Sufficient evidence identified appellant as the shooter

Where two witnesses, whom the court deemed credible, testified that appellant took a shotgun out of a car and fired at them, this was sufficient evidence to prove beyond a reasonable doubt that appellant was the shooter.

The court correctly rejected appellant’s testimony and evidence that an unidentified person was the shooter.

His convictions of two counts of malicious wounding and one count of using a firearm while committing a felony are affirmed.

Background

Members of appellant’s family and the Davis family brawled three times in one day. The families had an ongoing disagreement about custody of Lamar Davis’ niece.

One fistfight took place at a market when members of the two families encountered each other. The second fight happened when members of appellant’s family went, uninvited, to Davis’ house. The fight ended and appellant’s family left.

The third fight occurred when appellant’s family members returned to the Davis house a short time later. Appellant and Joe Thomas arrived in a separate car, a red Pontiac.

While Davis and Thomas were talking, Davis saw appellant get a shotgun from the Pontiac. Anderson, Davis’ nephew also saw appellant retrieve the shotgun from the Pontiac.

Anderson saw appellant fire the gun. Both he and Davis were hit by shotgun pellets.

“The circuit court credited the Commonwealth’s evidence and convicted appellant of the charged offenses. This appeal followed.”

Credibility

“Both Davis and Anderson, whose testimony the circuit court credited, stated that appellant arrived with Thomas in a red Pontiac at the scene of a prior fistfight between appellant’s family and Davis’ family that same day.

“Davis and Anderson saw appellant remove the shotgun from the car. Davis turned toward the residence to warn family members about the gun, but Anderson was facing appellant and saw him aim the shotgun.

“Anderson testified unequivocally that appellant was the person who fired the gun. Davis and Anderson were struck and injured by multiple pellets from the shotgun.

“Additionally, the Commonwealth’s evidence showed that immediately after the shot, appellant and Thomas got into the car and fled. …  The circuit court, as the finder of fact, reasonably could conclude that appellant got into the car and left the scene because he was the person who had shot Davis and Anderson.

“Appellant argues that the Commonwealth’s evidence was insufficient to prove that he was the shooter. Without disputing that he was present at Davis’ home on the day of the shooting, appellant emphasizes conflicts in the testimony including the descriptions of the vehicle appellant and Thomas drove, exactly who was in that vehicle, and what transpired before they left the scene.

“Appellant contends that the Commonwealth failed to exclude the possibility that an unidentified person fired the shot.

“However, the circuit court accepted the Commonwealth’s evidence, and rejected appellant’s testimony and evidence. … It is within the purview of the circuit court, as the finder of fact, to resolve any conflict in the evidence. …

“‘Merely because defendant’s theory of the case differs from that taken by the Commonwealth does not mean that every reasonable hypothesis consistent with his innocence has not been excluded.’ …

“The Commonwealth presented ample testimony to exclude appellant’s hypothesis that an unknown individual shot Davis and Anderson.”

Affirmed.

Stone v. Commonwealth, Record No. 0700-21-3, March 29, 2022. CAV (per curiam) from the Circuit Court of Pittsylvania County (Moreau). Elmer Woodard for appellant. Mark R. Herring, Jason D. Reed for appellee. VLW 022-7-074, 6 pp. Unpublished opinion.