                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia


LEMAR JAMIE ANDERSON
                                              MEMORANDUM OPINION * BY
v.   Record No. 0235-99-1                      JUDGE ROBERT P. FRANK
                                                   JULY 25, 2000
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                  H. Thomas Padrick, Jr., Judge

          Cal T. Bain, Senior Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          (Mark L. Earley, Attorney General; Michael T.
          Judge, Assistant Attorney General, on brief),
          for appellee. Appellee submitting on brief.


     Lemar Jamie Anderson (appellant) appeals his conviction for

the unlawful wounding of Ashanti Brown.       On appeal, he contends

the trial court erred in denying his motion to strike the

Commonwealth's evidence.    We agree and reverse appellant's

conviction.

                            I.   BACKGROUND

     On November 28, 1997, Mishelene Minott and Nathaniel Brown,

Jr., lived with their daughter, Ashanti Brown, at 5502 Gates

Landing Road in Virginia Beach.     Minott was in an upstairs

bedroom with Ashanti when she heard voices downstairs.        Then,

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
she saw a man standing in the bedroom doorway with a gun in his

hand.    He asked where the safe was, and she told him.   He

removed several bundles of money from the safe in the bedroom

and told her to go downstairs.    She went downstairs, taking

Ashanti with her.

        At the bottom of the stairs, she saw appellant standing by

the front door.    He did not have a weapon.   Brown was lying on

the floor.    Minott also was forced to lie down on the floor.

She placed Ashanti next to her.    Then, Minott and Brown were

tied up with tape.

        Shortly, Minott's brother, Ricardo, arrived and also was

forced to lie on the floor.    Bags were placed over their heads.

Minott was shot in the arm.    When she heard the front door open

and close, she removed the bag and ran to seek help.

        After summoning help, Minott returned to find Ashanti.

Ashanti had scratches on her forehead, scalp, and toes and a

scratch on her thigh.    At the hospital, a doctor cleaned glass

from her hair and toes.    A videotape of the crime scene showed

glass on the floor that came from a table that was damaged

during the incident.    Minott testified that Ashanti did not have

the scratches before the incident.

        Appellant moved to strike the malicious wounding charge at

the close of the Commonwealth's case, renewed the motion at the

conclusion of his evidence, and moved to set aside the verdict



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as contrary to the law and evidence after the jury found him

guilty of unlawful wounding, a lesser-included offense.

                      II.   PROCEDURAL DEFAULT

     The Commonwealth argues that appellant did not properly

preserve the appeal of his conviction for unlawful wounding

because his petition for appeal references his motion to strike

the malicious wounding charge.      The Commonwealth also argues

that appellant did not raise specific objections once the jury

convicted him of unlawful wounding.

     We hold that appellant did not procedurally default this

issue.   When he made his motion to strike at the conclusion of

the Commonwealth's evidence, his argument was a causation

argument.   In essence, he argued there was no evidence to prove

that a gunshot broke the table.      Instead, he argued, Ashanti

could have received her injuries by crawling or rolling on the

broken glass.   He renewed his motion at the conclusion of his

evidence and after the jury's verdict with his motion to set

aside the verdict.

     We believe appellant's causation argument preserves the

appeal of his conviction for unlawful wounding.

                            III.    ANALYSIS

     Appellant contends the trial court erred in denying his

motion to strike the evidence on the charge of malicious

wounding.   We agree and reverse the conviction.



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     "When considering the sufficiency of the evidence on appeal

in a criminal case, we view the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."    Conrad v. Commonwealth,

29 Va. App. 661, 667, 514 S.E.2d 364, 366-67 (1999) (citing

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975)).   Circumstantial evidence "'is as competent and is

entitled to as much weight as direct evidence, provided it is

sufficiently convincing to exclude every reasonable hypothesis

except that of guilt.'"    Crawley v. Commonwealth, 29 Va. App.

372, 375, 512 S.E.2d 169, 171 (1999) (quoting Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).

     To prove unlawful wounding, the Commonwealth must show:      1)

the defendant shot, stabbed, cut, or wounded the victim or by

any means caused the victim bodily injury; 2) the defendant

acted with the intent to maim, disfigure, disable, or kill; and

3) the defendant's action was unlawful.    See Code § 18.2-51.

     Appellant argues there was no evidence to establish that he

wounded Ashanti Brown, what caused the glass to be on the floor,

or the cause of the injuries to Ashanti.

     We agree.    The Commonwealth's evidence was purely

circumstantial.   In order to convict appellant, the Commonwealth

was required to prove beyond a reasonable doubt that appellant

or one of his cohorts:    1) broke the table, 2) intending to

cause injury, and 3) did so unlawfully.    There was no evidence,

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even by inference, that appellant or the other men broke the

glass table, that the glass caused Ashanti's injuries, or that

they intended to injure someone by breaking the table.   The

table could have been inadvertently broken in a scuffle, and

Ashanti's injuries could have been received in some other

manner.   We hold that every reasonable hypothesis of guilt was

not excluded by the Commonwealth's evidence.   For these reasons,

we reverse and dismiss the conviction for unlawful wounding.

                                           Reversed and dismissed.




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