Larry Edwin Tatum, Jr. v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
LARRY EDWIN TATUM, JR.
MEMORANDUM OPINION * BY
v. Record No. 1469-98-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 30, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
S. Jane Chittom, Appellate Counsel (Elwood
Earl Sanders, Jr.; Public Defender
Commission, on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Larry Edwin Tatum, Jr. appeals his conviction after a bench
trial of malicious wounding. He contends the evidence was not
sufficient to permit a finding of malice. Concluding that
sufficient evidence supported that finding, we affirm.
On appeal we view the evidence in the light most favorable
to the Commonwealth, with all reasonable inferences fairly
deducible therefrom. See Archer v. Commonwealth, 26 Va. App. 1,
11, 492 S.E.2d 826, 831 (1997). We must discard the evidence of
the accused in conflict with that of the Commonwealth, see
Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
(1988), and not substitute our judgment for that of the fact
finder. See Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d
218, 220 (1992).
The defendant and the victim were both at a party when the
victim started arguing with a woman. The defendant intervened
and ended up arguing with the victim. The victim walked away,
but the defendant went up behind him and broke a beer bottle
over his head. The two separated, but a few minutes later they
started fistfighting and wrestling on the ground. No weapons
were involved as the victim got the defendant on the ground and
began winning the fight. While the victim was on top, the
defendant unexpectedly pulled a switchblade and stabbed the
victim five times. The victim received wounds to his arm, ribs,
and back. The defendant admitted stabbing the victim and
putting the knife under a pickup truck. The defendant says that
he was in fear of the victim and acted in self-defense when the
victim started the second fight. Defense witnesses corroborate
his claim.
"Whether or not an accused acted with malice is generally a
question of fact and may be proved by circumstantial evidence."
Canipe v. Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747,
753 (1997). "Implied malice may be inferred from 'conduct
likely to cause death or great bodily harm, wilfully or
purposefully undertaken.'" Id. (quoting Essex v. Commonwealth,
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228 Va. 273, 281, 322 S.E.2d 216, 220 (1984)). Furthermore,
"[m]alice may be inferred 'from the deliberate use of a deadly
weapon.'" Doss v. Commonwealth, 23 Va. App. 679, 686, 479
S.E.2d 92, 96 (1996) (quoting Perricllia v. Commonwealth, 229
Va. 85, 91, 326 S.E.2d 679, 683 (1985)).
The defendant argues that the evidence was insufficient to
support a finding of malice because evidence showed he acted in
self-defense during mutual combat. He contends that after he
struck the victim in the head with a bottle, the victim resumed
the fight and he stabbed the victim while provoked by fear.
"The trier of fact is free to disregard the defendant's evidence
of self defense . . . ." See Bell v. Commonwealth, 2 Va. App.
48, 56, 341 S.E.2d 654, 658 (1986). "In its role of judging
witness credibility, the fact finder is entitled to disbelieve
the self-serving testimony of the accused and to conclude that
the accused is lying to conceal his guilt." Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998).
The trial court determined that the fight was a fistfight,
that the victim was unarmed, and that the victim was "getting
the better of the Defendant." The court found that the
defendant's use of a deadly weapon to stab the victim five times
was sufficient to establish malice, even though the fight was "a
mutual fray situation."
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The fact finder alone determines the credibility of
witnesses, the weight accorded their testimony, and the
inferences to be drawn from proven facts. See Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
The fact finder is free to believe and disbelieve in part or in
whole the testimony of any witness. See Rollston v.
Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).
We conclude that there is sufficient evidence to support
the finding of malice, and we affirm the conviction.
Affirmed.
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