Kimberly Elaine Brooks v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia
KIMBERLY ELAINE BROOKS
MEMORANDUM OPINION * BY
v. Record No. 0898-01-2 JUDGE JERE M. H. WILLIS, JR.
MAY 14, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Cleo E. Powell, Judge
John B. Mann (Levit, Mann & Halligan, on
briefs), for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Kimberly Brooks was convicted in a bench trial of
(1) attempted malicious wounding, in violation of Code §§ 18.2-51
and 18.2-26; and (2) felony hit-and-run, in violation of Code
§ 46.2-894. On appeal, she contends that the evidence was
insufficient to support those convictions. We disagree and affirm
the judgment of the trial court.
I. BACKGROUND
On June 12, 2000, Kimberly Brooks went shopping with her
six-year-old daughter at Hecht's department store located at
Chesterfield Towne Center mall. While in Hecht's, Brooks met
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
her sister, Juanita Williams, and two of her sister's friends
who were shopping there as well. While they were in the store,
Marc Avinger, a Hecht's loss prevention employee, observed
Williams shoplift merchandise from the store.
As the group of women left Hecht's, Avinger followed them
outside. On the sidewalk, Avinger told Williams she was under
arrest for shoplifting. As she turned and began to hand him the
bag of merchandise, he handcuffed her. Williams immediately
began to struggle with Avinger. They fell to the ground in the
mall parking lot and continued to struggle. While on the ground
attempting to apprehend Williams, Avinger was punched, hit, and
kicked by one of Williams' unidentified friends.
During the melee, Avinger looked up and saw Brooks driving
a white, four-door automobile toward him. She bumped his left
side with the car. Williams got up to enter the rear driver
side door of the car. Avinger attempted to prevent her from
entering the vehicle and in the process, the car ran over his
ankle twice. Eventually he lost his footing and was dragged
eight to ten feet alongside the car. The car stopped and, with
the help of the store manager, Kimberly Smith, Avinger pulled
Williams out of the car.
Robyn Hilton, a store employee, attempted to get the car's
license plate number. She went to the front of the vehicle, at
which time Brooks accelerated and hit Hilton with the car,
knocking her to the ground. Brooks drove away from the scene
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without stopping and giving the information required by Code
§ 46.2-894.
Avinger suffered a contusion on his right ankle and a large
scrape on his kneecap. Hilton suffered a bruised hip and a sore
back.
The grand jury indicted Brooks for two counts of attempted
malicious wounding, in violation of Code §§ 18.2-51 and 18.2-26
and one count of felony hit-and-run, in violation of Code
§ 46.2-894. In a bench trial, the trial court convicted Brooks
of attempted malicious wounding of Avinger and felony
hit-and-run. It acquitted her of attempted malicious wounding
of Hilton. It sentenced her to five years incarceration for the
attempted malicious wounding of Avinger and five years for the
felony hit-and-run. The court suspended four years and two
months of each sentence with the remaining time to be served
concurrently. Brooks appeals that judgment.
II. ANALYSIS
Brooks contends that the evidence was insufficient to
convict her of attempted malicious wounding and felony
hit-and-run. She argues that the Commonwealth failed to prove
beyond a reasonable doubt that she had a specific intent to hit
Avinger and that she knew that an accident had occurred. We
disagree.
Where the sufficiency of the evidence
is challenged after conviction, it is our
duty to consider it in the light most
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favorable to the Commonwealth and give it
all reasonable inferences fairly deducible
therefrom. We should affirm the judgment
unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). See also Code § 8.01-680.
The court made the following factual findings:
With regard to the charge of attempted
malicious -- the charge with regard to Mr.
Avinger, the evidence is that you drove
toward him, moving straight at him, bumped
him with the car, and then, during the
ensuing struggle, dragged him 8 to 10 feet.
That's what I find the facts to be. On that
charge I find you guilty.
With regard to the charge against Ms.
Hilton, the evidence is you had started to
move, you were moving, she's moving, the
vehicle hits her as she steps in front of
the car. On that charge I find you not
guilty of the intent to injure her, not
being where she steps in front of you as you
were moving.
With regard to the felony hit-and-run, when
you dragged and you hit him and at the point
your sister can't get into the car, you
proceeded to leave without giving the
necessary information. I find you guilty of
that offense.
The evidence supports these findings.
Thus, the evidence at trial established that Brooks drove
her car to assist Williams in her escape. As Williams and
Avinger wrestled on the parking lot ground, Brooks drove her car
up to their location, directly at Avinger, and bumped his left
side. She ran over his ankle twice. While Avinger was still
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struggling with Williams, Brooks screamed at him, "Stop it. Let
her go. She didn't do anything wrong." Avinger was
subsequently dragged eight to ten feet when he lost his footing.
In the process, Brooks hit Hilton, knocking her to the ground.
This scenario supports the inference that Brooks intended to
maim, disfigure, disable or kill Avinger and that she knew that
she had injured him.
Brooks then fled the scene of the incident, without
stopping and giving the information required by Code § 46.2-894.
She did not return.
The judgment of the trial court is affirmed.
Affirmed.
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