                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Petty and Beales
Argued at Chesapeake, Virginia


QUAVADIS V. HYMAN
                                                                  MEMORANDUM OPINION * BY
v.     Record No. 1275-11-1                                       JUDGE RANDOLPH A. BEALES
                                                                         MAY 8, 2012
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                Louis A. Sherman, Judge

                 Daymen W. X. Robinson (Law Office of Daymen W. X. Robinson,
                 on brief), for appellant.

                 Erin M. Kulpa, Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Quavadis V. Hyman (appellant) was convicted by the trial court of misdemeanor

destruction of property in violation of Code § 18.2-137(B). On appeal, appellant argues that the

trial court erred in finding sufficient evidence that he broke Officer B.T. Frantz’s watch and that

he had the specific intent to break the watch. For the following reasons, we reverse and remand.

                                          I. BACKGROUND

       On June 24, 2010, Officer Frantz of the Norfolk Police Department encountered appellant

after appellant had been arrested on unrelated charges. While in the booking office, Officer

Frantz observed appellant clutching his hands near his face and then making a motion as if he

were swallowing some object. Believing appellant had swallowed contraband or other foreign or

dangerous objects, one of the officers ordered appellant to open his mouth for it to be examined.

Officer Frantz grabbed appellant’s left wrist and forearm. Two other officers assisted Officer

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Frantz, grabbing appellant’s right arm. The three officers tried to bring appellant to the ground

and to place him in handcuffs. Officer Frantz testified that appellant resisted these attempts,

“pulling and yanking trying to free himself from the grasps of the officers.” Officer Frantz also

testified that appellant “began to clutch” his arms and those of the other officers. However,

Officer Frantz testified that appellant did not attempt to strike, punch, or kick any of the officers.

Officer Frantz further testified that appellant made no statements during the incident.

       The officers ultimately brought appellant to the ground and placed him in handcuffs. At

that time, Officer Frantz saw his watch, valued between $15 and $20, lying on the ground. The

band of the watch was broken. Officer Frantz did not see the watch break during the incident.

       Appellant moved to strike the evidence, arguing that Code § 18.2-137(B) 1 required the

Commonwealth to prove that he had the specific intent to destroy or damage the property.

Appellant maintained that the Commonwealth had failed to meet its burden to show that he had

such intent, or even to prove that he was the person who broke the watch. The trial court denied

appellant’s motion to strike.

       Appellant testified in his own defense, claiming that he did not intentionally cause

Officer Frantz’s watch to break and that he “did not know how it happened.”

       Appellant renewed his motion to strike, advancing the same arguments as in his original

motion to strike. The trial court denied the motion to strike and found appellant guilty.




       1
         It is clear based on the charging document (the arrest warrant) that appellant was
charged under subsection (B) of the statute, which requires the Commonwealth to prove he
intentionally destroyed, damaged, defaced, or removed the officer’s property. The
Commonwealth did not allege that appellant’s actions were merely unlawful, such that trial
would have proceeded under subsection (A) of the statute.


                                                 -2-
                                           II. ANALYSIS

          When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)

(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light

most favorable to the Commonwealth, as we must since it was the prevailing party in the trial

court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must

instead ask whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting

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

also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). A trial court’s

judgment will not be disturbed on appeal unless it is “plainly wrong or without evidence to

support it.” Code § 8.01-680; Preston v. Commonwealth, 281 Va. 52, 57, 704 S.E.2d 127, 129

(2011).

          Code § 18.2-137(B) reads in relevant part: “If any person intentionally causes such

injury, he shall be guilty of . . . a Class 1 misdemeanor if the value of or damage to the property,

memorial or monument is less than $1,000.” (Emphasis added). The phrase “such injury” refers

to the unlawful destruction, defacing, damage or removal of such property, without the intent to

steal, any “property, real or personal, not his own” described in paragraph A of Code § 18.2-137.

See Code § 18.2-137(A).

          This Court in Scott v. Commonwealth, 58 Va. App. 35, 49-50, 707 S.E.2d 17, 25 (2011),

explained that Code § 18.2-137(B) requires the heightened mens rea of specific intent:

                 Code § 18.2-137(B) attaches criminal liability when a person
                 performs a volitional act that damages the property of another and
                 the person specifically intends to cause damage to the property by
                 that act. . . . Code § 18.2-137(B) does not criminalize the mere
                                                -3-
               performance of a volitional act conducted in a criminally negligent
               manner that happens to damage the property of another.

Id. (emphasis added).

       Under Scott, two elements are required for conviction pursuant to Code § 18.2-137(B):

“a volitional act that damages the property of another and [that] the person specifically intends to

cause damage to the property by that act.” Id. at 49, 707 S.E.2d at 25 (emphasis in the original). 2

       Here, the trial court was plainly wrong in finding that appellant had the specific intent to

break Officer Frantz’s watch because the evidence in the record on appeal does not support this

finding by the trial court. See Code § 8.01-680. Viewing the evidence in the light most

favorable to the Commonwealth, as the prevailing party below, the record shows that appellant

resisted Officer Frantz’s attempt to restrain and handcuff him by pulling and yanking, trying to

free himself from the grasps of the officers – and that appellant clutched the arms of Officer

Frantz and the other officers. However, the record is devoid of any actions or statements by

appellant before, during, or after the incident from which the trial court could have inferred

appellant’s specific intent to damage Officer Frantz’s watch. See Moody v. Commonwealth, 28

Va. App. 702, 706, 508 S.E.2d 354, 356 (1998) (“‘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.’”

(quoting Banovitch v. Commonwealth, 196 Va. 210, 216, 83 S.E.2d 369, 373 (1954))).

        “The specific intent to commit [a crime] may be inferred from the conduct of the accused

if such intent flows naturally from the conduct proven.” Wilson v. Commonwealth, 249 Va. 95,

101, 452 S.E.2d 669, 674 (1995). However, a specific intent to break Officer Frantz’s watch


       2
         While in Scott, unlike here, the trial court found the defendant had acted unintentionally
(but with criminal negligence) when he struck several people and cars while driving his vehicle
(and this Court reversed the defendant’s conviction under Code § 18.2-137(B), id. at 53-54, 707
S.E.2d at 26-27), Scott remains controlling here regarding the specific intent requirement of
Code § 18.2-137(B).

                                                -4-
does not “flow naturally” from appellant’s efforts to resist the officers and to free himself from

restraint. Here, Officer Frantz testified that appellant “did not attempt to strike, punch, or kick

any of the officers involved.” While a factfinder “may infer that a ‘person intends the natural

and probable consequences of his or her acts,’” Johnson v. Commonwealth, 53 Va. App. 79, 100,

669 S.E.2d 368, 378 (2008) (quoting Velasquez v. Commonwealth, 276 Va. 326, 330, 661

S.E.2d 454, 456 (2008)), the damage to Officer Frantz’s watch was not a natural and probable

consequence of appellant’s resistance.

       Here, it is unreasonable to leap from the underlying fact proven that appellant resisted the

officers to the inference that his resistance was specifically intended to damage Officer Frantz’s

watch. If we were to conclude that this was a reasonable inference in this case, then any

altercation that resulted in any damage to any property would constitute the specific intent crime

of destruction of property under Code § 18.2-137(B). We do not find that conclusion reasonable

or consistent with the law.

       However, the trial court was not plainly wrong in finding that appellant caused Officer

Frantz’s watch to break. Viewing the evidence in the light most favorable to the

Commonwealth, as the prevailing party below, a rational factfinder could infer that appellant’s

resistance to the officers’ efforts to bring him to the ground and place him in handcuffs was a

proximate cause of Officer Frantz’s watch breaking. See Brown v. Commonwealth, 278 Va.

523, 529, 685 S.E.2d 43, 46 (2009) (“A proximate cause is ‘an act or omission that, in natural

and continuous sequence unbroken by a superseding cause, produces a particular event and

without which that event would not have occurred.’” (quoting Williams v. Joynes, 278 Va. 57,

62, 677 S.E.2d 261, 264 (2009))).

       Although the statement of facts is quite sparse, it indicates that appellant resisted the

officers by “pulling and yanking trying to free himself from the grasps of the officers” and

                                                -5-
appellant “began to clutch” Officer Frantz’s arm during the struggle. After the officers

ultimately brought appellant to the ground and placed him in handcuffs, Officer Frantz observed

that his watch was lying on the ground with his watchband broken.

       The rational factfinder standard used in sufficiency of the evidence appeals recognizes

that a factfinder may “draw reasonable inferences from basic facts to ultimate facts.” Haskins v.

Commonwealth, 44 Va. App. 1, 10, 602 S.E.2d 402, 406 (2004) (citations omitted). Here, the

basic facts are that Officer Frantz’s watch was intact prior to the struggle with appellant and that

the officer’s watch was broken and lying on the ground after the struggle with appellant. From

these two basic facts, a rational factfinder could reasonably infer the ultimate fact that, without

such resistance by appellant, the damage to Officer Frantz’s watch would not have occurred. See

Brown, 278 Va. at 529, 685 S.E.2d at 46. Thus, a rational factfinder could conclude that

appellant caused Officer Frantz’s watch to break. However, we express no opinion as to whether

appellant’s conduct was culpable under Code § 18.2-137(A) 3 – which does not require the

specific intent to damage or destroy another person’s property – because this question is not

before us on appeal.

                                        III. CONCLUSION

       Therefore, although sufficient evidence supported the trial court’s finding that appellant

caused Officer Frantz’s watch to break, the trial court erred in finding appellant guilty under Code

§ 18.2-137(B), which required specific intent by appellant to break the watch. Accordingly, we




       3
          Under Code § 18.2-137(A), “criminal liability [attaches] ‘when property is damaged or
destroyed during the commission of an unlawful act, which includes the performance of a lawful
act in a criminally negligent manner.’” Scott, 58 Va. App. at 52, 707 S.E.2d at 26 (quoting
Crowder v. Commonwealth, 16 Va. App. 382, 385, 429 S.E.2d 893, 894, aff’d en banc, 17
Va. App. 202, 436 S.E.2d 192 (1993)).

                                                 -6-
reverse appellant’s conviction under Code § 18.2-137(B) and remand to the circuit court for a new

trial under Code § 18.2-137(A), 4 if the Commonwealth is so inclined.

                                                                           Reversed and remanded.




       4
          See Scott, 58 Va. App. at 39, 707 S.E.2d at 19 (reversing a conviction for felony property
damage under Code § 18.2-137(B) and “remand[ing] for re-sentencing on the lesser-included
offense set forth in Code § 18.2-137(A)”). We do not remand the matter solely for resentencing
under Code § 18.2-137(A) because, unlike in Scott, appellant here did not consent to be resentenced
under Code § 18.2-137(A). See Britt v. Commonwealth, 276 Va. 569, 576, 667 S.E.2d 763, 766-67
(2008) (“We will remand the case to the Court of Appeals with direction that the case be remanded
to the circuit court for a new trial on a charge of petit larceny if the Commonwealth be so advised.
We do not remand solely for imposition of a new sentence on the lesser offense as we did in
Commonwealth v. South, 272 Va. 1, 630 S.E.2d 318 (2006), because here, unlike in South, both
parties have not consented to that relief.”).
                                                   -7-
