David John Roebuck v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Chesapeake, Virginia
DAVID JOHN ROEBUCK
MEMORANDUM OPINION * BY
v. Record No. 1060-99-1 JUDGE JERE M. H. WILLIS, JR.
JANUARY 27, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
David H. Moyer (Bashara & Hubbard, on brief),
for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction of unlawful wounding, in
violation of Code § 18.2-51, David John Roebuck contends that
the evidence was insufficient to support the conviction because
the Commonwealth did not prove felonious intent or a wounding.
We affirm.
"When considering the sufficiency of the evidence on appeal
of a criminal conviction, we must view all the evidence in the
light most favorable to the Commonwealth and accord to the
evidence all reasonable inferences fairly deducible therefrom."
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 718,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
721 (1988). "The judgment of a trial court sitting without a
jury is entitled to the same weight as a jury verdict and will
not be set aside unless it appears from the evidence that the
judgment is plainly wrong or without evidence to support it."
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
On August 25, 1998, Derrick Danner argued with Terry Winer,
who complained to Roebuck. Roebuck went looking for Danner, but
could not find him. Roebuck searched unsuccessfully a second
time, carrying a baseball bat and bragging to Winer's son that
he come along to watch the "big fight." Finally, after a third
search, Roebuck found Danner, who was sitting on an outside
bench in the trailer park. Roebuck struck Danner from behind,
knocking him unconscious. Winer, who was present, testified
that Roebuck struck Danner in the face approximately thirteen
times and that he bragged if he had had a brick, it would have
been the "grand finale."
The indictment, tracking Code § 18.2-51, charged that
Roebuck "did maliciously wound or cause bodily injury to"
Danner. Roebuck was convicted in a bench trial of unlawful
wounding, a lesser offense included within Code § 18.2-51. He
was sentenced to five years imprisonment, with three years
suspended, and ordered to pay Danner $2,500 restitution.
Roebuck contends that the evidence is insufficient to
support his conviction. He argues, first, that the evidence
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failed to prove that he acted with the intent required by the
statute.
Code § 18.2-51 states:
If any person maliciously shoot, stab,
cut, or wound any person or by any means
cause him bodily injury, with the intent to
maim, disfigure, disable, or kill, he shall
. . . be guilty of a Class 3 felony. If
such act be done unlawfully but not
maliciously, with the intent aforesaid, the
offender shall be guilty of a Class 6
felony[, the lesser-included offense of
unlawful wounding].
Roebuck relies on the general proposition that a blow struck
with bare fists, under ordinary circumstances, is insufficient
to imply an attack with the intent to "maim, disfigure, disable,
or kill." Id. See also Williams v. Commonwealth, 13 Va. App.
393, 395-96, 412 S.E.2d 202, 203-04 (1991). He argues that the
trial court's finding that he did not act with malice excludes
the possibility that he acted with the requisite intent. We
disagree. "[A]n assault with a bare fist may be attended with
such circumstances of violence and brutality that an intent to
[maim, disfigure, disable, or] kill may be presumed." Fletcher
v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 272 (1969).
The record supports the finding that Roebuck intended to
attack Danner with such violence and brutality. He searched for
Danner three times, once while wielding a baseball bat. He
encouraged Winer's son to accompany him to watch the "big
fight," and he bragged that if he had had a brick, it would have
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been the "grand finale." His conviction of unlawful wounding, a
lesser-included offense, does not alter the violence and
brutality of the attack. Roebuck knocked Danner unconscious.
Danner's injuries included a bloody lip, a black eye, lost
teeth, and a broken cheekbone. He testified that he continues
to suffer from seizures, dizziness, and numbness on the left
side of his face. The severity and number of blows demonstrate
Roebuck's intent "to maim, disfigure, disable, or kill" his
victim. Code § 18.2-51.
Roebuck also contends that the evidence was insufficient to
prove a wounding. See Code § 18.2-51. Under familiar
principles, we will address only those issues raised at trial.
See Rule 5A:18; Neal v. Commonwealth, 15 Va. App. 416, 422, 425
S.E.2d 521, 525 (1992). At trial, defense counsel moved to
strike the evidence at the conclusion of the Commonwealth's
case-in-chief, stating, "there's insufficient evidence to show
. . . malice on the part of the defendant." Because the trial
court found Roebuck guilty of unlawful wounding, a
lesser-included offense, this objection is moot. At the close
of the trial, defense counsel renewed his motion to strike,
stating "the evidence is [in]sufficient . . . to show that these
injuries were sufficient to show felonious intent . . . ." At
no point did defense counsel object to the insufficiency of the
evidence based upon whether it proved a wounding as defined
within Code § 18.2-51.
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The judgment of the trial court is affirmed.
Affirmed.
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