                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia


GEORGE E. BATES
                                         MEMORANDUM OPINION *
v.        Record No. 2126-96-2        BY JUDGE JOSEPH E. BAKER
                                            JUNE 10, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Thomas N. Nance, Judge
          Alice Sheridan Carrasco, Assistant Public
          Defender (David J. Johnson, Public Defender,
          on brief), for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     George E. Bates (appellant) appeals from his bench trial

convictions by the Circuit Court of the City of Richmond (trial

court) for two counts of attempted capital murder in violation of

Code §§ 18.2-25 and 18.2-31(6).   The sole issue presented by this

appeal is whether the evidence is sufficient to support the

charge that appellant formed a specific intent to kill two law

enforcement officers while in the performance of their duties.

     Upon familiar principles, 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).

     On November 13, 1995, Richmond Police Officer James Hanna
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and Trooper Thomas R. Taylor, in a police vehicle, were following

a Jeep Cherokee (Jeep) which they suspected was stolen.   After

Hanna had received verification that the vehicle had been stolen,

the officers began to pursue the Jeep.

     Appellant, age fourteen, was the driver of the Jeep.     He led

Hanna and Taylor on a chase encompassing a large area at speeds

between fifty and seventy miles per hour.   Ultimately, as

appellant approached an entrance ramp to Interstate 64, he lost

control of the Jeep.   The left side of the Jeep went into the

grass off of the left shoulder of the ramp.   It spun around 180

degrees and came to a halt facing Hanna and Taylor as they sat in

their vehicle.
     Both vehicles remained at a stop for three to five seconds.

Taylor and appellant made eye contact during this time.      Hanna

and Taylor released their seat belts, intending to exit their

vehicle, when Taylor suddenly advised Hanna to "hold it."    Taylor

saw grass begin to fly up from behind the Jeep as its tires

turned.   The Jeep began to move forward and rammed the police car

"head on."

     Appellant exited the Jeep and ran, followed by Hanna.     When

Hanna caught appellant, Hanna said to him, "[Y]ou could have hurt

us or you could have hurt somebody else."   Appellant responded,

"I don't give a f___ about you."

     Appellant testified in his defense and stated that as the

Jeep spun around he had one foot on the gas pedal and the other




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foot on the brake pedal at the same time.    He took his foot off

the brake to exit the Jeep, however, he said, "the Jeep took off

by itself" and, before he could hit the brake, he had collided

with the police car.   Appellant did not deny that he attempted to

escape and agreed that he had been sitting in the car three to

four seconds before it moved forward.   Appellant specifically

denied that he intended to kill the officers.

     The Commonwealth argues that the evidence must be viewed in

the light most favorable to the Commonwealth, that the trial

court's judgment must not be set aside unless plainly wrong or

without evidence to support it, and that, if we apply those

principles to the facts in appellant's case, we are required to

affirm the judgment of the trial court.     See Code § 8.01-680;

Martin, 4 Va. App. at 443, 358 S.E.2d at 418.    We agree that

these are well established legal principles, however, we hold

that the evidence was insufficient to support the judgment

because the record fails to show the specific intent to kill the

officers necessary to support a conviction for violation of Code

§§ 18.2-25 and 18.2-31(6).

     To sustain a conviction of attempted murder, the evidence

must establish both a specific intent to kill and an overt but

ineffectual act committed in furtherance of this criminal

purpose.   Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d

808, 810 (1977).   "'[W]hile a person may be guilty of murder

though there was no actual intent to kill, he cannot be guilty of



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an attempt to commit murder unless he has a specific intent to

kill.'"     Haywood v. Commonwealth, 20 Va. App. 562, 566, 458

S.E.2d 606, 608 (1995) (quoting Merritt v. Commonwealth, 164 Va.

653, 660, 180 S.E. 395, 398 (1935)).     It is not sufficient that

appellant's act, had it proved fatal, would have been murder.

See Haywood, 20 Va. App. at 566, 458 S.E.2d at 608.     Thus, the

question in appellant's case is not whether appellant's acts

might have resulted in the murder of the police officers.

Instead, the question is whether the evidence showed that when

appellant drove his vehicle toward the police vehicle he had

"formed the specific intent to use [the Jeep] as a weapon for the

unequivocal purpose of murdering the police officers."     See id.

Appellant testified that he did not intend to murder the police

officers.    While the physical evidence tends to contradict

appellant's version of how the collision occurred, it is

insufficient to establish beyond a reasonable doubt that

appellant intended anything other than to make his escape and

avoid arrest for theft of the Jeep.

     As in every criminal prosecution, the burden is upon the

Commonwealth to prove guilt beyond a reasonable doubt.    Every

element of the crime must be so proved and every reasonable

hypothesis consistent with the innocence of the accused must be

excluded by the Commonwealth.     Corbett v. Commonwealth, 210 Va.

304, 306, 171 S.E.2d 251, 253 (1969) (citations omitted).      Here,

it is as likely that appellant's intent was only to assure his



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escape as it was to kill the officers.   Where the facts are

equally susceptible to two interpretations, one of which is

consistent with the innocence of the accused, the trier of fact

cannot arbitrarily adopt that interpretation which incriminates

the accused.   Haywood, 20 Va. App. at 567, 458 S.E.2d at 609.

Considering the evidence here, we cannot declare that one

interpretation of the facts predominates over the other.

     For the reasons stated, we reverse the judgment of the trial

court and remand the case for such further action as the

Commonwealth may be advised.
                                            Reversed and remanded.




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