Shelton Orell Carter, s/k/a Sheldon Carter v. CW ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia
SHELTON ORELL CARTER, S/K/A
SHELDON CARTER
MEMORANDUM OPINION * BY
v. Record No. 0061-99-1 JUDGE RICHARD S. BRAY
MAY 9, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Sheldon Carter (defendant) was convicted in a bench trial of
attempted capital murder. On appeal, he challenges the
sufficiency of the evidence to prove the requisite intent to kill.
Finding no error, we affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
The credibility of the witnesses, the weight accorded testimony,
and the inferences drawn from the proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989). The judgment of the
trial court will not be disturbed unless plainly wrong or
unsupported by evidence. See Code § 8.01-680.
I.
At approximately 1:00 a.m. on March 12, 1998, Portsmouth
Deputy Sheriff R.J. Jones, while operating his personal vehicle,
was exiting Interstate 264 at Portsmouth Boulevard, when a "red
Honda" "came up in front of [his] vehicle and veered off, almost
clipping [Jones'] front left bumper." Jones followed as the car
traveled in the left lane, adjacent to a grassy median, finally
stopping at a traffic signal. Jones then angled his vehicle in
front of the Honda, exited and approached the car. Dressed in
full uniform with badge displayed, Jones identified himself to the
driver, defendant, inquired "if he was all right," and requested
license and registration.
While Jones was engaged with defendant, a marked Portsmouth
police vehicle, operated by Officer Roland John Pollack, "pulled
up . . . with lights on" and "parked approximately ten to fifteen
feet . . . back of the Honda." Defendant then shifted the car
into reverse, looked "directly" at Pollack and "came flying back,"
hitting "the push bumpers" of the police vehicle. Defendant
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immediately "revved up [the] engine again, went forward" at "ten
or fifteen [miles per hour]" and "took a sharp left towards"
Jones, then standing to the left and front of defendant's vehicle.
As the car lunged, it came "within inches" of Jones, and he
"jumped out of the way," "falling in the grass of the median."
Despite an alternate escape route, which would have avoided both
Jones and his vehicle, defendant continued forward and collided
with Jones' car, resulting in substantial damage, before speeding
away from the scene. Following a brief high-speed pursuit,
Portsmouth police apprehended defendant and placed him under
arrest for the instant offense.
Testifying at trial, defendant admitted knowledge that Jones
was a law enforcement officer, but denied an intention to "run
over" him. He explained that he lost control of the car "because
[the] brakes were bad" and fled only to avoid arrest "for parole
violation" and traffic offenses. Defendant denied turning toward
Jones, insisting that he "went straight."
II.
"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,"
constitutes capital murder pursuant to Code § 18.2-31(6). An
attempt of the offense "'is composed of two elements: the
intention to commit the crime, and the doing of some direct act
towards its consummation which is more than mere preparation but
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falls short of execution of the ultimate purpose.'" Gray v.
Commonwealth, 30 Va. App. 725, 735, 519 S.E.2d 825, 830 (1999)
(citation omitted). Here, defendant challenges on appeal only the
sufficiency of the evidence to prove the requisite intent.
"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). Intent "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). "[T]he fact finder may infer 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. "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).
In Moody, a prosecution for attempted malicious wounding with
an automobile, the accused was fleeing in a truck from a high
school parking lot, after "breaking into . . . a car." 28 Va.
App. at 705-06, 508 S.E.2d at 356. A teacher had heard the sound
of shattering glass, hurried to the lot, observed Moody's vehicle
moving toward the only exit, and "stepped into its . . . path."
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Id. at 705, 508 S.E.2d at 356. "Rather than slowing or stopping,
[Moody] accelerated towards [the teacher], motioning for him to
move out of the way." Id. When the oncoming vehicle was within
ten to fifteen feet, the teacher "jumped" to safety. Id. In
finding the evidence sufficient to prove the requisite intent, we
noted
that [Moody] . . . saw [the teacher]
blocking the only avenue of . . . escape,
[and] deliberately . . . accelerate[d] his
car toward the pedestrian, never
decelerating, braking, or swerving to avoid
him, even when . . . only five to ten feet
away . . . . [The teacher] was spared
certain injury . . . by jumping out of the
vehicle's path at the last moment. Although
appellant warned [the teacher] to move out
of his way with a wave, this act does not
negate the . . . reasonable inference that
appellant had formed the specific intent to
run over [the teacher] should [he] not move
out of his way.
Id. at 707, 508 S.E.2d at 356.
Here, the evidence of defendant's criminal intent is more
compelling than in Moody. After clearly evincing a disregard
for the safety of both Jones and Pollack by deliberately backing
into the police vehicle, defendant accelerated forward and
turned toward Jones, necessitating a leap to safety when the car
was within inches. Testimony that defendant only intended to
escape was belied by evidence he could have driven from the
scene without steering the car toward Jones. Moreover,
defendant could have simultaneously pursued both unlawful acts,
flight to avoid apprehension and the murder of Jones. See
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Hughes v. Commonwealth, 18 Va. App. 510, 530, 446 S.E.2d 451,
463 (1994) (en banc) (Coleman, J., concurring) (a person may act
with two or more criminal intentions).
Accordingly, we find the evidence sufficient to support the
conviction and affirm the trial court.
Affirmed.
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