                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia


ROGER LEE DAVIS
                                            MEMORANDUM OPINION * BY
v.   Record No. 2480-01-2                    JUDGE LARRY G. ELDER
                                                 APRIL 22, 2003
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
                       William R. Shelton, Judge

             Steven Brent Novey (Tomko & Novey, PC, on
             brief), for appellant.

             Jennifer R. Franklin, Assistant Attorney
             General (Jerry W. Kilgore, Attorney General,
             on brief), for appellee.


     Roger Lee Davis (appellant) appeals from his bench trial

conviction for "maliciously throw[ing] a missile at an occupied

motor vehicle, whereby the life of a person was put in peril,"

in violation of Code § 18.2-154. 1    On appeal, he contends the

evidence was insufficient to prove his actions may have placed a

person's life in peril because the object he threw, a bottle,

neither broke nor came in contact with the vehicle's occupants.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       He also was convicted for destroying property and failing
to appear, but he does not challenge those convictions in this
appeal.
He also contends the evidence proved, at most, that he acted

unlawfully rather than maliciously.

     Assuming without deciding the statute required proof that

appellant's actions placed "the life of any person . . . in

peril," we hold the evidence was sufficient to support such a

finding.    We also hold the evidence supported a finding that

appellant acted with malice.   Thus, we affirm.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to the evidence all reasonable inferences fairly

deducible therefrom.    Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987).   "Determining the credibility

of witnesses who give conflicting accounts is within the

exclusive province of the [fact finder], which has the unique

opportunity to observe the demeanor of the witnesses as they

testify."    Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d

477, 479 (1993).

     Code § 18.2-154 provides in relevant part as follows:

                 Any person who . . . maliciously throws
            any missile at or against . . . any motor
            vehicle . . . when occupied by one or more
            persons, whereby the life of any person
            . . . in such motor vehicle . . . may be put
            in peril, shall be guilty of a Class 4
            felony. . . .

                 If any such act is committed
            unlawfully, but not maliciously, the person
            so offending shall be guilty of a Class 6
            felony . . . .


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                                   I.

             PLACING "THE LIFE OF ANY PERSON . . . IN PERIL"

     Appellant contends the evidence was insufficient to support

his conviction because the bottle neither broke nor came in

contact with the vehicle's occupants and, thus, that the

evidence failed to prove "the life of any person . . . in such

motor vehicle . . . may [have] be[en] put in peril."     We

disagree.

     Assuming without deciding Code § 18.2-154 requires proof

that the life of the vehicle's occupants may have been

imperiled, the evidence here is sufficient to support such a

finding. 2    The bottle itself did not break, but it ricocheted

around the interior of the truck and narrowly missed at least

the truck's passenger, Aaron Belcher, before it hit the

windshield with enough force to crack it.




     2
       In Dowdy v. Commonwealth, 220 Va. 114, 255 S.E.2d 506
(1979), which involved the discharge of a firearm at an occupied
building, the Supreme Court interpreted almost identical
language, "whereby the life or lives of such person or persons
may be put in peril," used in Code § 18.2-279. It held the use
of such language in Code § 18.2-279 constituted "a legislative
declaration that human lives may be endangered when a deadly
weapon is maliciously discharged at or against a building
occupied by people" and "relieves the Commonwealth of the burden
of proving that human life was, in fact, endangered." Dowdy,
220 Va. at 117, 255 S.E.2d at 508 (emphases added). Because we
hold the evidence here proved the lives of the occupants of the
vehicle were "put in peril" by appellant's actions, we need not
decide whether the Supreme Court's interpretation of almost
identical language in Dowdy also applies to Code § 18.2-154.

                                  - 3 -
     Although the truck was stationary when appellant threw the

bottle, the statute expressly applies to "any [occupied] motor

vehicle" and does not distinguish between moving and stationary

vehicles.   Code § 18.2-154 (emphasis added).   To the extent such

a distinction is relevant to the degree of peril caused by the

acts at issue, the evidence here proved the truck was merely

stopped at a traffic light.   Thus, appellant's act of throwing

the bottle into the truck from a distance of only two to three

feet away could have resulted in harm to the occupants by

causing the driver, Benjamin Ellis, to lose control of the

vehicle or to drive recklessly from the scene to avoid any

additional threat of direct harm.   In fact, Ellis testified that

immediately after appellant threw the bottle, he put "[his] foot

. . . on the gas" without regard for the color of the traffic

light because he "[didn't] know if bullets [were] coming next."

     Thus, the Commonwealth's evidence proved that "the life of

any person . . . in such motor vehicle . . . may [have] be[en]

put in peril" by appellant's behavior.   Cf. Strickland v.

Commonwealth, 16 Va. App. 180, 182, 428 S.E.2d 507, 508 (1993)

(holding under Code § 18.2-279 that shooting gun into ceiling of

room occupied by 75 people presented "possibility that bullet

might have hit a metal part or solid object in the ceiling and

ricocheted" and, thus, was "sufficient to prove that the firearm

was discharged 'in such a manner as to endanger the . . . lives

of such . . . persons'" (quoting Code § 18.2-279)).

                               - 4 -
                                  II.

                         MALICIOUS INTENT

     Appellant's conviction required proof that he threw the

bottle with malicious intent.    Appellant contends he "acted out

of heat of passion" and, thus, that he committed only the lesser

offense of throwing the bottle unlawfully rather than

maliciously.   Viewing the evidence in the light most favorable

to the Commonwealth, we disagree and hold the evidence was

sufficient to prove appellant acted with malice.

     Whether an accused acted with malice or in the heat of

passion is a question of fact.     Canipe v. Commonwealth, 25

Va. App. 629, 643, 644, 491 S.E.2d 747, 753, 754 (1997).

Proving intent by direct evidence is often impossible.      Servis

v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165

(1988).   Intent, like any other element of a crime, may be

proved by circumstantial evidence, as long as the evidence

excludes all reasonable hypotheses of innocence flowing from it.

Rice v. Commonwealth, 16 Va. App. 370, 372, 429 S.E.2d 879, 880

(1993).   Circumstantial evidence of intent may include the

conduct and statements of the alleged offender, and "[t]he

finder of fact may infer that [he] intends the natural and

probable consequences of his acts."      Campbell v. Commonwealth,

12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc); see also

Schmitt v. Commonwealth, 262 Va. 127, 145, 547 S.E.2d 186,

198-99 (2001) (noting inference is permissive only and does not

                                 - 5 -
constitute impermissible shifting of burden of proof to

defendant).    The statements and conduct of an accused after the

events that constitute the charged crime also are relevant

circumstantial evidence of intent.       Canipe, 25 Va. App. at 645,

491 S.E.2d at 754 (relying in part on evidence that accused

falsely reported details of offense to police in effort to

portray victim as aggressor).

     "'Malice and heat of passion are mutually exclusive

. . . .'"     Canipe, 25 Va. App. at 643, 491 S.E.2d at 753

(quoting Barrett v. Commonwealth, 231 Va. 102, 106, 341 S.E.2d

190, 192 (1986)).    "'Malice inheres in the doing of a wrongful

act intentionally or without just cause or excuse, or as a

result of ill will . . . .'"     Wooden v. Commonwealth, 222 Va.

758, 762, 284 S.E.2d 811, 814 (1981) (quoting Dawkins v.

Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947)).       Heat

of passion, on the other hand, results "when one is provoked to

fear or rage or both.    [Thus,] [i]n order to determine whether

the accused acted in the heat of passion [or with malice], it is

necessary to consider the nature and degree of provocation as

well as the manner in which it was resisted."       Miller v.

Commonwealth, 5 Va. App. 22, 25, 359 S.E.2d 841, 842 (1987)

(citation omitted).

     Here, the evidence, viewed in the light most favorable to

the Commonwealth, established that the van in which appellant

was a passenger stopped abruptly, for no apparent reason,

                                 - 6 -
causing Ellis to "[have] to swerve and go around [the van]" on

the left.   While doing so, Ellis honked his horn and flashed his

lights.   Shortly thereafter, the van pulled up on the truck's

right at a traffic light, and the van's driver, not appellant,

rolled down her window.      Belcher then rolled down the passenger

window of Ellis's truck and said to the woman, "What are you

doing?    You almost caused an accident."    The woman driving the

van responded, "So.    So.   So."    Before Belcher and the woman

driving the van had exchanged any more words, appellant

"cre[pt]" around the truck and threw the bottle.

     The evidence established that Ellis and Belcher had had no

contact with appellant, had exchanged no words with him, and in

fact had not even seen appellant in the van before he "cre[pt]"

around Ellis's truck and threw a bottle through the open

passenger window.   Appellant approached stealthily and threw the

bottle so quickly that neither man had an opportunity to react

other than for Ellis to say, "Watch out," and for Belcher to

lean back in an attempt to avoid the bottle.      Although the

bottle itself did not break and did not come in contact with

either of the truck's occupants, appellant threw the bottle with

enough force to crack the truck's windshield, plastic molding

and plastic console.   Finally, appellant admitted at trial that

he initially lied to the investigating officer about whether he

threw the bottle.



                                    - 7 -
     This evidence supported the trial court's finding that

appellant threw the bottle into the truck "'intentionally or

without just cause or excuse,'" Wooden, 222 Va. at 762, 284

S.E.2d at 814 (quoting Dawkins, 186 Va. at 61, 41 S.E.2d at

503), and that Ellis's and Belcher's actions either could not or

did not "provoke[] . . . [sufficient] fear or rage" in appellant

to justify his throwing the bottle into their vehicle, Miller, 5

Va. App. at 25, 359 S.E.2d at 842.    Cf. Canipe, 25 Va. App. at

645, 491 S.E.2d at 754-55 (holding that parties' involvement in

"a fit of [bilateral] 'road rage'" only "minutes earlier,"

followed by "victim's nonviolent, nonthreatening confrontation

of appellant in [a] parking lot support[ed] the [fact finder's]

conclusion that appellant was not reasonably provoked to drive

his car into the victim").

                              III.

     For these reasons, we hold the evidence was sufficient to

support the challenged conviction, and we affirm.

                                                          Affirmed.




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