Morgan Whitney Toler v. Commonwealth of Virginia ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Haley
Argued at Richmond, Virginia
MORGAN WHITNEY TOLER
MEMORANDUM OPINION * BY
v. Record No. 2773-06-3 JUDGE ROBERT P. FRANK
JUNE 10, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
G. Edgar Dawson, III (Petty, Livingston, Dawson & Richards, P.C.,
on brief), for appellant.
J. Robert Bryden, II, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Morgan Whitney Toler, appellant, was convicted, in a jury trial, of one count of aggravated
malicious wounding in violation of Code § 18.2-51.2. On appeal, she contends the trial court erred
in granting a jury instruction defining physical impairment as “any physical condition, anatomic
loss, or cosmetic disfigurement which is caused by bodily injury, birth defect, or illness.” She also
contends the evidence was insufficient to sustain her conviction. For the reasons stated, we affirm
the trial court.
ANALYSIS
Appellant was charged with aggravated malicious wounding in violation of
Code § 18.2-51.2, which provides in relevant part:
A. 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
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
felony if the victim is thereby severely injured and is caused to
suffer permanent and significant physical impairment.
Over appellant’s objection, the trial court granted Instruction Number 6, which stated:
Physical impairment is defined as any physical condition, anatomic
loss, or cosmetic disfigurement which is caused by bodily injury,
birth defect, or illness.
“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law
has been clearly stated and that the instructions cover all issues which the evidence fairly
raises.’” Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting
Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). “No instruction should be
given that ‘incorrectly states the applicable law or which would be confusing or misleading to
the jury.’” Mouberry v. Commonwealth, 39 Va. App. 576, 582, 575 S.E.2d 567, 569 (2003)
(quoting Bruce v. Commonwealth, 9 Va. App. 298, 300, 387 S.E.2d 279, 280 (1990)). “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) (quoting LeVasseur v. Commonwealth, 225 Va. 564,
590, 304 S.E.2d 644, 658 (1983)). When determining whether sufficient evidence warranted a
particular instruction, we view the evidence in the light most favorable to the party offering the
instruction. Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991).
Appellant argues that the jury was not properly instructed because A.B., the victim, did
not suffer cosmetic disfigurement as a permanent and significant injury. We disagree.
In the context of Code § 18.2-51.2, this Court has previously defined “physical
impairment” as “any physical condition, anatomic loss, or cosmetic disfigurement which is
caused by bodily injury, birth defect, or illness.” See Newton v. Commonwealth, 21 Va. App.
86, 90, 462 S.E.2d 117, 119 (1995) (adopting the definition from Title 51.5 of the Code entitled
Persons with Disabilities). See also Martinez v. Commonwealth, 42 Va. App. 9, 24, 590 S.E.2d
57, 64 (2003). Thus, the jury instruction, which quotes the language in Newton, is clearly a
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correct statement of the law. The relevant inquiry, then, is whether the evidence supports
granting of such an instruction. We find that it does.
Appellant stabbed A.B. twice in the abdomen and once in the leg. Dr. John Gugliemette,
who treated A.B. in the emergency room, testified that the stab wounds were “very serious,” with
both abdominal wounds penetrating the abdominal cavity and puncturing A.B.’s stomach. Both
wounds caused internal bleeding and required emergency surgery, which left a large incision scar
down the middle of A.B.’s abdomen. According to Dr. Gugliemette, the scar will “remodel itself
over time,” but it will never go away. Dr. Gugliemette further testified that the wound in A.B.’s
thigh was “a fairly deep wound . . . and it was almost down to the bone . . . .” He opined that it
was “extremely likely” that some sensory nerves in A.B.’s leg were severed by the injury.
A.B. testified that she still has random spasms in her abdominal muscles lasting from five
to thirty minutes at a time. She walks with a limp, and her leg is constantly numb from her thigh to
her kneecap where appellant cut the nerves in her leg. While admitting it was impossible to say
whether A.B. would ever fully recover from the numbness she was currently experiencing,
Dr. Gugliemette testified that it was “unlikely” that her nerves would regenerate. In his opinion,
“[if] there’s not been any improvement at this point, it’s unlikely that there will be.”
We note that appellant has gone to great strides attempting to distinguish Newton, 21
Va. App. 86, 462 S.E.2d 117. First, appellant contends that A.B.’s scarring was not “obvious
and visible.” Additionally, appellant suggests that absent a definition of “cosmetic
disfigurement,” any scarring would be sufficient to elevate a charge of malicious wounding to a
charge of aggravated malicious wounding. We need not decide whether A.B.’s scarring was
sufficient to warrant granting of Instruction Number 6 pursuant to the requirements elucidated in
Newton regarding cosmetic disfigurement, as the evidence clearly shows that A.B. received a
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permanent and significant injury due to her leg numbness and limp. 1 In addition to a cosmetic
disfigurement, the jury instruction defines physical impairment as “any physical condition.” As
the record shows that A.B.’s leg numbness and limp are not likely to improve, we find this a
permanent physical condition caused by the attack. Accordingly, we find sufficient evidence in
this record to support the trial court granting Instruction Number 6.
Appellant next argues the evidence was insufficient to sustain her conviction for aggravated
malicious wounding. We disagree.
When faced with a challenge to the sufficiency of the evidence, we “‘presume the judgment
of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or
without evidence’ to support it.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444,
447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875,
876-77 (2002)). A reviewing court does not “ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19
(1979) (emphasis in original). We ask only whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Kelly, 41 Va. App. at 257, 584 S.E.2d
at 447. “‘This familiar standard gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.’” Id. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319).
Thus, we do not “substitute our judgment for that of the trier of fact” even if our opinion were to
differ. Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
When a jury decides the case, Code § 8.01-680 requires that we review the jury’s
decision to see if reasonable jurors could have made the choices that the jury did make. Pease v.
1
We note that appellant never addresses A.B.’s limp, leg numbness, or random
abdominal spasms.
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Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc). “We let the
decision stand unless we conclude no rational juror could have reached that decision.” Id.“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. Commonwealth, 26
Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987)).
While appellant presented evidence that a special investigator witnessed A.B. walking with
a normal gait, the jury was not compelled to accept this testimony. “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 trier of fact is not required to accept a
witness’ testimony, but instead is free to “rely on it in whole, in part, or reject it completely.”
Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).
The record supports the jury’s determination that A.B.’s physical impairment was
“permanent and significant.” At trial, six months after the attack, A.B.’s abdominal scar wound
was still visible. The jury reasonably could have found from the need for stitches and the
resulting scar that A.B.’s injuries constituted “permanent and significant physical impairment.”
In addition, the jury had the opportunity to observe A.B’s limp and hear her testimony regarding
her leg numbness and random abdominal spasms. From this evidence, we find that the jury could
reasonably conclude that A.B. had a permanent and significant physical impairment as a result of
the stabbing. We, therefore, affirm the conviction.
Affirmed.
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