                      COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia


BERACE RICARDO BENNETT, JR.
                                            MEMORANDUM OPINION * BY
v.   Record No. 0613-98-1                  JUDGE SAM W. COLEMAN III
                                                 MAY 18, 1999
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                   Christopher W. Hutton, Judge

           (Kevin P. Shea, on brief), for appellant.
           Appellant submitting on brief.

           Ruth M. McKeaney, Assistant Attorney General
           (Mark L. Earley, Attorney General, on
           brief), for appellee.



     Berace Ricardo Bennett, Jr., was convicted by a jury of first

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

On appeal, Bennett contends that the evidence was insufficient to

support a finding that the shots he fired at the victim were

fatal.   We disagree and affirm the convictions.

                              BACKGROUND

     At 12:45 a.m., Roderick Newby and Phgero (“Maurice”) Bernard

argued in the parking lot of a movie theater while Edward Collins,

who was Newby’s friend, and Berace Bennett, who was Bernard’s

friend and roommate, looked on.   Collins testified that Newby’s


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
back was turned to them, but Bernard faced them.    Bennett said to

Collins, referring to Newby, “get your man, get your man.”    In an

effort to avoid a fight, Collins took Newby by the arm and said,

“come on man, it’s cold out here, you know we ain’t got time to

argue, whatever.”   Newby replied, “all right, I’m coming, I’m

coming,” but as Newby took a step and turned, Bennett started

shooting.   After five or six shots, Newby collapsed, and the

defendant stood over the fallen body shooting at him six or seven

more times.   The defendant then fled.

     Some witnesses testified that after the defendant fled, a

second unidentified assailant ran from the opposite direction that

Bennett had fled, and repeatedly shot the victim as he lay on the

ground.

     Immediately after the shooting, Collins ran to a nearby hotel

lobby and asked the clerk to telephone for assistance.   He then

ran back to Newby where he discovered him “dazed . . . gurgling

. . . and . . . looking up at the sky.”

     Bernard and Bennett had been drinking before and during the

movie they had just attended.    Although Bennett now admits firing

shots at Newby, Bernard, a convicted felon, testified that neither

he nor Bennett was armed or fired shots at Newby.   Bernard

testified that Newby pulled a gun on him and began to wave it at

him, after which Bernard turned and walked about ten steps away

before he heard numerous rapid fire gunshots.   After hearing the

shots, Bernard ran to his car.    As he approached the car, Bennett

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came running toward him.   Bernard testified that he could not

drive because a bullet had hit his foot, so he jumped in the

passenger seat while Bennett got in the driver’s seat.    According

to Bernard, the gunshots continued as Bennett drove them away.

Joaquin Cruz testified that one of the shooters ran and jumped

into the passenger seat of Bernard’s car which sped off driving

over a sidewalk and running a red light.

     Sergeant Edgar Browning confirmed that two nine millimeter

handguns were fired at the scene.    Forensic technician Linda Woods

testified that she recovered twenty-one casings from the scene

-- thirteen nine millimeter W.I.N. Luger casings, and eight nine

millimeter R.P. Luger casings.    Medical examiner Dr. Leah Bush

testified that Newby’s body showed eight separate gunshot entry

wounds.   Dr. Bush stated that four of those wounds were lethal.

She defined a lethal wound as “meaning one that produced

significant bleeding inside the body that would cause his death.”

Two of these lethal bullet entry wounds were to Newby’s back.

     At trial, Bennett made no motions to strike the evidence.

After trial, Bennett moved to set aside the verdict on the ground

that it was without evidence to support it.   After oral arguments,

the trial court denied the motion and Bennett appealed.

                              ANALYSIS

     The Commonwealth argues that Bennett, having failed to move

the court to strike the evidence during trial has failed to

preserve this issue for appeal.    We disagree.

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       A motion to set aside the verdict is an accepted procedure to

test the sufficiency of the evidence.    See Gabbard v. Knight, 202

Va. 40, 43, 116 S.E.2d 73, 75 (1960); McGee v. Commonwealth,

4 Va. App. 317, 321, 357 S.E.2d 738, 740 (1987).     When the

appealing party articulates specific objections to the

sufficiency of the evidence in a motion to set aside the

verdict, the appeals court may review the trial court’s ruling

on that motion.    See McGee, 4 Va. App. at 321, 357 S.E.2d at

740.    At oral argument on the motion to set aside the verdict,

Bennett argued that the evidence at trial was insufficient to

prove that Bennett fired any of the fatal gunshots that struck

Newby.    Accordingly, he preserved that issue for appeal.

       When an appellant challenges the sufficiency of the

evidence, 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).    An appellate

court must discard all the accused’s evidence that is in

conflict with the Commonwealth’s, and accept as true all

credible evidence of the Commonwealth.    See Bobblett v.

Commonwealth, 10 Va. App. 640, 651, 396 S.E.2d 131, 137 (1990).

The jury has the opportunity to see and hear the witnesses and,

therefore, it is the jury’s exclusive function to evaluate the

credibility of their testimony.    See Coppola v. Commonwealth,

220 Va. 243, 252, 257 S.E.2d 797, 803 (1979).    Moreover,

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“[j]urors are not required to accept in full the testimony of

any witness.   They may accept what they believe credible, and

reject that which they think not worthy of belief.     Their duty

is to settle the matter in dispute.”    Henry v. Commonwealth, 195

Va. 281, 290, 77 S.E.2d 863, 869 (1953).

     Bennett admits that he fired shots at Newby.      Furthermore,

the evidence proved that Newby died of four fatal gunshot

wounds.   However, the evidence also showed that two weapons were

fired at the scene, and some testimony indicated that an

unidentified assailant also fired at Newby.   Thus, the

dispositive issue on appeal is whether the circumstantial

evidence presented was sufficient to prove either that Bennett

fired at least one fatal shot or alternatively, that even if he

did not fire fatal shots, he acted in concert with the

unidentified second gunman who may have shot Newby.

     “Circumstantial evidence may establish the elements of a

crime provided it excludes every reasonable hypothesis of

innocence.”    Lovelace v. Commonwealth, 27 Va. App. 575, 586, 500

S.E.2d 267, 272 (1998).   Whether a particular hypothesis is

reasonable, is a question of fact binding on appeal unless

plainly wrong.    See id. at 586, 500 S.E.2d at 273.    If, based on

all the evidence, no reasonable hypothesis of innocence existed,

then we must affirm.

     According to Bennett, the Commonwealth has failed to

exclude the possibility that a second gunman inflicted all four

                                - 5 -
fatal wounds.    However, the requirement that the Commonwealth

exclude every reasonable hypothesis of innocence does not

require that the evidence disprove every remote possibility of

innocence.     See Avent v. Commonwealth, 209 Va. 474, 164 S.E.2d

655 (1968).    When, as here, the appellant presents an hypothesis

of innocence on appeal, the burden is on the appellant to show

that no reasonable finder of fact, based on the evidence

presented, could have excluded the hypothesis.     See generally

Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384,

387 (1991) (“The burden is on the party who alleges reversible

error to show by the record that reversal is the remedy to which

he is entitled.”).    Thus, Bennett must show that the facts as

established in the record, viewed in the light most favorable to

the Commonwealth, do not exclude a reasonable hypothesis of

innocence that flows from the evidence.

     We find that Bennett has failed to show that he is entitled

to reversal.    The evidence presented supports three theories of

what could have occurred, under any one of which Bennett is

criminally culpable.    Thus, the evidence excluded every

reasonable hypothesis of innocence.

     First, the fact finder could have found that Bennett was

the sole assailant.    Joaquin Cruz testified that he saw only one

gunman.   Additionally, Collins testified that Bennett was the

only gunman.    Accordingly, the jury could have adopted that

testimony to the exclusion of the conflicting evidence.

                                 - 6 -
     Second, the jury could have found that two gunmen fired

shots, but that Bennett fired at least two of the four fatal

shots.   Bennett’s initial shots dropped Newby.   Then, after

Bennett fled, according to Antonio Harris, the second gunman

approached and fired at Newby on the ground.    The only evidence

describing Newby while he was on the ground places him on his

back, looking up.    Thus, based on this account, the jury could

reasonably infer that the gunshots to Newby’s back were fired by

Bennett.   Since two of the fatal shots entered Newby’s back, the

evidence proved to the exclusion of a reasonable hypothesis of

innocence that Bennett fired at least two of the fatal shots.

     Finally, the jury could have determined that although there

were two gunmen, they were acting in concert.     If the defendant

and another unidentified assailant acted in concert, the crime

is attributable to both.    See Spradlin v. Commonwealth, 195 Va.

523, 528, 79 S.E.2d 443, 445 (1954).    Bernard’s girlfriend had

dated Newby for four years which caused them to argue that

evening.   According to Bernard, he and Bennett were close

friends and they had been drinking together that evening.    They

left the scene together immediately after the shooting.    Bernard

testified that he got into the passenger’s side of his own

vehicle as he and Bennett rushed to leave the scene.    Joaquin

Cruz testified that a gunman jumped into the passenger side of

Bernard’s vehicle.



                                - 7 -
     Considering the totality of the evidence, the jury

reasonably could have concluded that Bernard was the second

gunman and that he acted in concert with Bennett.   Under those

circumstances, as the trial court instructed the jury, Bennett

and Bernard would both be criminally responsible for the fatal

gunshots.

     In summary, we find that the evidence was sufficient to

permit the jury to exclude all reasonable hypotheses of

innocence.   Accordingly, we affirm the convictions.

                                                          Affirmed.




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