Opinion
Record No. 0554-89-1
October 6, 1992
UPON A REHEARING
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK JAMES C. GODWIN, JUDGE.
(Anthony L. Montagna, Jr.), for appellant.
(John H. McLees, Jr., Assistant Attorney General), for appellee.
Before: Judges Baker, Barrow and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Clinton Ray Powell (appellant) appeals from his bench trial convictions by the Circuit Court of the City of Suffolk (trial court) for aggravated malicious wounding of Christopher Dailey, use of a firearm in the commission of that felony, and malicious and unlawful stabbing and cutting of Christopher Dailey and Judy Dailey. Stated most favorably to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom, the evidence discloses that on October 24, 1988, three men entered Dailey's Supermarket in Suffolk with the intent to commit robbery. One of these men was appellant, another was Anthony Hall. Appellant was armed with a gun and Hall was armed with a long knife. Hall and appellant pretended to be purchasing beer. When the cashier opened the cash register, they told her that this was a holdup. Christopher Dailey (Chris), son of one of the owners, was unaware that a robbery was taking place when he came near the cash register. He was shot in the back by appellant and stabbed in the lower chest-area by Hall. Judy Dailey (Judy), wife of one of the owners of the market, came to assist Chris. Hall cut off part of her nose. Multiple indictments were returned by a Suffolk grand jury on November 28, 1988, charging appellant and Hall with robbery and wounding of several victims. Appellant pled guilty to some of the charges, not guilty to others. This appeal is predicated on the following indictments and convictions:
For the purpose of this opinion, the third man need not be identified.
1. Aggravated malicious wounding of Chris, by gunshot, causing him to be totally and permanently disabled in violation of Code § 18.2-51.2 (Indictment No. 655);
2. Use of a firearm in the commission of that felony in violation of Code § 18.2-53.1 (Indictment No. 656);
3. Malicious wounding of Chris, by stabbing, in violation of Code § 18.2-51 (Indictment No. 676);
4. Unlawful wounding of Chris, by cutting, while committing or attempting to commit a felony, in violation of Code § 18.2-53 (Indictment No. 677);
5. Malicious wounding of Judy, by cutting, in violation of Code § 18.2-51 (Indictment No. 678); and
6. Unlawful wounding of Judy, by stabbing, while committing or attempting to commit a felony, in violation of Code § 18.2-53 (Indictment No. 679).
Appellant pled guilty to maliciously wounding Chris and Judy and not guilty to aggravated malicious wounding of Chris, the use of a firearm in the commission of that felony, and unlawfully wounding Chris and Judy. At trial, appellant agreed that the stabbing and cutting charges were predicated upon appellant being a principal in the second degree to Hall, who had used a long knife to inflict the stabbing and cutting wounds on Chris and Judy.
On July 23, 1991, a three-judge panel of this Court rendered an opinion affirming in part and reversing in part those convictions. Pursuant to a petition for rehearing made by the Commonwealth, we issued the following order:
On August 6, 1991 came the appellee, by the Attorney General of Virginia, and filed a petition praying that the Court set aside the judgment rendered herein on July 23, 1991 and grant a rehearing thereof.
On consideration whereof, the petition for rehearing is granted, the mandate entered herein on July 23, 1991 is stayed pending the decision of the panel on rehearing, and the appeal is reinstated on the docket of this Court.
Further oral argument has been waived by the parties to this appeal.
In addition to being shot in the back by appellant, Chris was stabbed by Hall. Wounds were inflicted on both sides below the chest in the rib-cage area and across the side of Chris' head. Chris "lost everything from right above [his] belly button to the ground." As a result of the injuries received, Chris is paralyzed from the "belly button down," and has entirely lost the use of his legs.
I.
Appellant first argues that the evidence was insufficient to prove that Chris was "totally and permanently disabled" as a result of his being shot by appellant. Therefore, he asserts, his conviction for violation of Code § 18.2-51.2 must be reversed. At the time of these offenses, Code § 18.2-51.2 provided:
If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony in any case where the victim is caused thereby to be totally and permanently disabled.
On injuries similar to those before us, in Branch v. Commonwealth, ___ Va. App. ___ S.E.2d ___ (1992), we held that the evidence was sufficient to support a conviction for aggravated malicious wounding. In Branch, we acknowledged the principle of statutory construction that requires us to ascertain and give effect to the legislative intent. Id. at ___, ___ S.E.2d at ___. We further approved the statement made inScott v. Commonwealth, 14 Va. App. 294, 416 S.E.2d 47 (1992), that because the Code of Virginia is one body of law, other Code sections using the same phraseology may be consulted in determining the meaning of a statute. Branch, ___ Va. App. at ___, ___ S.E.2d at ___. In Branch, we said:
Language very similar to the phrase "totally . . . disabled" is used in the Workers' Compensation Act. There, the language "permanent and total incapacity" includes, among other things, the loss, or the loss of use, of both hands, both arms, both feet, or both legs.
* * *
Also, the meaning judicially afforded "total and permanent disability" as used in insurance policies does not mean a state of absolute helplessness, but rather, "the inability to do substantially all of the material acts necessary to the prosecution of any occupation for remuneration or profit in substantially the customary and usual manner in which such occupation is prosecuted."
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Whether a specific injury renders one totally and permanently disabled is to be determined in the light of the nature and extent of the disability in the particular case. Instructive here are cases in which courts have found total disability where an employee has lost use of his legs through paralysis.
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The General Assembly is presumed to have known, when it enacted Code § 18.2-51.2, the definition and interpretation already attributed to the term "total . . . incapacity" in the Workers' Compensation Act and the term "total . . . disability" in insurance cases; therefore, it must have intended that "totally . . . disabled," as used in Code § 18.2-51.2, would be given the same meaning. Therefore, we hold that the term "totally . . . disabled," as used in Code § 18.2-51.2, does not mean a state of absolute helplessness, but means the "inability to do substantially all of the material acts necessary to the prosecution of any occupation for remuneration or profit in substantially the customary and usual manner in which such occupation is prosecuted."
Id. at ___, ___ S.E.2d at ___ (citations omitted).
We find that the injuries suffered by Chris are of the kind contemplated by the General Assembly when it enacted Code § 18.2-51.2. Accordingly, we hold the evidence is sufficient to sustain appellant's conviction for violation of that Code section.
II.
Appellant next argues that because he pled guilty to the malicious wounding in violation of Code § 18.2-51, prosecution for aggravated malicious wounding in violation of Code § 18.2-51.2 is prohibited by Code § 19.2-294, which provides:
Offense against two or more statutes or ordinances. — If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others. Furthermore, if the same act be a violation of both a state and a federal statute a prosecution under the federal statute shall be a bar to a prosecution under the state statute.
For purposes of this section, a prosecution under a federal statute shall be deemed to be commenced with the return of an indictment by a grand jury or the filing of an information by a United States Attorney. (Code 1950, § 19.1-259; 1960, c. 366; 1975, c. 495; 1987, c. 241.)
Appellant asserts that proof of the same facts necessary to show he violated Code § 18.2-51 must be shown to prove he violated Code § 18.2-51.2. In his brief, appellant argues that Code § 19.2-294 bars his conviction for aggravated malicious wounding and asserts:
The facts relating to the malicious wounding of Christopher Dailey are absolutely the same with those of aggravated malicious wounding of Christopher Dailey. In essence, the only difference is a statement concerning total and permanent disability.
His assertion is error. The charge that he maliciously wounded Chris in violation of Code § 18.2-51 made in Indictment No. 676, to which he pled guilty, did not involve the gunshot wound he inflicted on Chris that gave rise to the aggravated charge (Code § 18.2-51.2). Instead, as specifically shown by the record, the malicious wounding, Indictment No. 676, charged that appellant was a principal in the second degree to Anthony Hall who stabbed or cut Chris. The transcript discloses the following occurred when appellant was arraigned on Indictment No. 676 (violation of Code § 18.2-51):
THE DEFENDANT, CLINTON RAY POWELL, WAS ARRAIGNED ON AN INDICTMENT CHARGING THAT ON OR ABOUT THE 24TH DAY OF OCTOBER, 1988, IN THE CITY OF SUFFOLK, HE MALICIOUSLY CAUSED BODILY INJURY TO CHRISTOPHER S. DAILEY WITH INTENT TO MAIM, DISFIGURE, DISABLE OR KILL.
THE CLERK: How say you, guilty or not guilty?
MR. WEST: What's the docket number on that one?
THE CLERK: Six seventy-six.
THE DEFENDANT: Guilty.
MR. WEST: No, Your Honor, this — again we would like to make clear, this, as I understand it, is based on the cutting or stabbing of Chris Dailey by Hall and this defendant would be guilty as a principal in the second degree. So the indictment is proper as drawn; is that correct?
MR. FERGUSON: That is correct, Your Honor. I wish to make it clear that the indictment relates solely to the stabbing by a co-defendant of Chris Dailey and in no sense relates to the shooting act itself.
THE COURT: I understand that.
It is clear that Indictment Nos. 655 and 676, respectively, did not charge appellant with the same crimes, nor with the crimes that would require proof of the same facts to support his convictions. Moreover, all the convictions were obtained in a single trial. In Hall v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1992) (en banc), we rejected the argument that Code § 19.2-294 applies to multiple convictions obtained in a single trial and said:
Code § 19.2-294 is "a bar to a prosecution or proceeding" where one "act [may] be a violation of two or more statutes," and when there has been a "conviction under one of such statutes." By its terms, the statute only bars "prosecution[s] or proceeding[s]" after there has been a "conviction." A "prosecution or proceeding" after a "conviction," by definition requires multiple or successive proceedings or prosecutions. Thus, we reject Hall's contention that his multiple convictions for the "same act" offenses committed upon Christopher Dailey and Judy Dailey are barred by Code § 19.2-294 or by the constitution.
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Accordingly, because Code § 19.2-294 does not bar multiple convictions for the same act when those convictions are obtained in a single trial, Hall's contentions that his multiple convictions in a single trial for malicious wounding . . . and aggravated malicious wounding as a principal in the second degree are barred by Code § 19.2-294 are without merit.
Id. at ___, ___ S.E.2d at ___ (citations omitted). For the reasons stated in Hall, we find that Code § 19.2-294 does not prohibit prosecution in a single trial for violation of Code §§ 18.2-51 and 18.2-51.2. See also Thomas v. Commonwealth, 244 Va. 1, 9, ___ S.E.2d ___ (1992).
III.
Appellant further argues that Code § 19.2-294 prohibited his prosecution for violation of Code § 18.2-53, use of a weapon in the commission of aggravated malicious wounding. That issue was also determined in Hall where we said:
In enacting Code § 18.2-53, the legislature intended to impose additional punishment over and above the penalty prescribed for the primary felony of malicious wounding in order to deter the specific form of violence delineated in the statute and to lessen the risk of harm to potential victims of felonies.
Id. at ___, ___ S.E.2d at ___ (citation omitted). For the reasons stated in Hall, we find that Code § 19.2-294 does not prohibit appellant's prosecution in a single trial for aggravated malicious wounding and use of a firearm in the commission of the aggravated malicious wounding.
IV.
Appellant next argues that the evidence was insufficient to convict him as a principal in the second degree to Hall's cutting and stabbing of Judy. He asserts:
The mere presence during the commission of a crime and subsequent flight do not constitute sufficient evidence to convict a person as a principal in the second degree. See Moerhing v. Commonwealth, 223 VA 564, 290 S.E.2d 891 (1982). In order for the Commonwealth to prove that Clinton Ray Powell was an aider and abettor in the cutting of Judy Dailey, the evidence must show that Clinton Ray Powell was not only present, but that the defendant procured, encouraged, countenanced, or approved the commission of the crime. In other words, Clinton Ray Powell must have shared the criminal intent of the party who actually committed the crime or be guilty of some positive act in furtherance thereof.
We disagree. The evidence clearly discloses that three men, one of whom was appellant, planned and carried out a robbery. Each robber knew that appellant had a gun and that Hall had a knife. During the commission of the planned robbery, gunshots were fired and stab wounds were inflicted in the robbers' effort to succeed in their mission, after which the three thieves split equally the sum taken by force. This issue was not raised in the trial court and is barred by Rule 5A:18. Moreover, it is well established that every person participating in the planned felony may be prosecuted for acts committed by another participant during the act of completing the crime. See Westry v. Commonwealth, 206 Va. 508, 513-14, 144 S.E.2d 427, 431 (1965).
For the reasons stated, the judgments of the trial court are affirmed.
Affirmed.