                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Elder and Bray
Argued by Teleconference


BRUCE ELLIOTT DAVIS
                                             MEMORANDUM OPINION * BY
v.          Record No. 1244-95-3              JUDGE LARRY G. ELDER
                                                 MARCH 25, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
                      Martin F. Clark, Jr., Judge
            Rickey G. Young for appellant.

            John K. Byrum, Jr., Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     Bruce Elliott Davis (appellant) appeals his convictions of

attempted capital murder and use of a firearm in the commission

of a felony.    He contends that the evidence was insufficient to

support either conviction.    For the reasons that follow, we

affirm.

     Appellant contends that the evidence was insufficient to

support his conviction of attempted capital murder.       Appellant

argues that the evidence failed to prove that he had the specific

intent to kill Corporal Thomas or that his actions constituted

more than mere preparatory acts.    We disagree.

     "[W]hen the question of the sufficiency of the evidence is

raised on appellate review, we must determine whether a

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
reasonable fact finder could have found from the evidence before

it that guilt had been proved beyond a reasonable doubt.

Furthermore, when reviewing the sufficiency of the evidence, we

must view the evidence in the light most favorable to the

Commonwealth, granting all reasonable inferences fairly deducible

from the evidence."    Crump v. Commonwealth, 20 Va. App. 609, 617,

460 S.E.2d 238, 241-42 (1995).    "The judgment of a trial court

sitting without a jury is entitled to the same weight as a jury

verdict and will not be set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence

to support it."   Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).

     To sustain a conviction for attempted capital murder, the

evidence must establish "'both a specific intent to kill the

victim and an overt but ineffectual act committed in furtherance

of the criminal purpose.'" 1   Martin v. Commonwealth, 13 Va. App.

524, 527, 414 S.E.2d 401, 402 (1992) (quoting Wynn v.
Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987)).

In a prosecution for attempted capital murder, it is well

established that:
          [t]he act   must be done with the specific
          intent to   commit a particular crime. . . .
           To do an   act with intent to commit one crime
          cannot be   an attempt to commit another crime,
          though it   might result in such other
     1
      Capital murder includes "[t]he willful, deliberate, and
premeditated killing of a law-enforcement officer . . . when such
killing is for the purpose of interfering with the performance of
his official duties." Code § 18.2-31(6).



                                 -2-
             crime. . . . [T]o be guilty of an attempt to
             murder there must be a specific intent to
             kill.


Thacker v. Commonwealth, 134 Va. 767, 770-71, 114 S.E. 504, 506

(1922).
             [S]pecific intent may, like any other fact,
             be shown by circumstances. Intent is a state
             of mind which can be evidenced only by the
             words or conduct of the person who is claimed
             to have entertained it. The inferences to be
             drawn from proven facts, so long as they are
             reasonable, are within the province of the
             trier of fact. The fact finder may infer
             that a person intends the immediate, direct,
             and necessary consequences of his voluntary
             acts.

Bell v. Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452

(1991) (citations omitted).

        We hold that the evidence was sufficient to prove that

appellant had the specific intent to kill Corporal Thomas.       The

record shows that appellant had previously eluded arrest for

murder by jumping from a second story window after stating that

he would resist any attempts to "take [him] to jail."       When the

police surrounded appellant in Martinsville several weeks later,

he sat in the car with his loaded gun for about four minutes,

defying the repeated orders of the police to display his hands.

Then, within a span of about ten seconds, he sprang to his feet,

pointed his gun at Corporal Thomas, who immediately backed away,

and scampered across the front seat to the open driver's side

door.    When appellant emerged from the car, rather than

continuing his attempt to escape, he looked at Corporal Thomas,



                                  -3-
pivoted in his direction and then started bringing his gun

towards him.    Although appellant's prior actions and words during

his escape from Roanoke indicate only that his state of mind was

to elude capture, his intent to kill could reasonably be inferred

from the fact that he interrupted his flight from the car to

pivot towards Corporal Thomas.    Corporal Thomas was only four

feet away from appellant and presumably in position to tackle him

unless appellant's escape from the car was swift.      Instead of

continuing his forward movements from the car door, appellant

turned toward his left and started moving his gun towards

Corporal Thomas.    In these circumstances, it was reasonable for

the trial court to infer that appellant had formed the specific

intent to fire his weapon and kill Officer Thomas.
        Appellant's reliance on Martin is misplaced.   13 Va. App.

524, 414 S.E.2d 401 (1992).    In Martin, we reversed the

defendant's conviction for attempted capital murder even though

the evidence showed that the defendant swung a knife just under

the chin of a police officer after saying "I'm going to kill

you."     Id. at 526, 414 S.E.2d at 402.   Appellant contends that we

held in Martin that the evidence was insufficient to prove

specific intent to kill.    However, appellant misstates both the

issue and holding in Martin.     The issue in Martin was the trial

court's failure to give a jury instruction proposed by the

defendant, not the sufficiency of the evidence to prove specific

intent.    We held that the evidence, when viewed in the light most




                                  -4-
favorable to the defendant, supported an instruction on the

lesser-included charge of simple assault.   Id. at 527-29, 414

S.E.2d at 402-04.   Because the issue in this case is the

sufficiency of the evidence, for which we view the evidence in

the light most favorable to the Commonwealth, Martin has no

application to this case.

     In a prosecution for attempt, the act shown by the

Commonwealth "need not . . . be the last proximate act to the

consummation of the crime in contemplation."   Sizemore v.

Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 214 (1978).

Instead, it "is sufficient if it be an act apparently adopted to

produce the result intended.   It must be something more than mere

preparation." Id.
          [T]he question of what constitutes an attempt
          is often intricate and difficult to
          determine, and . . . no general rule can be
          laid down which will serve as a test in all
          cases. Each case must be determined on its
          own facts.


Id. at 985, 243 S.E.2d at 215.

     We hold that the evidence was sufficient to prove that

appellant committed acts towards the commission of capital

murder.   The evidence showed that appellant sat in the front seat

of the car with a loaded gun for four minutes, refusing to comply

with the fervent orders of the police to show his hands.     While

still inside the car, appellant pointed his gun at Corporal

Thomas, who was blocking the open driver's side doorway.     Then,

after Corporal Thomas backed away and appellant emerged from his


                                 -5-
cleared escape route, appellant pivoted in the direction of

Corporal Thomas and began raising his weapon toward him.

Although appellant was unable to perform the last proximate act

of firing his gun, a fact finder could reasonably conclude that

appellant's movements to reposition himself and his firearm were

adopted to produce his intended result, the murder of Corporal

Thomas.

     Appellant contends that the evidence is insufficient to

prove an overt act because he neither contained, threatened nor

fired upon Officer Thomas.   However, in Bottoms v. Commonwealth,

we held that the evidence was sufficient to prove that the

defendant committed acts in furtherance of his intent to murder

even though he did none of the acts that appellant argues are

necessary to support his conviction in this case.   22 Va. App.

378, 383, 470 S.E.2d 153, 156 (1996) (holding that approaching a

police officer in a car and attempting to lure him to the

driver's window while holding a loaded revolver constituted overt

acts sufficient to support conviction for attempted capital

murder).

     We also disagree with appellant that this case is altogether

distinguishable from Sizemore.   In Sizemore, the defendant

approached the police officer with a loaded rifle, aimed it at

him and threatened repeatedly to kill him.   218 Va. at 985, 243

S.E.2d at 215.   Even though the defendant never actually fired

his rifle, the Virginia Supreme Court held that these actions




                                 -6-
"were all acts which the trial court could have found were done

in furtherance of the intent previously formed by the defendant

to murder [the officer]."    Id. at 986, 243 S.E.2d at 215-16.

Similarly, in this case, appellant aimed his loaded gun at

Corporal Thomas while he was in the car and attempted to aim at

him again after he partially emerged from the car.    Even though

appellant did not also verbally threaten Corporal Thomas, the

trial court could have reasonably concluded that appellant's

actions amounted to the commencement of the consummation of his

murder of Corporal Thomas.
     Appellant's sole contention regarding his conviction for use

of a firearm in the commission of a felony is that the

Commonwealth failed to prove the underlying felony of attempted

capital murder.   Code § 18.2-53.1.    Because we affirm appellant's

conviction of attempted capital murder, we hold that the evidence

was sufficient to support his conviction under Code § 18.2-53.1.

     For the foregoing reasons, we affirm the convictions.
                                                           Affirmed.




                                 -7-
