Opinion
Record No. 0844-92-1
August 17, 1993
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON JOHN D. GRAY, JUDGE.
(J. A. Coyle, III, on brief), for appellant. Appellant submitting on brief.
Janet F. Rosser, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal, Curtis Maurice Williams (appellant) contends that for lack of evidence to support the judgment, we should reverse his bench trial conviction by the Circuit Court of the City of Hampton (trial court) for maliciously wounding David Scott McRae (victim) with intent to maim, disfigure, disable or kill, in violation of Code § 18.2-51. Appellant first asserts that because the injury to the victim was inflicted by appellant's fists, he cannot be guilty of violating Code § 18.2-51 and, furthermore, the verdict was void because it failed to recite the requisite intent language. We disagree.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680).
The essence of appellant's first argument is that, in the absence of circumstances showing exceptional violence or brutality, an accused cannot be guilty of violating Code § 18.2-51 when the only instrumentality used to inflict the wound is a fist. As in Shackelford v. Commonwealth, 183 Va. 423, 32 S.E.2d 682 (1945), the gravamen of appellant's contention is that the Commonwealth failed to establish the specific intent to maim or disfigure, and that no such intent may be presumed from the blows struck with a naked fist.
The intent is the purpose formed in a man's mind, and is usually proved by his conduct, sometimes by his statements; the necessary intent constituting one element in an attempt is the intent in fact, as distinguished from an intent in law. From the act alleged, the law infers a general evil intent, on the principle that a man intends the probable and necessary consequences of his act.
Id. at 426, 32 S.E.2d at 684 (citation omitted). The Court then stated that an assault with the bare fists may be attended by such circumstances of violence and brutality that the necessary intent will be presumed.
In the case before us, without provocation, appellant repeatedly struck the victim on the side of his head, opening a wound that required several stitches to close. After administering several of these blows, appellant attempted to reach into one of the victim's pockets as if to take his wallet. Appellant demanded that the victim, "Give it up." When appellant was unsuccessful in his attempt to procure whatever he was seeking, he again struck the victim "real hard in the head two or three or four more times," stopping only upon the appearance of a security guard. In addition to the head injuries, the next morning appellant had a sore shoulder, causing him to believe his shoulder had also been injured due to appellant's assault.
"Under ordinary circumstances an intent to maim may not be presumed from a blow with a bare fist. . . . But an assault with a bare fist may be attended with such circumstances of violence and brutality that an intent to kill may be presumed."Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 273 (1969).
In affirming a malicious wounding conviction resulting from injuries inflicted by the accused's fist, in Williams v. Commonwealth, 13 Va. App. 393, 412 S.E.2d 202 (1991), we cited several Virginia appellate court decisions that support the principle that circumstances similar to those presented here permit the presumption that the accused intended to maliciously wound the victim in violation of Code § 18.2-51. See, e.g., Fletcher, 209 Va. at 640-41, 166 S.E.2d at 273; Bryant v. Commonwealth, 189 Va. 310, 53 S.E.2d 54 (1949); Dawkins v. Commonwealth, 186 Va. 55, 41 S.E.2d 500 (1947); Roark v. Commonwealth, 182 Va. 244, 28 S.E.2d 693 (1944).
Here, the record discloses that the assault and wounding with appellant's bare fist was attended with such circumstances of violence and brutality that an intent to maim or disfigure may be presumed.
Citing Bacci v. Commonwealth, 213 Va. 236, 191 S.E.2d 182 (1972), appellant further argues that the conviction order is void because it failed to recite the requisite intent language. Because the order granting the appeal in this case limited the issue to "whether the trial court erred in finding the appellant guilty of a violation of Section 18.2-51, maiming," that issue is not properly before us. However, the holding inBacci was that the "requisite intent" was not referred to by the jury verdict, either by reference to the indictment or specifically. Here, the trial court found appellant guilty "as charged in the indictment," which alleged the requisite intent. Thus, Bacci does not require us to reverse the trial court's finding.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.