Opinion
Record No. 0445-92-1
December 14, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK ALFRED W. WHITEHURST, JUDGE.
Charles E. Sizemore, Jr., for appellant.
Marla Lynn Graff, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Coleman and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Paul Emanual Clark, s/k/a Paul Emanuel Clark (defendant) was convicted of unlawful wounding of a law enforcement officer in violation of Code § 18.2-51.1. On appeal, defendant complains that the evidence was insufficient to establish the requisite intent to "maim, disfigure, disable or kill" the victim. We disagree and affirm the judgment of the trial court.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue on appeal.
Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a trial court, sitting without a jury, is entitled to the same weight as a jury verdict and will be disturbed only if plainly wrong or without evidence to support it. Id. The credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters solely for the fact finder's determination. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
On May 5, 1990, Officer Joseph Ribeiro, Jr. responded to a "domestic call" at 2801 Church Street, Norfolk. On arrival, Ribeiro discovered defendant and Judy Alston "involved in a verbal confrontation." While Ribeiro was "trying to calm things down," Alston "grabbed her lip and pulled it down," showing Ribeiro a "fresh cut." Ribeiro ascertained that Alston wished to "press charges on [defendant] for this" and "told him . . . he was under arrest for assault." Defendant "tried to pull away" and a struggle ensued between the two men. When defendant escaped from Ribeiro's "restraint hold," he "turned around and struck [Ribeiro] in the face with a punch," "charged . . . in a football-type low attack, and grabbed [Ribeiro] around [the] waist," which "knocked [him] up onto the kitchen table."
Officer Charles J. Claxton also responded to the scene and witnessed the assault on Ribeiro. He testified that defendant "had room to keep running" and effect an escape but, instead, "just turned, stopped, [and] struck Officer Ribeiro." Claxton recalled that defendant "just kept punching" Ribeiro and described defendant as an "extremely active," "experienced fighter."
During the altercation, Ribeiro was "hit several times in the face" by defendant, necessitating "stitches over both eyes and on [his] chin" and causing a "retinal hemorrhage" in one eye.
To convict defendant under the indictment, the Commonwealth was required to prove that he intended to "maim, disfigure, disable or kill" Officer Ribeiro. Code § 18.2-51.1. Defendant's "intent in fact, as distinguished from [his] intent in law," at the time of the offense is the dispositive issue in this appeal.Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974); see Merritt v. Commonwealth, 164 Va. 653, 662-63, 180 S.E. 395, 399 (1935). An "intent in law" can be inferred "[f]rom the act alleged, . . . on the principle that a man intends the probable and necessary consequences of his act." Merritt, 164 Va. at 662, 180 S.E. at 399. However, an "intent in fact" is generally an issue to be determined from the actions or statements of the accused and other circumstances in evidence.Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977); see also Williams v. Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202, 205 (1991).
Ordinarily, an assault with fists does not reflect an intent to maim, disfigure, disable or kill, but it may be accompanied with sufficient violence and brutality that such intent may be presumed. Williams, 13 Va. App. at 397-98, 412 S.E.2d at 205;Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 273 (1969); Shackelford v. Commonwealth, 183 Va. 423, 426, 32 S.E.2d 682, 684 (1945). Here, the circumstances and ferocity of defendant's attack on Ribeiro and the resulting injuries clearly established the intent necessary to the conviction. Accordingly, the judgment of the trial court is affirmed.
Affirmed.