George E. Bates v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia
GEORGE E. BATES
MEMORANDUM OPINION *
v. Record No. 2126-96-2 BY JUDGE JOSEPH E. BAKER
JUNE 10, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Alice Sheridan Carrasco, Assistant Public
Defender (David J. Johnson, Public Defender,
on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
George E. Bates (appellant) appeals from his bench trial
convictions by the Circuit Court of the City of Richmond (trial
court) for two counts of attempted capital murder in violation of
Code §§ 18.2-25 and 18.2-31(6). The sole issue presented by this
appeal is whether the evidence is sufficient to support the
charge that appellant formed a specific intent to kill two law
enforcement officers while in the performance of their duties.
Upon familiar principles, 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).
On November 13, 1995, Richmond Police Officer James Hanna
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and Trooper Thomas R. Taylor, in a police vehicle, were following
a Jeep Cherokee (Jeep) which they suspected was stolen. After
Hanna had received verification that the vehicle had been stolen,
the officers began to pursue the Jeep.
Appellant, age fourteen, was the driver of the Jeep. He led
Hanna and Taylor on a chase encompassing a large area at speeds
between fifty and seventy miles per hour. Ultimately, as
appellant approached an entrance ramp to Interstate 64, he lost
control of the Jeep. The left side of the Jeep went into the
grass off of the left shoulder of the ramp. It spun around 180
degrees and came to a halt facing Hanna and Taylor as they sat in
their vehicle.
Both vehicles remained at a stop for three to five seconds.
Taylor and appellant made eye contact during this time. Hanna
and Taylor released their seat belts, intending to exit their
vehicle, when Taylor suddenly advised Hanna to "hold it." Taylor
saw grass begin to fly up from behind the Jeep as its tires
turned. The Jeep began to move forward and rammed the police car
"head on."
Appellant exited the Jeep and ran, followed by Hanna. When
Hanna caught appellant, Hanna said to him, "[Y]ou could have hurt
us or you could have hurt somebody else." Appellant responded,
"I don't give a f___ about you."
Appellant testified in his defense and stated that as the
Jeep spun around he had one foot on the gas pedal and the other
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foot on the brake pedal at the same time. He took his foot off
the brake to exit the Jeep, however, he said, "the Jeep took off
by itself" and, before he could hit the brake, he had collided
with the police car. Appellant did not deny that he attempted to
escape and agreed that he had been sitting in the car three to
four seconds before it moved forward. Appellant specifically
denied that he intended to kill the officers.
The Commonwealth argues that the evidence must be viewed in
the light most favorable to the Commonwealth, that the trial
court's judgment must not be set aside unless plainly wrong or
without evidence to support it, and that, if we apply those
principles to the facts in appellant's case, we are required to
affirm the judgment of the trial court. See Code § 8.01-680;
Martin, 4 Va. App. at 443, 358 S.E.2d at 418. We agree that
these are well established legal principles, however, we hold
that the evidence was insufficient to support the judgment
because the record fails to show the specific intent to kill the
officers necessary to support a conviction for violation of Code
§§ 18.2-25 and 18.2-31(6).
To sustain a conviction of attempted murder, the evidence
must establish both a specific intent to kill and an overt but
ineffectual act committed in furtherance of this criminal
purpose. Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d
808, 810 (1977). "'[W]hile a person may be guilty of murder
though there was no actual intent to kill, he cannot be guilty of
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an attempt to commit murder unless he has a specific intent to
kill.'" Haywood v. Commonwealth, 20 Va. App. 562, 566, 458
S.E.2d 606, 608 (1995) (quoting Merritt v. Commonwealth, 164 Va.
653, 660, 180 S.E. 395, 398 (1935)). It is not sufficient that
appellant's act, had it proved fatal, would have been murder.
See Haywood, 20 Va. App. at 566, 458 S.E.2d at 608. Thus, the
question in appellant's case is not whether appellant's acts
might have resulted in the murder of the police officers.
Instead, the question is whether the evidence showed that when
appellant drove his vehicle toward the police vehicle he had
"formed the specific intent to use [the Jeep] as a weapon for the
unequivocal purpose of murdering the police officers." See id.
Appellant testified that he did not intend to murder the police
officers. While the physical evidence tends to contradict
appellant's version of how the collision occurred, it is
insufficient to establish beyond a reasonable doubt that
appellant intended anything other than to make his escape and
avoid arrest for theft of the Jeep.
As in every criminal prosecution, the burden is upon the
Commonwealth to prove guilt beyond a reasonable doubt. Every
element of the crime must be so proved and every reasonable
hypothesis consistent with the innocence of the accused must be
excluded by the Commonwealth. Corbett v. Commonwealth, 210 Va.
304, 306, 171 S.E.2d 251, 253 (1969) (citations omitted). Here,
it is as likely that appellant's intent was only to assure his
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escape as it was to kill the officers. Where the facts are
equally susceptible to two interpretations, one of which is
consistent with the innocence of the accused, the trier of fact
cannot arbitrarily adopt that interpretation which incriminates
the accused. Haywood, 20 Va. App. at 567, 458 S.E.2d at 609.
Considering the evidence here, we cannot declare that one
interpretation of the facts predominates over the other.
For the reasons stated, we reverse the judgment of the trial
court and remand the case for such further action as the
Commonwealth may be advised.
Reversed and remanded.
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