Calvin Dean Coleman, II v. Commonwealth ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, McClanahan and Senior Judge Willis
Argued at Chesapeake, Virginia
CALVIN DEAN COLEMAN, II
MEMORANDUM OPINION* BY
v. Record No. 1618-05-1 JUDGE D. ARTHUR KELSEY
NOVEMBER 7, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
Robert F. Hagans, Jr., for appellant.
Karri B. Atwood, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
On appeal, Calvin Dean Coleman, II contests the sufficiency of the evidence supporting
his conviction on eight counts of attempted malicious wounding and eight additional counts of
felonious use of a firearm. Finding the evidence sufficient, we affirm.
I.
Under settled principles, we review the evidence in the “light most favorable” to the
Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003).
That principle requires us to “discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270
S.E.2d 755, 759 (1980) (emphasis and citation omitted).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Working as security at a nightclub, several police officers in full uniform parked two
marked police vehicles in the parking lot just outside the nightclub’s entrance. Shortly after
midnight, a fight broke out in the nightclub and several groups of patrons were ejected by the
bouncer. One of the officers, Lt. Riley, observed three distinct groups together totaling about 18
or 19 patrons. The first group, which included Coleman, immediately dispersed and walked out
of Riley’s eyesight. A fight began between some of the second and third groups. Police officers
rushed in to break up the fight. The two groups scattered when they saw the officers running to
the scene. By the time the officers arrived, Riley testified, “They were gone.” Riley and a
fellow officer, Detective Best, managed to seize two of the combatants as they tried to run off.
At that point, the officers (eight in all) and the two apprehended patrons were the only
people in the immediate vicinity. Riley testified he then heard multiple rounds of gunfire
“directly behind” him, close enough to “smell the gunpowder” from the discharging firearm.
Riley said he “had a lot of officers” to the right of him, “directly to the right,” yelling, “He’s got
a gun. Take cover.” The bullets whistled past the officers and blew chunks of stucco from the
nearby wall of the nightclub. One of the bullets struck a patron as he walking out of the
nightclub. In all, Riley heard a fusillade of about “six or seven shots.”
Though Lt. Riley never saw the shooter, Detective Best did. She saw Coleman firing a
handgun while “moving rapidly” from the parking lot to the nightclub. Coleman was “moving
towards our direction,” Best recalled, “in a crouched position” with his “arm extended.”
Coleman fired, Best estimated, as few as five and as many as eight shots in the direction of the
officers. Coleman fired continuously as he moved rapidly from about 40 yards away to within
about 25 yards. Like Riley, Best heard the bullets streak past her, over her right shoulder,
blowing holes in the stucco walls of the nightclub. During the shooting, Best testified, all of the
officers were within her “immediate area.”
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Another police officer, Officer Barnes, saw Coleman fire about five times. Barnes
recalled Coleman firing from a distance of about 30 yards away. Barnes estimated Detective
Best would have seen Coleman firing his weapon at about 20 to 25 yards away. Barnes testified
that there were approximately seven more officers between he and Best ⎯ all within an area of
about 5 to 10 yards.
After Coleman fired his last shot, he jumped into the passenger side of a vehicle which
immediately sped away. Several officers chased Coleman’s vehicle until it stopped. The driver
of Coleman’s vehicle ran one way and Coleman the other. Lt. Riley caught up with Coleman
and placed him under arrest. At his capture, Coleman protested: “You don’t have a case
because you don’t have the gun.”
Coleman testified at trial. As his direct examination began, Coleman said he too “heard
gunshots going off” while walking away from the nightclub. Coleman claimed he then ran to his
brother’s vehicle and climbed in. The police stopped his vehicle a couple minutes later,
Coleman stated. Upon further questioning by his counsel, however, Coleman reluctantly
admitted he retrieved a firearm from the vehicle and walked toward the nightclub. He “shot into
the air,” Coleman claimed, but never “into the crowd.” As Coleman put it: “So I shoot into the
air, everyone drops, and I take off running. That’s the story that I’m giving.”
The trial court, sitting as factfinder, found that Coleman’s testimony “borders on fantasy”
and rejected his hypothesis that he was using the firearm merely as an instrument of fright. After
rejecting Coleman’s motions to strike, the trial court initially found him guilty of eight counts of
attempted capital murder of police officers in violation of Code §§ 18.2-25 and 18.2-31(6),
coupled with eight corresponding convictions for felonious use of a firearm. Upon
reconsideration, the trial court reduced the convictions to eight counts of attempted malicious
wounding and parallel counts of felonious use of a firearm. When asked to reconsider this
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finding, the trial court explained that it found Coleman innocent of “attempted murder of eight
police officers because he had no specific intent to kill the officers; however, to make that
finding is not the same thing as to make a finding that he had no specific intent to harm or to
shoot at the direction of these people.”1
II.
A. STANDARD OF APPELLATE REVIEW
“We review lower court factfinding with the highest degree of appellate deference.”
Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). When
addressing the sufficiency of the evidence, we “‘presume the judgment of the trial court to be
correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without evidence to
support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en
banc) (citations omitted). “This standard comes from Code § 8.01-680 — the basis for our
appellate review of factfinding in civil and criminal cases as well as bench and jury trials.”
Seaton v. Commonwealth, 42 Va. App. 739, 747 n.2, 595 S.E.2d 9, 13 n.2 (2004).
In practical terms, this means a reviewing court does not “ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable doubt.” Haskins v.
Commonwealth, 44 Va. App. 1, 7-8, 602 S.E.2d 402, 405 (2004) (emphasis in original and
citation omitted). We ask only whether “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. “This familiar standard gives full play to
the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
1
The trial court also found Coleman guilty of malicious wounding of the patron shot
while exiting the nightclub and an associated charge of felonious use of a firearm. By earlier
order, we denied the portion of Coleman’s petition for appeal challenging these convictions.
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evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Barnes v.
Commonwealth, 47 Va. App. 105, 110 n.1, 622 S.E.2d 278, 280 n.1 (2005) (citation omitted).
“It also ensures that we remain faithful to ‘our duty not to substitute our judgment for that of the
trier of fact, even were our opinion to differ.’” Id.2
B. COLEMAN’S SUFFICIENCY CHALLENGE ON APPEAL
In this case, Coleman claims on appeal the evidence cannot rationally support a finding
that he attempted to maliciously wound the eight police officers. Coleman’s hypothesis of
innocence, rejected by the factfinder,3 was that he merely fired the handgun to “scatter, scare,
intimidate” but not “wound” anyone. Appellant’s Br. at 6. In no event, Coleman adds, did he
intend to wound the police officers. Admitting he may have displayed a “general malevolence”
toward the officers, id., Coleman asserts the evidence is insufficient to support an inference of
any specific intent to wound them. In sum, Coleman argues: “It is not sufficient to conclude that
because defendant fired in the vicinity of a group of people that he must have intended to
2
See also Boyd v. County of Henrico, 42 Va. App. 495, 525, 592 S.E.2d 768, 783
(2004) (en banc) (“The trial judge’s factual findings cannot be disturbed on appeal unless no
‘rational trier of fact’ could have come to the conclusions he did.”); Crowder v. Commonwealth,
41 Va. App. 658, 662-63, 588 S.E.2d 384, 386-87 (2003); Hoambrecker v. City of Lynchburg,
13 Va. App. 511, 514, 412 S.E.2d 729, 731 (1992).
3
As the Virginia Supreme Court has recently reaffirmed:
Initially, we observe that the issue upon appellate review in a case like this
is not whether there is some evidence to support defendant’s hypotheses.
Rather, the issue is whether a reasonable fact finder, upon consideration of
all the evidence, could have rejected defendant’s theories and found him
guilty of the charged offense beyond a reasonable doubt.
Coles v. Commonwealth, 270 Va. 585, 589, 621 S.E.2d 109, 111 (2005) (citing Commonwealth
v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003)); see also Haskins, 44 Va. App. at 9,
602 S.E.2d at 406 (determining the reasonableness of a hypothesis of innocence is itself a
question of fact subject to deferential appellate review).
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maliciously wound somebody or more specifically, the police because they were present, in
uniform, and provided more serious charges for the Commonwealth to prosecute.” Id. at 7.
C. MALICIOUS WOUNDING & CRIMINAL ATTEMPT
Malicious wounding includes shooting a victim with an intent to “main, disfigure,
disable, or kill” him. Code § 18.2-51. As the trial court noted when clarifying its final ruling,
the malicious wounding statute requires only an intent “to maim, disfigure, disable, or kill.”
Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001) (quoting Code
§ 18.2-51 (emphasis added)). Because of “the use of the disjunctive ‘or’ in the statute,” a
conviction for malicious wounding “does not require proof of the specific intent to kill.” Id.
A criminal attempt requires an intent to commit a crime coupled with a direct, though
ineffectual, act towards its commission. Coles v. Commonwealth, 270 Va. 585, 589, 621 S.E.2d
109, 111 (2005). An elusive concept, intent is “formed in a person’s mind and may be, and
frequently is, shown by circumstances.” Holley v. Commonwealth, 44 Va. App. 228, 234, 604
S.E.2d 127, 130 (2004) (affirming attempted malicious wounding conviction). “Such intent may
be inferred from the actor’s conduct and the attendant circumstances.” 4 Charles E. Torcia,
Wharton’s Criminal Law § 695, at 589-91 (15th ed. 1996).4 To be sure, “in criminal attempt
cases, ‘the fact finder is often allowed broad latitude in determining the specific intent of the
actor.’” Siquina v. Commonwealth, 28 Va. App. 694, 700, 508 S.E.2d 350, 353 (1998) (citation
omitted); Wilson v. Greene, 155 F.3d 396, 406 (4th Cir.1998).
4
See, e.g., Holley, 44 Va. App. at 234, 604 S.E.2d at 130 (affirming a conviction for
attempted malicious wounding and stating that a defendant’s intent can be inferred from the
“immediate, direct, and necessary consequences of his voluntary act” (citation omitted)); see also
Howard v. Commonwealth, 207 Va. 222, 228, 148 S.E.2d 800, 804 (1966) (applying inference to
a charge of attempted murder); Moody v. Commonwealth, 28 Va. App. 702, 706-07, 508 S.E.2d
354, 356 (1998) (recognizing inference applicable to a charge of attempted malicious wounding).
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D. SUFFICIENCY OF EVIDENCE SUPPORTING COLEMAN’S CONVICTIONS
Governed by these principles, the trial court did not act outside its factfinding discretion
in convicting Coleman of eight counts of attempted malicious wounding. While rapidly
advancing, crouched down and arm extended, Coleman fired a fusillade of gunfire in the
direction of eight police officers. Officer Barnes’s testimony places the eight officers in a 5 to
10-yard area directly in front of the nightclub. The officers were in uniform. Their two marked
police cars were parked nearby. Lt. Riley testified that the three groups of patrons (save the
specific individuals detained by the officers) had all dispersed before Coleman began firing. At
that time, eight of the ten individuals in front of the nightclub were uniformed police officers.
The most obvious consequence of shooting at someone is that you will likely seriously
injure him if your bullet finds its target. That Coleman’s marksmanship was poor, making his
act of shooting wholly ineffectual, does not mean the factfinder had no choice but to conclude he
did not intend to wound the officers.5 It only means the actus reus of Coleman’s crime could
rise no higher than an attempt to commit it.6 The trial court, therefore, was within its “broad
5
See People v. Manzo, 539 N.E.2d 237, 242 (Ill. App. Ct. 1989) (holding jury’s finding
that defendant intended to kill victim was reasonable where, standing a few feet away, he pulled
out a gun, aimed it at victim’s head, and fired, even though bullets hit windshield of car and
defendant insisted he only intended to scare victim); Spivey v. State, 436 N.E.2d 61, 63 (Ind.
1982) (affirming attempted murder conviction and dismissing defendant’s contention that he
merely intended to scare employees when he deliberately used “a deadly weapon in a manner
reasonably likely to cause death”).
6
On appeal, Coleman does not contest the number of convictions (which corresponds to
the number of officers fired upon), but rather the intent necessary for any of the convictions.
Having heard the evidence and reconsidered his findings, the trial judge expressly made no
“specific finding” of the number of times Coleman fired his weapon. It is not, in any event, a
dispositive point given the well-known ability of a single bullet to wound more than one victim.
See, e.g., People v. Smith, 124 P.3d 730, 738 (Cal. 2005) (observing that the “intent to kill two
different victims can be inferred from evidence that the defendant fired a single shot at the two
victims, both of whom were visible to the defendant” (citation omitted)).
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latitude,” Siquina , 28 Va. App. at 700, 508 S.E.2d at 353 (citation omitted), when it inferred
Coleman’s intent in this case.
Coleman objects to this reasoning, asserting that it erroneously rests on the doctrine of
transferred intent. The doctrine of transferred intent, when applicable to consummated crimes
like murder and malicious wounding, permits a factfinder to transfer a defendant’s criminal
intent to harm a targeted, but unharmed, victim to an untargeted, but actually harmed, victim.
See, e.g., Riddick v. Commonwealth, 226 Va. 244, 248, 308 S.E.2d 117, 119 (1983). As a
general rule, however, the concept does not apply to attempt crimes because the ineffectual act
requirement ensures that there will never be a victim actually harmed in the intended manner.
See Crawley v. Commonwealth, 25 Va. App. 768, 774, 492 S.E.2d 503, 505-06 (1997).
None of this reasoning, however, applies to this case. The evidence sufficiently proved
Coleman intended to shoot the officers gathered in front of the nightclub and tried unsuccessfully
to do so. The factfinder considered Coleman’s hypothesis that he intended only to scare or injure
only those patrons who might have been involved in the previous barroom fight. By finding the
defendant guilty, the factfinder necessarily “found by a process of elimination that the evidence
does not contain a reasonable theory of innocence.’” Haskins, 44 Va. App. at 9, 602 S.E.2d at
406 (citation omitted).7 The trial court’s judgment, therefore, did not rely upon any misapplied
theory of the transferred intent doctrine.
7
Coleman’s testimony at trial only served to further confirm his guilt. As factfinder, the
trial court was at liberty to discount Coleman’s self-serving explanations as little more than lying
to “conceal his guilt,” Haskins, 44 Va. App. at 10, 602 S.E.2d at 406, and could treat such
prevarications as affirmative “evidence of guilty knowledge.” Covil v. Commonwealth, 268 Va.
692, 696, 604 S.E.2d 79, 82 (2004); Emmett v. Commonwealth, 264 Va. 364, 372, 569 S.E.2d
39, 45 (2002); Thomas v. Commonwealth, 44 Va. App. 741, 755 n.5, 607 S.E.2d 738, 744 n.5,
aff’d en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005); see also Wright v. West, 505 U.S. 277,
296 (1992) (stating that, if the defendant’s sworn testimony is disbelieved as a deliberate
falsehood, the factfinder may consider the “perjured testimony as affirmative evidence of guilt”).
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III.
Finding the evidence sufficient to support Coleman’s convictions for attempted malicious
wounding and, necessarily as well,8 his convictions for felonious use of a firearm, we affirm.
Affirmed.
8
Coleman challenges his eight convictions under Code § 18.2-53.1 for felonious use of a
firearm, not due to insufficient evidence, but inasmuch as they rise or fall based upon the validity
or invalidity of his attempted malicious wounding convictions. See generally Hopson v.
Commonwealth, 15 Va. App. 749, 752-53, 527 S.E.2d 221, 223 (1993) (holding that where the
“evidence did not prove the underlying felony, the firearm conviction cannot stand”).
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