Virginia Lawyers Weekly//November 8, 2022
Virginia Lawyers Weekly//November 8, 2022//
Where appellant, who was convicted of first-degree murder, asserts he should have been convicted only of attempted murder, the evidence belies his assertion.
“Sims challenges the sufficiency of the evidence on two grounds. First, he argues that the Commonwealth failed to prove that he acted with the premeditation required to sustain a first-degree murder conviction. Second, he argues that he was guilty, at most, of attempted murder because the Commonwealth failed to prove that one of his bullets killed Fox.”
More than attempt
“We address Sims’s second argument first. …
“The trial court opined that the evidence was sufficient to find Sims guilty on any one of three grounds: (1) Sims killed Fox; (2) Sims acted in concert of action with the killer(s); or (3) Sims acted as a principal in the second degree. We agree with Sims that there was insufficient evidence to conclude that he directly killed Fox.
“There was no evidence that Sims fired, or even handled, any of the 9mm firearms. The bullet found underneath Fox’s body and the bullet fragments Van Dusen recovered from Fox’s back were both 9mm and therefore cannot be connected to Sims. The Commonwealth did not connect any of Fox’s other wounds to a specific firearm or bullet caliber. Accordingly, there is no evidence that Sims fired any of the shots that killed Fox.
“That does not mean that Sims cannot be found guilty of a completed murder. … [T]the evidence established that Sims and at least two others fired bullets at Fox at the same time from the same direction – causing Fox’s death – and then drove away together in the same car. Because Fox’s death was a ‘probable consequence’ of such action, Sims is equally answerable for the crime as the other shooters. Accordingly, Sims’s argument that he was guilty only of attempted murder fails.”
“Sims also argues that the Commonwealth failed to establish that he acted with premeditation. … The evidence established that Sims and his accomplices fired the three recovered firearms at Fox at least fifteen times, hitting Fox six times. In the absence of provocation, this barrage is sufficient to create an inference that Sims acted with premeditation. …
“Because there was no evidence of provocation, a reasonable fact finder could conclude that Sims acted with premeditation and the specific intent to kill when he fired a .40 caliber firearm at the victim at least four times alongside at least two other shooters, resulting in the victim’s death.”
Sims v. Commonwealth, Record No. 0807-21-2, Oct. 4, 2022. CAV (Haley Jr.) From the Circuit Court of the City of Richmond (Marchant). Daniel W. Hall for appellant. Virginia B. Theisen, Jason S. Miyares for appellee. VLW 022-7-441, 11 pp.