                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia


DONTAE RENEE HOLTON
                                           MEMORANDUM OPINION * BY
v.          Record No. 2369-96-2            JUDGE LARRY G. ELDER
                                              OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       Robert W. Duling, Judge

            Patricia P. Nagel, Assistant Public Defender
            (David J. Johnson, Public Defender, on
            brief), for appellant.
            Steven A. Witmer, Assistant Attorney General
            (Richard Cullen, Attorney General, on brief),
            for appellee.



         Dontae Renee Holton (appellant) appeals her convictions of

attempted capital murder of a police officer and of using a

firearm during the commission of this attempt.     She contends that

the evidence was insufficient to sustain her convictions.      For

the reasons that follow, we affirm.

                                    I.

                                   FACTS

     On February 27, 1996, Detective Ronald Paul McClarin was

working undercover attempting to solicit sexual intercourse for

money in order to make arrests for prostitution.     At

approximately 9:45 p.m., he spotted appellant standing on a

street corner and approached her in his car.     Following a brief
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
conversation, appellant agreed to have sexual intercourse with

the detective in exchange for twenty dollars.

     Appellant entered the detective's car, and he drove to a

nearby field.   When they arrived at the field, Detective McClarin

gave appellant twenty dollars and told her to "go ahead and get

ready."    Appellant responded by "taking her trousers down."

Detective McClarin reached into his pocket and fumbled around

"looking for a condom."   Appellant looked suspiciously at the

detective.   Sensing that appellant "was going to bolt," Detective

McClarin pulled out his badge, placed it in front of appellant's

face and said, "Richmond Vice, you're under arrest."   Appellant

jumped out of the car, and Detective McClarin pursued her through

the passenger-side door, grabbing his service pistol in the

process.   Appellant was a few feet ahead of the detective,

hopping and struggling to pull up her pants, and screaming, "no,

no don't arrest me.    Don't arrest me."
     While carrying his gun in his left hand, Detective McClarin

grabbed appellant with his right hand and the two "began to

struggle or tussle."   Detective McClarin told appellant that he

had a gun and said, "Don't fight, you're under arrest."   After he

announced that he was carrying a gun, the nature of the struggle

with appellant changed.   Appellant ceased struggling to escape

from the detective and instead "went directly for the gun" in the

detective's hand.   Appellant then "interlocked" her hand in the

detective's right hand and "turned the firearm completely around




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and pointed the barrel at [the detective's] stomach."    Detective

McClarin felt appellant's finger searching for the finger of his

hand that was on the gun's trigger.     Detective McClarin twisted

his right hand so that the pistol pointed away from his

midsection and down toward the ground.    "[H]alf a second" later,

appellant found the trigger of the gun with her finger and pulled

it.   The gun discharged into the ground, injuring no one.

      After a few more minutes of struggling, during which

appellant continued her attempt to gain control of the

detective's pistol, Detective McClarin managed to handcuff and

arrest appellant.
      At the conclusion of the Commonwealth's case-in-chief and

again after her case, appellant made a motion to strike.     The

trial court denied both motions and convicted her as charged.

                                II.

                    SUFFICIENCY OF THE EVIDENCE

      Appellant contends that the evidence was insufficient to

prove that she attempted to murder Detective McClarin.    She

argues that the evidence failed to support the trial court's

conclusion that she specifically intended to kill the detective

during their struggle.   We disagree.

      "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."     Martin v. Commonwealth,

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



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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).   Instead, the trial court's judgment will not be set

aside unless it appears that it is plainly wrong or without

supporting evidence.   Josephs v. Commonwealth, 10 Va. App. 87,

99, 390 S.E.2d 491, 497 (1990) (en banc).

     "'An attempt to commit a crime is composed of two elements:

(1) The intent to commit it; and (2) a direct, ineffectual act

done towards its commission.'"    Haywood v. Commonwealth, 20 Va.

App. 562, 565, 458 S.E.2d 606, 607-08 (1995) (quoting Merritt v.

Commonwealth, 164 Va. 653, 657, 180 S.E. 395, 397 (1935)).      Code

§ 18.2-31(6) states that the crime of capital murder includes the

"willful, deliberate, and premeditated killing of a

law-enforcement officer . . . for the purpose of interfering with

the performance of his official duties."

     "The intent required to be proven in an attempted crime is

the specific intent in the person's mind to commit the particular

crime for which the attempt is charged."     Wynn v. Commonwealth, 5

Va. App. 283, 292, 362 S.E.2d 193, 198 (1987); see also Merritt,

164 Va. at 660-61, 180 S.E. at 398-99 (stating 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").    "Intent is the

purpose formed in a person's mind and may be, and frequently is,

shown by circumstances.   It is a state of mind which may be




                                 -4-
proved by a person's conduct or by his statements."         Barrett v.

Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969); see

also Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808,

810 (1977).   "[A] person is presumed to intend the immediate,

direct, and necessary consequences of his voluntary act."

Nobles, 218 Va. at 551, 238 S.E.2d at 810.

     "[W]hether the required intent exists is generally a

question for the trier of fact."      Id.    "The inferences to be

drawn from proved facts are within the province of the [trier of

fact], so long as the inferences are reasonable and justified."
Barrett, 210 Va. at 156, 169 S.E.2d at 451.        Where, as here, the

Commonwealth relies solely on circumstantial evidence to prove

the intent of the accused, the evidence must exclude every

reasonable hypothesis of innocence.         See Coffey v. Commonwealth,

202 Va. 185, 188, 116 S.E.2d 257, 259 (1960).

          All necessary circumstances proved must be
          consistent with guilt and inconsistent with
          innocence. It is not sufficient that the
          evidence create a suspicion of guilt, however
          strong, or even a probability of guilt, but
          must exclude every reasonable hypothesis save
          that of guilt.

Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).

     We hold that the evidence was sufficient to prove that

appellant specifically intended to kill Detective McClarin.          The

evidence proved that appellant's initial intent was merely to

avoid apprehension by Detective McClarin.        After the detective




                                -5-
displayed his badge and announced to appellant that she was under

arrest, appellant jumped from the detective's car, screamed

"Don't arrest me[,]", and then struggled to elude the detective's

grasp.   However, appellant's subsequent conduct established that

she specifically intended to kill the detective.   When Detective

McClarin announced to appellant that he had a gun, appellant

lunged for the detective's hand in which the gun was held and

pushed it downward until the barrel of the gun was pointed at the

detective's stomach.   Then, while still struggling with Detective

McClarin, appellant began searching for the gun's trigger with

her fingers.   When she found the detective's finger that was on

the gun's trigger, she pressed down on it, causing the gun to

discharge.   The gun fired a "half a second" after the detective

had twisted it away from his body.    Based on this conduct, we

cannot say that the trial court's inference that appellant

specifically intended to kill the detective was either

unreasonable or unjustified.
     We disagree with appellant that the evidence failed to

exclude as a reasonable hypothesis the theory that her sole

intent when she pushed the detective's gun downward was to

protect herself from a perceived threat to her physical safety.

Both appellant's knowledge of the detective's identity and the

details of appellant's conduct banish this possibility from the

realm of reasonableness.   The record indicates that appellant

knew that the detective was a police officer who was merely




                                -6-
executing her arrest.   Based on this knowledge, appellant had no

reason to believe that the detective posed a threat to her

physical safety if she ceased struggling against him.   Moreover,

appellant's conduct after she forced the detective's gun downward

indicates that her intent encompassed more than just

self-defense.   Rather then simply pushing the detective's gun

away from her, appellant proceeded to turn the pistol toward

Detective McClarin and then attempt to fire it into his stomach.

In light of appellant's knowledge that she was struggling with a

police officer, the details of her conduct exclude as a

reasonable hypothesis of innocence the possibility that her

intent was limited to either avoiding arrest or defending herself

against a reasonable apprehension of bodily harm.
     For the foregoing reasons, we affirm appellant's convictions

of attempted capital murder of a police officer and of using a

firearm during the commission of this attempt.

                                                          Affirmed.




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