                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
          Bray, Annunziata, Bumgardner, Frank, Humphreys,
          Clements and Agee
Argued at Richmond, Virginia


WILLIAM ANDREW KING, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 2834-98-2                JUDGE JAMES W. BENTON, JR.
                                                MARCH 20, 2001
COMMONWEALTH OF VIRGINIA


                      UPON A REHEARING EN BANC

           FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                    Oliver A. Pollard, Jr., Judge

            Mary Katherine Martin, Senior Assistant
            Public Defender, for appellant.

            Leah A. Darron, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.


     The trial judge convicted William Andrew King, Jr. of

attempted murder, use of a firearm during the commission of

attempted murder, and failure to appear in court.     King contends

the evidence was insufficient to sustain the convictions of

attempted murder and use of a firearm in an attempt to commit

murder.    In an unpublished opinion, a divided panel of this

Court affirmed the convictions; see King v. Commonwealth, 00 Va.

UNP 2834982, No. 2834-98-2 (Va. Ct. App. July 25, 2000);


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
however, we stayed the mandate of that decision and granted

rehearing en banc.    Upon rehearing en banc, we reverse the

convictions for attempted murder and use of a firearm in an

attempt to commit murder.

                                 I.

     The evidence proved that Hamidullah Muhammad was walking

home after 9:00 p.m. when a car occupied by three men stopped

near him.   One of the men shouted a racial epithet at Muhammad

and said, "come here."   Muhammad "knew it wasn't safe" and kept

walking.    As Muhammad reached the parking lot of his apartment

complex, he saw King walking behind him with a gun.    Muhammad

testified that the gun was "straight down" by King's side and

"wasn't . . . pointing at [Muhammad]."

     Muhammad turned and ran to his apartment.     King chased him.

As Muhammad opened his apartment door and jumped in, he heard a

shot and quickly closed his door.     He did not see King shoot the

gun and did not see King after he closed his door.    A police

officer who responded to Muhammad's complaint testified that he

examined the outside of Muhammad's apartment and saw no

indication that a bullet hit the building or any of its

fixtures.

     Later that evening, police officers stopped a car, which

was occupied by King and two other men.    After the officers

removed King from the back seat, they discovered on that seat a

revolver, which had been recently fired and which contained one

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spent shell casing.    The officers also recovered another

revolver on the floorboard on the front passenger side.

     At the conclusion of the evidence, the trial judge

convicted King of all charges, including attempted murder and

use of a firearm in an attempt to commit murder.     This appeal

followed.

                                  II.

     "To sustain a conviction for attempted murder, the evidence

must establish both a specific intent to kill the victim and an

overt but ineffectual act committed in furtherance of the

criminal purpose."     Wynn v. Commonwealth, 5 Va. App. 283, 292,

362 S.E.2d 193, 198 (1987).    "In most cases, of course, the

[Commonwealth] must satisfy its burden of proving specific

intent by circumstantial evidence."      Dickerson v. City of

Richmond, 2 Va. App. 473, 477, 346 S.E.2d 333, 335 (1986).

Under familiar principles, however, proof by circumstantial

evidence is insufficient if it creates merely a suspicion of

guilt.    Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29

(1963).   The evidence must be consistent with guilt and exclude

every reasonable hypothesis that the accused had another intent.

See id.     Thus, as in every criminal prosecution, "[t]he

Commonwealth must prove each element of a charged offense beyond

a reasonable doubt."     Blaylock v. Commonwealth, 26 Va. App. 579,

589, 496 S.E.2d 97, 102 (1998); Jackson v. Virginia, 443 U.S.

307, 315-16 (1979).

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     In denying King's motion to strike, the trial judge

expressed the uncertain state of the evidence when he remarked

that if King was "not intending to kill [Muhammad] or rob him,

what's the purpose" in chasing him.     No evidence proved,

however, that King threatened to kill Muhammad or said anything

indicating his intent.   Muhammad testified that he saw King

holding a gun at his side pointing downward.    Although he heard

a shot, he never saw the gun pointed at him.    Significantly, no

evidence proved that the bullet went near Muhammad, hit the

apartment or any part of the building's structure, or traveled

at any direction toward him.   Muhammad did not testify that he

heard the bullet passing through the air near his body.       No

bullet was located.

     The evidence proved only that while King chased Muhammad,

Muhammad heard a gunshot.    From this evidence, it is just as

likely that King fired a shot into the air or stumbled and

accidentally discharged the gun.   Proof that King had a gun

which discharged is not enough, standing alone, to prove his

intent to murder Muhammad.   "The Commonwealth 'must prove beyond

a reasonable doubt both the act and [the] mental state.

Sufficient proof of one element, but not the other, will result

in reversal.'"   Harrell v. Commonwealth, 11 Va. App. 1, 7, 396

S.E.2d 680, 682 (1990) (citation omitted) (emphasis added).

Thus, we must decide not whether King's acts might have resulted

in the death of Muhammad, but whether the evidence showed that

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when King chased Muhammad, he had "formed the specific intent"

to kill Muhammad.   See Haywood v. Commonwealth, 20 Va. App. 562,

566, 458 S.E.2d 606, 608 (1995) (holding that "'while a person

may be guilty of murder though there was no actual intent to

kill, he cannot be guilty of an attempt to commit murder unless

he has a specific intent to kill'").

     The trial judge erred when he invoked the following

presumption:

          So the State has produced a situation where
          a man with a gun chases another man down the
          street. The gun is fired. That presumption
          is he's trying to kill him.

"The necessary intent [the Commonwealth must prove] . . . is the

intent in fact, as distinguished from an intent in law."

Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598

(1974).

          [W]here a statute makes an offense consist
          of an act combined with a particular intent,
          such intent is as necessary to be proved as
          the act itself, and it is necessary for the
          intent to be established as a matter of fact
          before a conviction can be had. Surmise and
          speculation as to the existence of the
          intent are not sufficient, and "no intent in
          law or mere legal presumption, differing
          from the intent in fact, can be allowed to
          supply the place of the latter."

Dixon v. Commonwealth, 197 Va. 380, 382, 89 S.E.2d 344, 345

(1955) (emphasis added).

     When explaining his ruling, the trial judge, in effect,

confirmed that the evidence left unresolved which of at least


                               - 5 -
three possibilities explained King's intentions.      He noted that

the evidence left unexplained whether King was "trying to kill

him" or "trying to rob him" or "trying to shoot him so he can

rob him."   Where the facts are equally susceptible to multiple

interpretations, at least one of which is consistent with the

innocence of the accused, the trier of fact cannot arbitrarily

adopt that interpretation which incriminates the accused.       See

Haywood, 20 Va. App. at 567, 458 S.E.2d at 609.      Indeed, proof

that leaves indifferent what King intended is insufficient to

satisfy the Commonwealth's burden of proving the element of

intent beyond a reasonable doubt.       See Smith v. Commonwealth, 16

Va. App. 626, 627-28, 432 S.E.2d 1, 2 (1993).

            Proof by circumstantial evidence "is not
            sufficient . . . if it engenders only a
            suspicion or even a probability of guilt.
            Conviction cannot rest upon conjecture."
            "'[A]ll necessary circumstances proved must
            be consistent with guilt and inconsistent
            with innocence and exclude every reasonable
            hypothesis of innocence.'" "When, from the
            circumstantial evidence, 'it is just as
            likely, if not more likely,' that a
            'reasonable hypothesis of innocence'
            explains the accused's conduct, the evidence
            cannot be said to rise to the level of proof
            beyond a reasonable doubt." The
            Commonwealth need not "exclude every
            possible theory or surmise," but it must
            exclude those hypotheses "which flow from
            the evidence itself."

Betancourt v. Commonwealth, 26 Va. App. 363, 373-74, 494 S.E.2d

873, 878 (1998) (citations omitted).      The physical evidence did

not prove where the bullet landed.      It did not prove whether


                                - 6 -
King purposefully or accidentally discharged the gun.   Thus, the

evidence was insufficient to establish beyond a reasonable doubt

that King intended to kill.

     In summary, Muhammad testified that King had a weapon, that

King chased him, and that he heard a single shot fired.    The

totality of circumstances did not prove an attempt to murder

with any more certainty than it proved that King purposefully

discharged a firearm to frighten Muhammad, that the firearm

accidentally discharged, or that King was only trying to rob

Muhammad.   No evidence proved the weapon was ever aimed at

Muhammad, and no evidence proved King threatened to kill

Muhammad.   "Suspicion, no matter how strong, is not enough.

Convictions cannot rest upon speculation and conjecture."

Littlejohn v. Commonwealth, 24 Va. App. 401, 415, 482 S.E.2d

853, 860 (1997).    "[E]ven 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).

Accordingly, we reverse the conviction for attempted murder and

the corresponding conviction for use of a firearm in an attempt

to commit murder.

                                                    Reversed.




                                - 7 -
Humphreys, J., with whom Bumgardner, J., joins, dissenting.

     I dissent from the majority's holding that the evidence was

insufficient as a matter of law to sustain King's convictions of

attempted murder and use of a firearm in an attempt to commit

murder.   The majority reviewed the evidence and determined that

it was insufficient to establish that King possessed the

specific intent to kill the victim.      I disagree with the

majority's holding.

     Whether the required intent exists is generally a question

for the trier of fact.     See Haywood v. Commonwealth, 20 Va. App.

562, 566, 458 S.E.2d 606, 608 (1995).     As such, this

determination is binding unless plainly wrong.      See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     The evidence established that one of three men in a car

that drove by the victim as he was walking home, shouted a

racial epithet at him and demanded that he approach the vehicle.

The victim "knew it wasn't safe," and kept walking.       King, who

was a stranger to the victim, then got out of the car, with a

loaded gun in his hand.    At that point, King was twenty-five

feet behind the victim.    He began to chase the victim, and the

victim ran.   No demand was made of the victim to turn over

personal property, nor did King brandish the gun at the victim

or call for him to halt.    The victim heard the gunshot just as

he was about to enter the safety of his apartment building.

Based on this evidence, I would find that it was not

                                 - 8 -
unreasonable for the court, as the trier of fact, to conclude

that this was the last opportunity for King to shoot the victim.

          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. Where the conduct of the
          accused under the circumstances involved
          points with reasonable certainty to a
          specific intent to commit [the crime], the
          intent element is established.

Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 674

(1995) (citations omitted).

     Furthermore, as the majority recognizes, "[t]he

Commonwealth need only exclude reasonable hypotheses of

innocence that flow from the evidence, not those that spring

from the imagination of the defendant."    Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

Here, taking the evidence in the light most favorable to the

Commonwealth, as we must, I would hold that the trial court's

determination was not "plainly wrong."    Therefore, I dissent

from the majority's holding and would affirm King's convictions.




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