                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Beales
Argued at Richmond, Virginia


XAVIER ANTONIO POWELL
                                                              MEMORANDUM OPINION* BY
v.     Record No. 1942-05-2                                   JUDGE RANDOLPH A. BEALES
                                                                  NOVEMBER 28, 2006
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                  Daniel T. Balfour, Judge

                 Matthew T. Witten for appellant.

                 Josephine F. Whalen, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Xavier Antonio Powell (appellant) appeals from his conviction by the trial court of

malicious wounding, aggravated malicious wounding, and use of a firearm in the commission of

a felony under Code §§ 18.2-51, 18.2-51.2, and 18.2-53.1, respectively. The sole issue on appeal

is whether the evidence is sufficient, as a matter of law, to support appellant’s convictions. We

hold that it is and affirm the convictions.

                                                    I.

                                               FACTS

       Under well-settled principles, “‘we review the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Peake v.

Commonwealth, 46 Va. App. 35, 37-38, 614 S.E.2d 672, 674 (2005) (quoting Archer v.

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


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
establishes that, just after dusk on October 22, 2004, a black Jeep Liberty drove by a crowd

assembled in the 2000 block of Beck Drive to attend a football game at Kennedy High School.

The Jeep continued circling the block for approximately fifteen minutes. Finally, the Jeep

slowed to within twenty-five feet of the crowd, and the occupants of the vehicle sprayed the

group with gunfire.

       Although none of the witnesses were able to see the individuals inside the vehicle, Greg

Knight testified he saw “many shots” from “three different guns” being fired from the Jeep’s

windows, including from the driver’s window. Dominic Jones, who was grazed in the head by a

bullet, saw flashes of gunfire coming from both the driver’s window and the rear window on the

driver’s side of the Jeep. Michael Bowman, who was shot in his lower back, resulting in

paralysis from the waist down, testified he was shot when he turned away from the Jeep to run.

None of the witnesses saw shots being fired from any source other than the Jeep.

       The police received a call about the shooting at 7:46 p.m. Later that night, the Jeep was

found by police at a Citgo gas station approximately a mile from the scene of the shooting. The

Jeep had two flat front tires and several bullet holes in the body.

       The Jeep belonged to the husband of Kelly White. White testified that, earlier that

afternoon, she drove the Jeep into the Fulton Bottom area to buy crack cocaine. She had no

money but hoped to trade CDs and DVDs for drugs. She approached appellant, David Eaton,

and Ike Enny, but they were not interested in trading drugs for CDs and DVDs. Instead, they

offered to give White cocaine in exchange for the use of her Jeep. White initially rejected the

offer and drove off. However, she later returned and agreed to let the men use the Jeep for a

while in exchange for the cocaine. The men got into the Jeep and rode with her to the house of

Rodney Friend, an acquaintance of the men. White stayed at the house and smoked crack with




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Friend while appellant, Eaton, and Enny used the Jeep. White observed that appellant was

driving the Jeep when the three men drove away from Friend’s house.

       Appellant, Eaton, and Enny returned to Friend’s house “before eight o’clock” without the

Jeep. Eaton asked White if she “had any enemies” because “somebody had shot out both of [her]

tires on the [Jeep].” The men asked White “where the jack was in the [Jeep], because they

wanted to change the tire[s] and bring the car back to [her].” White told them where the jack

was located in the vehicle, and the men left. The men did not return the Jeep, and White “never

saw them after that time.”

       White waited at Friend’s house all night, hoping appellant and his cohorts would return

her husband’s Jeep. The next morning, she called home and learned what had happened to the

Jeep. She subsequently went to the police and told them what she had done.

       Investigator Robin Dorton interviewed White and rode with her to Fulton Bottom in an

attempt to locate the men who had borrowed the Jeep. As a result of that investigation, Enny

was taken into custody.1 During further investigation, White identified Eaton and appellant from

a group of photographs as the other two men to whom she had loaned her husband’s Jeep.

       The forensic investigator, Jennifer Strano, collected approximately nineteen cartridge

casings, including nine-millimeter and .22 caliber rounds, in the street at the scene of the

shooting. These casings matched cartridge casings found in and around the Jeep at the Citgo

station. She also found some nine-millimeter shells at the Beck Drive scene that did not match

ones found with the Jeep. Strano testified that, “all in all,” the casings found at the scene of the

shooting and in and around the Jeep at the Citgo station came from “three firearms.”




       1
          Investigator Dorton testified that Enny initially told him there were “only three people”
in the Jeep on the night of the shooting, but “changed his story” following his arrest, “saying that
he wasn’t in the vehicle [and] that there might have been a fourth person in the vehicle.”
                                                -3-
       The trial court found appellant guilty and specifically noted:

               The evidence is pretty clear to me that they would not have gotten
               three other people in there and gotten back out and reported to the
               police at 7:46. The evidence from the forensic, I think confirms
               what I said. I believe the evidence, to me, proved beyond a
               reasonable doubt, when she testified. I don’t think there was any
               evidence that it’s a practice, as someone said, to borrow a car and
               switch it off to somebody else and then switch it back and then
               show up. There wasn’t any evidence that, in effect, that’s a
               practice and there certainly wasn’t any evidence that was the case
               here. That’s just a theory thrown out. So in my mind, it’s not a
               question beyond a reasonable doubt. I think that they’re all guilty
               and I so find.

The court sentenced appellant to thirty-three years’ incarceration, with sixteen years suspended,

and ordered appellant to pay $2,480 in court costs. This appeal followed.

                                                  II.

                                             ANALYSIS

       On appeal, appellant contends the evidence, which was entirely circumstantial, was

insufficient, as a matter of law, to support his convictions. Specifically, he argues the

Commonwealth’s evidence failed to prove beyond a reasonable doubt that he was involved in the

shooting. We disagree.

       “‘When the sufficiency of the evidence is challenged on appeal, we determine whether

the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and

the reasonable inferences fairly deducible from that evidence support each and every element of

the charged offense.’” Crest v. Commonwealth, 40 Va. App. 165, 174, 578 S.E.2d 88, 92 (2003)

(quoting Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999)).

“[T]he judgment of a trial court sitting without a jury is entitled to the same weight as a jury

verdict.” Coles v. Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109, 110 (2005), cert. denied,

2006 U.S. LEXIS 7857 (Oct. 16, 2006). “When a defendant challenges on appeal the sufficiency

of the evidence to sustain his conviction, the appellate court has the duty to examine the evidence
                                                 -4-
that tends to support it, and to affirm the conviction unless it is plainly wrong or without

evidentiary support.” Id. Moreover, “[t]he 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.” Ford v. Commonwealth, 48 Va. App. 262, 267, 630 S.E.2d 332, 335

(2006) (quoting Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732

(1995)).

       “Circumstantial evidence is as competent and is entitled to as much weight as direct

evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except

that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). Indeed,

as our Supreme Court recently held:

                       There is no distinction in the law between the weight or
               value to be given to either direct or circumstantial evidence. The
               finder of fact is entitled to consider all the evidence, without
               distinction, in reaching its determination. Circumstantial evidence
               is not viewed in isolation. While no single piece of evidence may
               be sufficient, the combined force of many concurrent and related
               circumstances, each insufficient in itself, may lead a reasonable
               mind irresistibly to a conclusion.

Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 31-32 (2005) (citation

omitted), cert. denied, 126 S. Ct. 2035 (2006). In considering an appellant’s alternate hypothesis

of innocence in a circumstantial evidence case, we must determine “not whether there is some

evidence to support” the hypothesis of innocence, but, rather, “whether a reasonable [fact finder],

upon consideration of all the evidence, could have rejected [the appellant’s] theories in his

defense and found him guilty of [the charged crime] beyond a reasonable doubt.”

Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003) (internal quotation

marks omitted).

       Here, the trial judge found appellant guilty based on the totality of the evidence. The

evidence, taken in the light most favorable to the Commonwealth, supports that finding. The
                                                -5-
evidence establishes that the Jeep belonging to White’s husband was the vehicle used in the

drive-by shooting on Beck Drive. The abandoned and bullet-ridden Jeep was found a mile from

the shooting. Shell casings from the same guns used on Beck Drive were found in and around

the Jeep.

       Moreover, White testified that, hours before the shooting occurred, she loaned the Jeep to

appellant, Eaton, and Enny in exchange for drugs. She specifically identified appellant as the

driver when he, Eaton, and Enny left Friend’s home in the Jeep. A witness to the shooting

testified that he saw flashes from three different guns being fired out of the Jeep’s windows,

including from the driver’s window. In addition, based on the ballistics testimony, at least three

guns were used at the shooting, and casings from at least two of those same guns were found in

and around the abandoned Jeep. The shooting, which was reported to the police at 7:46 p.m.,

occurred before appellant, Eaton, and Enny returned to Friend’s house before 8:00 p.m. to report

the Jeep had been damaged by gunfire and they were going to change the tires before returning it

to White.

       From this evidence, the trial judge could properly conclude that appellant was in the Jeep

and participated in the drive-by shooting on Beck Drive.2 Likewise, the trial judge could

properly reject appellant’s hypothesis of innocence that another group of men gained possession

of the Jeep, drove it to Beck Drive, perpetrated the shooting, and abandoned the Jeep at the Citgo

station before appellant and his friends returned to Friend’s house. As the trial judge found,

“[t]here wasn’t any evidence that, in effect, that’s a practice and there certainly wasn’t any

       2
         Though Strano’s testimony and the cartridge casings confirm that three weapons were
fired from the Jeep into the crowd, the evidence need not prove that appellant actually shot from
the vehicle, only that he acted as a principal in the second degree. See Riddick v.
Commonwealth, 226 Va. 244, 248, 308 S.E.2d 117, 119 (1983) (holding that, under the concert
of action theory, even if the appellant himself did not shoot the victims, the appellant “shared
[his cohort’s] intent” and was “criminally responsible for the acts of the gunman . . . as a
principal in the second degree”). In addition, whether two or three guns were used is likewise
not significant to this analysis.
                                                 -6-
evidence that was the case here.” Indeed, the short window of opportunity between when the

shooting occurred and when appellant and his cohorts returned to Friend’s house makes

appellant’s hypothesis of innocence implausible, as the trial judge found.

       Finally, we note that “a reviewing court does not ‘ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.’” Myers v. Commonwealth, 43

Va. App. 113, 118, 596 S.E.2d 536, 538 (2004) (quoting Crowder v. Commonwealth, 41

Va. App. 658, 662-63, 588 S.E.2d 384, 386-87 (2003)). Instead, we ask whether “‘any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”

Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). With this in mind, we hold that the trial court

did not err in finding appellant guilty under Code §§ 18.2-51, 18.2-51.2, and 18.2-53.1, as the

convictions are not plainly wrong or without evidentiary support.

                                                III.

                                         CONCLUSION

       Because, when viewed in the light most favorable to the Commonwealth, the evidence

and reasonable inferences to be drawn from that evidence are sufficient, as a matter of law, to

support appellant’s convictions, we affirm the judgment of the trial judge and appellant’s

convictions.

                                                                                          Affirmed.




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