Terrance Jones v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
TERRANCE JONES
MEMORANDUM OPINION * BY
v. Record No. 1686-98-2 JUDGE MARVIN F. COLE
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
Connie Louise Edwards (Connie Louise Edwards,
P.C., on briefs), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Terrance Jones, appellant, appeals his conviction for
malicious wounding. Appellant contends that the court erred by
failing to consider his "not objected to statements" and that the
evidence was insufficient to support his malicious wounding
conviction. For the following reasons, we find no error and
affirm the conviction.
Facts
On September 13, 1997, appellant and Michele Kendred went to
appellant's home. Appellant asked Kendred whether she wanted to
move into his home. When Kendred refused appellant's offer, he
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
began choking her. Kendred yelled, and appellant grabbed her
and pushed her into the bathroom. Appellant hit her in the face
with his closed fist, pushed her into the bathtub, and hit her
again in the face with his closed fist. Appellant's mother and
Baron Daniels intervened. While Daniels struggled with
appellant in an effort to stop the attack, Kendred and her
two-year-old daughter left appellant's home. Kendred, carrying
her daughter, got as far as the yard before appellant grabbed
her and hit her in the face until she and her daughter fell to
the ground. After Kendred got up, appellant again hit her in
the face with his closed fist, and knocked her to the ground.
Kendred never pushed or slapped appellant during the attacks.
As a result of these attacks, Kendred was bleeding, bruised,
swollen and had two black eyes.
At trial, defense witness Daniels testified that he heard
appellant say "it ain't right, she smacked me . . . she's in my
house, it ain't right." Appellant's mother testified that
appellant said "she smacked me and all I was doing was wanting
to get dressed to go out."
Appellant's Statements
Appellant argues that the trial court erred in failing to
consider his statements made to his mother and Daniels about
Kendred's action before he began assaulting her. The trial
court, in response to appellant's argument regarding the
sufficiency of the evidence to show heat of passion, commented
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that "all we have is a hearsay statement of two other persons
that's what he said." Appellant did not object, or present any
argument in response to the court's statement. Moreover, there
was no indication that the court refused to consider these
statements when considering the evidence. On appeal, appellant
contends that because the Commonwealth had not objected to the
statements that were admitted under exceptions to the hearsay
rule, the court should have considered the statements.
"The Court of Appeals will not consider an argument on
appeal which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
See Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration
of this question on appeal. Moreover, the record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
Sufficiency of the Evidence
In challenging the sufficiency of the evidence supporting
his malicious wounding conviction, appellant specifically argues
that he acted in the heat of passion, which he contends excludes
malice, and that the evidence was insufficient to prove he acted
with the requisite intent.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
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Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence proved that appellant choked
Kendred, grabbed her and pushed her into the bathtub while
hitting her in the face with his closed fist. Kendred never
pushed appellant or slapped him during this attack. Appellant's
mother and Daniels intervened and were able to end the attack
temporarily. Kendred picked up her daughter and tried to leave
appellant's house. Appellant followed Kendred outside. Even
though Kendred was carrying her daughter and, therefore, could
not defend herself, appellant grabbed her and hit her in the
face until she and her daughter fell to the ground. When
Kendred arose, appellant began hitting her a third time until
she fell back to the ground. Photographs admitted at trial
showed Kendred shortly after the attacks with a swollen face,
bloody nostrils, bruises, and black eyes. Sergeant David Allen,
who responded to the scene, recalled at trial that Kendred "had
a large amount of blood around her face and forehead area. Her
nose was swollen and she was bleeding from her nostrils."
Heat of Passion
To establish the heat of passion defense, an accused must
prove he committed the crime with "passion" and upon "reasonable
provocation." See Canipe v. Commonwealth, 25 Va. App. 629, 643,
491 S.E.2d 747, 753 (1997). "[I]t is necessary to consider the
nature and degree of provocation as well as the manner in which
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it was resisted." Miller v. Commonwealth, 5 Va. App. 22, 25,
359 S.E.2d 841, 842 (1987) (citations omitted). If the evidence
demonstrates that there was reasonable opportunity for the
accused's passion to cool, or that his passion in fact cooled,
then the wounding is attributable to malice and not heat of
passion. See id. "[T]he trial court must consider all of the
circumstances in evidence." Id. Whether the accused acted in
the heat of passion is a question for the fact finder to
determine. See id.Kendred refused to move into appellant's home, but neither
pushed nor slapped him. Appellant's mother testified that
appellant said Kendred "smacked" him. Defense witness Daniels
testified that appellant complained that Kendred "smacked" him
in his own house. The fact finder believed Kendred's testimony,
and rejected the testimony of appellant's mother and Daniels.
"The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). The Commonwealth's evidence was competent, was not
inherently incredible, and was sufficient to prove that
appellant acted with malice, and not out of the heat of passion,
as there was no reasonable provocation.
Even if the fact finder had accepted appellant's evidence
that Kendred provoked him, the evidence showed that appellant
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had the time and opportunity to "cool" down. Appellant's mother
and Daniels intervened in the attack, allowing Kendred and her
daughter to leave appellant's house. However, appellant did not
use the opportunity to "cool" down. Instead, he chased Kendred
outside and continued attacking her, even though she was
carrying her daughter and was defenseless. Moreover, even if
the court had accepted appellant's version that Kendred slapped
him, appellant's response of choking her, hitting her
continuously with his fists, chasing her outside and hitting her
so that she and her daughter fell to the ground, and then
hitting her again as she tried to stand, resulting in
substantial injuries, is far out of proportion to the "slap."
Therefore, the court could still find that appellant acted with
malice and not from the heat of passion. See Davidson v.
Commonwealth, 167 Va. 451, 455, 187 S.E. 437, 439 (1936) ("if
the punishment inflicted for a slight transgression is in its
nature out of all reason and beyond all proportion to the
offense offered, then the inference of law is that the
perpetrator was actuated by malice, and he loses the presumption
that the act was done in a moment of human frailty").
Intent to Maim, Disable, Disfigure or Kill
"'[A]n assault with the bare fist may be attended with such
circumstances of violence and brutality that an intent to kill
will be presumed.'" Williams v. Commonwealth, 13 Va. App. 393,
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395, 412 S.E.2d 202, 203 (1991) (quoting Roark v. Commonwealth,
182 Va. 244, 250, 28 S.E.2d 693, 695-96 (1944)).
In Williams, the defendant broke into Judy Lovewine's
apartment and attacked Alton Biggs. The defendant struck Biggs
four or five times with his fists and stopped only when the
police arrived. Biggs's eye was disfigured and swollen and
required medical treatment. Biggs's jaw was injured and
required treatment with antibiotics. We found that the evidence
supported the trial court's determination that the attack on
Biggs was made by the defendant with the intent to maim,
disfigure, disable or kill. See id. at 398, 412 S.E.2d at 205.
In Shackelford v. Commonwealth, 183 Va. 423, 32 S.E.2d 682(1945), the defendant, using his fists, struck the victim on her
nose, eye, and ear. When the defendant's wife grabbed him to
prevent further attack, the victim was able to flee. Noting
that the defendant, a strong man, made an unprovoked attack upon
a woman, striking her at least three times on her face,
threatened to "finish" her, and that the attack ended only
because defendant's wife intervened, the Court found the
evidence sufficient to support the requisite intent for a
malicious wounding conviction. See id. at 427, 32 S.E.2d at
684.
In Bryant v. Commonwealth, 189 Va. 310, 53 S.E.2d 54(1949), the two defendants called the victim out of his home,
threatened to kill him, and then beat him with their fists until
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blood ran out of his ears, nose, and mouth. Affirming the
defendant's convictions for maiming, the Court said "one may
permanently maim, disfigure, disable or kill with the fists, or
knees, if the force is applied with violence and brutality."
Id. at 317, 53 S.E.2d at 57.
Here, the evidence supports the finding that appellant
acted with the specific intent to maim, disfigure, disable or
kill when he attacked Kendred. Although using his bare fist,
appellant's attack involved such circumstances of violence and
brutality that the fact finder could presume such intent.
The Commonwealth's evidence was sufficient to prove beyond
a reasonable doubt that appellant committed malicious wounding.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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