                  COURT OF APPEALS OF VIRGINIA


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


WILL ROGERS LOVING, JR.
                                             MEMORANDUM OPINION * BY
v.        Record No. 2499-94-2                JUDGE LARRY G. ELDER
                                                FEBRUARY 20, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
                 Samuel Taylor Powell, III, Judge

          Craig S. Cooley for appellant.

          Richard H. Rizk, Assistant Attorney General
          (James S. Gilmore, III, Attorney General;
          Richard B. Smith, Assistant Attorney General,
          on brief), for appellee.



     Will Rogers Loving, Jr. (appellant) appeals his conviction

for use of a firearm in the commission of a murder in violation

of Code § 18.2-53.1.   Appellant asserts (1) the trial court, in a

bifurcated trial, erred in refusing to set aside his conviction

for use of a firearm in the commission of a murder where he was
convicted only of voluntary manslaughter; and (2) insufficient

evidence supported his conviction.       Because the trial court did

not err, we affirm the conviction.

                                  I.

                                 FACTS

     The victim and appellant fought on prior occasions,

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
including one incident in February or March 1994, when both

parties were intoxicated.   On June 26, 1994, appellant and two

friends were driving on Route 618 in Charles City County, when

the victim, in his vehicle, waved for them to stop.   The victim,

who became intoxicated that day after a fight with appellant's

mother (whom he dated) and sister, was in a very agitated state.

After each party exited his vehicle, the victim attacked

appellant and threw full beer cans at him.   Appellant re-entered

his vehicle and fled with the victim in pursuit.   Appellant

returned to his house, where he retrieved a pistol and hid behind

a truck.   The victim sped into appellant's driveway and exited

his vehicle.    Appellant testified that after he fired warning

shots into the air, the victim, with one hand held behind

himself, told appellant, "If you got [a gun], you better use it."

Appellant testified that as the victim approached him, he feared

for his life and shot the victim two times, killing him.     The

victim was unarmed, he stood twenty feet away from appellant when

appellant shot him, and his blood alcohol level was .19 percent

when he died.
     In a bifurcated jury trial in the Circuit Court of Charles

City County, a jury convicted appellant of voluntary manslaughter

and use of a firearm in the commission of a murder.   Appellant

made a motion to set aside and strike the conviction for use of a

firearm in the commission of a murder, which the trial court

denied.    The circuit court entered judgments on the jury




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verdicts.




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                                II.

           INCONSISTENT VERDICTS IN A BIFURCATED TRIAL

     Appellant argues that the trial court erred in failing to

set aside his conviction for use of a firearm in the commission

of a murder after the jury convicted him only of manslaughter.

Appellant recognizes that prior to the statutory creation of

bifurcated felony jury trials, see Code § 19.2-295.1,

inconsistent verdicts could not be reversed on appeal due to

inconsistency.   However, appellant contends that because the jury

in a bifurcated trial does not consider guilt and punishment
concurrently, the trial judge has the discretion to set aside an

inconsistent verdict before the punishment phase.   We disagree.

     "Jury verdicts may appear inconsistent because the jury has

elected through mistake, compromise, or lenity to acquit or to

convict of a lesser offense for one charged crime that seems in

conflict with the verdict for another charged offense."   Pugliese

v. Commonwealth, 16 Va. App. 82, 96, 428 S.E.2d 16, 26 (1993)

(citations omitted); see also Wolfe v. Commonwealth, 6 Va. App.
640, 371 S.E.2d 314 (1988).   Based on this notion, the Supreme

Courts of the United States and Virginia both have held that a

court may not overturn a defendant's conviction on one count

simply because it is inconsistent with the jury's verdict on

another count.   United States v. Powell, 469 U.S 57 (1984); Reed

v. Commonwealth, 239 Va. 594, 391 S.E.2d 75 (1990).   The Court of

Appeals recently applied this rule specifically to bifurcated



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proceedings, Tyler v. Commonwealth, __ Va. App. __, __ S.E.2d __

(1996), and we hold that this rule similarly dictates the result

of this case.

                               III.

                    SUFFICIENCY OF THE EVIDENCE

     In his alternate argument, appellant asserts that the

Commonwealth did not present sufficient evidence to support his

conviction and failed to prove beyond a reasonable doubt every

element of the offense.   See Jackson v. Virginia, 443 U.S. 307,

315-16 (1979).   We disagree and hold that sufficient evidence

proved every element of the charge of use of a firearm in the

commission of a murder.

     The Commonwealth had the burden of proving appellant

(1) used a firearm (2) while committing murder.   Code

§ 18.2-53.1; Yarborough v. Commonwealth, 247 Va. 215, 218, 441

S.E.2d 342, 344 (1994).   To establish appellant committed second

degree murder, the Commonwealth had to prove the unlawful killing

was done with malice, but without premeditation and deliberation.
 Perricllia v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d 679, 683

(1985).

     Our analysis of whether sufficient evidence supported the

elements and sub-elements of the firearm charge must "not be

confused with the problems caused by inconsistent verdicts. . . .

[Our] review should be independent of the jury's determination

that evidence on [the murder] count was insufficient."   Powell,




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469 U.S. at 67 (citations omitted).    When examining a sufficiency

issue, we must view the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

deducible therefrom.   Josephs v. Commonwealth, 10 Va. App. 87,

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

discard all evidence of the accused that conflicts with that of

the Commonwealth, and we regard as true all credible evidence

favorable to the Commonwealth.    Lea v. Commonwealth, 16 Va. App.

300, 303, 429 S.E.2d 477, 479 (1993).   Finally, "[t]he jury's

verdict will not be disturbed on appeal unless it is plainly

wrong or without evidence to support it."    Traverso v.

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).

     The evidence adduced at trial showed the following:

appellant and the victim involved themselves in previous

altercations, and mutual animosity existed between them.    On

June 26, 1994, after their violent encounter on Route 618,

appellant left the scene and returned to his house.   Appellant

testified he presumed the victim would arrive at his house, but

he did not attempt to leave the premises or notify police as to

any potential conflict.   Instead, appellant retrieved his gun and

hid next to a truck in his driveway as the victim arrived.

Appellant disclosed to police that after the victim told him to

use his gun, he did in fact shoot the victim.    See Gills v.

Commonwealth, 141 Va. 445, 449, 126 S.E. 51, 53 (1925)(holding

malice may be inferred by the use of a deadly weapon).     Appellant



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also admitted the victim, who did not possess a weapon, was

approximately twenty feet away when appellant shot at him three

times, hitting him twice.

     Sufficient credible evidence, viewed in the light most

favorable to the Commonwealth, showed appellant acted with malice

in killing the victim, and appellant used a firearm in the

commission of the crime.     See generally Mundy v. Commonwealth, 11

Va. App. 461, 479, 390 S.E.2d 525, 535 (1990)(en banc)(subsequent

history omitted); Long v. Commonwealth, 8 Va. App. 194, 198, 379
S.E.2d 473, 475-76 (1989).    In light of the legal principles

described above, we cannot say the jury's verdict was plainly

wrong or without evidence to support it.    Code § 8.01-680.

     Accordingly, we affirm appellant's conviction.

                                                           Affirmed.




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