Opinion
Record No. 0302-92-1
September 7, 1993
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY JAMES C. GODWIN, JUDGE.
Robert O'Neill, Public Defender, for appellant.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow, and Benton.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Carl Davis was convicted of maliciously causing bodily injury to another with the intent to maim, disfigure, disable, or kill in violation of Code § 18.2-51. On appeal, Davis contends that the evidence was insufficient to establish any intent other than the intent to use the force necessary to rob the victim. We affirm the conviction.
When we consider whether the evidence was sufficient to support the conviction, we view the evidence in the light most favorable to the Commonwealth and grant to the evidence so viewed all reasonable inferences. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). When so viewed, the evidence proved that at 10:00 p.m., Davis and Marilyn Holden planned to rob Gilbert Stephens, an 81 year old man. As part of a robbery plan, David grabbed Stephens, who was sitting on the steps of a store, and threw him down. When Stephens was thrown to the ground, his ankle broke. During the struggle, one hundred and seventy dollars was taken from Stephens' person. Several people reported that when Davis left the scene of the incident Davis stated, "I broke his leg." Stephens' leg remained in a cast for three months.
After Davis was arrested and was advised of his Miranda rights, he signed a statement confessing his participation in the robbery. His statement recites, in part, as follows:
I went back around the back of the house with Marilyn [Holden] and I went to the steps and said, "excuse me." Mr. Gilbert stood up and I grabbed him in a bear hug and we fell on the ground. [Holden] grabbed his leg and took his money out of his sock.
At trial, however, Davis testified that this portion of the statement was untrue. Davis testified that he had not agreed with Holden to rob Stephens. He said Stephens was sitting on the steps and rose to allow Davis to walk up the steps. Davis further stated that because he was intoxicated he fell backwards as he was going up the steps and that he might have bumped into Stephens. He also testified that after he and Stephens fell, Holden moved towards Stephens' feet, jumped up, and left the area. On this evidence, Davis was convicted at a bench trial of maliciously injuring Stephens with the intent to maim, disfigure, disable, or kill. See Code § 18.2-51.
"The test of the offense of maliciously . . . causing bodily injury is the intent with which the result is accomplished."Dawkins v. Commonwealth, 186 Va. 55, 63, 41 S.E.2d 500, 504 (1947). "Intent in fact is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances . . . [such as] by a person's conduct or by his statements."Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974).
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 [sic] result in injury. Its existence is a question of fact to be determined by [the trier of fact].
Dawkins, 186 Va. at 61, 41 S.E.2d at 503.
The trial judge rejected Davis' testimony that he accidently bumped Stephens. The trial judge found that Davis' statement that he consciously participated in the robbery was the more credible version of the incident. "It is fundamental that the credibility of witnesses and the weight accorded their testimony are matters solely for the fact finder who has the opportunity of seeing and hearing the witnesses." Collins v. Commonwealth, 13 Va. App. 177, 179, 409 S.E.2d 175, 176 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)).
Thus, the evidence proved that Davis intentionally grabbed and threw to the ground an 81 year old man during the course of a robbery. Given the victim's age and the nature of the attack upon him, a disability such as a broken ankle was a natural and probable consequence of Davis' act. See Bryant v. Commonwealth, 189 Va. 310, 317-18, 53 S.E.2d 54, 58 (1949);Shackelford v. Commonwealth, 183 Va. 423, 426-27, 32 S.E.2d 682, 684 (1945). From the evidence, the trial judge could infer beyond a reasonable doubt that Davis acted with malice and intended to maim or disable Stephens.
Accordingly, we affirm the judgment.
Affirmed.