                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia

MARCUS A. WHITE

v.         Record No. 1984-94-2        MEMORANDUM OPINION * BY
                                     JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA                 FEBRUARY 20, 1996


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     James B. Wilkinson, Judge

           Cullen D. Seltzer, Assistant Public Defender
           (David J. Johnson, Public Defender, on
           brief), for appellant.

           Marla Graff Decker, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



     A jury convicted Marcus A. White of both voluntary

manslaughter and the use of a firearm in the commission of

murder.   On appeal, White alleges that the evidence is

insufficient to support his conviction for the firearm offense on

the ground that the evidence was insufficient to support a

conviction for murder.   We disagree and affirm.

     White contends that the evidence is insufficient, as a

matter of law, to support a finding of malice.     Malice is a

necessary element of murder.   He argues that the Commonwealth

relied solely on circumstantial evidence to prove malice, and, in

so doing, failed to exclude the hypothesis that White acted in

the heat of passion.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     We view the evidence in a light most favorable to the

Commonwealth.   See Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975).    Here, the victim, by car,

approached White, who was on foot, and engaged White in a

discussion relating to a prior confrontation between the two.

The victim was the first to pull his gun.   White's girlfriend

pled with the victim not to shoot White.    The victim told White

that he would kill him the next time he saw him, placed his gun

back under the seat of his car, and began to drive away.    Once

the car had passed White completely, White opened fire, shooting

four times in the direction of the victim's departing car.      Only

after White began firing did the victim reach again for his gun.

While reaching over, the victim was struck in the back by a

bullet fired from White's gun.
     The jury was properly instructed that it could infer malice

from the deliberate use of a deadly weapon unless, from all the

evidence, they had a reasonable doubt as to whether malice

existed.   See, e.g., Satcher v. Commonwealth, 244 Va. 220, 257,

421 S.E.2d 821, 843 (1991), cert. denied, 113 S. Ct. 1888 (1993).

     "Circumstantial evidence . . . is evidence of facts or

circumstances not in issue from which facts or circumstances in

issue may be inferred."   Charles E. Friend, The Law of Evidence

in Virginia § 12-1 (4th ed. 1993); see also Ryan v. Maryland Cas.

Co., 173 Va. 57, 62, 3 S.E.2d 416, 418 (1939).    Direct evidence,

on the other hand, is "[e]vidence that directly proves a fact,



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without an inference or presumption, and which in itself, if

true, conclusively establishes that fact."     Id.

     Here, the Commonwealth relied solely on circumstantial

evidence to prove malice, the fact in issue.     Cf. Cirios v.

Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)

("[I]n some cases, such as proof of intent or knowledge,

[circumstantial evidence] is practically the only method of

proof.") (citations omitted).   Direct evidence showed that White

shot the victim, but no direct evidence established that he did

so maliciously.   The jury had to infer White's malicious state of

mind through his use of a deadly weapon.
     "[W]here the Commonwealth's evidence as to an element of an

offense is wholly circumstantial, `all necessary circumstances

proved must be consistent with guilt and inconsistent with

innocence and exclude every reasonable hypothesis of innocence.'"

Moran v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553

(1987); see also Dukes v. Commonwealth, 227 Va. 119, 122, 313

S.E.2d 382, 383 (1984); Wilkins v. Commonwealth, 18 Va. App. 293,
298, 443 S.E.2d 440, 444 (1994); cf. Bishop v. Commonwealth, 227

Va. 164, 313 S.E.2d 390 (1984) (applying rule to entire case

where entire case based on circumstantial evidence).    However,

the Commonwealth "is not required to disprove every remote

possibility of innocence, but is, instead, required only to

establish guilt of the accused to the exclusion of a reasonable

doubt."   Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373




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S.E.2d 328, 338 (1988), cert. denied, 496 U.S. 911 (1990)

(quoting Bridgeman v. Commonwealth, 3 Va. App. 523, 526-27, 351

S.E.2d 598, 600 (1986)).   "The hypotheses which the prosecution

must reasonably exclude are those `which flow from the evidence

itself, and not from the imagination of defense counsel.'"      Id.

at 289-90, 373 S.E.2d at 338-39 (quoting Black v. Commonwealth,

222 Va. 838, 841, 284 S.E.2d 608, 609 (1981)).

     Determining whether White's explanation that he acted in the

heat of passion is a "reasonable hypothesis of innocence" is a

question of fact.   Id. at 290, 373 S.E.2d at 339.   Based on

familiar principles, this Court does not substitute its own

judgment for that of the trier of fact.   Cable v. Commonwealth,

243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).    The jury's verdict

will not be set aside unless it appears that it is plainly wrong

or without supporting evidence.   Code § 8.01-680; Traverso v.

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

     Here, the evidence shows that the victim had placed his gun

under the seat of his car, began to drive away, and had

completely passed White, before White opened fire, shooting him

in the back.   Based on this evidence, we cannot conclude that the

jury was plainly wrong in finding that the Commonwealth had met

its burden of establishing the requisite intent to support a

conviction of murder beyond a reasonable doubt and that the

evidence excluded the hypothesis that White acted in the heat of

passion.



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     Accordingly, the appellant's conviction for use of a firearm

in the commission of murder is affirmed.

                                                        Affirmed.




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