                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia


JERRY LEE WILLSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 2004-98-2                  JUDGE LARRY G. ELDER
                                            SEPTEMBER 21, 1999
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       Robert W. Duling, Judge

           Gregory W. Franklin, Assistant Public
           Defender (David J. Johnson, Public Defender,
           on brief), for appellant.

           Linwood T. Wells, Jr., Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Jerry Lee Willson (appellant) was convicted in a bench

trial of attempted murder pursuant to Code §§ 18.2-26 and

18.2-32.   On appeal, he contends the evidence is insufficient to

prove he acted with the specific intent to commit murder when he

drove his vehicle toward a bank employee standing in the bank's

automatic teller machine lane.   We agree and reverse his

conviction.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
therefrom.   See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).    The judgment of a trial court, sitting

without a jury, is entitled to the same weight as a jury verdict

and will be disturbed only if plainly wrong or without evidence

to support it.   See id.   The credibility of a witness, the

weight accorded the testimony, and the inferences to be drawn

from proven facts are matters solely for the fact finder's

determination.   See Long v. Commonwealth, 8 Va. App. 194, 199,

379 S.E.2d 473, 476 (1989).

     To sustain a conviction for attempted murder, the evidence

must establish both a specific intent to kill the victim and an

overt but ineffectual act committed in furtherance of this

criminal purpose.   See Hargrave v. Commonwealth, 214 Va. 436,

437, 201 S.E.2d 597, 598 (1974).   In determining whether the

evidence is sufficient to prove the requisite intent, "the

question . . . is not whether [the defendant's] acts might have

resulted in the murder of the [person].   Rather, the question is

whether [the defendant], while driving his [vehicle], formed the

specific intent to use his vehicle as a weapon for the

unequivocal purpose of murdering the [person]."    Haywood v.

Commonwealth, 20 Va. App. 562, 566, 458 S.E.2d 606, 608 (1995).

     Intent, 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, 8 Va. App. at 198, 379 S.E.2d at 476.

                                - 2 -
"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).   "When facts are equally susceptible to more than one

interpretation, one which is consistent with the innocence of

the accused, the trier of fact cannot arbitrarily adopt an

inculpatory interpretation."   Moody v. Commonwealth, 28 Va. App.

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

     We conclude that the evidence here was insufficient to

prove that appellant acted with the specific intent to kill

Teresa Musinski when he drove his vehicle through the bank's

automatic teller machine (ATM) lane.    Although the trial court

was free to conclude that appellant was lying to conceal his

guilt and to reject appellant's testimony on that basis, see,

e.g., Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95,

98 (1987) (en banc), the remaining evidence was insufficient to

exclude multiple reasonable hypotheses of innocence.

Appellant's conviction rested on the theory that appellant knew

Musinski was a bank employee and was so enraged by his dealings

with the bank that day that he tried to kill her.   However, the

                               - 3 -
evidence left open the reasonable hypothesis that appellant

never saw Musinski in the bank and did not know she was a bank

employee.   See Robinson v. Commonwealth, 228 Va. 554, 558, 322

S.E.2d 841, 843 (1984) ("'[A] man cannot be influenced or moved

to act by a fact or circumstance of which he is ignorant.'"

(quoting Mullins v. Commonwealth, 113 Va. 787, 789-90, 75 S.E.

193, 195 (1912)).   Although appellant said to someone inside the

bank, "What the fuck are you looking at," the evidence

established that Musinski did not participate in appellant's

transaction with Jennifer Brooks and Gayle Davis and that,

although Musinski was near Brooks at the teller window, Musinski

was looking down until appellant made this remark.   Neither

Musinski nor Davis was certain to whom the remark was directed,

and Brooks believed the remark was directed toward her.

Although appellant may have seen Musinski inside the bank, the

evidence was equally susceptible to the interpretation that he

did not.

     Regarding Musinski's departure from the bank, the evidence

established that appellant looked in her direction as she walked

in front of the drive-through lanes, but no evidence established

that he actually saw her or, even if he did, that he knew she

was a bank employee.   At that precise instant, appellant was

engaged in a heated discussion with Brooks about whether she had

given him the correct sum of money.    Again, therefore, the

evidence is equally susceptible to the interpretation that

                               - 4 -
appellant did not see her and did not know she was a bank

employee and, therefore, had no motive for attempting to kill

her.

       Finally, even assuming appellant knew Musinski worked at

the bank, no evidence established that appellant knew Musinski

was in his path in the ATM lane.    See 1 Charles E. Friend, The

Law of Evidence in Virginia § 12-6 (4th ed. 1993) (noting that

whether an accused has knowledge of particular facts when he

engages in certain conduct may be relevant in determining

intent, even where knowledge is not element of offense).    It was

undisputed that appellant was angry and that there were no cars

in the ATM lane.   A reasonable hypothesis of innocence flowing

from the evidence is that appellant saw no cars at the ATM and,

although looking straight ahead, was still angry from his

transaction and merely acted recklessly in failing to watch for

pedestrians that might also be using the machine as he departed

the premises.   The undisputed evidence established that Musinski

removed herself from appellant's path, retreating to a position

of safety on the curb on the ATM's east side, when appellant was

still eighteen feet away from the machine's west side.   Under

these circumstances, the facts were no more susceptible to the

conclusion that appellant specifically intended to kill Musinski

than they were to the interpretation that he acted recklessly in

failing to keep a proper lookout or that he saw her but intended

merely to scare her, reasonably believing that she would move

                                - 5 -
out of his path to safety before he reached her, which, in fact,

she did.

        Under these circumstances, we conclude the evidence was

insufficient to support appellant's conviction.

        The Commonwealth contends that the outcome of this case is

controlled by our recent decision in Moody v. Commonwealth, 28

Va. App. 702, 508 S.E.2d 354 (1998), in which we upheld the

conviction of an automobile driver for attempted malicious

wounding.    In Moody, the defendant broke into a vehicle in a

parking lot and was attempting to flee the scene of the break-in

in his vehicle when a pedestrian tried to block his only escape

route.     See id. at 705-06, 508 S.E.2d at 356.   The defendant

admitted seeing the pedestrian trying to stop him, saying "I

waved him out of the way because I was going out of there."        Id.

at 706, 508 S.E.2d at 356.    We held that "[a]lthough [the

defendant] warned [the pedestrian] to move out of his way with a

wave, [that] act does not negate the trial court's reasonable

inference that appellant had formed the specific intent to run

over [the pedestrian] should the pedestrian not move out of his

way."     Id. at 707, 508 S.E.2d at 356.   In appellant's case, by

contrast, no evidence established that appellant ever saw

Musinski standing in his path before she jumped out of the way.

Alternatively, even if appellant did see Musinski, unlike Moody,

he was not fleeing the scene of a crime and made no statement

indicating his intent to proceed through the ATM lane regardless

                                 - 6 -
of whether Musinski moved.   Therefore, our holding in Moody is

not controlling.

     Because the evidence did not exclude all reasonable

hypotheses of innocence, we reverse appellant's conviction.

                                           Reversed and dismissed.




                               - 7 -
