                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons and Frank
Argued by teleconference


WAYNE R. MARSHALL
                                            MEMORANDUM OPINION * BY
v.   Record No. 0363-99-1                   JUDGE DONALD W. LEMONS
                                                 MARCH 14, 2000
COMMONWEALTH OF VIRGINIA


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

             John D. Hooker, Jr. (Hooker & Migliozzi,
             P.C., on brief), for appellant.

             Kathleen B. Martin, Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.


     Wayne R. Marshall appeals his convictions for unlawful

wounding of Ashanti Brown and unlawful wounding of Mishelene

Minott.    On appeal, he argues (1) that the trial court erred by

granting the Commonwealth's instruction on transferred intent

and (2) that the trial court erred by denying his motions to

strike the Commonwealth's evidence and set aside the jury's

verdict because of insufficient evidence.     We hold that the

court's instruction on transferred intent was not erroneously

given with respect to the unlawful wounding of Minott and that




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the evidence was sufficient to sustain the verdict.     However, we

find the evidence insufficient to sustain the verdict of

unlawfully wounding Ashanti Brown.

                           I.   BACKGROUND

     On November 28, 1997, Nathaniel Brown ("Brown") and Lemar

Anderson were waiting at Brown's home for Ricardo Minott

("Ricardo").    Brown and Ricardo were planning to go to a car

stereo store.   From her bedroom, Brown's girlfriend Mishelene

Minott ("Minott") heard him leave the house.     Shortly

thereafter, Minott heard the downstairs door re-open and close.

She recognized the voices of Brown and Anderson and heard a

third voice that she assumed was Ricardo, her sixteen-year-old

brother.

     After a few minutes, Rishaad Floyd came into Minott's

bedroom with a gun in his hand and told her "This is an F---ing

stick-up."   He then asked where the safe was kept, and Minott

told him that it was in Brown's closet. 1    Floyd took "bundles of

money" from the unlocked safe and ordered Minott downstairs.

Minott and her five-month-old daughter, Ashanti, were forced to

go into the living room.   Minott saw Marshall holding a gun and

standing near Brown, who was laying on his stomach with his




     1
       Brown was allegedly a drug dealer who kept large amounts
of money in a safe in his house.


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hands taped behind his back.    Minott was forced to lie down next

to Brown and she placed Ashanti nearby on the floor.     Marshall

put tape over Brown's mouth and then taped Minott's hands to her

face, over her mouth and nose.    Marshall yelled at Brown,

repeatedly kicking him in the head and back while he lay tied up

on the floor.    Meanwhile, Minott heard Floyd and Anderson

searching the upstairs rooms of the house.     Ricardo eventually

arrived and was made to lie on the living room floor where

Marshall kicked and "pistol-whipped" him.

        Floyd and Anderson came back downstairs and asked where the

guns and the "weed" could be found.      Brown shook his head

indicating that there were no drugs or guns in the house.        Floyd

and Anderson went into the kitchen, and Floyd returned with a

knife.    Floyd told Brown that "[t]his was [his] last day walking

the earth," and then announced to the group, "You're all going

to die-all of you."

        Anderson came from the kitchen with plastic bags and told

Minott and Ricardo to put the bags over their heads.     Minott

testified that she heard Brown plead for the lives of Minott and

Ashanti.    She then heard Brown "yelling, screaming in pain."

Minott heard Floyd repeatedly say, "Oh, you feel it.     I got you

good.    You're gonna die.   You're dying."   Brown eventually

stopped yelling.    Minott, who was lying face down, then heard

some shots and felt her arm go numb.



                                 - 3 -
     Floyd, Anderson and Marshall fled.    Minott stood up, took

the bag off of her head and attempted to call for help.   All of

the phones were missing, however, so she and her brother went to

a neighbor's for help.   The neighbor was not there, and she

returned to her house to check on Brown and Ashanti.   She pushed

the emergency button on the alarm system and left her house

again to check on her brother who had collapsed outside of the

neighbor's house.   Their neighbor soon returned, and the police

were called.   Minott returned once again to her house to check

on Brown and found Ashanti sleeping with blood on her forehead

and toes.   Ashanti was treated at the hospital for cuts on her

forehead, scalp and thigh.   Those wounds were not present prior

to the incident.    Minott was shot in the arm, and both Brown and

Ricardo were beaten and shot.   Ashanti, Minott and Ricardo

survived.   Brown died as a result of his wounds.

     Marshall was indicted for the first degree murder of Brown,

use of a firearm in the commission of a felony, two counts of

abduction with intent to extort money from Brown and Minott, two

counts of abduction of Ricardo and Ashanti, two counts of

robbery of Brown and Minott, and three counts of malicious

wounding of Minott, Ricardo and Ashanti.   Marshall was tried

jointly with Anderson.   At trial, after the Commonwealth's

case-in-chief, Marshall moved to strike the malicious wounding

charge in which Ashanti Brown was the named victim.    He argued



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that there was no direct evidence of how or when the injury had

occurred.   The Commonwealth stated that it was relying on the

theory of transferred intent, and the trial court denied the

motion.

     Anderson moved to strike the evidence with respect to

malicious wounding of Minott.   He argued that mere presence is

insufficient to establish that a defendant aided and abetted a

principal in the commission of a crime.   The court denied

Anderson's motion.   Marshall noted that "since you've already

addressed the issues on [Anderson's] motion, I was going to have

motions similar to that as far as mere presence."   The court

overruled Marshall's motion.    Marshall renewed his motions to

strike after presenting evidence on his own behalf.   The court

again overruled the motions.

     The jury was instructed on the offense of malicious

wounding and the lesser-included offense of unlawful wounding

and assault and battery.   Over Marshall's objection that there

was no evidence to support the instructions, the court also

instructed the jury that if it "believed beyond a reasonable

doubt that Wayne Marshall intended to kill Nathaniel Brown, Jr.,

but that he wounded Ashanti Brown by mistake, then that intent

is transferred to the wounding of Ashanti Brown."   The jury

found Marshall guilty of unlawful wounding of Ashanti and guilty

of unlawful wounding of Minott.   The jury also found Marshall

guilty of first degree murder, use of a firearm in the

                                - 5 -
commission or attempted commission of murder, robbery of Brown,

malicious wounding of Ricardo, abduction with intent to extort

money of Brown, abduction with intent to extort money of Minott

and abduction of Ricardo.   He was sentenced to one hundred and

thirty-five years, including one year for the unlawful wounding

of Minott and one year for the unlawful wounding of Ashanti.

           II.    UNLAWFUL WOUNDING OF MISHELENE MINOTT

     "Both the Commonwealth and the defendant are entitled to

appropriate instructions to the jury of the law applicable to

each version of the case, provided such instructions are based

upon the evidence adduced."   Wilson v. Commonwealth, 25 Va. App.

263, 274, 487 S.E.2d 857, 863 (1997) (citation and quotation

marks omitted).   An instruction that is not supported by the

evidence should be refused.   See id.   More than "a mere

scintilla of evidence" is required to support a jury

instruction, and the amount of evidence that satisfies that

standard is determined on a case-by-case basis.    Boone v.

Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992);

see also Brandau v. Commonwealth, 16 Va. App. 408, 411, 430

S.E.2d 563, 564 (1993).

     Under the doctrine of transferred intent, "if an accused

attempts to injure one person and an unintended victim is

injured because of the act, the accused's intent to injure the

intended victim is transferred to the injury of the unintended

victim, even though this wounding was accidental or

                               - 6 -
unintentional."   Crawley v. Commonwealth, 25 Va. App. 768,

773-74, 492 S.E.2d 503, 505 (1997) (citations omitted).

     The evidence clearly established the Commonwealth's theory

of transferred intent with respect to the wounding of Minott.

Marshall and two other men, acting in concert, forced Brown,

Ashanti, Minott and her brother Ricardo at gunpoint to lie on

the floor with their hands bound.    Floyd said they were "all

going to die, all of [them]."   Minott heard several gunshots and

felt her arm go numb.   She subsequently discovered that she had

been shot in the arm.

     "Due to the concert of action, defendant is deemed to have

shared [the shooter's] intent."     Riddick v. Commonwealth, 226

Va. 244, 248, 308 S.E.2d 117, 119 (1983).      Thus, even if Floyd

or Anderson fired the shot that wounded Minott, Marshall "was

criminally responsible for the acts of the gun[men], . . . as a

principal in the second degree.   And every principal in the

second degree may be indicted, tried, convicted and punished,

with certain exceptions not applicable here, as if

a principal in the first degree."       Id. (citing Code § 18.2-18)

(other citations omitted).   Here, the intent to harm Brown was

manifested through the act of shooting a gun at him.      The

shooting resulted in the wounding of Minott.      Thus, the intent

to harm Brown was transferred to Minott.      Accordingly, we find

the evidence supported the transferred intent instruction and



                                - 7 -
the evidence was sufficient to sustain the conviction of

unlawful wounding of Minott.

            III.    UNLAWFUL WOUNDING OF ASHANTI BROWN

     On appeal, when challenging the sufficiency of the

evidence, we view the evidence in the light most favorable to

the Commonwealth, affording to it all reasonable inferences

fairly deducible therefrom.    See Higginbotham v. Commonwealth,

216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).   The trial court's

judgment will not be set aside unless it appears that it is

plainly wrong or without supporting evidence.    See Josephs v.

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc).

     We find no evidence in this record demonstrating any act by

Marshall or his cohorts causing the glass table to break.   There

is no evidence that glass was heard breaking immediately after

the gunshots were fired, nor is there evidence that the table

was kicked over on top of the child during the ensuing melee.

Furthermore, we find no evidence as to how Ashanti was injured

by the glass.    Without evidence of an act causing the glass

table to break or evidence of an act that directly or indirectly

caused the injuries to Ashanti, the intent inspiring those acts

cannot be identified and, as a result, cannot be transferred to

Ashanti's injuries.   Consequently, the evidence was insufficient

to support Marshall's conviction for the unlawful wounding of

Ashanti Brown.

                                - 8 -
                         IV.   CONCLUSION

     In conclusion, we affirm Marshall's conviction of unlawful

wounding of Minott but reverse and dismiss the conviction for

unlawful wounding of Ashanti Brown.

                                             Affirmed in part,
                                             reversed and
                                             dismissed in part.




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