Doss v. Com.

• Decision Date: 31 December 1996
• Docket Number: No. 2209-95-3,2209-95-3
• Citation: 23 Va.App. 679,479 S.E.2d 92
• Parties: Jerome Antonio DOSS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 92

479 S.E.2d 92

23 Va.App. 679

Jerome Antonio DOSS v. COMMONWEALTH of Virginia.

Record No. 2209-95-3.

Court of Appeals of Virginia,

Salem.

Dec. 31, 1996.

Jonathan M. Apgar, Roanoke (Damico & Apgar, on brief), for appellant.

John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BAKER, COLEMAN and ELDER, JJ.

COLEMAN, Judge.

The defendant was convicted in a bench trial of malicious wounding and use of a firearm in the commission of malicious wounding. On appeal, he contends that (1) the evidence was insufficient to prove malicious wounding, and (2) the trial judge violated his Fourteenth Amendment due process and Fifth Amendment self-incrimination protections by conditioning the suspension of the penitentiary sentence upon his surrendering the handgun he used to commit the offenses, which he had testified he did not possess. We find no error and affirm the convictions and sentences.

SUFFICIENCY OF EVIDENCE

On May 16, 1995, Ralph Fuller visited his two infant children and their mother, Michelle Price, at Price's apartment in Roanoke. During the visit, Fuller intervened in an argument between Price and Ingrid Doss, the defendant's sister. After the argument, Doss left the apartment but returned a short time later with the defendant.

The defendant demanded to know "why [Fuller] was disrespecting [his] sister" and he began to argue with Fuller. Fuller testified that during the argument, he told the defendant to leave and pushed the defendant out the door. The defendant left, but returned later and, according to Fuller, entered the apartment holding what appeared to be an automatic handgun. Fuller confronted the defendant and they began to fight, pushing and hitting each other. The defendant's blows caused Fuller to bend forward at the waist. While bent forward, Fuller heard a gunshot and realized that he had been shot.

Fuller testified that he saw the gun the defendant had been holding pointed at him when he was shot. Fuller acknowledged that he did not "know what [the defendant] was doing at the time [he] was bent over." On redirect examination, Fuller was questioned and testified as follows:

Q: When you were in a crouched position, you said you were bent over when you were shot or immediately before you got shot, was that a result of being struck? Bent over because you were struck?

A: No, I ... was ... was ... already bent over. And I don't know if on the way down maybe I might have discharged it, my body might have discharged it or what. All I know is I remember getting hit.

Q: You mean when you went over, you may have hit his hand?

A: I ... I might have hit it and caused it. I just remember getting hit.

After being shot, Fuller retrieved a .38 caliber revolver from near the couch and fired a shot at the defendant as he fled. Fuller testified that after shooting at the defendant he dropped the .38 revolver outside the apartment and had not seen the gun since that night.

Officer F.L. Pledge responded to the scene. He found Fuller with a bullet wound in his upper left chest. Officer Pledge testified that Fuller stated "that some guys came up--rushed him--came to his house and rushed him and shot him." Officer Pledge searched the apartment and found one shell casing that was identified as a .38 caliber casing.

Ingrid Doss testified on behalf of the defendant. She stated that the defendant did not have a gun when he went to Price's apartment to confront Fuller. Michelle Price also testified that the defendant was unarmed Price was impeached by evidence that she had made prior inconsistent statements in her initial report to the police in which she gave an account of events that contradicted her trial testimony. When the police arrived after the shooting, Price told Officer Pledge that the defendant was armed when he came to the apartment, that he was accompanied by a man named Chris Graves, and that the defendant shot Fuller. She reported that the defendant kicked in the door to her apartment and rushed in with a gun in his hand, that Fuller attempted to take the gun from the defendant, and that the defendant struck Fuller with the gun. She said the defendant then "stepped back [from Fuller], cocked the handle back, [and] fired [one] shot towards [Fuller]."

when he came to the apartment but that Fuller had a .38 caliber handgun. According to Price, Fuller's gun discharged while Fuller was struggling with the defendant. Price testified that Fuller was holding the gun when it fired.

At trial, Price testified that she had lied when she gave her statement to the police. She explained that she was afraid she would be evicted from her apartment if her landlord discovered she had allowed Fuller to keep a gun in the home. Price conceded that she did not know what Fuller had told the police when she gave her initial statements. Although Price's prior statement could only be used to impeach her testimony, and not for its truth, the inconsistency in her statements was one of the reasons the trial judge disbelieved her testimony and the other witnesses' accounts of how the shooting occurred.

Testifying on his own behalf, the defendant denied that he had a gun when he went to Price's apartment. He testified that Fuller produced a gun, and "[t]he gun went off" while he was wrestling with Fuller.

The trial judge found that the testimony of the defense witnesses was incredible and contrary to the physical evidence. The judge found that Fuller's testimony as to how the shooting occurred was consistent with the physical evidence. Specifically, the trial judge found that the location of Fuller's wound and the fact that a shell casing was recovered were consistent with Fuller's account that the defendant used an automatic pistol that ejected spent shells, rather than the defendant's account that Fuller was shot by his own revolver, a gun that does not eject spent shells.

Even though the trial judge accepted the victim's version of how the shooting occurred, the defendant contends that the evidence tended to prove the shooting was accidental rather than intentional and, therefore, the evidence was insufficient to prove beyond a reasonable doubt that the shooting was malicious. On appeal we view the evidence in the light most favorable to the prevailing party and grant to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The fact finder is not required to believe testimony that is inconsistent with the facts, may reject testimony that has been impeached, and may rely solely upon circumstantial evidence to prove an offense, provided the circumstances point unerringly to prove the necessary elements of the offense. Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983); Kirby v. Commonwealth, 19 Va.App. 332, 336, 451 S.E.2d 53, 56 (1994).

The trial judge expressly found that the defense witnesses were not credible. Based upon the prior inconsistent accounts that the witnesses gave to the police the night of the shooting, which accounts were contrary to the trial testimony and the circumstances surrounding the shooting, the judge's credibility determination was clearly supported by the evidence. Likewise, the trial judge was justified in disbelieving and disregarding the defendant's account that he was unarmed, that the victim was armed, and that the victim's gun discharged while they were scuffling.

Whether an appellant acted with malice is a question of fact to be determined by the fact finder. Branch v. Commonwealth, 14 Va.App. 836, 841, 419 S.E.2d 422, 426 (1992). "Malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will. It may be directly evidenced by words, or inferred from acts and conduct which necessarily "Implied malice exists when any purposeful, cruel act is committed by one individual against another without any, or without great provocation...." Pugh v. Commonwealth, 223 Va. 663, 668, 292 S.E.2d 339, 341 (1982). Malice may be inferred "from the deliberate use of a deadly weapon." Perricllia v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d 679, 683 (1985).

result in injury." Hernandez v. Commonwealth, 15 Va.App. 626, 631, 426 S.E.2d 137, 140 (1993) (quoting Christian v. Commonwealth, 221 Va. 1078, 1081, 277 S.E.2d 205, 207 (1981)); Bell v. Commonwealth, 11 Va.App. 530, 533, 399 S.E.2d 450, 452 (1991) (quoting Long v. Commonwealth, 8 Va.App. 194, 198, 379 S.E.2d 473, 475-76 [23 Va.App. 686] 1989)). "Malice is implied from any willful, deliberate and cruel act against another." Williams v. Commonwealth, 13 Va.App. 393, 398, 412 S.E.2d 202, 205 (1991).

When viewed in the light most favorable to the Commonwealth, the evidence proved that the defendant, after engaging in an argument with the victim, left the home where the victim was staying, armed himself, returned with a companion, broke through the door, "rushed [the victim] ... and shot him." According to the victim's testimony, the defendant struck him and while he was bending over, the defendant shot him. The circumstances support the trial judge's finding that the defendant deliberately and willfully discharged the firearm and shot Fuller. In weighing Fuller's redirect examination, in which he acknowledged that he was not looking directly at the appellant when the gun was discharged and he testified, "I might have hit it and caused it," the judge was justified in finding that the appellant had intentionally armed himself, had forcibly entered the residence where the victim was, had intentionally assaulted the victim, and had intentionally aimed the gun at the victim at the time it was discharged. Based on the circumstances leading up to and following the shooting, the trial judge, as fact finder, was justified in finding that the defendant deliberately and maliciously shot the victim.

SENTENCING

SELF-INCRIMINATION...