Opinion
Record No. 0521-93-1
Decided: July 19, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, Alfred W. Whitehurst, Judge
Affirmed.
Richard A. Monteith (Monteith Harding, on brief), for appellant.
Janet F. Rosser, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Eric M. Allen was found guilty by a jury of murder in the first degree and of using a firearm in the commission of murder. On appeal, Allen contends that the evidence was insufficient for the court to have instructed the jury on first or second degree murder, and he contends that the evidence is insufficient to sustain the conviction for first degree murder. We find no error. The jury was not required to believe the defendant's version that the killing was accidental. The jury's verdict was not plainly wrong or without evidence to support it. Accordingly, we affirm the defendant's convictions.
"When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. . . . The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
Malice, a necessary element for murder, requires a showing that the defendant "willfully or purposefully, rather than negligently, embarked upon a course of conduct likely to cause death or great bodily harm." Vaughan v. Commonwealth, 7 Va. App. 665, 674, 376 S.E.2d 801, 806 (1989) (quoting Essex v. Commonwealth, 228 Va. 273, 280-281, 322 S.E.2d 216, 220 (1984)). Malice may be "inferred from acts and conduct which [necessarily] result in injury," and its existence is a question of fact for the jury. Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 475-76 (1989) (quoting Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947)). Malice may be inferred from the deliberate use of a deadly weapon. Henry v. Commonwealth, 195 Va. 281, 77 S.E.2d 863 (1953).
To support a conviction for first degree murder, the jury, in addition to finding malice, must determine that the killing was premeditated and deliberate. Premeditation and deliberation may be inferred from all the facts and circumstances surrounding the killing provided that the facts point unerringly to the conclusion that the defendant acted deliberately and with premeditation. "To establish premeditation, the intent to kill need only exist for a moment" prior to the actual killing. Bowling v. Commonwealth, 12 Va. App. 166, 173, 403 S.E.2d 375, 379 (1991). The Commonwealth is not required to establish the defendant's motive for killing the victim in order to satisfy the necessary elements of first degree murder. Archie v. Commonwealth, 14 Va. App. 684, 690, 420 S.E.2d 718, 722 (1992). The Commonwealth establishes a prima facie case that a killing is deliberate and premeditated by proving that an individual points a loaded gun at another person and shoots the individual.
The defendant and the thirteen-year-old victim were wrestling with each other in an apartment. According to one witness, they were just "horsing around." The defendant testified he was "getting the better" of the victim, but "wanted to prove to [the victim], he was the better man." The defendant pinned the victim to the wall and pointed a loaded gun to the victim's head. The defendant admitted putting two bullets in the gun approximately four to five hours earlier. After the victim stated "I ain't afraid to die, I am like Superman", the defendant replied, "[o]h yeah, you are not afraid to die?" The defendant pointed the gun at the victim's chest and pulled the trigger three times. The gun fired on the third time, killing the victim.
The jury was permitted to infer from these circumstances that the defendant, knowing the gun was loaded, purposefully pointed it at the victim's chest and pulled the trigger three times with an intent to kill. The jury's finding of malice and premeditation was not plainly wrong or without evidence to support it.
The jury was not required to accept the defendant's contention that the killing was accidental. "The credibility of witnesses is a matter for the jury to decide, weighing such factors as the appearance and manner of the witnesses on the stand . . . their interest in the outcome of the case, their bias, and if any had been shown, their prior inconsistent statements and prior criminal convictions." Mullis v. Commonwealth, 3 Va. App. 564, 571, 351 S.E.2d 919, 923 (1987). Because the defendant had lied to the police about the circumstances surrounding the killing, the jury was not required to accept the version of events presented by him at trial. See Stegall v. Commonwealth, 208 Va. 719, 722, 160 S.E.2d 566, 568 (1968). Because the evidence was sufficient to support a conviction of first degree murder, the trial court did not err by instructing the jury on the elements of first or second degree murder.
Accordingly, we find the evidence sufficient to support the convictions for illegal use of a firearm and for murder in the first degree.
Affirmed.