both elements and find that, when the evidence

is viewed in the light most favorable to the Commonwealth, the

circuit court's judgment in convicting Tony of attempted first

degree murder of Heather was not "without evidence to support

it." Allen, 287 Va. at 72, 752 S.E.2d at 859 (internal

21
quotation marks omitted). Therefore, we will affirm the Court

of Appeals' judgment as to the attempted murder conviction,

which itself affirmed the circuit court's judgment.

1. The Evidence Was Sufficient to Prove Intent

First degree murder is "[m]urder, other than capital

murder, by poison, lying in wait, imprisonment, starving, or by

any willful, deliberate, and premeditated killing, or in the

commission of, or attempt to commit, arson, rape, forcible

sodomy, inanimate or animate object sexual penetration,

robbery, burglary or abduction, except as provided in [Code]

§ 18.2-31." Code § 18.2-32. In the context of attempted

murder, the evidence must show "specific intent to kill the

victim." Hargrave v. Commonwealth, 214 Va. 436, 437, 201

S.E.2d 597, 598 (1974).

In this case, the evidence was sufficient to show Tony's

specific intent to kill Heather. Tony and Heather had a

lengthy verbal argument. During this dispute, Tony pushed,

choked, and physically struck Heather. Tony armed himself with

a shotgun and, after Heather had escaped outside, stood on the

front porch and yelled a clear threat: "I will [expletive] kill

you Heather Renee." Although the grandfather could not say

that Tony was aiming at Heather before the shotgun was fired,

the grandfather was sufficiently concerned as to the safety of

22
the family that he pushed the shotgun upwards so that the

shotgun would discharge harmlessly in the air.

Viewed in the light most favorable to the Commonwealth,

this evidence supported the circuit court's judgment that Tony

intended to kill Heather.

2. The Evidence Was Sufficient to Prove an Overt Act

"An attempt [is] any overt act done with the intent to

commit the crime, and which, except for the interference of

some cause preventing the carrying out of the intent, would

have resulted in the commission of the crime." Howard, 207 Va.

at 228, 148 S.E.2d at 804 (internal quotation marks and

citation omitted). We have long rejected the position that the

overt act can only be the "last proximate act to the

consummation of the crime in contemplation." Glover, 86 Va. at

385-86, 10 S.E. at 421. Instead, an overt act is any "act

apparently adopted to produce the result intended" so long as

that act is not "mere preparation." Martin v. Commonwealth,

195 Va. 1107, 1110-11, 81 S.E.2d 574, 576 (1954).

In this case, the evidence was sufficient to show that

Tony entertained the specific intent to kill Heather and that

Tony committed overt acts adopted to produce that intended

result that went beyond mere acts of preparation. Tony armed

himself with a shotgun, followed his intended victim outside to

the front yard, and stood on the front porch while the gun

23
"veer[ed] around" without aiming at any particular target.

Tony ceased his pursuit of Heather only after the grandfather

pushed the shotgun upwards, causing the shotgun to discharge

harmlessly into the air. These actions fall short of the last

proximate act of Tony using the shotgun to kill Heather. See

Sizemore, 218 Va. at 986, 243 S.E.2d at 216. But the last

proximate act is not required to prove an overt act. Instead,

we hold that Tony committed an overt act because his actions

were more than mere preparation, and those actions were adopted

to produce the intended result of killing Heather. Compare id.

at 986, 243 S.E.2d at 215-16.

Viewed in the light most favorable to the Commonwealth,

this evidence supported the circuit court's judgment that Tony

committed an overt act while he had the specific intent to kill

Heather.

E. Tony's Conviction for Use of a Firearm During the
Commission of an Attempted Felony

It is "unlawful for any person to use . . . any pistol,

shotgun, rifle, or other firearm or display such weapon in a

threatening manner while committing or attempting to commit

[various enumerated felonies, including] murder." Code § 18.2-

53.1. The parties agree that the sufficiency of the evidence

supporting Tony's conviction under Code § 18.2-53.1 rises or

24
falls with Tony's challenge to the sufficiency of the evidence

supporting his attempted first degree murder conviction.

The evidence that supported Tony's conviction of attempted

first degree murder also supported the circuit court's judgment

that Tony was guilty of use of a firearm while attempting to

murder Heather.

III. Conclusion

For the aforementioned reasons, we will reverse that

portion of the Court of Appeals' judgment reversing Tony's

convictions for abduction of the grandfather and Tony's three

children, and reinstate the circuit court's judgment as to

those abduction convictions. We will also affirm that portion

of the Court of Appeals' judgment upholding Tony's convictions

for attempted first degree murder of Heather and use of a

firearm during the commission of an attempted felony.

Record 130989 – Affirmed in part,
reversed in part,
and final judgment.

Record 131059 – Affirmed.

JUSTICE POWELL, with whom JUSTICE McCLANAHAN joins, concurring
in part and dissenting in part.

I concur in the judgments of the Court, which uphold all

of the defendant’s convictions. As explained below, however, I

disagree with the majority’s analysis in reaching these

25
judgments because the defendant’s assignment of error in the

Court of Appeals was deficient and, therefore, the Court of

Appeals did not have jurisdiction to decide the appeal. As a

result, there was no basis for its reversal of the convictions

for abduction of the defendant’s father and his three children,

and I would reverse the decision of the Court of Appeals in the

Commonwealth’s appeal, Record No. 130989, on the basis that the

Court of Appeals had no power to act. See Findlay v.

Commonwealth, 287 Va. 111, 115 n.2, 752 S.E.2d 868, 871 n.2

(2014) (recognizing that a litigant’s failure to comply with

the requirements of Rule 5A:12(c) deprives the Court of Appeals

of active jurisdiction and requires dismissal of an appeal). I

also would not reach the defendant’s assignment of error in

Record No. 131059 for the same reason, and thus, I concur in

the judgment of this Court in that appeal confirming the

convictions reached in the trial of this case.

The majority believes that Findlay controls these appeals

and that Tony’s assignment of error to the Court of Appeals

does not violate Rule 5A:12(c)(1)(ii). However, I believe that

Tony’s assignment of error is exactly the kind of assignment of

error that Rule 5A:12(c)(1)(ii) prohibits. Therefore, although

I agree with the majority that Tony sufficiently preserved his

argument for appeal through his motion to strike the

Commonwealth’s evidence made during his closing argument in a

26
bench trial, for the following reasons, I would vacate the

Court of Appeals’ decision for want of active jurisdiction and

dismiss these appeals.

In Findlay, the petitioner/appellant assigned error to

“the trial court’s denial of his Motion to Suppress all of the

seized videos that came from the defendant's computer, and his

computer hard drive, and all derivatives thereof.” Id. at 113,

752 S.E.2d at 870. We held that that assignment of error was

sufficient because it did not “merely allege that his

convictions are contrary to the law” nor did he “state

generally that the evidence is insufficient.” Id. at 116, 752

S.E.2d at 871. Indeed, this Court held that Findlay “point[ed]

to a specific preliminary ruling of the trial court — the trial

court's denial of his motion to suppress — that he believe[d]

to be in error” and, therefore, “[s]uch specificity adequately

puts the court and opposing counsel on notice as to ‘what

points [appellant]’s counsel intends to [rely upon in asking

for] a reversal of the judgment or decree’ and prevents them

from having to ‘hunt through the record for every conceivable

error which the court below may have committed.’”. Id.

(quoting First Nat’l Bank of Richmond v. William R. Trigg Co.,

106 Va. 327, 341, 56 S.E. 158, 163 (1907)).

Here, Tony’s assignment of error was

27
 [t]he trial court erred by failing to grant
the defendant[’]s motion to strike the
Commonwealth’s evidence as being
insufficient as a matter of law to sustain
his convictions for attempted murder,
abduction and use of a firearm in the
commission of a felony.

Rule 5A:12(c)(1)(ii) states that

[a]n assignment of error which does not
address the findings or rulings in the
trial court or other tribunal from which an
appeal is taken, or which merely states
that the judgment or award is contrary to
the law and the evidence is not sufficient.
If the assignments of error are
insufficient or otherwise fail to comply
with the requirements of this Rule, the
petition for appeal shall be dismissed.

I believe that Tony’s assignment of error is tantamount to one

which merely states that the “award is contrary to the law and

the evidence.”

The purpose of assignments of error is
to point out the errors with reasonable
certainty in order to direct this court and
opposing counsel to the points on which
[an] appellant intends to ask a reversal of
the judgment, and to limit discussion to
these points. Without such assignments,
[an] appellee would be unable to prepare an
effective brief in opposition to the
granting of an appeal, to determine the
material portions of the record to
designate for printing, to assure himself
of the correctness of the record while it
is in the clerk’s office, or to file, in
civil cases, assignments of cross-error.
Harlow v. Commonwealth, 195 Va. 269, 271-
72, 77 S.E.2d 851, 853 (1953).

Yeatts v. Murray, 249 Va. 285, 290, 455 S.E.2d 18, 21 (1995).

28
 “To require the appellee or the court to
hunt through the record for every
conceivable error which the court below may
have committed, when none has been pointed
out by the party complaining of the
judgment, would obviously be unreasonable
and oppressive on the party recovering
judgment, and most burdensome on this
court, unnecessarily impeding the progress
of its business; and, by the confusion and
uncertainty which it would beget as to the
questions on which the case was decided in
the court below, destroy its character as
an appellate tribunal; and by the
multiplicity of the questions for
discussion tend much more to confusion and
error in its own decisions than the
correction of errors which may in fact have
occurred in the [lower court].”

First Nat’l Bank, 106 Va. at 341-42, 56 S.E. at 163 (quoting

Clements v. Hearne, 45 Tex. 415, 416 (1876)).

Consequently, it is the duty of an
appellant’s counsel “to ‘lay his finger on
the error’ in his [assignment of error],”
Carroll v. Commonwealth, 280 Va. 641, 649,
701 S.E.2d 414, 418 (2010) (quoting First
Nat’l Bank, 106 Va. [at] 342, 56 S.E. [at]
163), and not to invite an appellate court
“to delve into the record and winnow the
chaff from the wheat.” Loughran v.
Kincheloe, 160 Va. 292, 298, 168 S.E. 362,
364 (1933).

Findlay, 287 Va. at 115-16, 752 S.E.2d at 871.

In Yeatts, the assignment of error “merely state[d] that

the habeas court erred by dismissing the petition ‘without

ordering an evidentiary hearing as to his allegations of

ineffective assistance of counsel.’” Yeatts, 249 Va. at 290-

29
91, 455 S.E.2d at 21-22. We held that this assignment of error

was insufficient because it “only challenge[d] the alleged

procedural failure to order an evidentiary hearing; it [did]

not challenge, with reasonable certainty, the habeas court's

substantive ruling on the merits of the ineffective assistance

claims.” Id. at 291, 455 S.E.2d at 22. In Harlow v.

Commonwealth, 195 Va. 269, 270, 77 S.E.2d 851, 852 (1953), the

petitioner/appellant assigned the following errors:

1. Because the trial court erred in giving
to the jury in writing, improper
instructions in the instance of and on
motion of the Commonwealth. 2. The trial
court erred in refusing to give to the jury
proper instructions offered and requested
by the Defendant, in writing, over the
objections and exceptions of the Defendant.

We held that the assignments of error did “not point out the

errors relied on nor do they identify the instructions which

allegedly were erroneously given and refused. In this

situation[,] the assignments of error are insufficient.” Id.

at 272-73, 77 S.E.2d at 853. I believe that Tony’s assignment

of error is not unlike the assignments of error in Yeatts and

Harlow.

In my opinion, Tony’s assignment of error is even more

nebulous than the above assignments of error, or even the

assignment of error in Findlay, which this Court held supplied

sufficient specificity because it alleged that the trial court

30
erred in denying his motion to suppress – a motion containing

limited arguments rather than the entirety of the trial. In

sharp contrast, Tony’s assignment of error attacks the

sufficiency of each charge brought against him, inviting,

indeed requiring, this Court to examine the entire record for

sufficient facts supporting every element of each offense. As

such, his assignment of error suffers the very flaw addressed

in Findlay, where this Court stated that an assignment of error

that generally stated that the evidence was insufficient would

not comport with the requirements of Rule 5A:12(c)(1)(ii). 287

Va. at 116, 752 S.E.2d at 871. By holding that Tony’s

assignment of error to the Court of Appeals is sufficient, the

majority effectively eviscerates Rule 5A:12(c)(1)(ii) and Rule

5:17(c)(1)(iii), the only requirement the Court continued to

recognize in Findlay. Indeed, it is now difficult to envision

an assignment of error that would be deemed insufficient under

the majority’s reasoning.

Recognizing that the purpose of an assignment of error is

to place the opposing party and the Court on notice, with

reasonable certainty, of the points on which the

petitioner/appellant will seek reversal, the majority attempts

to couple Tony’s inadequate assignment of error with the

argument made in the trial court. However, to the extent that

Tony’s motion to strike is itself a shotgun approach attacking

31
each element of each charge, it is insufficient to “lay his

finger on the error” as contemplated under Findlay. 287 Va. at

115, 752 S.E.2d at 871. Moreover, the fact that Tony’s counsel

challenged the offenses during his argument does not save his

assignment of error as we have never held that an insufficient

assignment of error could be saved even by a perfectly

preserved argument. The two are independent requirements for

appeal. See Rule 5A:12(c) (establishing the requirements for a

petition for appeal) and Rule 5A:18 (defining what rulings of

the trial court may serve as a basis for reversal). Therefore,

I believe that Tony’s assignment of error is insufficient and I

would dismiss his appeal.

32