                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia


DAVID LEE JONES
                                         MEMORANDUM OPINION * BY
v.        Record No. 1393-97-3       JUDGE RUDOLPH BUMGARDNER, III
                                             JUNE 16, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                 William N. Alexander, II, Judge
          J. Patterson Rogers, 3rd (Jon I. Davey, on
          brief), for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Richard Cullen, Attorney General, on
          brief), for appellee.



     David Lee Jones was indicted for murder, use of a firearm in

the commission of murder, and possession of a firearm after

having been convicted of a felony.   The defendant pleaded guilty

to possession of a firearm after having been convicted of a

felony and not guilty to the other two charges.    A jury convicted

him of second degree murder and use of a firearm in the

commission of murder.   He appeals the conviction on the grounds

there was insufficient evidence to prove murder.   Finding no

error, we affirm the judgment of conviction.

     Where an appellant challenges the sufficiency of the

evidence, the evidence must be viewed in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
fairly deducible from it.    See Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).   This Court does not

substitute its judgment for that of the trier of fact.     See Cable

v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).

Unless that finding is plainly wrong, or without evidence to

support it, it shall not be disturbed on appeal.    Code

§ 8.01-680; George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d

12, 20 (1991), cert. denied, 503 U.S. 973 (1992).
     The victim, Marguerite Whitfield, was a seventeen-year-old

girlfriend of the defendant.   She picked him up at 4:30 p.m.

after she finished work.    They went to her mother's trailer.

Justin Rowland, a twelve year old who lived in the trailer park,

testified he heard running through the trailer, saw the back door

open and then close.   Then he heard hollering before and after

running, a "pop" within 10-15 seconds, and more running.    Another

resident of the trailer park heard a commotion and heard the

defendant yell, "I didn't mean to do it."   Robert Paggans heard

the defendant yell for help, observed blood on his shirt and

heard him hysterically say, "I shot my girlfriend, it was an

accident."

     The police found the victim on the floor of the trailer.

Six inches from her head was a handgun, a 25-caliber automatic,

with a live projectile stuck in the action of the gun holding the

receiver half way back.    The defendant made three statements to

the police.   On the day of the shooting he told them that he had



                                 -2-
brought the loaded pistol to the trailer.    He placed it on the

counter.   The victim became distraught over breaking up with him,

picked up the gun, and said she intended to kill herself.    Before

he could reach her, the gun fired and she fell to the floor.

Later in that first interview, the defendant told police that he

had tried to grab the gun and it went off.   Eventually, he said

he pulled the gun and it went off.

     At a second interview, the defendant told police that he was

going to scare the victim.   He pulled the gun, pulled the hammer

back, and it went off.   He admitted pointing the gun, but said it

was not loaded.   During a third statement he repeated the version

he had given at the second interview.
     The medical examiner testified that a single gunshot wound

killed the victim.    It pierced her temple and traveled through

her brain.   The muzzle of the gun was touching her skin at the

time it discharged.

     The defendant testified in his defense.    He stated that he

had borrowed the gun from his brother because he felt threatened,

although he never checked to see if the gun was loaded.   He did

not specify the reasons for the threat against him.   Jones went

on to state that he had never fired the weapon and was not

familiar with its operation.   He equivocated about whether the

gun was loaded.   Eventually he stated that he knew there were

bullets in the magazine but did not know that one was chambered.

Jones said he was messing around with the gun.    When asked why




                                 -3-
he was doing that, he answered, "I don't know why."   On

cross-examination he admitted pointing the gun at the victim and

trying to scare her.   He pulled the hammer back to dry fire it,

but he insisted that he did not know a round was in the chamber.

He had no explanation for why he was dry firing it.     The

defendant did not recall making his first statement to police and

denied that he and the victim were breaking up.

     The evidence in this case presents a classic case of

conflicting, at times confusing, pieces of evidence from which

differing inferences may be made and varying conclusions drawn.

Determining what happened in fact from the pieces of evidence

presented at trial can only be determined by the jury

conscientiously hearing and evaluating the credibility, weight

and value of that evidence.
          Suffice it to say, that the evidence and the
          reasonable inferences therefrom were
          sufficient to present the question, whether
          the death of [the victim] was a result of the
          criminal agency of the defendant, or was
          merely an accident for which the defendant
          was not responsible. If the jury believed
          that the evidence disclosed the criminal
          agency of the defendant, they were further to
          ascertain, under the instructions, the grade
          of the offense. These issues were peculiarly
          for the consideration of a jury.


Harrison v. Commonwealth, 183 Va. 394, 401, 32 S.E.2d 136, 140

(1944).

     There is evidence from which reasonable men could find

beyond a reasonable doubt that the defendant murdered Marguerite

Whitfield in the second degree.    The weapon discharged the fatal



                                  -4-
bullet when it was pressed against the victim's head.   The

defendant's own words put the gun in his hand when it discharged.

The permissible inference that malice may be found from the

deliberate use of a deadly weapon, Satcher v. Commonwealth, 244

Va. 220, 257, 421 S.E.2d 821, 843 (1992), cert. denied, 507 U.S.

933 (1993), alone is sufficient to permit the jury to find the

act was done with malice.

     Finding that there is sufficient credible evidence to

support the finding of the jury, we affirm.
                                                         Affirmed.




                               -5-
Benton, J., dissenting.

     I would hold that the evidence in this record is

insufficient to support a finding of malice.    Although David Lee

Jones used a firearm to kill the victim, the circumstances were

such that the jury could not have inferred beyond a reasonable

doubt that Jones acted with malice.

     "Malice is an essential element of murder and is what

distinguishes it from the crime of manslaughter."     Canipe v.
Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 753 (1997).
          "Express malice is evidenced when 'one person
          kills another with a sedate, deliberate mind,
          and formed design.' . . . Implied malice
          exists when any purposeful, cruel act is
          committed by one individual against another
          without any, or without great provocation;
          . . . ."


Essex v. Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220

(1984) (citations omitted).   Implied malice "may only be

[inferred] from conduct likely to cause death or great bodily

harm, wilfully or purposefully undertaken."     Id. at 281, 322

S.E.2d at 220.    Thus, it necessarily follows that "if a killing

results from negligence, however gross or culpable, and the

killing is contrary to the defendant's intention, malice cannot

be [inferred]."    Id. at 280, 322 S.E.2d at 220.   "Whether or not

an accused acted with malice is generally a question of fact and

may be proved by circumstantial evidence."     Canipe, 25 Va. App.

at 642, 491 S.E.2d at 753.    However, the principle is well

established that "[i]n making the determination whether malice



                                 -6-
exists, the fact-finder must be guided by the quality of the

defendant's conduct, its likelihood of causing death or great

bodily harm, and whether it was volitional or inadvertent."

Essex, 228 Va. at 282, 322 S.E.2d at 221.

     The Commonwealth relied solely on circumstantial evidence to

prove malice.   Direct evidence proved that Jones shot Marguerite

Whitfield, his romantic friend, but no direct evidence proved

that he did so maliciously.   The jury could only have inferred

Jones' malicious state of mind through his use of a deadly

weapon.   See Morris v. Commonwealth, 17 Va. App. 575, 578, 439

S.E.2d 867, 870 (1994) (trier of fact may infer malice from the

use of a deadly weapon unless the evidence raises a reasonable

doubt whether malice existed).   No other evidence tended to prove

malice.   Indeed, the evidence raised a reasonable doubt that

malice existed.

     The only evidence concerning the events that led to the

shooting came from the statements and testimony of Jones.    Jones

testified that he and Whitfield had been dating for two years.

The day before the killing, Jones and Whitfield had an argument;

however, they had resolved their differences that night.    Jones

testified that on the day of the killing, Whitfield drove him

from a convenience store to Whitfield's mother's trailer where

they watched videos.   Jones had a pistol in his back pocket while

he and Whitfield watched the videos.

     Jones testified that his brother had given him the pistol



                                 -7-
the previous day because Whitfield had told Jones that her cousin

and brother were threatening to harm him.     She told him to "watch

his back."    Jones testified that he had had "problems" with

Whitfield's cousin and brother.    Jones also testified that he had

never handled this particular gun before, that he did not know if

the gun was loaded, and that he knew the magazine had bullets in

it because he assumed his brother wouldn't give him an empty gun

for protection.
     Jones testified that after he and Whitfield watched videos,

they decided to go outside because it was hot in the trailer.

When he stood to go outside, Jones took the gun out of his pocket

and was "just messing around with it."     As Jones and Whitfield

walked toward the back door, Whitfield told Jones to stop playing

with the gun.    Jones told her "there weren't nothing in it" and

pulled the hammer back on the gun.      He testified the gun "just

went off," killing Whitfield.

     In a taped statement to the police after the incident, Jones

related several versions of the circumstances surrounding the

shooting.    He said he had the gun because Whitfield's cousin had

accused him of informing the police of the cousin's drug

distributions.    He initially stated Whitfield grabbed the gun

from the counter where Jones had left it after removing it from

his pocket.   When Whitfield had the gun, she threatened to kill

herself and ran towards the back door.     Jones ran after her.

However, the gun fired before he reached her.     Later, Jones




                                  -8-
stated that the gun fired when he tried to grab it from

Whitfield.   Eventually, Jones told the police that he and

Whitfield were just playing and that he was displaying the gun to

scare her when the gun fired.

     In a second taped interview, Jones stated that after he and

Whitfield watched videos, they began to walk to the door to go

outside because the trailer was hot.    As they got to the door, he

removed the gun from his back pocket playfully to scare

Whitfield.   He was "messing around" with the gun, pointing it at

her, and stating nothing was in it.    He was about an arm's

distance away from her when he pulled the hammer, killing her.

In a third interview with police, he essentially related the same

events.
     Although Jones' testimony and statements are confused and

somewhat contradictory, they provide the only evidence of the

events surrounding the shooting.   Neither of the conflicting

versions tends to prove a malicious killing.    Furthermore,

although the conflicting statements may raise a suspicion that

the killing occurred in another manner, "a suspicion of guilt,

however strong, or even a probability of guilt, is insufficient

to support a criminal conviction."     Bishop v. Commonwealth, 227

Va. 164, 170, 313 S.E.2d 390, 393 (1984).

     This evidence fails to prove beyond a reasonable doubt that

Jones "willfully and deliberated engaged in a cruel act that was

likely to cause great bodily harm to the victim."     Canipe, 25 Va.




                                -9-
App. at 644, 491 S.E.2d at 754.   "[W]here the Commonwealth's

evidence as to an element of an offense is wholly circumstantial,

'all necessary circumstances proved must be consistent with guilt

and inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"    Moran v. Commonwealth, 4 Va. App.

310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted).   This

evidence fails to exclude the reasonable hypothesis that Jones

acted "carelessly and negligently, but without malice."    Mundy v.
Commonwealth, 144 Va. 609, 615, 131 S.E. 242, 244 (1926); see

also Essex, 228 Va. at 281, 322 S.E.2d at 220.

     Because I believe a reasonable jury could not have found

malice under these circumstances, I would reverse the conviction

and remand for a new trial.




                                -10-
