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WILSON v. COMMONWEALTH OF VIRGINIA


WILSON v. COMMONWEALTH
OF VIRGINIA

(unpublished)


MARCH 3, 1998
Record No. 0118-97-2

DELLA SMALL WILSON

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE LARRY G. ELDER
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Robert W. Duling, Judge
Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia

Patricia P. Nagel, Assistant Public Defender (David J.
Johnson, Public Defender, on brief), for appellant.

Daniel J. Munroe, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.


Della Small Wilson (appellant) appeals her
conviction of attempted murder of a police officer with the
intent of interfering with the performance of his official
duties. She contends that the evidence was insufficient to
support her conviction. She argues that the evidence failed to
support the trial court’s conclusion that she specifically
intended (1) to "kill" Officer Carnes or (2) to
interfere with the performance of his official duties when she
threw a large butcher knife at him. For the reasons that follow,
we affirm.

"On appeal, 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). This Court does not substitute its judgment for that of
the trier of fact. See Cable v. Commonwealth, 243
Va. 236, 239, 415 S.E.2d 218, 220 (1992). Instead, the trial
court’s judgment will not be set aside unless it appears that it
is plainly wrong or without supporting evidence. Josephs v.
Commonwealth
, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990)
(en banc).

"’An attempt to commit a crime is composed
of two elements: (1) The intent to commit it; and (2) a direct,
ineffectual act done towards its commission.’" Haywood v.
Commonwealth
, 20 Va. App. 562, 565, 458 S.E.2d 606, 607-08
(1995) (quoting Merritt v. Commonwealth, 164 Va. 653, 657,
180 S.E. 395, 397 (1935)). Code ‘ 18.2-31(6) states that the
crime of capital murder includes the "willful, deliberate,
and premeditated killing of a law-enforcement
officer . . . for the purpose of interfering with
the performance of his official duties."

"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); see also Merritt, 164
Va. at 660-61, 180 S.E. at 398-99 (stating that "while a
person may be guilty of murder though there was no actual intent
to kill, he cannot be guilty of an attempt to commit murder
unless he has a specific intent to kill"). "Intent 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 also 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.
at 551, 238 S.E.2d at 810.

"[W]hether the required intent exists is
generally a question for the trier of fact." Id.
"The inferences to be drawn from proved facts are within the
province of the [trier of fact], so long as the inferences are
reasonable and justified." Barrett, 210 Va. at 156,
169 S.E.2d at 451. Where, as here, the Commonwealth relies solely
on circumstantial evidence to prove the intent of the accused,
the evidence must exclude every reasonable hypothesis of
innocence. See Coffey v. Commonwealth, 202 Va. 185,
188, 116 S.E.2d 257, 259 (1960).

All necessary circumstances proved must be
consistent with guilt and inconsistent with innocence. It is not
sufficient that the evidence create a suspicion of guilt, however
strong, or even a probability of guilt, but must exclude every
reasonable hypothesis save that of guilt.

Webb v. Commonwealth, 204 Va. 24, 34, 129
S.E.2d 22, 29 (1963).

Appellant’s intent to kill Officer Carnes could
be reasonably inferred from her conduct during the confrontation
in her bedroom on June 7. The record established that, after
appellant retrieved the eleven-inch-long knife from the right
side of her bed, she waved it angrily in the air and appeared
"angry" and "hysterical." Officer Carnes was
standing about eight feet from where appellant was sitting in her
bed. When Officer Carnes ordered her to put down the knife,
appellant refused to comply. Instead, she told Officer Carnes
that she "would let him have it" and threw the knife at
the officer’s chest. She threw the knife by extending her arm
"straight out" while holding the handle of the knife.
The manner in which appellant released the knife caused the blade
and the handle to flip "end-over-end" as it traveled
through the air toward Officer Carnes. The knife struck Officer
Carnes in the left side of his chest with the blade pointing
toward the officer. Officer Carnes was not harmed by the impact
of the knife as it hit the strap of his bullet-proof vest. The
dangerous manner in which appellant released the knife, her
decision to aim her throw at the left side of Officer Carnes’
chest while sitting about eight feet away from the officer, and
the nature of the object she chose to throw — a large knife with
a six-and-a-half-inch blade — support the trial court’s
conclusion that she specifically intended to kill Officer Carnes.
This evidence likewise excludes as a reasonable hypothesis the
theory that appellant’s sole intent when she threw the knife at
Officer Carnes was merely to commit an assault and battery upon
the officer.

We also hold that the evidence was sufficient to
prove that appellant intended to interfere with the exercise of
Officer Carnes’ official duties. The record established that
Officer Carnes was on duty and in uniform when he entered
appellant’s bedroom in response to an earlier call from her
apartment. Appellant threw the knife at Officer Carnes’ chest
after he ordered her to put it down. The trial court could have
reasonably inferred from appellant’s actions that her attempt to
kill Officer Carnes was also an attempt to thwart his effort to
neutralize the dangerous confrontation between herself and the
others in the bedroom.

For the foregoing reasons, we affirm appellant’s
conviction of attempted capital murder.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this
opinion is not designated for publication.

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