Opinion
Record No. 2128-93-4
Decided: March 7, 1995
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY, William D. Hamblen, Judge
James C. Love, IV (Love, Kielsgard Associates, on brief), for appellant.
Monica Sergent, Assistant Attorney General (James S. Gilmore, III, Attorney General; Katherine P. Baldwin, Assistant Attorney General, on brief), for appellee.
Present: Judges Barrow, Koontz and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this criminal appeal we hold that (1) the evidence supported the conviction for attempted capital murder; (2) the evidence did not support an instruction for assault; and (3) the failure of the defendant to object to the composition of the jury bars us from considering this issue as a basis for reversing his convictions.
Sufficiency of the Evidence of Attempted Capital Murder
When reviewing the sufficiency of the evidence presented at trial to support a conviction, we view the evidence and all reasonable inferences fairly deducible from the evidence in the light most favorable to the Commonwealth, and we will not disturb a jury's verdict unless plainly wrong or unsupported by the evidence. Maynard v. Commonwealth, 11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc).
To prove attempted capital murder, the Commonwealth must prove "(1) the specific intent to commit capital murder, and (2) an ineffectual act done towards its commission." Bell v. Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991). A defendant's specific intent must be shown by his or her words or conduct. Id. "The fact finder may infer that a person intends the immediate, direct, and necessary consequences of his voluntary acts." Id.
Here, the victim testified that the defendant had threatened repeatedly to rape her and to "blow [her] head off" and said "if he had to drag [her] into the woods, blow [her] head off and rape [her] dead, he would." He pointed the gun to the front of her head, and as she pushed it away with her hand on the barrel end, the gun fired, shooting a hole in the ceiling of the car and leaving a burn on her hand. The defendant's words and acts were sufficient to prove attempted capital murder.
Instruction on Assault
To determine the propriety of the defendant's proposed instruction, we view the evidence in the light most favorable to the defendant. Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991). "[M]ore than a scintilla" of evidence must support such an instruction. Buchanan v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757, 769 (1989), cert. denied, 493 U.S. 1063 (1990).
Attempted capital murder requires proof of specific intent to kill and an overt act; criminal assault, a lesser included offense, is an "attempt or offer with force or violence to do corporal hurt to another." Martin v. Commonwealth, 13 Va. App. 524, 527, 414 S.E.2d 401, 402 (1992) (citations omitted); see Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987).
The defendant's theory of the case was that the victim fired the gun in a struggle over the weapon. He denied making any threats and he never claimed that he intended to scare or hurt the victim. Therefore, the trial court properly determined that no theory supported a finding that the defendant was guilty of assault — either the defendant was guilty of attempted capital murder or he was innocent because the victim actually shot the gun.
Impartiality of the Jury
Because the defendant withdrew his request for a mistrial and a new jury and accepted the jury as constituted, the defendant has failed to preserve the question of the impartiality of the jury for this court to review on appeal. Rule 5A:18. He has made no showing that good cause exists or that the ends of justice require us to address the question. See Campbell v. Commonwealth, 14 Va. App. 988, 996, 421 S.E.2d 652, 656-57 (1992) (Barrow, J., concurring).
Therefore, the judgment of conviction is affirmed.
Affirmed.