                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Duff
Argued at Richmond, Virginia


RAMON ANTWAIN PAGE
                                           MEMORANDUM OPINION * BY
v.   Record No. 1230-97-2                JUDGE JAMES W. BENTON, JR.
                                               JULY 14, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                 Ernest P. Gates, Judge Designate
           Patricia P. Nagel, Assistant Public Defender
           (David J. Johnson, Public Defender, on
           brief), for appellant.

           H. Elizabeth Shaffer, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.



      Ramon Antwain Page was convicted by a jury of second degree

murder and use of a firearm in the commission of murder.    On

appeal, he contends that the evidence was insufficient to prove

malice.   We disagree and affirm his convictions.

                                  I.

      When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in the light

most favorable to the Commonwealth and gives it all reasonable

inferences fairly deducible therefrom.     See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).      So

viewed, the evidence proved that on the morning of Monday, August

5, 1996, Aaron Wallace, the owner and founder of A-1 Technical
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Services, was scheduled to travel to Maryland with Janet

Williams, the company's marketing director, to sign documents for

the largest contract the company had received during Williams'

tenure as marketing director.   Wallace had discussed the trip

with Williams over the weekend.

     Wallace arrived at his office at 8:15 a.m. accompanied by

Ramon Page.   Barbara Hoover, the office manager who kept

Wallace's calendar, testified that Wallace was not scheduled to

meet with Page that morning.    Page, who was described as

Wallace's business partner, had worked with Wallace on various

asbestos removal projects during the previous two years.     Page

did not have an office in the building but was a frequent visitor

to the office, usually arriving without an appointment.
     Hoover testified that Wallace and Page appeared angry by the

way they walked and the looks on their faces.    Wallace dropped a

receipt on Hoover's desk and told her he needed to be reimbursed.

As Wallace and Page walked to Wallace's office, they were not

talking to each other.

     After Wallace and Page entered Wallace's office and shut the

door, Hoover and Christina Devine, another employee, immediately

heard the men shouting and arguing.     Although the shouting

continued for about five minutes, Hoover and Devine did not

specifically hear anything either of the men was saying.     They

did not hear any sounds of a physical struggle.    Suddenly, Hoover

heard Wallace loudly shout, "Man, are you crazy?"    Hoover and




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Devine then heard a popping noise followed by several more

popping noises.

     Hoover and Devine ran out of the building and stood in the

alcove of the adjacent office.    When Williams and another

co-worker arrived in the parking lot, Hoover and Devine shouted a

warning to them not to enter the building.   After a period of

silence, Page exited the building carrying a gun.   He closed the

door behind him, walked "calmly, looking straight ahead," and

glanced at Hoover and Devine.    Page then entered his car and

drove away.
     After Page departed, the employees entered the building

shouting for Wallace.   Williams went into Wallace's office and

found Wallace face up in the shower stall of the bathroom

adjacent to his office.   She checked for a pulse but found none.

Devine saw shell cases on the floor and smelled an odor similar

to burning sulfur.   Devine also checked for a pulse and noticed

blood on Wallace's shirt.

     The forensics officer who analyzed and photographed the

office testified that he saw no signs of a physical altercation.

No furniture was overturned in Wallace's office, and no papers

were sprawled about the floor.    Bullet cases were found

throughout the office leading to the adjacent bathroom.     Bullets

were lodged in various places around the room.   The desk was

scarred by a bullet, and two bullet holes were found in the

shower stall.




                                 - 3 -
     A forensic scientist testified that he found gunpowder

residue on both of Wallace's hands.     The forensic scientist

testified that residue might be found on a person's hands if the

person fired a weapon, handled a weapon which had been

discharged, or was in close proximity to the discharge of a

weapon.   The scientist testified that because it is so common to

find residue on the hands of a shooting victim, he typically does

not analyze such residue, especially if the victim has been shot

multiple times.
     The medical examiner testified that Wallace was shot a

minimum of twelve times.   The medical examiner further testified

that the direction and placement of the wounds were consistent

with movement by Wallace and Page during the shooting.    Wallace

was shot in the head, chest, side of the body, arms, back,

abdomen, leg, and hand.    None of the wounds were contact wounds

made by a gun being discharged against Wallace's skin.    The

medical examiner found no abrasions or bruises on Wallace's body,

including his hands, or any other evidence to indicate a

struggle.   He testified that Wallace died from a gunshot wound

through his heart that caused him to bleed to death.

     The jury found Page guilty of second degree murder and use

of a firearm in the commission of murder, and the jury

recommended a sentence of twenty-two years on the murder

conviction.   The judge entered judgment on that verdict and

sentenced Page to a mandatory three years on the firearm




                                - 4 -
conviction.

                                  II.

     Page contends that the evidence was insufficient to prove

malice.   He argues that the Commonwealth did not exclude the

reasonable hypothesis that he acted in the heat of passion upon

reasonable provocation.   We disagree.

     Malice is the element that distinguishes murder from

manslaughter.   See Canipe v. Commonwealth, 25 Va. App. 629, 642,

491 S.E.2d 747, 753 (1997).   "Malice is evidenced either when the

accused acted with a sedate, deliberate mind, and formed design,

or committed any purposeful and cruel act without any or without

great provocation."   Branch v. Commonwealth, 14 Va. App. 836,

841, 419 S.E.2d 422, 426 (1992).    Malice "'may be directly

evidenced by words, or inferred from acts and conduct which

necessarily result in injury.'"     Christian v. Commonwealth, 221

Va. 1078, 1081, 277 S.E.2d 205, 207 (1981) (citation omitted).

The trier of fact may infer malice from the deliberate use of a

deadly weapon unless the evidence raises a reasonable doubt

whether malice existed.   See Compton v. Commonwealth, 219 Va.

716, 730, 250 S.E.2d 749, 758 (1979); Morris v. Commonwealth, 17

Va. App. 575, 578, 439 S.E.2d 867, 870 (1994).    The

uncontradicted evidence proved Page fired the gun that killed

Wallace and shot Wallace twelve times.

     "To reduce a homicide from murder to voluntary manslaughter,

the killing must have been done in the heat of passion and upon




                               - 5 -
reasonable provocation."     Barrett v. Commonwealth, 231 Va. 102,

105-06, 341 S.E.2d 190, 192 (1986).      "Virginia has long

recognized that malice and heat of passion [are mutually

exclusive]."   Hodge v. Commonwealth, 217 Va. 338, 345, 228 S.E.2d

692, 697 (1976).   Heat of passion refers to "the furor brevis,

which renders a man deaf to the voice of reason."      Hannah v.

Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421 (1929).      "Heat

of passion is determined by the nature and degree of the

provocation, and may be founded upon rage, fear, or a combination

of both."   Barrett, 231 Va. at 106, 341 S.E.2d at 192 (citations

omitted).

     The evidence proves that both Wallace and Page appeared

angry as they entered the building.      They began arguing loudly

once inside Wallace's office.    However, anger alone is not enough

to prove heat of passion.    To establish heat of passion, the

evidence must prove both that the act was committed with passion

and that it was based upon reasonable provocation.      See Martin v.
Commonwealth, 184 Va. 1009, 1016, 37 S.E.2d 43, 46 (1946);

Canipe, 25 Va. App. at 643, 491 S.E.2d at 753.      To determine

whether provocation is reasonable, "it is necessary to consider

the nature and degree of the provocation as well as the manner in

which it was resisted."     Miller v. Commonwealth, 5 Va. App. 22,

25, 359 S.E.2d 841, 842 (1987).

     Page contends that the evidence permits the reasonable

inference that he was angered and reasonably provoked because




                                 - 6 -
Wallace was taking Williams, the marketing director, and not

Page, with Wallace to execute the contract documents in Maryland.

Although the evidence proves that Wallace and Williams intended

to travel to Maryland in connection with the contract and that

Wallace and Williams had discussed the trip the weekend prior to

the killing, nothing in the record supports Page's hypothesis

that Wallace was excluding Page either from the business trip or

from the benefits of the contract.
     The record is silent regarding the nature of the dispute

between the men.   There is no evidence in the record from which

the fact finder could have inferred that Wallace and Page had

planned to travel to Maryland together, that Wallace had invited

Williams instead, and that Wallace had deliberately excluded Page

from the trip.   No evidence proved that either the contract or

the business trip was the source of Page and Wallace's argument.

     "'A reasonable provocation is always necessary to reduce a

[murder] . . . to . . . manslaughter; and especially where the

offense is committed with a deadly weapon.'"    Martin, 184 Va. at

1017, 37 S.E.2d at 46 (citation omitted) (emphasis deleted).    The

principle is long standing that "'[w]ords alone, however

insulting or contemptuous, are never a sufficient provocation'"

for one to kill another and claim that the act arose from the

heat of passion.   Id. (citation omitted).   See Caudill v.

Commonwealth, 27 Va. App. 81, 85, 497 S.E.2d 513, 515 (1998).

The evidence proved only that Wallace and Page shouted and argued



                               - 7 -
before Page shot Wallace.

     Page further contends that the evidence is consistent with

the men having struggled over control of the weapon and the

weapon discharging during the struggle.   Page points to an

indentation found on the desk in Wallace's office and the

gunpowder residue on Wallace's hands to support this contention.

Although no evidence proved that Page had the gun with him when

he entered the office, the hypothesis of a struggle does not flow

from the evidence.
     The witnesses heard no sounds of a struggle.    No furniture

was overturned.   No papers were strewn about.   The medical

examiner's testimony together with the location of the bullet

cases and bullets tend to prove that Wallace was shot while he

retreated from his office into the adjacent bathroom.   Wallace

had no physical markings on his body, such as bruises or

scratches, to indicate a struggle for a weapon.    While tests

indicated that Wallace did have gunpowder residue on both hands,

the forensic scientist testified that residue commonly is found

on the hands of persons who have been shot multiple times.     Based

on the evidence in the record, we cannot conclude that the

evidence was insufficient to prove malice beyond a reasonable

doubt.   Accordingly, we affirm the convictions.

                                                         Affirmed.




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