                       COURT OF APPEALS OF VIRGINIA


Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia


HERMAN OPENZO COOK
                                          MEMORANDUM OPINION * BY
v.   Record No. 1968-02-2                 JUDGE JERE M. H. WILLIS
                                               JULY 1, 2003
COMMONWEALTH OF VIRGINIA


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

          Matthew T. Paulk (Blackburn, Conte, Schilling
          & Click, P.C., on brief), for appellant.

          Michael T. Judge, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Herman Openzo Cook appeals his convictions of attempted

first-degree murder, use of a firearm in the commission of

attempted murder, robbery, and use of a firearm in the commission

of robbery.   He contends:   (1) that the trial court lacked

jurisdiction to try him as an adult because he was not afforded a

preliminary or transfer hearing in the juvenile and domestic

relations district court as required by Code § 16.1-269.1; and

(2) that the evidence was insufficient to support his convictions

of attempted first-degree murder and use of a firearm in the

commission thereof.   Because the trial court had jurisdiction to


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
try Cook as an adult and the evidence supports his convictions, we

affirm the judgment of the trial court.

                            BACKGROUND

     In October, 2000, the Commonwealth filed in the juvenile

and domestic district court three petitions charging Cook, a

juvenile, with robbery and aggravated malicious wounding.    The

juvenile court certified the charges to the grand jury pursuant

to Code § 16.1-269.1(C).   Cook was indicted by the grand jury.

However, on April 13, 2001, the circuit court entered a nolle

prosequi on the indictments.   Although the Commonwealth could

have reinstated the charges by subsequent indictment, Code

§ 16.1-269(E), it did not do so.

     On September 20, 2001, petitions were filed in the juvenile

and domestic relations district court charging Cook with the

instant offenses, alleged to have been committed on September

11, 2001, while he was seventeen years of age.   Noting Cook's

previous certification and indictment for prosecution as an

adult, the juvenile court transferred the charges to the general

district court pursuant to Code § 16.1-271.   The general

district court certified the charges to the grand jury, which

indicted Cook.   The circuit court convicted him on each

indictment.   Those convictions are the subject of this appeal.

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"   Archer v.

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Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).    "The credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented."     Sandoval v. Commonwealth, 20 Va. App. 133,

138, 455 S.E.2d 730, 732 (1995).

     So viewed, the evidence disclosed that on September 11,

2001, Quinton Montague was walking with Beverly Pinkney and

another friend toward his truck when he noticed that one of the

windows of the truck had been broken.     He ran ahead of his

friends to investigate.    While standing next to his truck, he

heard gunshots and dropped to the ground.    Pinkney ran to the

other side of the parking lot.    She saw Cook, whom she

recognized from the neighborhood, climb on top of the truck and

fire his weapon downward at Montague.

     When the shooting stopped, Montague and Pinkney ran to a

nearby apartment building and began knocking at a friend's door.

While they were in the apartment building corridor, Cook, with

his gun drawn, confronted Montague and demanded everything in

his pocket.   Montague gave Cook $3,000.   Montague also

recognized Cook from the neighborhood.

                               ANALYSIS

                      Circuit Court Jurisdiction

     Cook contends that because the previously certified charges

against him ended with a nolle prosequi, he should have been

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proceeded against as a juvenile and was entitled to another

proceeding pursuant to Code § 16.1-269.1(C) in the juvenile and

domestic relations district court.     Because he was denied this,

he asserts, the trial court did not acquire jurisdiction to try

him as an adult.

     Code § 16.1-271 provides, in pertinent part:

          The trial or treatment of a juvenile as an
          adult pursuant to the provisions of this
          chapter shall preclude the juvenile court
          from taking jurisdiction of such juvenile
          for subsequent offenses committed by that
          juvenile.

               Any juvenile who is tried and convicted
          in a circuit court as an adult under the
          provisions of this article shall be
          considered and treated as an adult in any
          criminal proceeding resulting from any
          alleged future criminal acts and any pending
          allegations of delinquency which have not
          been disposed of by the juvenile court at
          the time of the criminal conviction.

     Cook argues, first, that the second paragraph of the

statute sets forth the circumstances under which a circuit court

disposition commits a juvenile to adult status and treatment

with respect to future misconduct.     He argues, second, that even

if the first paragraph of the statute controls, the nolle

prosequi entered in his earlier case rendered that proceeding a

nullity, which did not constitute his "treatment" as an adult.

     The first paragraph of Code § 16.1-271 operates only with

respect to offenses subsequent to the trial or treatment of the

juvenile as an adult.   The second paragraph addresses not only


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alleged future criminal acts, but also unconcluded "pending

allegations of delinquency."    Id.   (Emphasis added.)    This case

involves only the first paragraph.      Thus, we are concerned only

with whether Cook's earlier prosecution constituted trial or

treatment as an adult.   He was not tried, so our inquiry focuses

on whether he was "treated" as an adult.     We conclude that he

was.

       "'Generally, the words and phrases used in a statute should

be given their ordinary and usually accepted meaning unless a

different intention is fairly manifest.'     'The plain, obvious,

and rational meaning of a statute is always preferred to any

curious, narrow or strained construction . . . .'"        Broadnax v.

Commonwealth, 24 Va. App. 808, 814, 485 S.E.2d 666, 668 (1997)

(citations omitted).

       "Prior to July 1, 1994, the first paragraph of Code

§ 16.1-271 provided that '[t]he trial or treatment of a juvenile

as an adult . . . shall not preclude the [juvenile] court from

taking jurisdiction of such juvenile for subsequent offenses

committed by that juvenile.'"    Id. at 813, 485 S.E.2d at 668

(footnote omitted).    "A presumption normally arises that the

legislature intended a substantive change in the law when it

adds a new provision to an existing statute by amendatory act."

Id. at 814, 485 S.E.2d at 669 (citation omitted).

            The intent and effect of the legislature's
            deletion of the word "not" in the first
            paragraph of Code § 16.1-271 by the 1994

                                - 5 -
           amendment could not be clearer. The
           language indicates, without question, that
           the legislature intended this amendment to
           divest the juvenile court of jurisdiction
           over a juvenile once the juvenile has been
           previously tried or treated as an adult
           under this chapter. Further, the language
           is mandatory . . . . These provisions are
           not ambiguous, and must be given their
           plain, obvious, and rational meaning.

Id. at 815, 485 S.E.2d at 669 (citation omitted)(emphasis

deleted in part).

           [T]he statute[] clearly reveal[s] the
           legislature's intent that the event that
           requires all future actions involving the
           certified juvenile to commence as an adult
           is triggered by the probable cause finding
           and certification on the . . . felonies, not
           the ultimate finding at trial. Any juvenile
           "tried or treated" in the circuit court is
           removed from the juvenile justice system and
           must be considered and treated as an adult
           in any future criminal proceedings,
           irrespective of that trial's outcome.

Hughes v. Commonwealth, 39 Va. App. 448, 461, 573 S.E.2d 324,

330 (2002) (citation omitted).

     We have held that when "'the trial court enters a nolle

prosequi of [an] indictment, it lays "to rest that indictment

and the underlying warrant without disposition, as though they

had never existed."'"   Kenyon v. Commonwealth, 37 Va. App. 668,

675, 561 S.E.2d 17, 20 (2002)(citation omitted).   "As though"

means "just as if."   This concept has meaning only when

considered in recognition that the proceeding did, in fact,

occur.   The bare fact that a nol prossed indictment has no



                                 - 6 -
ongoing validity or effect does not alter the fact that the

indictment and its underlying process occurred.

       Cook's certification in 2000 pursuant to Code

§ 16.1-269.1(C) established his status as an adult for

jurisdictional purposes.   He was then treated as an adult by the

circuit court, where he was indicted and arraigned.    Although

those charges were terminated by nolle prosequi, he was

nonetheless during the pendency of those proceedings treated as

an adult, which status continued pursuant to Code § 16.1-271.

The juvenile court was precluded from exercising jurisdiction

over him with respect to the charges embraced in this appeal,

and the trial court properly acquired jurisdiction.

                     SUFFICIENCY OF THE EVIDENCE

       Cook argues that the evidence was insufficient to prove he

intended to kill Montague.

            To prove the crime of attempted murder two
            essential elements must be established. The
            specific intent to kill the victim must be
            shown and this must be coupled with evidence
            of some overt but ineffectual act in
            furtherance of this purpose. The use of a
            deadly weapon, standing alone, is not
            sufficient to prove the specific intent
            required to establish attempted murder.

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

(1974) (citation omitted) (emphasis added).   "The necessary

intent is the intent in fact, as distinguished from an intent in

law.   Intent in fact is the purpose formed in a person's mind



                                - 7 -
which may be shown by his conduct."    Epps v. Commonwealth,

216 Va. 150, 156, 216 S.E.2d 64, 69 (1975) (citations omitted).

     Pinkney testified she saw Cook climb atop Montague's truck

and repeatedly fire his weapon toward Montague, who was on the

ground trying to shield himself with the truck.   This conduct

was sufficient to prove Cook's requisite intent to kill

Montague.   Therefore, the evidence was sufficient to support the

convictions of attempted murder and use of a firearm in the

commission of attempted murder.

     The judgment of the trial court is affirmed.

                                                          Affirmed.




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