Opinion
Record No. 0778-93-4
Decided: July 26, 1994
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY, William D. Hamblen, Judge
Affirmed.
Michele L. Jung (Michele L. Jung, P.C., on brief), for appellant.
Janet F. Rosser, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Michael Lee Smith (appellant) appeals from judgments of the Circuit Court of Prince William County (trial court) that approved his jury trial convictions for malicious wounding in violation of Code Sec. 18.2-51. The sole issue presented by this appeal is whether the trial court erred in refusing to instruct the jury on the lesser included offenses of unlawfully causing bodily injury and assault and battery. Finding no error, we affirm the judgments of the trial court.
Appellant does not appeal his conviction by the same jury of burglary while armed with a deadly weapon.
The convictions are clearly supported by the record which discloses that, pursuant to their prior plan, at 12:45 a.m. on October 15, 1993, armed with two baseball bats and a night stick, appellant and two other men forcibly entered the home of Nancy Cotto (Cotto) and Daniel Pereria (Pereria) (victims) and beat them with the bats and night stick. Appellant supplied the two bats, the night stick, and transportation to and from the place where the crimes occurred.
One bat was made of wood, the other of metal.
Before entering the victims' house, appellant parked the car several houses away. The plan was for appellant to "cover the backs" of the other two men as the beatings were inflicted. Appellant was carrying one of the baseball bats. Two of the men entered the bedroom of Cotto and Pereria, who were asleep but awakened when Pereria was hit in the head by a baseball bat.
Vicious assaults with the weapons continued on both Cotto and Pereria. Cotto received lacerations around her head and eyes and bled profusely. Stitches were required to close her wounds. A two-day hospitalization followed and as of the trial, she continued to suffer headaches. Pereria also suffered severe lacerations around his head, a skull fracture, a subdural hematoma, and deforming of one of his hands. He remained in a coma for two weeks, was hospitalized for several months, and continued to require therapy at the time of the trial.
A paramedic, who was the first to enter the bedroom after the assailants departed, testified that when he entered the bedroom he observed that it was "covered with blood, on the ceiling, the walls. The bed was soaked with blood, all over the carpet . . . ." He described Cotto's and Pereria's injuries and said he saw blood on both of them. He also said he saw blood on the telephone that Cotto used to call for help.
Jose Morales (Morales), a tenant who lived in a basement apartment of the victims' house, heard screams emanating from the victims' bedroom and came out of his apartment to help them. Morales was met by one of the men standing in the hall and was struck in the head with a baseball bat. A second man appeared and told Morales that he wanted to kill Morales and his baby. Morales retreated into his bedroom and closed the door but the two men broke through the door and again struck Morales in the head, then on his arm and back, using a baseball bat. The door frame had been broken and pulled off the hinges.
Two days after the attack, appellant confessed to his participation in the crimes. Appellant named the other two men and identified them as the principals. In his statement to the police, appellant claimed that, upon hearing the screams, he wanted to leave the scene because Brown "had did what was he was supposed to do." However, at that point, appellant had entered the house carrying a baseball bat to back up Brown. Brown and Turner accomplished their intended purpose, and appellant had covered Brown's back as he had been assigned to do. Appellant left the house briefly but returned and "hollered" for the others to come out. When Brown and Turner came out, appellant drove away. Together, they went to a friend's house where they left the bats and night stick.
Willy Brown (Brown) and James Turner (Turner).
Initially, appellant told the police that "he threw the bats and night stick in the woods."
Appellant offered no evidence in his behalf but requested the trial court to grant instructions that would have told the jury that they could find him guilty of either of the two lesser included offenses of unlawful wounding or assault and battery if they believed the acts had not been committed with malice. The trial court refused those instructions.
Even if appellant's confession is accepted in its entirety, it discloses that he participated in a plan to drive Brown and Turner to the victims' house, where, using dangerous weapons owned by appellant, Brown would assault the victims while appellant was present, covering Brown's back as Brown inflicted serious and substantial injury on the victims. Appellant argues that if his evidence is believed, it eliminates the malice necessary to sustain the conviction. On this evidence, appellant cannot separate his crimes from those of Brown and Turner. Appellant furnished the weapons, participated in the plan, transported the attackers to and from the scene, provided cover during the events, and provided for their escape.
The evidence clearly discloses that Brown and Turner maliciously inflicted the injuries upon the victims without any provocation. Although unlawful wounding and assault and battery are lesser included offenses of malicious wounding, our Supreme Court has long recognized that the evidence supporting the malicious wounding charge could be so sufficient to show the criminal act to have been deliberate, premeditated, and willful, and so clear and uncontroverted that a trial court could properly refuse to instruct on the lesser included offenses. See Brandau v. Commonwealth, 16 Va. App. 408, 430 S.E.2d 563 (1993); Buchanan v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757, 769 (1989), cert. denied, 493 U.S. 1063 (1990). Such is the case here:
A defendant is entitled to have the jury instructed only on those theories of the case that are supported by evidence. . . . The evidence to support an instruction "must be more than a scintilla."
Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986) (citations omitted).
The refused instructions were not applicable to the facts of this case, and under the circumstances it was not error for the trial court to refuse the instructions. See Hatcher v. Commonwealth, 218 Va. 811, 814, 813-14, 241 S.E.2d 756, 758 (1978). Appellant's assertion in his confession that he wanted to withdraw while the assaults were occurring does not support his claim that the trial court erred. Id. at 814, 241 S.E.2d at 758; Gibson v. Commonwealth, 216 Va. 412, 417-418, 219 S.E.2d 845, 849 (1975), cert. denied, 425 U.S. 994 (1976).
Finding no error, the judgments of the trial court are affirmed.
Affirmed.