Virginia Lawyers Weekly VA Lawyers Weekly
There was sufficient evidence that appellant intentionally and with malice fired shots at a car, which was being driven toward a group of cars waiting at a traffic signal.
Two bullets entered a car waiting at the light, showering the driver with broken glass from the driver- and passenger-side windows.
Appellant’s convictions for shooting into an occupied vehicle are affirmed.
A remand is necessary. The trial court acquitted appellant of two charges of shooting into an occupied building but sentenced him for the acquitted charges. The sentence is vacated. The case is remanded for further proceedings.
Sufficient evidence
“Viewed in the light most favorable to the Commonwealth, the evidence established that appellant intentionally and maliciously fired upon an occupied vehicle. Here, appellant exited his vehicle and fired his gun, a deadly weapon, toward the Infiniti as its driver sped away, and continued firing his gun into an intersection with cars waiting at the traffic light.
“Appellant fired a total of sixteen shots, two of which entered Merian’s vehicle. Thus, a rational factfinder could imply malice from appellant’s use of a gun and his ‘willful[ ] [and] purposeful[ ] … course of wrongful conduct likely to cause death or great bodily harm.’ …
“Appellant suggests on appeal that he acted in self-defense.” However, appellant did not raise this issue in the trial court, so it cannot be heard on appeal.
Sentence
“Although we affirm appellant’s convictions for maliciously shooting into an occupied vehicle, we must remand the sentencing order for correction by the trial court. As the Commonwealth candidly notes in its brief, the final sentencing order purports to sentence appellant for maliciously shooting into an occupied dwelling, even though the trial court acquitted him of that offense.
“Appellant did not challenge the validity of the sentencing order in the trial court and does not do so on appeal; however, ‘a sentence is “void” … if “the court rendering it” did not have “the power to pronounce” it.’ … That power is conferred by statute. …
“Here, there was no finding of guilt or conviction on the malicious shooting into an occupied dwelling charge. To the contrary, the trial court acquitted appellant of that offense. Thus, the trial court lacked the power to sentence appellant for it. The part of the final sentencing order imposing such a sentence therefore is void ab initio. …
“[W]e affirm appellant’s convictions for malicious shooting into an occupied vehicle. We vacate the portion of sentencing order related to the maliciously shooting into an occupied dwelling sentence.”
Affirmed in part, vacated in part, and remanded.
Payne v. Commonwealth, Record No. 1282-21-1, Nov. 1, 2022. CAV (Malveaux). From the Circuit Court of the City of Hampton (Pugh). Joshua A. Goff for appellant. Lauren C. Campbell, Jason S. Miyares for appellee. VLW 022-7-492, 7 pp.
