                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Elder and Petty
UNPUBLISHED


              Argued at Richmond, Virginia


              TONY MARK HERRING, JR.
                                                                             MEMORANDUM OPINION * BY
              v.      Record No. 1430-12-3                                CHIEF JUDGE WALTER S. FELTON, JR.
                                                                                    APRIL 16, 2013
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                                                Victor V. Ludwig, Judge

                                John I. Hill (Poindexter, Schorsch, Jones & Hill, P.C., on briefs), for
                                appellant.

                                Robert H. Anderson, III, Senior Assistant Attorney General
                                (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.


                      Tony Mark Herring, Jr. (“appellant”) appeals his convictions by the Circuit Court of

              Augusta County (“trial court”) for attempted first degree murder, use of a firearm in the

              commission of that offense, and four counts of abduction. On appeal, he asserts that the trial

              court erred in finding that the Commonwealth’s evidence was sufficient to convict him. For the

              following reasons, we affirm appellant’s convictions for attempted first degree murder and use of a

              firearm in the commission of that offense. However, we reverse each of appellant’s four

              convictions for abduction.

                                                          I. Procedural Bar

                      The Commonwealth asserts that appellant’s petition for appeal should be dismissed pursuant

              to Rule 5A:12(c)(1)(ii). It argues that the sole assignment of error in the petition for appeal, “[t]he

              trial court erred by failing to grant the defendants [sic] motion to strike the Commonwealth’s

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
evidence as being insufficient as a matter of law to sustain his convictions for attempted murder,

abduction and the use of a firearm in the commission of a felony,” 1 contains only a general

statement that the evidence was insufficient, thereby failing to invoke this Court’s subject matter

jurisdiction to consider appellant’s claim of trial court error. Appellant’s Br. at 3. Both parties were

aware of the asserted trial court errors presented by appellant on appeal and fully briefed those

issues for consideration by this Court. We conclude on this record that appellant’s petition for

appeal sufficiently invokes our jurisdiction to consider the asserted trial court errors. See Moore v.

Commonwealth, 276 Va. 747, 754, 668 S.E.2d 150, 154 (2008) (holding that where failure to

strictly adhere to requirements of Rule 5A:12(c)(1)(ii) is insignificant, the Court is not precluded

“from addressing the merits of the case”).

                                        II. Standard of Review

        “‘Where the issue is whether the evidence is sufficient, we view the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom.’” Baylor v. Commonwealth, 55 Va. App. 82, 84, 683 S.E.2d 843, 844 (2009)

(quoting Sandoval v. Commonwealth, 20 Va. App. 133, 135, 455 S.E.2d 730, 731 (1995)). We

“‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s decision

is ‘plainly wrong or without evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250,

257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99,

570 S.E.2d 875, 876-77 (2002)); see Code § 8.01-680.

                              III. Attempted First Degree Murder and
                         Use of a Firearm in the Commission of that Offense

        Appellant was indicted for “unlawfully, feloniously, willfully, deliberately and with

premeditation attempt[ing] to kill and murder [wife] in violation of [Code §] 18.2-32 and


        1
          In its brief in opposition to appellant’s petition for appeal, the Commonwealth did not
assert that the petition failed to comply with Rule 5A:12(c)(1)(ii).
                                                    -2-
[§] 18.2-26.” “[A]n attempt to commit a crime consists of two elements: ‘(1) [t]he intent to

commit a crime; and (2) a direct act done towards it commission, but falling short of the execution

of the ultimate design.’” Jay v. Commonwealth, 275 Va. 510, 525, 659 S.E.2d 311, 319-20 (2008)

(quoting Glover v. Commonwealth, 86 Va. (11 Hans.) 382, 385, 10 S.E. 420, 421 (1889)).

       “‘Intent is the purpose formed in a person’s mind at the time an act is committed. Intent

may, and often must, be inferred from the facts and circumstances of the case, including the actions

and statements of the accused.’” Johnson v. Commonwealth, 53 Va. App. 79, 100, 669 S.E.2d 368,

378 (2008) (quoting Commonwealth v. Taylor, 256 Va. 514, 519, 506 S.E.2d 312, 314 (1998)

(citations omitted)). “‘The state of mind of an accused may be shown by his acts and conduct.’”

Rivers v. Commonwealth, 21 Va. App. 416, 421, 464 S.E.2d 549, 551 (1995) (quoting Sandoval, 20

Va. App. at 137, 455 S.E.2d at 732). “‘The finder of fact may infer that a person intends the

immediate, direct, and necessary consequences of his voluntary acts.’” Id. (quoting Bell v.

Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991)).

       On December 14, 2010, appellant returned to the family home intoxicated. After an

argument, appellant shoved, punched, and choked his wife, in the presence of their three minor

children 2 and appellant’s father, Tony Mark Herring, Sr. (“appellant’s father”). After physically

assaulting his wife, appellant told her that “he was going to get a gun and kill [her].” When

appellant left the living room to get a gun, wife ran out of the house and hid behind appellant’s

father’s truck parked in the front yard. Appellant obtained a shotgun and went to the front door of

the house looking for his wife. He stood in the front door, pointed the shotgun outside, and yelled

that he was going to kill his wife. The trial court found the evidence proved that appellant was

“aiming [the shotgun] generally around” with his finger on the trigger. While appellant was




       2
           The couple had twin daughters, A.H. and B.H., age 11, and a son, C.H., age 3.
                                               -3-
“aiming [the shotgun] generally around,” appellant’s father pushed the butt of the shotgun down to

force the muzzle into the air resulting in the shotgun firing.

        The trial court rejected appellant’s testimony that he did not intend to kill his wife. It

commented that appellant’s “credibility [was] wonting on almost every issue.” The trial court

additionally found that appellant’s intent to kill his wife was manifested by his statements and

actions. “The credibility of the witnesses and the weight accorded the evidence are matters

solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.”

Sandoval, 20 Va. App. at 138, 455 S.E.2d at 732. Furthermore, “[i]n its role of judging witness

credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and

to conclude that the accused is lying to conceal his guilt.” Marable v. Commonwealth, 27

Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). We conclude that the trial court’s finding

appellant guilty of attempted murder of his wife and use of a firearm in the commission of that

offense was not plainly wrong or without evidence to support it. Accordingly, we affirm the

judgment of the trial court finding appellant guilty of attempted first degree murder and use of a

firearm in the commission of that offense.

                                            IV. Abduction

        Appellant was also convicted of abducting his three children, A.H., B.H. and C.H., and his

father, in violation of Code § 18.2-47.

        Code § 18.2-47(A) provides, that

                [a]ny person who, by force, intimidation or deception, and without
                legal justification or excuse, seizes, takes, transports, detains or
                secretes another person with the intent to deprive such other person
                of his personal liberty or to withhold or conceal him from any
                person, authority or institution lawfully entitled to his charge, shall
                be deemed guilty of “abduction.”

“[W]hen a ‘statute makes an offense consist of an act combined with a particular intent, proof of

such intent is as necessary as proof of the act itself and must be established as a matter of fact.’”
                                                  -4-
Burton v. Commonwealth, 281 Va. 622, 626, 708 S.E.2d 892, 894 (2011) (quoting Ridley v.

Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979)). “‘Intent is the purpose formed in

a person’s mind which may, and often must, be inferred from the facts and circumstances in a

particular case. The state of mind of an alleged offender may be shown by his acts and conduct.’”

Id. at 626-27, 708 S.E.2d at 894 (quoting Ridley, 219 Va. at 836, 252 S.E.2d at 314).

        On this record, we conclude that the evidence presented at trial failed to establish that

appellant detained his three children and his father with the intent to deprive each of his or her

personal liberty. The evidence at trial established that the three children and appellant’s father were

able to move around the house. Appellant’s father and A.H. each communicated separately with a

911 dispatcher. At one point, appellant’s father told the children to go into his bedroom and lock

the door. Moreover, appellant’s father and the three children were able to leave the house with little

interference from the appellant. While we do not dispute the fact that appellant’s actions caused

appellant’s father and the three children to be afraid of what might transpire generally, nothing

presented in the record establishes that his purpose was to deprive them of their personal liberty “by

force, intimidation or deception.” Code § 18.2-47(A). See Burton, 281 Va. 622, 708 S.E.2d 892

(holding Burton’s actions were in pursuit of sexual gratification, not deprivation of victim’s liberty).

We conclude from the record before us that the evidence was not sufficient to prove beyond a

reasonable doubt that appellant intended to seize, take, transport, detain, or secrete his father and his

three children with the “intent to deprive [them] of [their] personal liberty.” Code § 18.2-47(A).

Accordingly, we reverse each of appellant’s four convictions for abduction.




                                                  -5-
                                          V. Conclusion

       For the foregoing reasons, we affirm appellant’s convictions for attempted first degree

murder and use of a firearm in the commission of that offense. We reverse appellant’s four

convictions for abduction.

                                                              Affirmed in part and reversed in part.




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