Berace Ricardo Bennett, Jr. v. Commonwealth ( 1999 )

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
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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.
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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.
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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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