Roger Lee Davis v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia
ROGER LEE DAVIS
MEMORANDUM OPINION * BY
v. Record No. 2480-01-2 JUDGE LARRY G. ELDER
APRIL 22, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
William R. Shelton, Judge
Steven Brent Novey (Tomko & Novey, PC, on
brief), for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Roger Lee Davis (appellant) appeals from his bench trial
conviction for "maliciously throw[ing] a missile at an occupied
motor vehicle, whereby the life of a person was put in peril,"
in violation of Code § 18.2-154. 1 On appeal, he contends the
evidence was insufficient to prove his actions may have placed a
person's life in peril because the object he threw, a bottle,
neither broke nor came in contact with the vehicle's occupants.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
He also was convicted for destroying property and failing
to appear, but he does not challenge those convictions in this
appeal.
He also contends the evidence proved, at most, that he acted
unlawfully rather than maliciously.
Assuming without deciding the statute required proof that
appellant's actions placed "the life of any person . . . in
peril," we hold the evidence was sufficient to support such a
finding. We also hold the evidence supported a finding that
appellant acted with malice. Thus, we affirm.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to the evidence all reasonable inferences fairly
deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). "Determining the credibility
of witnesses who give conflicting accounts is within the
exclusive province of the [fact finder], which has the unique
opportunity to observe the demeanor of the witnesses as they
testify." Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d
477, 479 (1993).
Code § 18.2-154 provides in relevant part as follows:
Any person who . . . maliciously throws
any missile at or against . . . any motor
vehicle . . . when occupied by one or more
persons, whereby the life of any person
. . . in such motor vehicle . . . may be put
in peril, shall be guilty of a Class 4
felony. . . .
If any such act is committed
unlawfully, but not maliciously, the person
so offending shall be guilty of a Class 6
felony . . . .
- 2 -
I.
PLACING "THE LIFE OF ANY PERSON . . . IN PERIL"
Appellant contends the evidence was insufficient to support
his conviction because the bottle neither broke nor came in
contact with the vehicle's occupants and, thus, that the
evidence failed to prove "the life of any person . . . in such
motor vehicle . . . may [have] be[en] put in peril." We
disagree.
Assuming without deciding Code § 18.2-154 requires proof
that the life of the vehicle's occupants may have been
imperiled, the evidence here is sufficient to support such a
finding. 2 The bottle itself did not break, but it ricocheted
around the interior of the truck and narrowly missed at least
the truck's passenger, Aaron Belcher, before it hit the
windshield with enough force to crack it.
2
In Dowdy v. Commonwealth, 220 Va. 114, 255 S.E.2d 506(1979), which involved the discharge of a firearm at an occupied
building, the Supreme Court interpreted almost identical
language, "whereby the life or lives of such person or persons
may be put in peril," used in Code § 18.2-279. It held the use
of such language in Code § 18.2-279 constituted "a legislative
declaration that human lives may be endangered when a deadly
weapon is maliciously discharged at or against a building
occupied by people" and "relieves the Commonwealth of the burden
of proving that human life was, in fact, endangered." Dowdy,
220 Va. at 117, 255 S.E.2d at 508 (emphases added). Because we
hold the evidence here proved the lives of the occupants of the
vehicle were "put in peril" by appellant's actions, we need not
decide whether the Supreme Court's interpretation of almost
identical language in Dowdy also applies to Code § 18.2-154.
- 3 -
Although the truck was stationary when appellant threw the
bottle, the statute expressly applies to "any [occupied] motor
vehicle" and does not distinguish between moving and stationary
vehicles. Code § 18.2-154 (emphasis added). To the extent such
a distinction is relevant to the degree of peril caused by the
acts at issue, the evidence here proved the truck was merely
stopped at a traffic light. Thus, appellant's act of throwing
the bottle into the truck from a distance of only two to three
feet away could have resulted in harm to the occupants by
causing the driver, Benjamin Ellis, to lose control of the
vehicle or to drive recklessly from the scene to avoid any
additional threat of direct harm. In fact, Ellis testified that
immediately after appellant threw the bottle, he put "[his] foot
. . . on the gas" without regard for the color of the traffic
light because he "[didn't] know if bullets [were] coming next."
Thus, the Commonwealth's evidence proved that "the life of
any person . . . in such motor vehicle . . . may [have] be[en]
put in peril" by appellant's behavior. Cf. Strickland v.
Commonwealth, 16 Va. App. 180, 182, 428 S.E.2d 507, 508 (1993)
(holding under Code § 18.2-279 that shooting gun into ceiling of
room occupied by 75 people presented "possibility that bullet
might have hit a metal part or solid object in the ceiling and
ricocheted" and, thus, was "sufficient to prove that the firearm
was discharged 'in such a manner as to endanger the . . . lives
of such . . . persons'" (quoting Code § 18.2-279)).
- 4 -
II.
MALICIOUS INTENT
Appellant's conviction required proof that he threw the
bottle with malicious intent. Appellant contends he "acted out
of heat of passion" and, thus, that he committed only the lesser
offense of throwing the bottle unlawfully rather than
maliciously. Viewing the evidence in the light most favorable
to the Commonwealth, we disagree and hold the evidence was
sufficient to prove appellant acted with malice.
Whether an accused acted with malice or in the heat of
passion is a question of fact. Canipe v. Commonwealth, 25
Va. App. 629, 643, 644, 491 S.E.2d 747, 753, 754 (1997).
Proving intent by direct evidence is often impossible. Servis
v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988). Intent, like any other element of a crime, may be
proved by circumstantial evidence, as long as the evidence
excludes all reasonable hypotheses of innocence flowing from it.
Rice v. Commonwealth, 16 Va. App. 370, 372, 429 S.E.2d 879, 880
(1993). Circumstantial evidence of intent may include the
conduct and statements of the alleged offender, and "[t]he
finder of fact may infer that [he] intends the natural and
probable consequences of his acts." Campbell v. Commonwealth,
12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc); see also
Schmitt v. Commonwealth, 262 Va. 127, 145, 547 S.E.2d 186,
198-99 (2001) (noting inference is permissive only and does not
- 5 -
constitute impermissible shifting of burden of proof to
defendant). The statements and conduct of an accused after the
events that constitute the charged crime also are relevant
circumstantial evidence of intent. Canipe, 25 Va. App. at 645,
491 S.E.2d at 754 (relying in part on evidence that accused
falsely reported details of offense to police in effort to
portray victim as aggressor).
"'Malice and heat of passion are mutually exclusive
. . . .'" Canipe, 25 Va. App. at 643, 491 S.E.2d at 753(quoting Barrett v. Commonwealth, 231 Va. 102, 106, 341 S.E.2d
190, 192 (1986)). "'Malice inheres in the doing of a wrongful
act intentionally or without just cause or excuse, or as a
result of ill will . . . .'" Wooden v. Commonwealth, 222 Va.
758, 762, 284 S.E.2d 811, 814 (1981) (quoting Dawkins v.
Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947)). Heat
of passion, on the other hand, results "when one is provoked to
fear or rage or both. [Thus,] [i]n order to determine whether
the accused acted in the heat of passion [or with malice], it is
necessary to consider the nature and degree of provocation as
well as the manner in which it was resisted." Miller v.
Commonwealth, 5 Va. App. 22, 25, 359 S.E.2d 841, 842 (1987)
(citation omitted).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, established that the van in which appellant
was a passenger stopped abruptly, for no apparent reason,
- 6 -
causing Ellis to "[have] to swerve and go around [the van]" on
the left. While doing so, Ellis honked his horn and flashed his
lights. Shortly thereafter, the van pulled up on the truck's
right at a traffic light, and the van's driver, not appellant,
rolled down her window. Belcher then rolled down the passenger
window of Ellis's truck and said to the woman, "What are you
doing? You almost caused an accident." The woman driving the
van responded, "So. So. So." Before Belcher and the woman
driving the van had exchanged any more words, appellant
"cre[pt]" around the truck and threw the bottle.
The evidence established that Ellis and Belcher had had no
contact with appellant, had exchanged no words with him, and in
fact had not even seen appellant in the van before he "cre[pt]"
around Ellis's truck and threw a bottle through the open
passenger window. Appellant approached stealthily and threw the
bottle so quickly that neither man had an opportunity to react
other than for Ellis to say, "Watch out," and for Belcher to
lean back in an attempt to avoid the bottle. Although the
bottle itself did not break and did not come in contact with
either of the truck's occupants, appellant threw the bottle with
enough force to crack the truck's windshield, plastic molding
and plastic console. Finally, appellant admitted at trial that
he initially lied to the investigating officer about whether he
threw the bottle.
- 7 -
This evidence supported the trial court's finding that
appellant threw the bottle into the truck "'intentionally or
without just cause or excuse,'" Wooden, 222 Va. at 762, 284
S.E.2d at 814 (quoting Dawkins, 186 Va. at 61, 41 S.E.2d at
503), and that Ellis's and Belcher's actions either could not or
did not "provoke[] . . . [sufficient] fear or rage" in appellant
to justify his throwing the bottle into their vehicle, Miller, 5
Va. App. at 25, 359 S.E.2d at 842. Cf. Canipe, 25 Va. App. at
645, 491 S.E.2d at 754-55 (holding that parties' involvement in
"a fit of [bilateral] 'road rage'" only "minutes earlier,"
followed by "victim's nonviolent, nonthreatening confrontation
of appellant in [a] parking lot support[ed] the [fact finder's]
conclusion that appellant was not reasonably provoked to drive
his car into the victim").
III.
For these reasons, we hold the evidence was sufficient to
support the challenged conviction, and we affirm.
Affirmed.
- 8 -