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Present:    Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Koontz, S.J.∗
CORDERO BERNARD ELLIS                                               OPINION BY
SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No.  100506                                               March  4,  2011
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, the principal issue we consider is
whether, in order to prove a violation of Code  §  18.2-279,
which makes it a criminal offense to discharge a firearm at or
against any occupied building, the Commonwealth must establish
that the defendant had a specific intent to shoot at a
particular building.
BACKGROUND
The pertinent facts are not in dispute.    Consistent with
well-established principles of appellate review, we consider
those facts in the light most favorable to the Commonwealth,
the prevailing party in the circuit court.    Hamilton v.
Commonwealth,  279 Va.  94,  103,  688 S.E.2d  168,  173  (2010).
On November  10,  2008, Cordero Bernard Ellis was indicted
by the grand jury in the Circuit Court of the City of Newport
News for the offense of maliciously discharging a firearm at
∗ Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February  1,  2011; Justice Kinser was sworn in as
Chief Justice on February  1,  2011.




or against an occupied building in violation of Code  §  18.2-
279, a Class  4 felony.1    A bench trial on this indictment was
held in the circuit court on January  9,  2009.    The court
ultimately convicted Ellis of the lesser included offense of
unlawfully discharging a firearm at or against an occupied
building, a Class  6 felony.
The evidence adduced at Ellis’ trial established that at
approximately  6 p.m. on the afternoon of August  16,  2008, Evan
D. Claude and his child nephew exited a convenience store
located in the  4700 block of Marshall Avenue in the City of
Newport News, where Claude had gone to purchase cigarettes.
They crossed Marshall Avenue and proceeded through an open
space between two buildings directly opposite the convenience
store.    An individual, who Claude recognized as  “D.A.,” walked
past them toward Marshall Avenue.
1 Ellis was also indicted for attempted malicious wounding
of Evan D. Claude, Code  §  18.2-51, and use of a firearm in the
commission of that offense, Code  §  18.2-53.1.    The malicious
wounding charge apparently was premised on a theory of
transferred intent since the victim named in the indictment
was a bystander, not the intended victim, whose exact identity
was not known.    The circuit court, applying Crawley v.
Commonwealth,  25 Va. App.  768,  773,  492 S.E.2d  503,  505
(1997), ruled that the doctrine of transferred intent was
inapplicable to the crime of attempted malicious wounding, and
dismissed the indictment for that offense and the use of a
firearm offense.
2




Approximately  10 to  20 feet further away, Claude saw
Ellis, known to Claude as  “Moosey,” draw a pistol and call out
to  “D.A.”    Ellis then began firing the pistol at  “D.A.”
Claude and the child were  “in the path of the fire.”    Claude
estimated that the total distance separating Ellis and  “D.A.”
was  “about  30 or  40 feet.”
During Claude’s testimony, the Commonwealth introduced an
aerial photograph showing the convenience store and the
surrounding area.    On the photograph, Claude marked the
approximate locations of where he,  “D.A.,” and Ellis were
standing when the shooting occurred.
Aja Lani, the assistant manager of the convenience store,
testified that at the time of the shooting there were three
employees and at least three customers in the store.    Lani
testified that as soon as he and the others heard gunfire they
“laid down on the floor” of the store.    Lani further testified
that one bullet entered the store through a glass door.
Officer Luley2  of the Newport News Police Department
testified that in investigating the August  16,  2008 shooting,
he recovered two bullets, one from where it had impacted the
wall of the convenience store and another from inside the
store.    In the open area across Marshall Avenue from the
2 The record does not disclose Officer Luley’s full name.
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store, Officer Luley recovered eight shell casings.    Although
Officer Luley was able to identify the approximate location
where he recovered the casings, he could not state the exact
distance from the store to that location.
At the conclusion of the Commonwealth’s case, Ellis made
a motion to strike the Commonwealth’s evidence and dismiss the
charge relating to a violation of Code  §  18.2-279, asserting
that the evidence failed to show that Ellis intended to shoot
“at or against” the convenience store.    The circuit court took
Ellis’ motion to strike under advisement, directing the
parties to be prepared to address whether the gravamen of the
offense defined by Code  §  18.2-279 required the Commonwealth
to prove that Ellis had the specific intent to shoot at the
building in which the store was located.    Ellis did not
present any evidence.
On March  3,  2009, the circuit court conducted a hearing
to receive additional argument on Ellis’ motion.    Relying on
Fleming v. Commonwealth,  13 Va. App.  349,  412 S.E.2d  180
(1991), Ellis’ counsel maintained that the Commonwealth was
required to prove that Ellis had the specific intent to fire
“at or against” the store in order to sustain a charge under
Code  §  18.2-279, because that language was included in the
indictment.    The court stated that it did not agree with
counsel’s interpretation of Fleming, finding instead that the
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case stood for the proposition that Code  §  18.2-279 was a
general intent crime.    Counsel responded that she agreed that
Fleming stood for the proposition that unlawfully shooting at
an occupied building required only a showing of general
intent.3    She contended, however, that because the indictment
in this case charged the precise offense of maliciously
shooting  “at or against” an occupied building, the
Commonwealth was required to prove a specific intent to shoot
at or against the convenience store with the malicious intent
of injuring one of the occupants.    Asserting that the evidence
did not prove either of these elements, counsel contended that
Ellis was at most guilty of unlawfully discharging a firearm.4
3 The Commonwealth contends that when Ellis’ counsel
acknowledged her agreement with the circuit court’s
interpretation of Fleming, she conceded that Ellis could be
convicted of unlawfully shooting at an occupied building as a
general intent crime and that any argument to the contrary on
appeal is an improper attempt to  “approbate and reprobate.”
See, e.g., Rowe v. Commonwealth,  277 Va.  495,  502,  675 S.E.2d
161,  164  (2009).    In the context of the colloquy between the
court and counsel on this point, however, it is clear that
counsel was only acknowledging the court’s reading of Fleming
and did not intend to concede that Ellis could be convicted of
unlawfully shooting into an occupied building under the
indictment and evidence in this case, as was made clear by her
subsequent argument.
4 Presumably counsel was referring to Code  §  18.2-280,
which prohibits the  “willful” discharge of a firearm  “in any
street in a city or town, or in any place of public business
or place of public gathering,” a Class  1 misdemeanor unless
the incident occurs in or within a specified distance of a
school, which raises the offense to a Class  4 felony.
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In effect, Ellis’ counsel contended that by indicting Ellis
for the greater offense defined by Code  §  18.2-279, which she
contended required proof of specific intent to shoot at the
building with malicious intent to wound a person inside, the
Commonwealth was bound by the indictment to prove that Ellis
had specific intent with respect to every aspect of the crime.
Thus, according to counsel, the Commonwealth could not assert
that Ellis was guilty of the lesser offense based on a theory
of general intent.
The circuit court, while agreeing with Ellis’ counsel
that the element of malice was not proven by the evidence,
disagreed that the  “at or against” language of the indictment,
which tracked the statute, required proof of a specific intent
to shoot  “at or against” the convenience store in order to
obtain a conviction.    Accordingly, the court convicted Ellis
of the lesser included offense of unlawfully shooting at an
occupied building.    Following the preparation of a pre-
sentence report, the court sentenced Ellis to five years
imprisonment, suspending two years of that sentence.
Ellis noted an appeal to the Court of Appeals, which
refused his petition for appeal in an unpublished order.
Ellis v. Commonwealth, Record No.  1281-09-1  (December  9,
2009).    The Court found, in accord with Fleming, that the
evidence was sufficient to support a reasonable inference by
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the circuit court as fact finder that Ellis  “  ‘knew or should
have known that the  [convenience store] was in the line of
fire, even if  [Ellis] did not specifically intend to shoot at
or into the  [store].’  ”    Id., slip op. at  1  (quoting Fleming,
13 Va. App. at  354,  412 S.E.2d at  183).    We awarded Ellis this
appeal.
DISCUSSION
Ellis contends that the circuit court erred in failing to
find that the language of the indictment required the
Commonwealth to prove that Ellis had a specific intent to fire
“at or against” the convenience store.    Ellis asserts that,
regardless of the level of the offense under Code  §  18.2-279
for which he was convicted, the Commonwealth could not rely
upon Ellis’ apparent intent to fire at  “D.A.” to establish
that Ellis also intended to shoot at the store because  “D.A.”
was  “not in the store and located an unknown distance away
from the store.”    Ellis further contends that even if the
Commonwealth was not required to prove that Ellis had the
specific intent to shoot at the store, the Court of Appeals
nonetheless erred in holding that the evidence was sufficient
to support the circuit court’s finding that Ellis knew or
should have known that the store was in his direct line of
fire.    For the reasons that follow, we disagree with Ellis on
both points.
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Code  §  18.2-279 provides in relevant part:
If any person maliciously discharges a firearm  .  .  .
at or against any  .  .  . building when occupied by
one or more persons, whereby the life or lives of
any such person or persons may be put in peril, the
person so offending is guilty of a Class  4
felony.  .  .
If any such act be done unlawfully, but not
maliciously, the person so offending is guilty of a
Class  6 felony.
This Court first addressed the application of Code
§  18.2-279 in Dowdy v. Commonwealth,  220 Va.  114,  255 S.E.2d
506  (1979).    In Dowdy, we held that the statute was  “a
legislative declaration that human lives may be endangered
when a deadly weapon is maliciously discharged at or against a
building occupied by people and that such conduct is
felonious.”    Id. at  117,  255 S.E.2d at  508.
Since Dowdy was decided, the Court of Appeals has
reviewed numerous convictions under Code  §  18.2-279, beginning
with Fleming.    In that case, the defendant was convicted as a
principal in the second degree for unlawfully shooting at an
occupied building.    Id. at  350,  412 S.E.2d at  181.    While not
disputing that his actions were sufficient to prove that he
was present and gave assistance to the first degree principal,
Fleming contended that the Commonwealth had not proven that
the first degree principal had the requisite intent to shoot
at the building.    The Court of Appeals rejected Fleming’s
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argument, holding  “that the offense as defined by the statute
is not a specific intent crime; rather, it is a general intent
offense.”    Id. at  354,  412 S.E.2d at  183.    The Court went on
to explain that
[a] violation of the statute may be established upon
proof that a person unlawfully discharged a firearm
at or in the direction of an occupied  [building] if
the person knew or should have known that the
[building] was in the line of fire, even if the
person did not specifically intend to shoot at or
into the  [building].    The fact finder may infer that
the perpetrator had an unlawful intent from the
commission of an unlawful act.
Id.  (emphasis added).    Since deciding Fleming, the Court of
Appeals has consistently interpreted Code  §  18.2-279 in accord
with this holding.    See, e.g., Armstead v. Commonwealth,  55
Va. App.  354,  361,  685 S.E.2d  876,  879  (2009)  (applying
rationale of Fleming to Code  §  18.2-154, which prohibits
maliciously or unlawfully shooting into a vehicle); King v.
Commonwealth,  40 Va. App.  193,  199,  578 S.E.2d  803,  806
(2003).
The rationale of Fleming is consistent with the view
expressed in Dowdy that the legislative purpose of the statute
is meant to prohibit unlawful conduct, whether malicious or
merely criminally reckless, which has the potential to
endanger the lives of persons inside occupied buildings,
without regard to the shooter’s actual motive or intent in
unlawfully discharging a firearm.    Accordingly, applying that
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rationale here, we hold that to sustain a conviction under
Code  §  18.2-279, the Commonwealth need not prove that the
defendant had the specific intent to shoot at or against a
particular building.    Rather, the evidence need only show that
a defendant who unlawfully discharges a firearm knew or should
have known that an occupied building or buildings were in his
line of fire.
Ellis contends, however, that even under this general
intent standard the evidence was not sufficient for the
circuit court to find that he knew or should have known that
the convenience store was within his line of fire.    This is
so, Ellis contends, because the evidence showed only that he
and  “D.A.” were walking toward Marshall Avenue at an
undetermined distance from the store when he fired his weapon
at  “D.A.”    Thus, Ellis asserts that there was  “[n]o evidence
.  .  . presented to even suggest that  [he] even knew where the
building was located or that it was occupied.”
During oral argument of this appeal, the Commonwealth
conceded that Code  §  18.2-279 is not a strict liability crime,
and that factors such as visibility, time of day, the
character of the neighborhood, and, most especially, the
distance between the shooter and the building struck could
impact the fact finder’s determination of whether the
defendant reasonably should have known that he was shooting at
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an occupied building.    The Commonwealth further acknowledged
that the nexus between the shooter and the building struck
could become so attenuated as to be legally insufficient to
support a conviction under Code  §  18.2-279.    The Commonwealth
contends, however, that the evidence in this case was
sufficient to permit the circuit court to find that the
Commonwealth’s evidence was legally sufficient, and, as the
trier of fact, to make the further determination that Ellis
knew that the convenience store was in his line of fire or
should have realized that the natural, probable consequences
of his actions was that stray shots were likely to strike
occupied buildings.    We agree.
It is permissible for the fact finder to infer that every
person intends the natural, probable consequences of his or
her actions.    See, e.g., Schmitt v. Commonwealth,  262 Va.  127,
145,  547 S.E.2d  186,  198-99  (2001).    In Fleming, the shots
were fired  “at a truck located directly in front of an
occupied residence from a distance of sixty feet.”                   13 Va.
App. at  355,  412 S.E.2d at  184.    The Court of Appeals
determined that it was reasonable for the jury to infer that
the shooter in that case, despite his statement that his
intent was to fire at the truck, had the general intent to
shoot at the dwelling that was also in his direct line of
fire, because this was a natural, probable result of his
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discharging a firearm rapidly and indiscriminately in the
vicinity of the dwelling.    Id.
Examining the aerial photograph that was admitted into
evidence in this case, it is apparent that Ellis was only a
short distance from the convenience store when he fired at
“D.A.”    Moreover, the photo clearly shows that there were
other buildings immediately behind and to Ellis’ right and
left on either side of the open area where the shooting
occurred.    Claude’s testimony established that the character
of the neighborhood was of mixed residential and commercial
use.    Since Claude knew both Ellis and  “D.A.” by sight, the
circuit court could reasonably have inferred that Ellis was
familiar with the neighborhood.    It was also reasonable for
the circuit court to infer that Ellis would have known that
the convenience store would have been open for business and
therefore occupied by employees, if not employees and
customers.
The evidence also showed that the shooting occurred at a
time of day in the summer when it would still be full
daylight.    Although no evidence was adduced as to the exact
character of the weather on the day of the incident, there was
no assertion that it was inclement such that visibility would
have been in any way obscured.
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Given these facts, we hold that the Commonwealth’s case
was legally sufficient to survive Ellis’ motion to strike and
that the circuit court, as the fact finder, could reasonably
infer from the character of the neighborhood, the presence of
others in the vicinity, and the density of the surrounding
development, that Ellis knew or should of known that an
occupied building would be in his line of fire when he
unlawfully discharged his weapon toward  “D.A.”    In this
instance, it was not necessary for the Commonwealth to prove
by direct evidence that Ellis was actually aware that the
convenience store was within his line of fire or that it was
occupied at the time, because it was reasonable for the fact
finder to infer from the evidence that these elements of the
offense were established beyond a reasonable doubt.
CONCLUSION
For these reasons, we hold that the circuit court did not
err in finding that the Commonwealth was not required to prove
that Ellis had the specific intent to fire at or against the
convenience store and that the Court of Appeals did not err in
finding that the evidence was sufficient to support Ellis’
conviction.    Accordingly, we will affirm Ellis’ conviction
under Code  §  18.2-279 for unlawfully shooting at or against an
occupied building.
Affirmed.
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