                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia


DANIEL STITH
                                          MEMORANDUM OPINION * BY
v.   Record No. 1210-00-2                  JUDGE LARRY G. ELDER
                                               MAY 8, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                    James F. D'Alton, Jr., Judge

           Robert L. Lichtenstein for appellant.

           Marla Graff Decker, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Daniel Stith (appellant) appeals from his bench trial

conviction for assault on a police officer pursuant to Code

§ 18.2-57. 1   On appeal, he contends the evidence failed to prove

he knew or had reason to know that the individuals were police


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Although the transcript and sentencing order indicate that
appellant was convicted of assaulting a police officer, a
violation of Code § 18.2-57, the sentencing order incorrectly
cites Code § 18.2-57.1. Prior to 1997, Code § 18.2-57.1
proscribed assault on a police officer. However, in 1997, the
General Assembly repealed Code § 18.2-57.1 and reenacted the
offense formerly proscribed therein as subsection (C) of Code
§ 18.2-57. See 1997 Va. Acts, ch. 833. Thus, when appellant
committed the instant offense on April 10, 1999, it was a
violation of Code § 18.2-57(C) rather than Code § 18.2-57.1, and
we remand to the trial court for the sole purpose of correcting
the clerical error in the sentencing order. See Tatum v.
Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 138 (1994).
officers. 2   We hold the evidence, viewed in the light most

favorable to the Commonwealth, supports the trial court's

finding that appellant acted with the requisite knowledge.

Therefore, we affirm his conviction, subject to remand solely

for the correction of a clerical error.

     When considering the sufficiency of the evidence on appeal

in a criminal case, we view the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).     The

conclusions of the fact finder on issues of witness credibility

may be disturbed on appeal only if this Court finds that the

witness' testimony was "inherently incredible, or so contrary to

human experience as to render it unworthy of belief."    Fisher v.

Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984).

In all other cases, we must defer to the conclusions of "the

fact finder[,] who has the opportunity of seeing and hearing the

witnesses."    Schneider v. Commonwealth, 230 Va. 379, 382, 337

S.E.2d 735, 736-37 (1985).    The fact finder is not required to

believe all aspects of a witness' testimony; it may accept some


     2
       Appellant makes passing mention on brief that he "lacked
the requisite knowledge that the individuals were Police
Officers in the performance of their duties." (Emphasis added).
He did not make this argument at trial, however, and his brief
focuses on whether he knew the individuals were police officers,
not whether he knew they were in the performance of their
duties. Thus, we do not consider this argument separately.

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parts as believable and reject other parts as implausible.     See

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24

(1993).

     Intent or knowledge, like any element of a crime, may be

proved by circumstantial evidence, see Servis v. Commonwealth, 6

Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), such as a

person's conduct and statements, see Long v. Commonwealth, 8 Va.

App. 194, 198, 379 S.E.2d 473, 476 (1989).   "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).   "[T]he Commonwealth need only exclude reasonable

hypotheses of innocence that flow from the evidence, not those

that spring from the imagination of the defendant."     Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

     Code § 18.2-57(C) provides that "if any person commits an

assault . . . against another knowing or having reason to know

that such other person is a law-enforcement officer . . .

engaged in the performance of his public duties as such, such

person shall be guilty of a Class 6 felony . . . ."     What

constitutes an assault is defined by common law:

           An assault is an attempt or offer, with
           force and violence, to do some bodily hurt
           to another . . . by means calculated to
           produce the end if carried into execution;

                               - 3 -
          as . . . by levelling a gun at another
          within a distance from which, supposing it
          to be loaded, the contents might injure, or
          any similar act accompanied with
          circumstances denoting an intention coupled
          with a present ability, of using actual
          violence against the person of another.

Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255

(1955) (emphasis added; citation and emphasis omitted).     One may

commit an assault even though the victim is not aware of or

frightened by any acts directed at him, provided the perpetrator

has the specific intent to commit a battery and commits an overt

act in furtherance of that intent.      Adams v. Commonwealth, 33

Va. App. 463, 469, 534 S.E.2d 347, 350 (2000); Park Oil Co. v.

Parham, 1 Va. App. 166, 170, 336 S.E.2d 531, 534 (1985).

     The evidence, viewed in the light most favorable to the

Commonwealth, supports the trial court's finding that appellant

intentionally shot at a group of people whom he knew or had

reason to know were police officers engaged in the performance

of their duties.   When appellant testified at trial, he admitted

firing the gun.    Although appellant claimed to have fired it

into the air to scare two would-be robbers, witness Linda Pace

saw appellant pointing the gun "straight out" toward Winston

Churchill Drive in the direction of 1204 Liberty Avenue

immediately after she heard the gunshot.     At that same instant,

a bullet passed so close to Officer Bayes' position at the edge

of the yard at 1204 Liberty that he heard the bullet as it


                                - 4 -
traveled through the trees overhead.   Bayes was an experienced

hunter and said that the sound and motion of the leaves

indicated to him the path of a bullet.

     Shortly before appellant fired the shot, the police

officers had walked up Liberty Street to the residence at 1204,

and at least six of the seven were in uniforms indicating in

various ways that they were police officers.   All the uniforms

were dark blue or black.   Some of the uniforms bore the word,

"Police," in large white letters, while others contained large

patches denoting the men were police officers.   All wore gun

belts.   The location on Liberty Street where the officers parked

their unmarked vehicles was visible from the intersection of

Liberty and Granby Avenue, where appellant stood when he fired

the shot, and the driveway of 1204 Liberty Street, where the

officers were gathered, was only 144 feet from that same

intersection.   Finally, when appellant was apprehended

immediately after the shooting, he admitted at various times to

Detectives McQuage and Hartman and Officer Dean that "[he] knew

[they] were there" and knew they were police officers.

     Detective McQuage's testimony about appellant's admission

stood unimpeached.   That Hartman and Dean gave conflicting

testimony at the preliminary hearing about whether appellant

made such statements was not dispositive; the trial court was

free to assess the officers' credibility and to conclude they


                               - 5 -
were testifying truthfully at appellant's trial.   In addition,

the trial court specifically concluded, as it was entitled to

do, that appellant's testimony about an attempted robbery was

incredible.   Appellant did not report the attempted robbery when

he was arrested, and the police officers did not see anyone pass

them as they proceeded to the intersection, despite appellant's

claim at trial that the would-be robbers fled in the same

direction from which the officers had come.

     Once the trial court resolved these credibility questions

against appellant, the only reasonable hypothesis flowing from

the circumstantial and direct evidence was that appellant knew

the men were police officers engaged in the performance of their

duties and that he intentionally shot at them on the afternoon

of April 10, 1999.

     For these reasons, we affirm appellant's conviction for

assaulting a police officer in the performance of his duties in

violation of Code § 18.2-57.   However, due to the clerical error

in the sentencing order regarding the statute under which

appellant was convicted, see supra note 1, we remand this matter

to the trial court for the sole purpose of correcting the




                               - 6 -
sentencing order to reflect that appellant was convicted under

Code § 18.2-57 rather than Code § 18.2-57.1.

                                        Affirmed on the merits
                                        and remanded with
                                        instructions.




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