Jerry Lee Willson v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
JERRY LEE WILLSON
MEMORANDUM OPINION * BY
v. Record No. 2004-98-2 JUDGE LARRY G. ELDER
SEPTEMBER 21, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Gregory W. Franklin, Assistant Public
Defender (David J. Johnson, Public Defender,
on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Jerry Lee Willson (appellant) was convicted in a bench
trial of attempted murder pursuant to Code §§ 18.2-26 and
18.2-32. On appeal, he contends the evidence is insufficient to
prove he acted with the specific intent to commit murder when he
drove his vehicle toward a bank employee standing in the bank's
automatic teller machine lane. We agree and reverse his
conviction.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court, sitting
without a jury, is entitled to the same weight as a jury verdict
and will be disturbed only if plainly wrong or without evidence
to support it. See id. The credibility of a witness, the
weight accorded the testimony, and the inferences to be drawn
from proven facts are matters solely for the fact finder's
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989).
To sustain a conviction for attempted murder, the evidence
must establish both a specific intent to kill the victim and an
overt but ineffectual act committed in furtherance of this
criminal purpose. See Hargrave v. Commonwealth, 214 Va. 436,
437, 201 S.E.2d 597, 598 (1974). In determining whether the
evidence is sufficient to prove the requisite intent, "the
question . . . is not whether [the defendant's] acts might have
resulted in the murder of the [person]. Rather, the question is
whether [the defendant], while driving his [vehicle], formed the
specific intent to use his vehicle as a weapon for the
unequivocal purpose of murdering the [person]." Haywood v.
Commonwealth, 20 Va. App. 562, 566, 458 S.E.2d 606, 608 (1995).
Intent, like any element of a crime, may be proved by
circumstantial evidence, see Servis v. Commonwealth, 6 Va. App.
507, 524, 371 S.E.2d 156, 165 (1988), such as a person's conduct
and statements, see Long, 8 Va. App. at 198, 379 S.E.2d at 476.
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"Circumstantial evidence is as competent and is entitled to as
much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983). "[T]he Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,
29 (1993). "When facts are equally susceptible to more than one
interpretation, one which is consistent with the innocence of
the accused, the trier of fact cannot arbitrarily adopt an
inculpatory interpretation." Moody v. Commonwealth, 28 Va. App.
702, 706, 508 S.E.2d 354, 356 (1998).
We conclude that the evidence here was insufficient to
prove that appellant acted with the specific intent to kill
Teresa Musinski when he drove his vehicle through the bank's
automatic teller machine (ATM) lane. Although the trial court
was free to conclude that appellant was lying to conceal his
guilt and to reject appellant's testimony on that basis, see,
e.g., Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95,
98 (1987) (en banc), the remaining evidence was insufficient to
exclude multiple reasonable hypotheses of innocence.
Appellant's conviction rested on the theory that appellant knew
Musinski was a bank employee and was so enraged by his dealings
with the bank that day that he tried to kill her. However, the
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evidence left open the reasonable hypothesis that appellant
never saw Musinski in the bank and did not know she was a bank
employee. See Robinson v. Commonwealth, 228 Va. 554, 558, 322
S.E.2d 841, 843 (1984) ("'[A] man cannot be influenced or moved
to act by a fact or circumstance of which he is ignorant.'"
(quoting Mullins v. Commonwealth, 113 Va. 787, 789-90, 75 S.E.
193, 195 (1912)). Although appellant said to someone inside the
bank, "What the fuck are you looking at," the evidence
established that Musinski did not participate in appellant's
transaction with Jennifer Brooks and Gayle Davis and that,
although Musinski was near Brooks at the teller window, Musinski
was looking down until appellant made this remark. Neither
Musinski nor Davis was certain to whom the remark was directed,
and Brooks believed the remark was directed toward her.
Although appellant may have seen Musinski inside the bank, the
evidence was equally susceptible to the interpretation that he
did not.
Regarding Musinski's departure from the bank, the evidence
established that appellant looked in her direction as she walked
in front of the drive-through lanes, but no evidence established
that he actually saw her or, even if he did, that he knew she
was a bank employee. At that precise instant, appellant was
engaged in a heated discussion with Brooks about whether she had
given him the correct sum of money. Again, therefore, the
evidence is equally susceptible to the interpretation that
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appellant did not see her and did not know she was a bank
employee and, therefore, had no motive for attempting to kill
her.
Finally, even assuming appellant knew Musinski worked at
the bank, no evidence established that appellant knew Musinski
was in his path in the ATM lane. See 1 Charles E. Friend, The
Law of Evidence in Virginia § 12-6 (4th ed. 1993) (noting that
whether an accused has knowledge of particular facts when he
engages in certain conduct may be relevant in determining
intent, even where knowledge is not element of offense). It was
undisputed that appellant was angry and that there were no cars
in the ATM lane. A reasonable hypothesis of innocence flowing
from the evidence is that appellant saw no cars at the ATM and,
although looking straight ahead, was still angry from his
transaction and merely acted recklessly in failing to watch for
pedestrians that might also be using the machine as he departed
the premises. The undisputed evidence established that Musinski
removed herself from appellant's path, retreating to a position
of safety on the curb on the ATM's east side, when appellant was
still eighteen feet away from the machine's west side. Under
these circumstances, the facts were no more susceptible to the
conclusion that appellant specifically intended to kill Musinski
than they were to the interpretation that he acted recklessly in
failing to keep a proper lookout or that he saw her but intended
merely to scare her, reasonably believing that she would move
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out of his path to safety before he reached her, which, in fact,
she did.
Under these circumstances, we conclude the evidence was
insufficient to support appellant's conviction.
The Commonwealth contends that the outcome of this case is
controlled by our recent decision in Moody v. Commonwealth, 28
Va. App. 702, 508 S.E.2d 354 (1998), in which we upheld the
conviction of an automobile driver for attempted malicious
wounding. In Moody, the defendant broke into a vehicle in a
parking lot and was attempting to flee the scene of the break-in
in his vehicle when a pedestrian tried to block his only escape
route. See id. at 705-06, 508 S.E.2d at 356. The defendant
admitted seeing the pedestrian trying to stop him, saying "I
waved him out of the way because I was going out of there." Id.
at 706, 508 S.E.2d at 356. We held that "[a]lthough [the
defendant] warned [the pedestrian] to move out of his way with a
wave, [that] act does not negate the trial court's reasonable
inference that appellant had formed the specific intent to run
over [the pedestrian] should the pedestrian not move out of his
way." Id. at 707, 508 S.E.2d at 356. In appellant's case, by
contrast, no evidence established that appellant ever saw
Musinski standing in his path before she jumped out of the way.
Alternatively, even if appellant did see Musinski, unlike Moody,
he was not fleeing the scene of a crime and made no statement
indicating his intent to proceed through the ATM lane regardless
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of whether Musinski moved. Therefore, our holding in Moody is
not controlling.
Because the evidence did not exclude all reasonable
hypotheses of innocence, we reverse appellant's conviction.
Reversed and dismissed.
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