Gary Wayne Simmons v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
GARY WAYNE SIMMONS
MEMORANDUM OPINION * BY
v. Record No. 1202-99-3 JUDGE RICHARD S. BRAY
AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Frank A. Mika for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Gary Wayne Simmons (defendant) was convicted of attempted
malicious wounding of a law enforcement officer and felonious
property damage, violations of Code §§ 18.2-51.1 and 18.2-137,
respectively. On appeal, he contends the trial court erroneously
(1) found the evidence sufficient to prove the convictions; (2)
required restitution for property damage without a predicate
criminal conviction; and (3) imposed a sentence for attempted
malicious wounding, misunderstanding the prescribed penalty.
Finding no error, we affirm the convictions and related
restitution order.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
The credibility of the witnesses, the weight accorded testimony,
and the inferences drawn from the proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989). The judgment of the
trial court will not be disturbed unless plainly wrong or
unsupported by evidence. See Code § 8.01-680.
In the early evening hours of June 7, 1998, Augusta County
Deputy Sheriff Dennis Back, in uniform and operating a "marked
unit," arrived at defendant's residence, intending "to try to
serve a warrant." As Back was "coming up the driveway," he
recognized defendant, the subject of the warrant, "getting into a
pickup truck" and beginning to "back out." As defendant turned
the truck toward the roadway, Back positioned his vehicle "in
front," but defendant "reverse[d] . . . into his yard where he
could go around [the] police car," and fled. Back "activate[d]
[his] signals" and pursued defendant onto Interstate 81, reaching
speeds "[b]etween 70 and 75 mile[s] per hour," while calling "for
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assistance" and repeatedly ordering defendant, via a "P.A.
system," to "pull over."
Responding to Back's radio message, Virginia State Trooper
Adrian J. Thompson, also operating a police vehicle, proceeded to
a nearby exit on Interstate 81 to intercept defendant. When
Thompson observed defendant's truck approaching, he drove "in
front of him" and "attempted a moving roadblock" "weav[ing] back
and forth . . . to slow him down." As defendant "just about
stopped if not completely stopped" on the right shoulder, Thompson
"attempted to back up to keep the pursuit from going any further."
Defendant, however, abruptly "pulled [the truck] out" onto the
highway, striking the rear of the police vehicle, "knock[ing] [it]
over in the ditch," and sped away, with Back in pursuit.
Although damaged, Thompson's "car was still able to go," and
he rejoined the chase, soon passing both Back and defendant as the
vehicles exited onto Interstate 64. Again ahead of defendant,
Thompson "started slowing down . . .[,] trying to get him
stopped," but defendant "didn't react" and once more collided with
the police vehicle. In a "chain reaction," Back then struck the
rear of defendant's truck. Apprehended at the scene, defendant
"had a strong odor of alcohol" and was described, without
objection, as "intoxicated." Damages to the automobiles operated
by Back and Thompson totaled $4,374.40 and $1,156.92,
respectively.
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At trial, defendant acknowledged that his conduct "could have
killed someone." However, he testified that he never
"intentionally tr[ied] to hit anybody" and simply "panicked and
. . . done something [he] shouldn't never done."
The trial court convicted defendant for attempted malicious
wounding of Thompson and related damage to the state police
vehicle. The court further ordered restitution for damages to
both the Commonwealth and Augusta County for damages to the cars
operated by Thompson and Back. On appeal, defendant challenges
the sufficiency of the evidence to establish the criminal intent
necessary to support the convictions and the propriety of
restitution to Augusta County for damages to the sheriff's
vehicle, absent conviction for a related offense.
II.
"'An attempt is composed of two elements: the intention to
commit the crime, and the doing of some direct act towards its
consummation which is more than mere preparation but falls short
of execution of the ultimate purpose.'" Gray v. Commonwealth, 30
Va. App. 725, 735, 519 S.E.2d 825, 830 (1999) (citation omitted).
"The intent required to be proven in an attempted crime is the
specific intent in the person's mind to commit the particular
crime for which the attempt is charged." Wynn v. Commonwealth, 5
Va. App. 283, 292, 362 S.E.2d 193, 198 (1987). Intent "may be,
and frequently is, shown by circumstances. It is a state of mind
which may be proved by a person's conduct or by his statements."
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Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451
(1969).
"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 fact finder may infer that a person intends
the immediate, direct, and necessary consequences of his voluntary
acts." Moody v. Commonwealth, 28 Va. App. 702, 706-07, 508 S.E.2d
354, 356 (1998). "[W]hen the fact finder draws such inferences
reasonably, not arbitrarily, they will be upheld." Id. at 707,
508 S.E.2d at 356. "A motor vehicle, wrongfully used, can be a
weapon as deadly as a gun or a knife." Essex v. Commonwealth, 228
Va. 273, 281, 322 S.E.2d 216, 220 (1984).
Here, defendant willfully engaged in conduct clearly
calculated to evade apprehension, initially by Deputy Back and,
later, by both Back and Trooper Thompson. Ignoring emergency
lights and sirens of two law enforcement vehicles, together with
Back's entreaties to stop, defendant, intoxicated and panicked,
fled along interstate highways at excessive speed, and otherwise
dangerously operated his truck. In a continuing effort to escape
capture, he twice collided with the police vehicle operated by
Thompson, intentionally driving forward on both occasions, aware
that Thompson was ahead, slowing to effect a stop, and that he
"could have . . . killed" him.
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Notwithstanding defendant's contrition at trial, such
evidence sufficiently supports the finding that he maliciously
attempted to injure Trooper Thompson and unlawfully damaged the
Commonwealth's property in furtherance of his criminal purpose.
III.
Defendant's assertion that the trial court was without
authority to order restitution to Augusta County for damages to
the vehicle driven by Deputy Back is likewise without merit. Code
§ 19.2-305.1(A1) provides, in pertinent part, that "any person who
. . . commits, and is convicted of, a crime in violation of any
provision in Title 18.2 . . . shall make at least partial
restitution for any property damage . . . caused by the crime[.]"
(Emphasis added.) See Code §§ 19.2-303, -305, -305.2 and –305.3.
Manifestly, defendant's final assault upon Trooper Thompson
resulted in the collision between the Augusta County Sheriff's
vehicle and defendant's truck and attendant damages. Thus,
defendant committed and was convicted of the criminal conduct that
caused the damages suffered by Augusta County and, therefore,
properly required to make restitution pursuant to Code
§ 19.2-305.1(A1).
IV.
Lastly, defendant complains that the sentence for attempted
malicious wounding resulted from the court's "mistaken impression"
that the offense "carried a two-year mandatory minimum"
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imprisonment. 1 However, our review of the record discloses that,
after the Commonwealth incorrectly advised the court of the
"mandatory minimum," defendant adopted the error during closing
remarks to the court. He cannot now approbate and reprobate. See
Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613,
615 (1992). Moreover, nothing in the record suggests that the
court was guided by the inaccurate representations of counsel.
The sentence imposed, five years, was within the prescribed range
of "not less than two . . . nor more than ten years[,]" Code
§ 18.2-10(d), and evinces no abuse of discretion. See Abdo v.
Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977).
Thus, the evidence supported both convictions, and the
attendant sentences, including the disputed restitution, were free
of error. Accordingly, we affirm the trial court.
Affirmed.
1
In actuality, the offense is classified a Class 4 felony,
with no mandatory minimum period of incarceration. See Code
§ 18.2-26(1).
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