                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia


LOUIS SCOTT HUDSON
                                         MEMORANDUM OPINION * BY
v.   Record No. 0917-01-4                 JUDGE G. STEVEN AGEE
                                              JULY 16, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF CLARKE COUNTY
                     John R. Prosser, Judge

          Timothy S. Coyne (Fowler, Griffin, Coyne,
          Coyne & Patton, P.C., on briefs), for
          appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.



     Louis Scott Hudson (Hudson) was convicted by a Clarke

County Circuit Court jury of the second-degree murder of his

wife, Mary Donovan Hudson (Mrs. Hudson), in violation of Code

§ 18.2-32, and of using a firearm in the commission of a murder,

in violation of Code § 18.2-53.1.   He was sentenced to twelve

years incarceration on the murder conviction and three years on

the firearm conviction with the sentences running consecutively.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, he contends the trial court erred by denying his

motion to set aside the verdict due to insufficient evidence. 1

For the following reasons, we reverse Hudson's convictions.

                          I.   BACKGROUND

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

     On the day of her death, 2 September 20, 1999, Mrs. Hudson

spent the morning fox hunting and attended her father's funeral

service with Hudson that afternoon.    At home after the funeral,

Mrs. Hudson was talking on the telephone with a friend, Wes

Thompson.   According to Thompson, Hudson interrupted the call by

speaking directly to Thompson and calling him a "son of a bitch

mother fucker."   Hudson demanded to know why Thompson was




     1
       Hudson also contends the trial court erred by (1) denying
his motion to suppress evidence gathered subsequent to his
arrest for public intoxication; (2) admitting DNA evidence
despite the Commonwealth's failure to comply with the notice
requirements of Code § 19.2-270.5; and (3) failing to instruct
the jury on suicide and accidental death. Because we find the
evidence insufficient to sustain Hudson's second-degree murder
conviction, we do not address these additional issues.
     2
       The defense presented the following evidence: there was
no history of abuse between the couple; Mrs. Hudson overdosed on
prescription drugs a few weeks prior to her death; her blood
alcohol content at the time of her death was between .22 and
.24; and an autopsy revealed a prescription drug in her system
at the time of her death.


                               - 2 -
talking to his wife, and Thompson hung up.   Hudson denied he

talked to Thompson.

     Later that evening, Hudson called his father's house and

told his mother that Mrs. Hudson had shot herself.   He did not

call 911, seek medical help or notify the police.    Hudson's

parents went to the house and observed Mrs. Hudson's prone body,

but testified that they did not touch it.    Hudson was not

present when his parents arrived.   Hudson's father then called

911 to report the shooting.

     In response, Clarke County Sheriff's Deputies arrived at

Hudson's home around 8:00 p.m. and discovered it was in disarray

and Hudson was not there.   Deputy Jones saw Mrs. Hudson's body

lying on the living room couch with a .22 caliber pistol

awkwardly positioned in her right hand, essentially facing

backwards.   There was a bloody handprint on the back cushion of

the couch.   However, the deceased did not appear to have blood

on her hands.

     At 9:17 p.m., the Sheriff's Department received a call from

Hudson's father informing them that his son was at the father's

house, a few miles away from the investigation scene.

     Deputy Small arrived first, and Hudson's father advised him

to wait for backup.   Deputy Jones and Investigator Roper arrived

a short time later.   The three officers entered the house and

found Hudson seated in his father's living room, holding a cup

of coffee.   Hudson was extremely intoxicated.   Hudson's father

                               - 3 -
told the officers that he did not want Hudson in his home and

asked the officers to remove him.      Deputy Jones informed Hudson

that he was being arrested for being drunk in public. 3

        Hudson was taken to the Sheriff's Department, where a .22

caliber bullet was discovered in his coat pocket during a

pat-down search.      Shortly thereafter, a gunshot residue test was

administered, but no warrant was obtained for the test.        Later

that night, Investigator Roper did obtain a search warrant for

Hudson's clothes.      The next morning, at 6:30 a.m., the

investigator met with Hudson at the jail and gave Hudson the

Miranda warnings.       Hudson then provided Investigator Roper with

a statement.

        Hudson stated that his wife had been unhappy because she

thought that she deserved more from her father's estate.

According to Hudson, his wife picked up the gun and began

playing with it.      Hudson said that he told her not to do so.

Hudson said he went to the bathroom and while there, heard a

shot.       He returned, and he saw his wife "slumping over" on the

couch.      He said he left and went to his father's house.    He

stated that he "never got close to" Mrs. Hudson's body.        Hudson

did not know why he failed to call 911 and did not remember

calling anyone after the shooting.         When asked to explain the




        3
       In district court, months later, Hudson pled guilty to the
charge of public intoxication.

                                   - 4 -
.22 caliber bullet found in his pocket, Hudson said that he must

have picked it up with loose change from his dresser.

        Hudson gave a second statement on November 18, 1999, to

Investigator Gregg of the Virginia State Police in the presence

of his attorney.    In that statement, Hudson said that on

September 20, 1999, he and his wife were drinking at their home

and his wife was upset because she was not permitted to use

money in her trust fund to purchase a truck.    He said that his

wife pulled out a gun, began playing with it, and said that she

was going to shoot herself.

        Hudson said that he went into the bathroom and heard a

shot.    When he came out of the bathroom he saw a "little bit" of

blood around his wife's eyes.    He repeatedly denied going near

her body.

        Hudson denied handling any firearm that night.   He said he

last touched a firearm two nights prior to his wife's death.      He

could not account for his whereabouts between the time of the

shooting and the time he arrived at his father's, a period of

more than an hour.    According to Hudson, neither he nor his wife

made or received any telephone calls that night.

        At trial, the medical examiner testified that Mrs. Hudson

suffered a contact range wound to the head and that the bullet

entered her head at the left ear and went through to her brain.

The medical examiner opined that death occurred within minutes.

A firearms expert testified that it was necessary to cock the

                                 - 5 -
hammer back on the pistol found in Mrs. Hudson's hand before

firing the weapon.   A ballistics expert testified that he had

determined that the bullet recovered from the deceased's brain

was fired from the .22 revolver found in her hand.   The evidence

further proved that at the time of death Mrs. Hudson's blood had

an ethanol concentration of .22% by weight volume; her blood

also contained Darvon and Diphenhydramine.

     An expert in gunshot residue testified that both of

Hudson's hands showed primer residue.    Hudson's wife also had

residue on her right hand.   The expert tested .22 shells and

shell casings recovered at the scene and testified these

contained only lead and barium, but not antimony.    The expert

testified that the residue on Hudson's hands contained three

elements:   barium, lead and antimony.   However, the residue on

the deceased's hands contained only lead and barium, which was

consistent with the .22 shells tested.   The expert opined that

it was not likely that the residue on Hudson's hands came from

firing the ammunition that killed the deceased.

     An expert in blood splatters also testified at trial.       She

identified bloody contact stains on the couch cushion, the left

front thigh of the deceased's jeans and on her forearm.    The

expert testified that the contact transfers came from

heavily-bloody hands, but not the deceased's hands, because no

blood was visible on her hands.



                               - 6 -
     Forensic scientist Carol Palmer testified that a spot of

blood on Hudson's seized shirtsleeve matched his wife's blood.

DNA testing showed that the possibility that the blood came from

anyone other than the deceased was one in 51 million.

                           II.   ANALYSIS

     On appeal, Hudson contends the evidence was insufficient to

convict him of second-degree murder.     For the following reasons

we agree and reverse his conviction.

                "Where the sufficiency of the evidence
           is challenged after conviction, it is our
           duty to consider it in the light most
           favorable to the Commonwealth and give it
           all reasonable inferences fairly deducible
           therefrom. We should affirm the judgment
           unless it appears from the evidence that the
           judgment is plainly wrong or without
           evidence to support it." Higginbotham v.
           Commonwealth, 216 Va. 349, 352, 218 S.E.2d
           534, 537 (1975).

Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10

(2000).

     "It is essential in every prosecution for the commission of

a homicide that the Commonwealth prove the corpus delicti."

Lane v. Commonwealth, 219 Va. 509, 514, 248 S.E.2d 781, 783

(1978).   "To establish the corpus delicti in a homicide, the

Commonwealth must prove the victim's death resulted from the

criminal act or agency of another person."     Betancourt v.

Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998).

Further, to convict a defendant of second-degree murder, the

Commonwealth must prove the defendant acted with malice.       Lynn

                                 - 7 -
v. Commonwealth, 27 Va. App. 336, 351, 499 S.E.2d 1, 8 (1998)

(defining second-degree murder as the "malicious killing" of

another person).

     In this case, the Commonwealth relies upon circumstantial

evidence to support its theory that Hudson maliciously killed

his wife.   When a conviction is based entirely upon

circumstantial evidence, we are guided by the following

standards in our review:

            [W]ell established principles apply to
            testing the sufficiency of circumstantial
            evidence. [The Supreme Court has]
            summarized those principles as follows:

               ". . . [I]f the proof relied upon by the
            Commonwealth is wholly circumstantial, as it
            here is, then to establish guilt beyond a
            reasonable doubt all necessary circumstances
            proved must be consistent with guilt and
            inconsistent with innocence. They must
            overcome the presumption of innocence and
            exclude all reasonable conclusions
            inconsistent with that of guilt. To
            accomplish that, the chain of necessary
            circumstances must be unbroken and the
            evidence as a whole must satisfy the guarded
            judgment that both the corpus delicti and
            the criminal agency of the accused have been
            proved to the exclusion of any other
            rational hypothesis and to a moral certainty
            . . . ."

               But, circumstances of suspicion, no
            matter how grave or strong, are not proof of
            guilt sufficient to support a verdict of
            guilty. The actual commission of the crime
            by the accused must be shown by evidence
            beyond a reasonable doubt to sustain his
            conviction.




                                - 8 -
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,

822 (1977) (citations omitted).

     We hold that the Commonwealth's evidence fails to exclude

all reasonable hypotheses of innocence.    Hudson argues that Mrs.

Hudson did not die through the criminal agency of another.      He

contends the evidence failed to exclude the reasonable

conclusion that Mrs. Hudson was fatally shot by accident or

intentionally by her own act.   There is evidence to support this

hypothesis of innocence.   The .22 revolver that fired the fatal

shot was found in Mrs. Hudson's hand.    The expert evidence

demonstrated that the gunshot residue found on Mrs. Hudson's

right hand was consistent with the .22 shells at the scene.       The

gunshot residue evidence further showed the residue found on

Hudson's hands was not consistent with that ammunition.    In

addition, there were no identifiable fingerprints found on the

.22 revolver or any of the cartridges attributable to Hudson.

There is simply no evidence establishing Hudson ever touched the

weapon that fired the fatal bullet.     Yet there is some evidence

that Mrs. Hudson may have fatally fired the gun.

     Thus, this evidence is not inconsistent with the hypothesis

that Mrs. Hudson fatally shot herself purposefully or

accidentally.   Where the facts are "equally susceptible of two

interpretations, one of which is consistent with the innocence

of the accused, the jury cannot arbitrarily adopt the

interpretation which incriminates [the accused]."     Massie v.

                                - 9 -
Commonwealth, 140 Va. 557, 564, 125 S.E. 146, 148 (1924).    There

is not adequate evidence in the record that negates the

hypothesis that Mrs. Hudson shot herself or, conversely, that

puts the revolver in Hudson's hands.   In this case, there simply

is insufficient evidence to prove Hudson committed murder beyond

a reasonable doubt.   We, therefore, must reverse Hudson's

conviction for second-degree murder.

             Proof by circumstantial evidence "is not
          sufficient . . . if it engenders only a
          suspicion or even a probability of guilt.
          Conviction cannot rest upon conjecture."
          Littlejohn v. Commonwealth, 24 Va. App. 401,
          414, 482 S.E.2d 853, 859 (1997) (citing Hyde
          v. Commonwealth, 217 Va. 950, 955, 234
          S.E.2d 74, 78 (1977)). "'[A]ll necessary
          circumstances proved must be consistent with
          guilt and inconsistent with innocence and
          exclude every reasonable hypothesis of
          innocence.'" Stover v. Commonwealth, 222
          Va. 618, 623, 283 S.E.2d 194, 196 (1981)
          (quoting Inge v. Commonwealth, 217 Va. 360,
          366, 228 S.E.2d 563, 567 (1976)). "When,
          from the circumstantial evidence, 'it is
          just as likely, if not more likely,' that a
          'reasonable hypothesis of innocence'
          explains the accused's conduct, the evidence
          cannot be said to rise to the level of proof
          beyond a reasonable doubt." Littlejohn, 24
          Va. App. at 414, 482 S.E.2d at 859 (quoting
          Haywood v. Commonwealth, 20 Va. App. 562,
          567-68, 458 S.E.2d 606, 609 (1995)). The
          Commonwealth need not "exclude every
          possible theory or surmise," but it must
          exclude those hypotheses "which flow from
          the evidence itself." Cantrell v.
          Commonwealth, 7 Va. App. 269, 289-90, 373
          S.E.2d 328, 338-39 (1988) (citations
          omitted). The evidence in the instant case
          fails to prove appellant's guilt beyond a
          reasonable doubt.

Betancourt, 26 Va. App. at 373-74, 494 S.E.2d at 878.

                              - 10 -
     Because the evidence fails to sufficiently establish that

Hudson killed his wife, we must also reverse the conviction

under Code § 18.2-53.1 for using a firearm in the commission of

a murder.   See Gray v. Commonwealth, 28 Va. App. 227, 503 S.E.2d

252 (1998) (a finding that a defendant is guilty beyond a

reasonable doubt of murder is a necessary element of the Code

§ 18.2-53.1 firearm offense).

     Accordingly, we reverse the convictions and dismiss the

indictments.

                                     Reversed and dismissed.




                                - 11 -
