Sufficient evidence of assaultive, firearm offenses

Where appellant was convicted after a bench trial of maliciously shooting at an occupied vehicle and attempted murder and other offenses, sufficient evidence supports the convictions.

Malicious shooting

“The circuit court found Smith guilty of three counts of ‘maliciously shooting into an occupied vehicle.’ Smith argues that the circuit court erred because the Commonwealth did not prove that Smith had malicious intent and that only one of the shots he fired – the one that went into the passenger compartment of the vehicle – could be considered malicious.

“With respect to Smith’s argument that the Commonwealth failed to prove the element of malice, we note that malice has been ‘long defined’ as ‘the doing of a wrongful act intentionally, or without just cause or excuse.’ …

“[I]n this case, the fact finder was the circuit court, and it found that Smith knew Billy and Edwina were in the truck when he fired his gun into the vehicle. The evidence established that Smith fired his gun at the truck three times.

“The fact that the bullets passed through the passenger side and, eventually, the rear of the vehicle, supports the Scotts’ testimony that Smith shot at them while he passed the side of the vehicle as he ran away. The fact that the bullets were shot through the passenger side of the vehicle also disproves Smith’s argument that he shot at the truck in self-defense as it came toward him. …

“Smith also argues that because only one bullet went into the passenger compartment, only one shot could possibly have been fired with malice. We disagree; Smith’s distinction here is immaterial.

“Code § 18.2-154 provides that ‘[a]ny person who maliciously shoots at …. any motor vehicles or other vehicles when occupied by one or more persons, whereby the life of any person …in such motor vehicle or other vehicle, may be put in peril, is guilty of a Class 4 felony.’ (Emphasis added). The statute criminalizes placing a person’s life in peril by firing shots at, not merely into, an occupied vehicle.”

Attempted murder

“Smith argues that the evidence was insufficient to convict him of attempted murder of Billy and Edwina and, pursuant to that argument, he also argues that the circuit court erred in finding Smith guilty of two counts of use of a firearm in commission of the attempted murders.

“First, we note that the issue upon appellate review is not whether there was some evidence to support Smith’s hypotheses, but rather whether a reasonable fact finder, upon consideration of all the evidence, could have rejected Smith’s theories and found him guilty of attempted murder beyond a reasonable doubt. …

“[T]he evidence showed that Smith got out of the Buick and paused, looking at the Scotts through the windshield of their truck. The evidence also showed that the windshield glass was not tinted, save for a small strip at the very top of the windshield. After pausing and looking directly at the Scotts, Smith began running and shot his gun at the passenger compartment of the vehicle.

“Smith’s intent to kill only needed to exist for a moment, and the evidence shows that he paused and looked at the Scotts before firing a deadly weapon at them. He continued to shoot at the truck as he ran; the final bullet fired at the vehicle entered through the tailgate and traveled in the direction of the passenger compartment.

“Firing a deadly weapon at someone can be evidence that the defendant intended to kill, as it is reasonable to ‘infer that every person intends the natural and probable consequences of his or her acts.’”

Unpreserved arguments

Smith alleges errors in his sentencing, and “also asserts that the evidence was insufficient to convict him of possession of a firearm by a convicted felon, three counts of shooting in public, and reckless handling of a firearm. He also asserts that the evidence was insufficient to convict him of destruction of property because the evidence did not establish the value of the property. Smith did not preserve any of these arguments below. …

“Smith had ample opportunity to raise his objections regarding the sufficiency of the evidence undergirding these charges to the circuit court but chose not to do so.”

Affirmed.

Smith v. Commonwealth, Record No. 0604-21-1, Aug. 16, 2022. CAV (Humphreys, Chaney concurring) From the Circuit Court of the City of Suffolk (Sandwich Jr.). Sean E. Harris for appellant. Victoria Johnson, Jason S. Miyares for appellee. VLW 022-7-338, 21 pp.