                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


TONY KNOX
                                          MEMORANDUM OPINION * BY
v.   Record No. 0533-00-1                  JUDGE G. STEVEN AGEE
                                                MAY 1, 2001
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                   A. Bonwill Shockley, Judge

            Theresa B. Berry (Berry, Ermlich, Lomax &
            Meixel, on brief), for appellant.

            Steven A. Witmer, Assistant Attorney General
            (Mark L. Earley, Attorney General, on
            brief), for appellee.


     Tony Knox ("defendant" or "Knox") was indicted on four

counts of attempted malicious wounding, four counts of use of a

firearm in the commission of a felony, four counts grand

larceny, one count robbery, one count attempted robbery, three

counts conspiracy and one count possession of burglary tools.

He pled guilty in the Circuit Court of the City of Virginia

Beach to one count each of robbery, use of a firearm, and

attempted robbery, and to four counts of grand larceny.    He was

tried and convicted by the trial court sitting without a jury,

of three counts of attempted malicious wounding and three counts


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of use of a firearm.   The remaining charges were nolle

prosequied.

     Prior to the sentencing hearing, the defendant moved the

court to allow him to withdraw his guilty pleas and to

reconsider the findings of guilty as to the offenses for which

he was convicted at trial.    The court denied his motions and

sentenced the defendant to serve a total of 22 years in prison.

     The defendant now appeals his convictions averring that the

evidence was insufficient to support the convictions for

attempted malicious wounding and the related use of a firearm in

the commission of a felony.    In addition, he appeals the circuit

court's denial of his motion to withdraw his guilty pleas.        For

the reasons set forth below, we affirm the convictions and hold

the trial court did not err in denying the motion to withdraw

the guilty pleas.

                                  I.

                              BACKGROUND

     In August and September 1997, Tony Knox, age 17, and a

younger cousin, Maurice Lewis, age 13, stole four vehicles in

and around Virginia Beach which they later abandoned.      Knox

found a handgun in one of the vehicles which he kept and

practiced shooting it in some woods.       He used this handgun to

perpetuate all the robberies and to fire at the intended

victims.



                                 - 2 -
        When Knox and Lewis stole the last vehicle on or about

September 27, 1997, they used it to stalk and rob at gunpoint

Matthew Swingle, a pizza delivery driver.    On September 28,

1997, William Love, another pizza delivery driver, noticed a

black truck following him while he was driving to a delivery.

When he reached his customer's address, Love went to the front

door of the house as he heard tire noises.    The black truck had

stopped between forty and fifty feet away from the front door

where Love was standing while he rang the doorbell.    Love then

asked Knox, the driver of the truck, what he wanted.    The

defendant responded, "You know what the F we want."

        The customer, Albert Riley, opened the door and Love said

he suspected he was about to be robbed.    He then heard a sound

"like a loud firecracker" and the truck sped off.    The delivery

driver and the customer then observed a bullet hole in an

interior wall of the house at about chest height "not even

twelve inches" from where Love and the customer had been

standing.    The bullet hole had not been present in the home

earlier.

        At the same time, Michael Duffy was walking down the street

from Riley's house when he heard a gunshot and noticed Knox's

vehicle traveling at a high rate of speed.    The vehicle

initially passed Duffy but then returned towards Duffy; the

front passenger window was down and the truck slowed to nearly a

stop.    When the vehicle was about ten feet away from him, Duffy

                                 - 3 -
saw a muzzle flash and felt an "explosion of noise" that

literally knocked him off his feet.

        Knox also saw Anthony Morris delivering a pizza on

September 28, 1997.    Knox testified he removed the clip from his

gun when he approached Morris as he sat in his truck, then stuck

the unloaded gun through the open window and demanded money.

Morris grabbed the defendant's hand, pinning it against the

vehicle and began to drive off.    Knox freed his hand from

Morris' grasp, reloaded the gun and fired at Morris hitting the

driver's side doorframe, just above the level of the driver's

head.    The shot was fired from such short range the shell casing

landed in the back of Morris' truck.

        When the defendant was interviewed about these events by

police he stated that he had followed a pizza driver (Love)

through a neighborhood and was "pissed off" at the driver

because the driver was trying to "lose him."    He further stated,

"the guy on the porch looked like he was trying to be a

smart-ass," so Knox had his cousin lean back in the seat so he

could fire the gun at Love.

        The defendant then admitted to Detective J.G. Mentus that

after he shot at the pizza driver on the porch, he drove down

the street and saw a family walking.     After seeing the man point

at him, he slowed down, stopped in front of the guy, pointed the

gun at him and fired one shot before driving off.



                                 - 4 -
     Knox also admitted to approaching a second pizza delivery

driver sitting in his vehicle, pointing a gun at him and

demanding money.   He stated the driver grabbed the weapon and

they wrestled for control of the gun.     The defendant then

admitted to shooting at the driver "because he grabbed my hand."

     At trial on August 5, 1998, the Commonwealth submitted to

the court stipulated evidence, offered in connection with the

defendant's guilty pleas, establishing that the defendant and

Maurice Lewis had committed grand larceny of four automobiles

during a period in August and September 1997 and that they

robbed the first pizza delivery driver, Matthew Swingle.       In

addition, a portion of Maurice Lewis' statement was read into

evidence that established that the defendant was present and

fired the gun in all three incidents for which he was being

tried.

     The defendant testified that he ran out of money to buy

marijuana and alcohol and "decided . . . to get fast money . . .

I would rob people."   He admitted that he was planning to rob

Love, but denied that he was angry because Love was trying to

lose him.    He did not approach Love on the porch because Love

would have been able to see his face.     He admitted to firing the

gun at Duffy because he thought Duffy was trying to get the

license plate number of the truck.      He also admitted to shooting

at Morris.



                                - 5 -
     The defendant was convicted at trial of three counts

attempted malicious wounding for trying to shoot Love, Duffy and

Morris and three counts use of a firearm in the commission of a

felony.   Prior to his sentencing hearing on December 2, 1998,

the defendant moved the court to set aside the findings of

guilty and to permit withdrawal of his pleas of guilty on the

other charges.    The defendant alleged that his pleas were

entered on a mistake of fact, which was that he had been unaware

of a defense of not guilty by reason of insanity, and that the

court should enter a finding of insanity at the time of the

offenses.   The court heard evidence on the defendant's motion.

     The evidence presented indicated that the defendant freely

underwent multiple psychiatric and psychological tests before

and after his arrest, primarily by Dr. Earle Williams, a

licensed clinical psychologist.   In an October 8, 1997

evaluation, nearly a year before his trial, the defendant was

diagnosed as "possibly bipolar and psychotic" by Dr. Williams.

This evaluation was sought and obtained by the Knox family.

     Shortly thereafter, Dr. Williams was asked by the court to

determine the defendant's competency to stand trial and to

perform an evaluation of the defendant's mental state at the

time of the offenses.   The evaluation was performed December 6,

1997, and the defendant was specifically found to be competent

to stand trial.   The evaluation of the mental state at the time

of the offenses, however, was never entered into evidence, but

                                - 6 -
defense counsel had received a copy.   Dr. Williams noted in his

report to the court that Knox had been treated by Dr. Sacks.

     Upon an evaluation dated November 12, 1998, months after

the trial, Dr. Williams opined in a report sought by Knox that

the defendant suffered from a severe and undiagnosed "bipolar

disorder."   The condition manifests itself in mood swings

ranging from a depression stage to a manic phase causing the

sufferer to be subject to irresistible impulses.   In addition,

Dr. Williams diagnosed the defendant as suffering from

"intermittent explosive disorder."

     Dr. Williams testified at the December 2, 1998 hearing that

he believed the defendant "was in a psychotic state at the time

of the offense."   The basis for this diagnosis included

representations by Knox's family that the behavior was different

than his usual behavior and on reports of Dr. Sacks and a

Dr. Pal, which Dr. Williams said he did not have when he did the

earlier reports.   Nonetheless, Dr. Williams testified "that all

during the course of Tony's rampage, he knew right from wrong,"

but that "my professional opinion is such that he was suffering

from an irresistible impulse, was on a roll and just didn't have

the wherewithal to stop himself once he was going."

     On cross-examination, Dr. Williams admitted he had never

seen Knox in any psychotic episode and that he was not

psychotic.   Further, Dr. Williams testified that planning of the



                               - 7 -
type done by Knox to facilitate the robberies would "belie any

sort of irresistible impulse."

     After hearing Dr. Williams' testimony, the trial court

denied the motion to withdraw the guilty pleas and set aside the

findings of guilty.

                                  II.

                      SUFFICIENCY OF THE EVIDENCE

     The defendant contends the evidence was insufficient to

prove that he attempted to maliciously wound Love, Duffy and

Morris.   He argues that the evidence does not support the trial

court's conclusion that he intended to wound his victims.         We

disagree.

     When the sufficiency of the evidence is challenged, we

consider all the evidence, and any reasonable inferences fairly

deducible therefrom, in the light most favorable to the party

that prevailed at trial, which is the Commonwealth in this case.

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975).   Witness credibility, the weight accorded the

testimony and the inferences to be drawn from proven facts are

matters to be determined by the fact finder.        See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

A trial court's judgment will not be disturbed on appeal unless

it is plainly wrong or without evidence to support it.        See Code

§ 8.01-680.



                                 - 8 -
     To convict the defendant of attempted malicious wounding,

the Commonwealth was required to prove two elements.      First,

that Knox intended to "maliciously shoot, stab, cut or wound any

person or by any means cause bodily injury with the intent to

maim, disfigure, disable or kill."       See Code § 18.2-51.   Such

intent of the accused may be inferred from the facts and

circumstances of the particular case.      For instance, intent may

be proven by the accused's acts and statements and be shown by

circumstantial evidence.   David v. Commonwealth, 2 Va. App. 1,

3, 340 S.E.2d 576, 577 (1986).    The Commonwealth must also prove

the second element, that the accused committed a direct but

ineffectual act toward that purpose.       Moody v. Commonwealth, 28

Va. App. 702, 706, 508 S.E.2d 354, 356 (1998).

     Presented to the trial court was a description of a crime

spree of almost two months that involved the stealing of cars

and a gun and then the use of a stolen car and the gun in a

planned scheme to follow and rob pizza delivery drivers.       The

trial court heard evidence that the defendant admitted to

approaching a pizza delivery driver, demanding money and, upon

the hesitation of the driver, placing a gun in front of the

victim's face and then firing the weapon shattering the

passenger window of the victim's car.

     The trial court also heard that the defendant confronted

two other pizza delivery drivers, one by following him through a

neighborhood and then yelling out of the vehicle's window, and

                                 - 9 -
the other by directly approaching and pointing a gun at him.

Both drivers managed to avoid being robbed, but the defendant,

angered at the complications, fired a gun at both, and barely

missed.    It was also presented to the court that after fleeing

the scene of the Love incident, the defendant feared Mr. Duffy

had his license plate number.    Knox then drove past Duffy a

second time, slowed, and fired at Duffy, just missing him.

        From these acts and the defendant's statements to police,

the trial court could reasonably infer that the defendant

intended to maim, disfigure, or disable each of the three

victims.    The evidence supports the trial court's finding that

the defendant's deliberate acts of stalking the victims and then

aiming and firing the gun directly at them justified an

inference that he intended to maim, disable, disfigure, or kill

them.    Further, these intentional acts were malicious.   "Malice

inheres in the doing of a wrongful act intentionally, or without

just cause or excuse, or as a result of ill will."     Long v.

Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).

Therefore, we find there was sufficient evidence on each count

for the trial court to find the defendant guilty of attempted

malicious wounding.

        As the evidence supports the finding of attempted malicious

wounding, and each attempt was committed with a firearm, the

trial court did not err in denying the defendant's motion to

strike the evidence in regards to the firearm charges.

                                 - 10 -
                                III.

                     WITHDRAWAL OF GUILTY PLEAS

     The defendant's second contention on appeal is that the

trial court erred in denying his motion to withdraw his guilty

pleas.   Code § 19.2-296 permits the withdrawal of a guilty plea

prior to sentencing; however, "'[w]hether or not an accused

should be allowed to withdraw a plea of guilty . . . is a matter

that rests within the sound discretion of the trial court and is

to be determined by the facts and circumstances of each case.'"

Hoverter v. Commonwealth, 23 Va. App. 454, 464, 477 S.E.2d 771,

775 (1996) (quoting Parris v. Commonwealth, 189 Va. 321, 324, 52

S.E.2d 872, 873 (1949)).   The trial court's finding on the

motion will not be disturbed unless plainly wrong or without

evidence to support it.    See id. at 465, 477 S.E.2d at 776.

     A motion to withdraw a plea should be granted

           "if it appears from the surrounding
           circumstances that the plea of guilty was
           submitted in good faith under an honest
           mistake of material fact or facts, or if it
           was induced by fraud, coercion or undue
           influence and would not otherwise have been
           made."

Id. at 464, 477 S.E.2d at 775 (quoting Parris, 189 Va. at 324,

52 S.E.2d at 873).   Determining whether a court erred in

declining to allow a withdrawal of a guilty plea "requires an

examination of the circumstances confronting [the] accused

immediately prior to and at the time he pleaded to the charge."

Parris, 189 Va. at 322, 52 S.E.2d at 872.

                                - 11 -
     In this case, the defendant alleges he entered his pleas

under a material mistake of fact, i.e., he was unaware of a

possible psychiatric defense.   He argues, therefore, that his

pleas of guilty were, at the very least, inadvised.

Collaterally, he argues he was unable to present a defense of

insanity by irresistible impulse at trial.   Denial of his motion

would therefore be manifest injustice.    We disagree.

     The trial court heard evidence on the motion that indicated

that the defendant freely underwent multiple psychiatric and

psychological tests before and after his arrest.   In one

evaluation, nearly a year before his trial, the defendant was

diagnosed as possibly bipolar and psychotic.   The defendant or

his counsel were aware of these tests and evaluations, yet

either failed to explore and coordinate the reports and findings

in order to determine his true condition and the possibility of

an insanity defense or chose not to do so.

     Moreover, the submitted diagnosis and basis of an insanity

defense was that the defendant was subject to and acted under an

irresistible impulse.   Evidence that an accused planned his or

her criminal acts precludes, as a matter of law, any finding

that the accused acted under an irresistible impulse.    See

Rollins v. Commonwealth, 207 Va. 575, 580, 151 S.E.2d 622, 625

(1966).   Even Dr. Williams' testimony was that planning would

negate a claim of irresistible impulse.



                                - 12 -
     The stipulation of evidence accompanying the defendant's

guilty pleas established that (1) on four different dates

between August 2, 1997 and September 27, 1997 the defendant

stole four vehicles and (2) on or about September 28, 1997, the

defendant and an accomplice robbed one pizza delivery driver and

attempted to rob another.    Further, the defendant testified that

when he ran out of money to buy drugs and alcohol he decided to

rob pizza delivery drivers.

     As the evidence proved that the defendant planned his

crimes he would not have been entitled, as a matter of law, to a

jury instruction on irresistible impulse.   Thus, the defendant

had no viable insanity defense if the trial court had allowed

him to withdraw his pleas.    The trial court did not abuse its

discretion in denying the motion to withdraw the guilty pleas or

to set aside the findings of guilt.

     Accordingly, the defendant's convictions are affirmed.

                                                         Affirmed.




                                - 13 -
Benton, J., concurring.

     I concur with the majority opinion's holding that the trial

judge did not err in refusing to allow Tony Knox to withdraw his

guilty pleas to the charges of robbery, use of a firearm,

attempted robbery, and four counts of grand larceny.    I also

concur with the majority opinion's holding that the evidence at

trial was sufficient to prove beyond a reasonable doubt the

charges of attempted malicious wounding and the corresponding

charges of using a firearm in the attempts to wound.    Although I

agree that the trial judge did not err in refusing to set aside

the convictions for the attempted malicious woundings and use of

a firearm in those woundings, I do so for slightly different

reasons than the majority.

     We must analyze this claim under different rules than those

used to decide whether the trial judge should have allowed Knox

to withdraw his guilty pleas.   Upon Knox's plea of not guilty,

the trial judge heard the evidence and convicted him of the

charges of attempted malicious wounding and the corresponding

firearm charges.   Prior to sentencing, Knox filed a motion to

set aside his guilty pleas and the findings of guilt on those

charges to which he pled not guilty.     Knox argues on appeal that

"had this [additional psychological] information been available




                                - 14 -
. . . prior to the trial, [he] would have tried all of the

charges on a plea of not guilty by reason of insanity." 1

     Likening the psychologist's report "to after discovered

evidence, which can be presented any time within twenty-one (21)

days after sentencing," Knox asserts that "[w]hen new evidence

is obtained . . . between . . . a trial, and the sentencing

thereon, the defendant must be given the chance to present that

evidence to the appropriate finder of fact."   In short, based

upon a claim of after-discovered evidence, Knox is seeking a new

trial on the malicious wounding and firearm charges to which he

pled not guilty.   At that trial, Knox would raise the insanity

defense of irresistible impulse.

             Motions for new trials based on
          after-discovered evidence are addressed to
          the sound discretion of the trial judge, are
          not looked upon with favor, are considered
          with special care and caution, and are
          awarded with great reluctance. The
          applicant bears the burden to establish that
          the evidence (1) appears to have been
          discovered subsequent to the trial; (2)
          could not have been secured for use at the
          trial in the exercise of reasonable
          diligence by the movant; (3) is not merely
          cumulative, corroborative or collateral; and
          (4) is material, and such as should produce
          opposite results on the merits at another
          trial.

     1
       "Neither [Code § 19.2-254] nor any other statute
authorizes or requires an accused to enter a plea of 'not guilty
by reason of insanity.'" Jones v. Commonwealth, 28 Va. App.
444, 447, 506 S.E.2d 27, 29 (1998). However, to preserve for
trial the issue of an accused's sanity at the time the offense,
the accused is required to give notice to the Commonwealth at
least twenty-one days prior to trial of an intention to present
such evidence. See Code § 19.2-168.

                               - 15 -
Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149

(1983) (citation omitted).

     I believe that Knox established the first and third

elements of this test.   The Commonwealth does not challenge the

fact that he discovered this evidence after the trial.      Clearly,

the evidence is not cumulative because Knox did not put his

insanity at issue at trial.

     Furthermore, I believe that Knox has satisfied the fourth

element.   Dr. Williams' testimony is material.   The psychologist

testified that upon a post-trial forensic evaluation of Knox, he

concluded that Knox was suffering from an irresistible impulse

when he shot the gun during these criminal events.       Although it

is within the province of the fact finder to decide whether Knox

planned his acts or acted upon an irresistible impulse,

Dr. Williams' testimony provides a reasonable basis upon which a

trier of fact could have found that Knox was suffering from an

irresistible impulse when he fired the gun in the attempted

malicious woundings.

     Regarding the third element, however, the record does not

establish that this evidence could not have been secured for use

at trial in the exercise of reasonable diligence.    When

Dr. Williams performed the pretrial insanity evaluation, Knox

could have requested an evaluation at that time for both levels

of insanity recognized in Virginia.     See Bennett v.

Commonwealth, 29 Va. App. 261, 277, 511 S.E.2d 439, 447 (1999)

                               - 16 -
(holding that "Virginia law recognizes two tests by which an

accused can establish criminal insanity, the M'Naghten Rule and

the irresistible impulse doctrine").    No evidence in the record

provides an explanation why this was not done.   Accordingly, I

would hold that the record fails to establish "the evidence

could not have been obtained for use at trial in the exercise of

reasonable diligence."   Odum, 225 Va. at 131, 301 S.E.2d at 149.

     For these reasons, I concur in affirming the convictions.




                               - 17 -
