                               COURT OF APPEALS OF VIRGINIA


Present: Judges Clements, Haley and Senior Judge Overton
Argued at Richmond, Virginia


DEMETRUS D. BALDWIN, S/K/A
DEMETRIUS BALDWIN
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0312-05-2                                   JUDGE NELSON T. OVERTON
                                                                    MAY 30, 2006
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                             Frederick G. Rockwell, III, Judge

                 Jason J. Anthony (Goff & Anthony, PLC, on brief), for appellant.

                 Alice T. Armstrong, Assistant Attorney General (Judith Williams
                 Jagdmann, Attorney General, on brief), for appellee.


       Tried by the court sitting without a jury, Demetrus D. Baldwin, appellant, was found guilty

of eluding the police and attempted murder.1 Appellant contends the evidence was insufficient to



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         There is no dispute that the victim in this case was a police officer. However, the record
does not reflect appellant was convicted under Code § 18.2-25 and § 18.2-31(6), relating to
attempted capital murder of a law-enforcement officer. The indictment charged appellant with
“unlawfully and feloniously attempt[ing] to kill and murder Mark David Bowen” in violation of
Code § 18.2-26 and § 18.2-32, which together prohibit attempted murder. The conviction and
sentencing orders reflect that appellant was convicted of attempted murder in violation of Code
§ 18.2-26 and § 18.2-32. “A court speaks through its orders and those orders are presumed to
accurately reflect what transpired.” McBride v. Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d
126, 128 (1997).
        Either attempted first-degree murder or attempted second-degree murder is a Class 4
felony. See Code § § 18.2-26(1) and 18.2-32. Appellant’s sentence of fifteen years exceeded the
statutory maximum permitted for a Class 4 felony. See Code § 18.2-10(d) (lawful term of
confinement for a Class 4 felony is two to ten years). Therefore, we vacate appellant’s sentence
for attempted murder and remand the case for resentencing upon that charge in accordance with
Code § 18.2-10(d). See Nesbit v. Commonwealth, 15 Va. App. 391, 394, 424 S.E.2d 239, 240
(1992).
sustain his conviction for attempted murder.2 Finding the evidence sufficient, we affirm

appellant’s conviction.

                                               FACTS

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)).

       At about 6:30 p.m. on June 16, 2004, Officer Mark Bowen of the Chesterfield County

Police observed appellant driving a vehicle at a speed of thirty-five miles per hour in a ten

mile-per-hour zone in an apartment complex. In his police vehicle, Bowen followed appellant

and stopped behind him at a red light. After the light turned green and appellant’s vehicle began

to move forward, Bowen activated his emergency equipment to stop appellant. Appellant

proceeded for about 100 yards, then stopped in the turn lane on the right side of the road. Bowen

stopped, got out of his vehicle, and walked toward appellant’s vehicle.

       Bowen observed appellant sitting in the driver’s seat of his vehicle. Appellant was

talking on a cellular telephone. Bowen paused beside appellant’s vehicle for a few moments, but

appellant did not acknowledge the officer’s presence. Bowen tapped on the driver’s side

window, but appellant did not respond. Bowen tapped on the window a second time. Appellant

placed both his hands on the steering wheel and turned the wheel in Bowen’s direction.

Appellant then drove away “at a very fast speed.” Bowen, who was “right up against”

appellant’s car when he sped away, testified that he had to jump back and push off the rear of

appellant’s vehicle to avoid having his feet run over by the vehicle.




       2
           Appellant did not appeal his conviction for eluding the police.
                                                 -2-
       Bowen testified that when appellant turned his vehicle toward the officer and accelerated

away, appellant crossed over two lanes of traffic. There were no impediments to prevent

appellant from proceeding forward in the turn lane.

       Bowen returned to his vehicle, activated his lights and siren, and pursued appellant.

Appellant and Bowen proceeded through two red lights and reached speeds between forty and

seventy miles per hour. At one point, appellant traveled eastbound in a westbound lane to avoid

traffic stopped at an intersection. The pursuit lasted several miles, and ended when other officers

performed a “vehicle jam.”

       Testifying in his own behalf, appellant said he did not hear Bowen tap on the window.

Appellant claimed he did not realize the officer was standing beside the vehicle when appellant

sped away following the stop. Appellant testified that Bowen actually was several feet behind

appellant’s vehicle when appellant drove away. Appellant admitted that he looked in his

rearview and side mirrors to avoid any approaching traffic. Appellant said he panicked because

he had failed to complete a jail sentence for a DUI conviction and was in violation of his

probation. Appellant claimed he had no intention of striking Bowen. Appellant admitted having

prior felony convictions.

                                          DISCUSSION

       Appellant argues the evidence was insufficient to support his conviction of attempted

murder of Bowen.

                       When considering on appeal the sufficiency of the evidence
               presented below, 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.” Davis v.
               Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77
               (2002); see also McGee v. Commonwealth, 25 Va. App. 193,
               197-98, 487 S.E.2d 259, 261 (1997) (en banc). Thus, we do not
               “substitute our judgment for that of the trier of fact.” Wactor v.
               Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162
               (2002). “Instead, the relevant question is whether, after viewing
                                               -3-
                the evidence in the light most favorable to the prosecution, any
                rational trier of fact could have found the essential elements of the
                crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
                307, 319 (1979). “This familiar standard gives full play to the
                responsibility of the trier of fact fairly to resolve conflicts in the
                testimony, to weigh the evidence, and to draw reasonable
                inferences from basic facts to ultimate facts.” Id.

Kelly v. Commonwealth, 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (2003) (en banc).

        By virtue of Code § 18.2-26(1) and § 18.2-32, it is a Class 4 felony to commit attempted

murder. “A person cannot be guilty of an attempt to commit murder unless he has a specific

intent to kill.” Haywood v. Commonwealth, 20 Va. App. 562, 565, 458 S.E.2d 606, 607 (1995).

        Appellant claims the evidence did not prove that he possessed the intent to kill Bowen.

“Intent is the purpose formed in a person’s mind and may be, and frequently is, shown by

circumstances. It is a state of mind which may be proved by a person’s conduct or by his

statements.” Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969). “[A]

person is presumed to intend the immediate, direct, and necessary consequences of his voluntary

act.” Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). “[W]hether the

required intent exists is generally a question for the trier of fact.” Id.

        Appellant testified that he did not intend to strike the officer when he sped away after the

stop. However, appellant admitted that he looked in his rear and side view mirrors before

driving away, and he knew the officer was approaching on foot. The trier of fact is not required

to accept a party’s evidence in its entirety, see Barrett v. Commonwealth, 231 Va. 102, 107, 341

S.E.2d 190, 193 (1986), but is free to believe and disbelieve in part or in whole the testimony of

any witness. See Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830

(1991). Moreover, the trial court was permitted to consider appellant’s prior felony convictions

in assessing his credibility. See Code § 19.2-269.




                                                  -4-
       Appellant contends his actions were consistent with panic at the presence of the police

and an attempt to escape apprehension. However,

               upon appellate review in a case like this [the issue] is not whether
               there is some evidence to support defendant’s hypotheses. Rather,
               the issue is whether a reasonable fact finder, upon consideration of
               all the evidence, could have rejected defendant’s theories and
               found him guilty of the charged offense beyond a reasonable
               doubt.

Coles v. Commonwealth, 270 Va. 585, 589, 621 S.E.2d 109, 111 (2005).

       In Coles, the Supreme Court of Virginia considered the sufficiency of the evidence to

support a conviction for attempted capital murder where, during a “felony stop” of the defendant

in a motor vehicle, the defendant used his car to strike a police vehicle and push it in the

direction of a police officer who was on foot. The officer was forced to jump back to avoid

injury. The Court found the evidence supported a finding that the defendant had the specific

intent to kill the police officer. Id. at 591, 621 S.E.2d at 112. See also Stevens v.

Commonwealth, 38 Va. App. 528, 567 S.E.2d 537 (2002) (evidence sufficient to support

attempted capital murder conviction where defendant turned his vehicle toward a police officer,

who was riding a motorcycle, and accelerated rapidly). The Court noted in Coles that “‘[a]

motor vehicle, wrongfully used, can be a weapon as deadly as a gun or a knife.’” Coles, 270 Va.

at 590, 621 S.E.2d at 111 (quoting Essex v. Commonwealth, 228 Va. 273, 281, 322 S.E.2d 216,

220 (1984)).

       The evidence demonstrated appellant stopped his vehicle about 100 yards after Bowen

activated his emergency equipment. Bowen approached appellant’s vehicle, stood beside it, and

tapped on the window twice to get appellant’s attention. Appellant admitted that he looked in his

mirrors and knew the officer was approaching. Appellant placed his hands on the steering wheel

and turned the vehicle sharply to the left. Crossing over two lanes of traffic, appellant sped

away. Bowen was forced to jump back and push off the vehicle to avoid being struck. Had
                                                -5-
appellant intended only to escape, he could have driven away in the turn lane without turning the

car in Bowen’s direction.

       Considering all the facts and circumstances, the evidence was sufficient to prove beyond

a reasonable doubt that appellant possessed the intent to kill Bowen by striking him with a motor

vehicle. Thus, the trial court did not err in finding appellant guilty of attempted murder.

                                          CONCLUSION

       For the foregoing reasons, we affirm the conviction but remand the proceedings to the

trial court for resentencing consistent with this opinion.

                                                                     Affirmed and remanded.




                                                -6-
Haley, J., dissenting.

        I respectfully dissent.

        The sole issue for resolution is whether the evidence suffices to demonstrate that

appellant possessed the specific intent to kill Mark David Bowen.

        Initially, it should be remembered that “while a person may be guilty of murder though

there was no actual intent to kill, he cannot be guilty of an attempt to commit murder unless he

has a specific intent to kill.” Merritt v. Commonwealth, 164 Va. 653, 660, 180 S.E. 395, 398

(1935). Where “an indictment charges an offense which consists of an act combined with a

particular intent, proof of the intent is essential to conviction.” Patterson v. Commonwealth, 215

Va. 698, 699, 213 S.E.2d 752, 753 (1975). And, as this Court held in Maynard v.

Commonwealth, 11 Va. App. 437, 452, 399 S.E.2d 635, 644 (1990) (en banc) (citation omitted),

“Although the Commonwealth may prove by circumstantial evidence the specific intent . . . that

proof must be . . . beyond a reasonable doubt.” Finally, “if evidence of intent is wholly

circumstantial ‘all necessary circumstances proved must be consistent with guilt and inconsistent

with innocence and exclude every reasonable hypothesis of innocence.’” Dukes v.

Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984) (quoting Inge v. Commonwealth,

217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).

        As relevant to specific intent, Officer Bowen testified that appellant “pulled off to the

right shoulder of the road . . . like a turn lane to go off to one of the side streets . . . .” Officer

Bowen parked his vehicle at an angle behind appellant’s. Officer Bowen approached and tapped

on appellant’s raised car window as appellant was talking on his cell phone. There is no

evidence appellant looked directly at Bowen. There is no evidence that appellant made any

gestures toward or said anything to Bowen. Appellant placed his hand on the steering wheel and

accelerated on an angle to the left, from the shoulder (or turn lane) onto the through lanes.

                                                   -7-
Officer Bowen testified he “had to push off the back of the car so his back wheels didn’t run over

my feet.”

       Testifying on his own behalf, appellant stated that he had stopped “on the shoulder,” that

he “panicked” because he had not done “his weekend time” for a DUI conviction, and that after

stopping, he pulled off into “the first lane that there was.” He denied he had any “intention to try

to strike” Officer Bowen.

       These facts are to be contrasted with other cases in which “[a] motor vehicle, wrongfully

used, can be a weapon as deadly as a gun or a knife.” Coles v. Commonwealth, 270 Va. 585,

590, 621 S.E.2d 109, 111 (2005) (quoting Essex v. Commonwealth, 228 Va. 273, 281, 322

S.E.2d 216, 220 (1984)). In Coles, the Virginia Supreme Court recently affirmed a conviction of

attempted capital murder of a police officer. In so doing, the majority noted that “the clear

evidence [showed] that defendant . . . swerved to the left and aimed the Honda directly toward

the officer and the police vehicle.” 270 Va. at 590-91, 621 S.E.2d at 112 (emphasis added).

       In Stevens v. Commonwealth, 38 Va. App. 528, 532, 567 S.E.2d 537, 541 (2002)

(emphasis added), this Court affirmed a conviction for attempted capital murder of police officer

Steve Hines, where the defendant was “looking right at Hines . . . deliberately turned his car in

Hines’ direction and drove toward him.” Likewise, in Moudy v. Commonwealth, 28 Va. App.

702, 707, 508 S.E.2d 354, 356 (1998) (emphasis added), we affirmed an attempted murder

conviction where the defendant “who saw Van de Graff blocking the only avenue of his escape,

deliberately choose to accelerate his car toward the pedestrian . . . .” In Holley v.

Commonwealth, 44 Va. App. 228, 235, 604 S.E.2d 127, 130 (2004) (emphasis added), we

affirmed a conviction of attempted malicious wounding of a police officer when the evidence

showed that “Holley then accelerated the van directly toward Officer Quiros . . . [and] attempted

to drive through” him.

                                                -8-
       Each of the above cases has a common, and dispositive, fact – the defendant deliberately

pointed his vehicle “toward” a potential victim. Here the analogy between a vehicle and a gun as

a malevolent instrument is telling. In most instances, one could not be convicted of attempted

murder by use of a gun unless that person at least pointed the gun toward the victim.

       On point with the instant case is our decision in Haywood v. Commonwealth, 20

Va. App. 562, 458 S.E.2d 606 (1995). There, police officers had placed their vehicles in

Haywood’s path as roadblocks. One officer “pulled his vehicle out of the way, narrowly

avoiding a collision.” Id. at 564, 458 S.E.2d at 607. The second officer “stopped her vehicle in

her lane of travel with the front end aimed toward the middle so that Haywood could know to

stop. Again, Haywood failed to slow down and the . . . officer took evasive action to avoid being

hit head-on.” Id. at 565, 458 S.E.2d at 607.

       The trial court found Haywood guilty of two counts of attempted capital murder of a

police officer. In reversing, we stated:

               Here, while the evidence may support an hypothesis that Haywood
               acted with malice and intended to run over or through anyone or
               anything that got in his way, the Commonwealth’s evidence failed
               to exclude another reasonable hypothesis of Haywood’s acts
               which, if true, would exonerate him of the charges of attempted
               capital murder of the police officers.

                   That Haywood, who was in trouble with the law, merely
               attempted to run a roadblock to avoid apprehension is a reasonable
               hypothesis of innocence which the Commonwealth’s evidence
               failed to exclude. At trial, Haywood testified that he fled from the
               park and drove at a high rate of speed because he “was driving on a
               suspended driver’s license and [] had been drinking and [] was in
               ASAP and [] owned [his] own business [] didn’t want to throw it
               all away.” There was no evidence that Haywood ever swerved or
               aimed his truck to hit the police cars when they pulled out of his
               path or that he turned his truck around in an attempt to hit the
               police cars after passing by them.

                  . . . Thus, because the Commonwealth presented no direct
               evidence that Haywood in running the road blocks intended to
               murder the police officers and because its circumstantial evidence
                                               -9-
               did not exclude a reasonable hypothesis of innocence, we reverse
               Haywood’s convictions.

Id. at 567-68, 458 S.E.2d at 608-09.

       In the instant case, the evidence is similarly insufficient to show a specific intent to kill.

In Haywood, the defendant, like appellant in this matter, was already “in trouble with the law.”

Haywood attempted to run a roadblock, and while perhaps he “intended to run over or through

anyone or anything that got in his way,” this Court held that such an intent did not suffice for the

specific intent to kill a police officer. Id. at 567, 458 S.E.2d at 608. Here, appellant turned his

vehicle to the left, as was necessary to return to the through lanes, while the officer was standing

beside his car. When the appellant did so, Officer Bowen testified that he had to “push off the

back of the car so his back wheels didn’t run over my feet.”

       The Commonwealth’s evidence cannot exclude the hypothesis that appellant’s intent was

only to avoid arrest, like Haywood, rather than to kill the officer. Appellant merely drove his car

back onto the through lanes of the road. He did not drive through a roadblock, nor did he aim his

car “toward” the officer. Here, given Officer Bowen’s position beside and behind appellant’s

vehicle, appellant could not have even intended to run over Bowen for being in his way.

Certainly, the facts here are less egregious than those in Haywood. Thus, this is a circumstance

which is not “inconsistent with innocence,” and the Commonwealth did not exclude the

“reasonable hypothesis” that appellant simply wanted to flee.

       Accordingly, I would reverse appellant’s conviction of attempted murder as the evidence

is insufficient to demonstrate appellant possessed the specific intent to kill Officer Bowen.




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