Jeffery Antwan Reid v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Beales and Senior Judge Bumgardner
Argued by teleconference
JEFFERY ANTWAN REID
MEMORANDUM OPINION * BY
v. Record No. 2020-09-1 JUDGE RANDOLPH A. BEALES
AUGUST 17, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerrauld C. Jones, Judge
James S. Ellenson for appellant.
Joshua M. Didlake, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
The trial court convicted Jeffery Antwan Reid (appellant) of attempted malicious
wounding, in violation of Code §§ 18.2-26 and 18.2-51, and use of a firearm in the commission
of a felony, in violation of Code § 18.2-53.1. On appeal, appellant challenges the sufficiency of
the evidence supporting these convictions. He contends that he did not act with the specific
intent to maim, disfigure, disable, or kill the victim. 1 Disagreeing with appellant’s argument, we
affirm both convictions for the following reasons.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The parties agree that the sufficiency of the evidence supporting appellant’s conviction
for use of a firearm in the commission of a felony is dependent on whether the evidence was
sufficient to convict appellant of attempted malicious wounding.
I. BACKGROUND
On April 23, 2008, appellant’s friend, K.H., 2 drove to the Norfolk neighborhood where
appellant’s cousin lived so that appellant could retrieve some mail. The victim 3 lived in this
same neighborhood. The victim knew appellant and K.H., so he approached K.H.’s car when it
parked on the street. As the men were talking, appellant asked the victim if he had change for a
$100 bill. The victim responded that he would have to check inside his apartment.
The victim went into his apartment and up the stairs, found six $20 bills (one more than
necessary) to make change for appellant, and returned to the downstairs. Appellant was waiting
in the victim’s living room. Appellant then pointed a gun at him and demanded the money.
When the victim told appellant to “[s]top playing,” appellant ordered him to “[g]ive it up.”
Appellant grabbed for the money – and the victim, who was weaponless, tried to grab the gun.
Appellant maintained control of the gun, which the victim never actually touched, firing one shot
as the men struggled.
The victim, who was not struck by the gunshot, threw his money on the ground for
appellant to take it. Appellant responded, “I’m going to kill you,” making the threat at least
twice. Appellant then added, “I ain’t leaving until you give me your gun,” and again said that he
was going to kill the victim. The victim told him that his gun was in a bedroom. Appellant
retrieved the victim’s gun, and – now in possession of both guns – he shoved the victim into the
bedroom and left the apartment.
K.H. heard the gunshot and then saw appellant running to the car. Appellant told K.H. to
drive away from the neighborhood, explaining that he had “just got” the victim – which K.H.
2
We use initials here in an attempt to better protect the privacy of the witness.
3
We refer to the victim as “the victim” instead of by name in an attempt to better protect
his privacy.
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understood to mean that appellant had just robbed him. Appellant told K.H. that he and the
victim had gotten into a “tussle,” and K.H. observed that appellant carried both his own gun and
a second gun. 4
At trial, the victim identified appellant as the perpetrator. Testifying in his own defense,
appellant acknowledged briefly speaking to the victim on April 23, 2008, but denied carrying a
gun on that date, denied pointing a gun at the victim, and denied taking the victim’s gun. At the
conclusion of all the evidence, the trial court found that the Commonwealth’s witnesses were
more credible than appellant’s testimony and convicted appellant of both attempted malicious
wounding and use of a firearm in the commission of a felony. 5
II. ANALYSIS
When considering the sufficiency of the evidence on appeal, “a reviewing court does not
‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)
(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light
most favorable to the Commonwealth, as we must since it was the prevailing party in the trial
court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must
instead ask whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting
Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See
4
K.H. and appellant then drove to Northern Virginia. The following day, after learning
that he was wanted by the police, K.H. drove back to Norfolk with appellant. According to K.H.,
appellant wanted “to set up a story to give to the [police] about what had happened.” K.H.
pretended to agree with appellant. However, K.H. instead told the authorities that appellant was
the perpetrator. Appellant told the police that he had merely spoken to the victim, denying any
incident occurred that involved firearms.
5
In a separate proceeding, appellant was convicted of robbery and use of a firearm in the
commission of that felony. Those convictions are not before this Court in this appeal.
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also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319.
To convict a defendant of attempted malicious wounding under Code § 18.2-51, the
evidence must prove beyond a reasonable doubt that the defendant had “the specific intent to maim,
disfigure, disable or kill” the victim and that the defendant made “an ineffectual act done towards
the crime’s completion.” Moody v. Commonwealth, 28 Va. App. 702, 706, 508 S.E.2d 354, 356
(1998) (citing Merritt v. Commonwealth, 164 Va. 653, 657, 180 S.E. 395, 397 (1935); Bell v.
Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991)); see Holley v. Commonwealth,
44 Va. App. 228, 233-34, 604 S.E.2d 127, 130 (2004).
Appellant argues that the evidence at trial was insufficient to prove beyond a reasonable
doubt that he had the specific intent to maim, disfigure, disable or kill the victim when the gunshot
was fired. Appellant suggests that his gun fired accidentally during the struggle with the victim, or,
alternatively, that he fired the gun merely to scare the victim into surrendering the money. Based on
the record here, however, the trial court’s finding that appellant acted with the requisite specific
intent to sustain a conviction for attempted malicious wounding was not “‘plainly wrong or without
evidence to support it.’” Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005)
(quoting Code § 8.01-680).
Virginia’s appellate courts have stated that
“[i]ntent is the purpose formed in a person’s mind and 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);
see Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808,
810 (1977). “A person is presumed to intend the immediate, direct,
and necessary consequences of his voluntary act.” Nobles, 218 Va.
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at 551, 238 S.E.2d at 810. “Whether the required intent exists is
generally a question for the trier of fact.” Id.
Holley, 44 Va. App. at 234, 604 S.E.2d at 130 (quoting Haywood v. Commonwealth, 20 Va. App.
562, 565-66, 458 S.E.2d 606, 607-08 (1995)).
Viewing the evidence at trial in the light most favorable to the Commonwealth, as we must
since it was the prevailing party below, see Riner, 268 Va. at 330, 601 S.E.2d at 574, appellant
entered the victim’s apartment and attempted to take $120 from the victim by intimidating him at
gunpoint. Appellant and the victim then engaged in a physical struggle. The victim’s testimony
established that appellant maintained complete control of the gun during the entire struggle –
including the point when the gunshot occurred. Appellant’s exclusive possession of his gun during
the entire time that this whole incident was occurring supports a finding that the gunshot was
deliberate, not accidental. See Compton v. Commonwealth, 219 Va. 716, 730, 250 S.E.2d 749, 758
(1979) (holding that “there [was] evidence from which the jury could have found that the
defendant’s use of the shotgun was deliberate” and distinguishing Lawhorne v. Commonwealth,
213 Va. 608, 194 S.E.2d 747 (1973), where “there was no evidence that the use of a pistol was
deliberate and not accidental”). Although appellant claimed he had no intention to fire the gun, the
trial court was “entitled to disbelieve the self-serving testimony” of appellant and, furthermore, to
infer that appellant was “lying to conceal his guilt.” Marable v. Commonwealth, 27 Va. App.
505, 509-10, 500 S.E.2d 233, 235 (1998).
In addition, the trial court could reasonably infer appellant’s criminal intent from the
deliberate discharge of his weapon. As the Supreme Court has held, malice may be inferred “from
the deliberate use of a deadly weapon.” Perricllia v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d
679, 683 (1985); cf. Johnson v. Commonwealth, 53 Va. App. 79, 99 n.3, 669 S.E.2d 368, 378 n.3
(2008) (noting that, although the question of whether a defendant acted with the specific intent to
maim, disfigure, disable, or kill the victim is “a different question from whether the defendant
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acted with malice” when considering the evidence supporting a malicious wounding conviction,
the two concepts “are closely related and cases often speak of them together”). The trial court
was entitled to infer that appellant “intend[ed] the natural and probable consequences” of pointing a
gun at someone during a robbery – that the circumstances might result in the gun firing. Velasquez
v. Commonwealth, 276 Va. 326, 330, 661 S.E.2d 454, 456 (2008). It is the “responsibility of the
trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. A rational
factfinder certainly could infer from these circumstances that the gunshot was not unintended – but
was instead fired by appellant with the specific intent to maim, disfigure, disable, or kill the victim.
Moreover, not only did appellant bring a gun into the victim’s home, point the weapon
directly at the victim, and exercise exclusive control over the gun as it was fired, but appellant also
specifically told the victim, “I’m going to kill you.” According to the victim’s testimony,
appellant declared this intent to kill him several times – both immediately after the gunshot and
when appellant demanded that the victim hand over his own firearm. After retrieving the
victim’s gun from a bedroom, appellant, now possessing two firearms and the victim’s money,
shoved the unarmed victim into a bedroom and fled. Although appellant claims that he merely
intended to scare the victim, the factfinder was certainly permitted to reject this claim – or to
infer that appellant intended to scare and to harm appellant. See Moody, 28 Va. App. at 708,
508 S.E.2d at 357 (noting that, although Moody intended to flee, “the evidence sufficiently
prove[d] his further intent to run down” the victim (emphasis added)). Thus, the evidence of
appellant’s “conduct and his statements” at the victim’s apartment support the trial court’s
finding that appellant acted with the specific intent to maim, disfigure, disable, or kill the victim.
Nobles, 218 Va. at 551, 238 S.E.2d at 810; see Compton, 219 Va. at 730, 250 S.E.2d at 758
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(holding that the “actions and statements of the defendant immediately following the homicide”
were consistent with the jury’s finding that the shooting was intentional).
Further circumstances from the totality of the evidence at trial supported the trial court’s
finding that appellant acted with the specific intent required to sustain a conviction for attempted
malicious wounding. See Bowling v. Commonwealth, 51 Va. App. 102, 107, 654 S.E.2d 354, 356
(2007) (stating that this Court “reviews the totality of the evidence to determine whether it was
sufficient to prove” the charged offense). After appellant left the victim’s apartment, he ran back to
the parked vehicle, acknowledged getting into a “tussle” with the victim, and indicated that he had
robbed the victim. K.H. observed that appellant carried two guns – further supporting the
victim’s claim that appellant had robbed him at gunpoint and left with the victim’s own weapon.
Showing no remorse for robbing and firing a gun at the victim, appellant instead discussed
fabricating a story to tell the police. Appellant’s dishonesty was further “‘affirmative evidence
of guilt.’” Haskins v. Commonwealth, 44 Va. App. 1, 11 n.3, 602 S.E.2d 402, 407 n.3 (2004)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).
After carefully considering all of this evidence, the trial court found that appellant acted
with the specific intent to maim, disfigure, disable, or kill the victim. Under settled principles of
appellate review, we must defer to the factfinder’s responsibility “‘to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.’” Abdullah v. Commonwealth, 53 Va. App. 750, 755, 675 S.E.2d 215, 218 (2009)
(quoting Jackson, 443 U.S. at 319). Based on the record before us, we conclude that a rational
factfinder, such as the trial court here, certainly could have found that appellant acted with the
specific intent required under Code § 18.2-51 to convict him of attempted malicious wounding.
See Crowder, 41 Va. App. at 663, 588 S.E.2d at 387.
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III. CONCLUSION
The trial court’s finding that appellant acted with the specific intent to maim, disfigure,
disable, or kill the victim was not plainly wrong or unsupported by the evidence. Therefore, a
rational factfinder could certainly conclude that the evidence was sufficient to prove beyond a
reasonable doubt that appellant committed attempted malicious wounding. Consequently, the
evidence was also sufficient beyond a reasonable doubt to convict appellant for the use of a
firearm in the commission of a felony. Accordingly, we affirm both of these convictions.
Affirmed.
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