                    COURT OF APPEALS OF VIRGINIA


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


CRAIG ROLAND BROWDER
                                          MEMORANDUM OPINION * BY
v.   Record No. 1499-97-2                  JUDGE LARRY G. ELDER
                                             DECEMBER 22, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                    James F. D'Alton, Jr., Judge
           Mary Katherine Martin, Senior Assistant
           Public Defender, for appellant.

           Ruth Ann Morken, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



      Craig Roland Browder was convicted in a jury trial for

involuntary manslaughter, attempted murder, discharge of a

firearm within an occupied building, statutory burglary and use

of a firearm in the commission of attempted murder and burglary.

 On appeal, Browder contends the evidence was insufficient to

support his convictions.    For the reasons that follow, we affirm

the challenged convictions.

                    SUFFICIENCY OF THE EVIDENCE

      Whenever an appellant challenges the sufficiency of the

evidence to support a conviction, we must view the evidence "in

the light most favorable to the Commonwealth and give it all

reasonable inferences fairly deducible therefrom."    Higginbotham

      *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
          The weight which should be given to evidence
          and whether the testimony of a witness is
          credible are questions which the fact finder
          must decide. However, whether a criminal
          conviction is supported by evidence
          sufficient to prove guilt beyond a reasonable
          doubt is not a question of fact but one of
          law.


Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,

601 (1986).

                               1.
                    Involuntary Manslaughter

     Browder contends the evidence was insufficient to support

his conviction for involuntary manslaughter because the death of

the man shot by Young, the store owner, was not a foreseeable

consequence of Browder's actions.   Browder argues that "because

his weapon contained no ammunition," he "did not have the means

to kill anyone" and he "could not foresee that [his actions]

would lead to the death of a third party."   We disagree.

     As the Supreme Court previously has held:
             To convict [an accused] of involuntary
          manslaughter, the Commonwealth [must] . . .
          prove that [the accused] committed "acts of
          commission or omission of a wanton or willful
          nature, showing a reckless or indifferent
          disregard of the rights of others, under
          circumstances reasonably calculated to
          produce injury, or which make it not
          improbable that injury will be occasioned,
          and the offender knows, or is charged with
          the knowledge of, the probable result of his
          acts." The Commonwealth must also prove that
          [the accused's] criminally negligent acts
          were a proximate cause of the victim's death.




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Gallimore v. Commonwealth, 246 Va. 441, 445-46, 436 S.E.2d 421,

424 (1993) (citation omitted).

     Here, the evidence was sufficient to prove these elements.

It showed that Browder entered the store and fired a shotgun at

the store owner.   Although Detective Lauter found no bullet or

pellet holes in the store, he testified that the shotgun shell

Browder fired contained gunpowder but no pellets.   Lauter opined

that "[s]omeone that would take the pellets out of a shotgun

shell is really doing it to make noise and not really . . . to

shoot somebody."   However, he further testified that a person

firing a shotgun could not determine, just by looking at the

shotgun, whether the shells loaded in the gun contained pellets.

That person would have to remove the shells and examine them.
     Detective Lauter further testified that, if a person had

been standing close enough to the shotgun, "the [muzzle blast]

could [burn] and powder could embed in [the] skin," and the

cardboard or plastic wad "would enter [that person] just like a

bullet."

     This evidence was sufficient to prove that Browder's firing

the shotgun could have killed or seriously injured a person.

Furthermore, no evidence proved that Browder knew the shotgun did

not contain ordinary ammunition.    Given that Browder actually

fired the shotgun at the store owner, the evidence was sufficient

to prove Browder acted with wanton and reckless disregard of

others under circumstances reasonably calculated to produce



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injury.     See id.

     Furthermore, the evidence proved Browder threatened "to kill

somebody" when he entered the store with a shotgun.     He should

reasonably have anticipated that these actions might prompt the

store's owner or other occupants to respond in self-defense.       As

the Supreme Court observed, "an intervening event, even if a

cause of the harm, does not operate to exempt a defendant from

liability if the intervening event was put into operation by the

defendant's negligent acts."      Id. at 447, 436 S.E.2d at 425.

Therefore, we hold that the jury was not plainly wrong in

concluding that Young's firing in self-defense, resulting in the

death of a bystander, were foreseeable consequences of Browder's

reckless behavior.

     Accordingly, the evidence was sufficient to convict Browder

of involuntary manslaughter.

                                   2.

                            Attempted Murder
     "To sustain a conviction for attempted murder, the evidence

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

but ineffectual act committed in furtherance of the criminal

purpose."     Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d

193, 198 (1987).      "The state of mind of an accused may be shown

by his acts and conduct."      Sandoval v. Commonwealth, 20 Va. App.

133, 137, 455 S.E.2d 730, 732 (1995).

     The evidence proved that Browder entered the store, said he



                                  - 4 -
was "going to kill somebody," and fired the shotgun at the store

owner.    Furthermore, no evidence proved that Browder was the

person who had removed the pellets from the shotgun shell or that

he was aware the pellets had been removed.

     In addition, Browder's own evidence provided a possible

motive for Browder to kill.    The jury could have believed beyond

a reasonable doubt that Browder was so enraged by his earlier

confrontations with Young's nephew that he armed himself with a

shotgun and entered the store seeking revenge.    Upon this

evidence, the jury could have found beyond a reasonable doubt

that Browder fired his shotgun intending to kill.
                                  3.

          Discharge of a firearm within an occupied building

     It is unlawful for "any person [to] maliciously discharge[]

a firearm within any building when occupied by one or more

persons in such a manner as to endanger the life or lives of such

person or persons."    Code § 18.2-279.   "Traditionally, a firearm

is considered to be any weapon 'from which a shot is discharged

by gunpowder.'"    Jones v. Commonwealth, 16 Va. App. 354, 356, 429

S.E.2d 615, 616 (citation omitted), aff'd on reh'g en banc, 17

Va. App. 233, 436 S.E.2d 192 (1993).

     Browder argues that because the shells he fired from the

shotgun had no pellets or other shot, no lives were placed in

danger.    We disagree.   The shotgun was a firearm as contemplated

by the statute.    Gunpowder residue on the damaged merchandise




                                 - 5 -
proved that Browder discharged the shotgun inside the convenience

store.   Furthermore, Detective Lauter testified that despite the

absence of shot in the shells, Browder's weapon discharged a wad

that would enter a person standing nearby "just like a bullet."

     We have previously ruled that the "sho[oting of a] gun into

[a] ceiling while in close proximity to . . . persons within a

confined space . . . constitute[s] a reckless act that

endanger[s] lives."   Strickland v. Commonwealth, 16 Va. App. 180,

182, 428 S.E.2d 507, 508 (1993).     Therefore, we hold the record

contained sufficient evidence to support Browder's conviction for

discharging a firearm in a manner that endangered the lives of

those in the store.
                                4.

                        Statutory Burglary

     Browder also argues that the evidence is insufficient to

sustain the conviction for statutory burglary because (A) "the

alleged offense occurred during normal business hours and

[Browder] had never been banned from the property prior to the

offense alleged," and (B) "the evidence failed to show the

requisite specific intent to commit the crimes outlined in [Code

§ 18.2-91]."   We address each of these arguments in turn.

                                A.

     "If any person [enters any shop in the nighttime without

breaking] . . . with [the] intent to commit larceny, or any

felony other than murder, rape, robbery or arson . . . or [enters



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any shop in the nighttime without breaking] . . . with [the]

intent to commit assault and battery, he shall be guilty of

statutory burglary . . . ."   Code § 18.2-91; see also Code

§ 18.2-90.   Browder argues that because the store was open for

business when he entered, he cannot be convicted of burglary.

However, we rejected that argument in Clark v. Commonwealth, 22

Va. App. 673, 472 S.E.2d 663 (1996), aff'd on reh'g en banc, 24

Va. App. 253, 481 S.E.2d 495 (1997), in which we held that "under

Code § 18.2-90, a person who enters a store [during business

hours] intending to commit robbery therein, enters the store

unlawfully" and is guilty of statutory burglary.    22 Va. App. at

674, 472 S.E.2d at 663.   That holding is dispositive of Browder's

claim that he could not be guilty of burglary because he entered

the store during business hours.
                                B.

     Browder next argues that, because the jury found he had the

requisite specific intent to commit attempted murder, he could

not have had the specific intent required to commit statutory

burglary under Code § 18.2-91, which requires proof of intent to

commit "any felony other than murder, rape, robbery or arson."
Code § 18.2-91 (emphasis added).     If the evidence proved that

Browder intended to commit only murder, then his argument would

be persuasive.   However, the record contained sufficient evidence

to prove that Browder also intended to commit two felonies other

than murder--discharge of a firearm within an occupied building




                               - 7 -
and criminal assault.   See Martin v. Commonwealth, 13 Va. App.

524, 527, 414 S.E.2d 401, 402 (1992) (en banc) (defining

"[c]riminal assault . . . [as] 'any attempt or offer with force

or violence to do corporal hurt to another'" (citation omitted)).

The evidence was sufficient to support a finding beyond a

reasonable doubt that Browder had the requisite specific intent

to commit both these offenses, each of which is a crime

encompassed within Code § 18.2-91.
                            CONCLUSION

     For these reasons, we conclude the evidence was sufficient

to support Browder's convictions for involuntary manslaughter,

attempted murder, discharge of a firearm within an occupied

building, statutory burglary and use of a firearm in the

attempted murder and burglary.    We therefore affirm Browder's

convictions.

                                                          Affirmed.




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Benton, J., concurring in part and dissenting in part.

     I concur in the opinion except for Part A of the discussion

concerning statutory burglary and the ruling upholding the

conviction for statutory burglary.    For the reason stated in

Clark v. Commonwealth, 22 Va. App. 673, 678, 472 S.E.2d 663, 665

(1996) (Benton, J., dissenting), I would reverse the statutory

burglary conviction and the corresponding charge of use of a

firearm in the commission of burglary.




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