Christopher Michael Carnes v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
CHRISTOPHER MICHAEL CARNES
MEMORANDUM OPINION * BY
v. Record No. 2016-02-1 JUDGE ROBERT J. HUMPHREYS
JULY 1, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Warren F. Keeling for appellant.
Paul C. Galanides, Assistant Attorney General
(Jerry W. Kilgore, Attorney General; Margaret
W. Reed, Assistant Attorney General, on
brief), for appellee.
Christopher Michael Carnes appeals his conviction,
following a bench trial, for malicious wounding, in violation of
Code § 18.2-51. Carnes contends the trial court erred in
finding the evidence sufficient, as a matter of law, to support
the conviction. For the reasons that follow, we affirm the
judgment of the trial court.
In accordance with settled principles of appellate review,
we state the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party below.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
Burns v. Commonwealth, 261 Va. 307, 313, 541 S.E.2d 872, 877
(2001).
On December 14, 2001, Mark A. Reed was at home with his
three sons. That evening, he received a telephone call from
Carnes, who asked to speak with his sons. Because he was "tired
of kids coming over a lot," Reed told Carnes that his sons were
not home. A few moments later, Reed heard a knock at his front
door. Reed's two older sons answered the door and spoke to the
individual who had knocked, through the closed screen door.
After a few seconds, Reed approached and saw that it was
Carnes at the door. Reed told Carnes to leave. Carnes
responded that "[he] was not leaving." Reed said, "I think
you're here for no good . . . I'm asking you to leave my
property." Carnes began "yelling," and "cussing" at Reed,
"saying he wasn't going to do this and wasn't going to do that,"
"he didn't have to leave and there's nothing [Reed] could do
about it . . . ." Reed again told Carnes to leave and told his
wife, who was standing inside the home, to call the police.
Carnes still refused to leave.
A few moments later, Reed went out onto the porch and again
asked Carnes to leave. Reed told Carnes, "You need to leave.
You're here to cause trouble and I don't want any trouble. We
really don't want you here. You're too old to be hanging around
my sons, anyway, you know. I just want you to leave." However,
Carnes again refused to leave and stated, "he was going to smoke
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dope and do drugs and there wasn't anything [Reed] could do
about it, he could do it at [Reed's] house if he wanted to."
At that time, Reed put one hand on Carnes's shoulder and
one hand on his back, "to escort [Carnes] off [Reed's] porch."
Carnes backed up and said he was not leaving. Carnes then
looked "towards his [own] hand" and said, "You see this?" Reed
asked, "What?" When Reed glanced down, he saw "something in
[Carnes's] hand." Reed could not identify the object, but saw
that it was shiny. He told Carnes, "Well, you're not going to
hit me. Just leave." As Reed looked away, Carnes hit Reed in
the face. Reed was stunned and felt blood running down his
face. Carnes swung at Reed again, but Reed was able to
partially block the punch. Reed then grabbed Carnes around the
head and neck, to hold him until the police arrived.
At that point, Carnes's friend, Jason Critzer, walked onto
the porch. Reed told him to stop. Reed's sons then joined the
others on the porch. One of Reed's sons hit Carnes, so Reed let
go of Carnes, because he "didn't think that was right." Carnes
then ran into the front yard, yelling, "I'll be back. You're
going to get it. I'll be back with my friends."
Shortly thereafter, the fire department arrived. Fire
department personnel looked at Reed's wounds and advised him to
go to the emergency room for treatment. Reed received four
stitches over his eye.
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Carnes was subsequently arrested for, and later indicted
for, malicious wounding, in violation of Code § 18.2-51. During
Carnes's trial, Reed testified for the Commonwealth as to the
events set forth above. Reed stated that it was dark when
Carnes came to his home that evening. He said that when he
walked out onto the porch, the only light was coming from
Christmas lights "blinking off and on." Reed further testified
that he may have pushed Carnes off of the porch, just before
Carnes ran into the front yard and threatened to return with his
friends.
At the close of the Commonwealth's evidence, Carnes raised
a motion to strike, stating:
Your Honor, at this point, I would move to
strike the charge as being malicious
wounding. We have evidence that he came to
see that man's sons. He didn't come to see
him. There's no evidence that he had a
deadly weapon. There is no evidence that
there were such repeated violent blows that
you could infer intent to be a malicious
wounding. There is no situation that these
two men are so different in age or physical
ability that he was taking advantage of
somebody's incapacity. So at this point,
may it please the Court, I would ask the
Court to strike malicious.
The trial court denied the motion.
Carnes testified that he went to Reed's home to get some of
his personal items from Reed's son. He contended that Reed's son
had stolen the items from him. Reed's son opened the door, but
told Carnes that he was not going to return the items and then
closed the door. According to Carnes, Reed came to the door a
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few moments later, walked out onto the porch, and began yelling
at him. Reed called him a "drug addict" and told him he had to
leave. Carnes testified that he told Reed he did not want any
trouble and that he turned and began to walk away. However, Reed
pushed him from behind. Carnes stated that he hit Reed, only
after being pushed a number of times. Carnes further stated that
he wore a "class-style" ring on the hand that he hit Reed with,
but claimed he held nothing in his hand. He testified Reed
grabbed him by the neck and held him over the top of the brick
wall surrounding the porch. After Reed loosened his grip, Carnes
"kind of fell over" and left.
At the close of his evidence, Carnes renewed his motion to
strike, alleging that the evidence proved unlawful wounding, but
not malicious wounding. The trial court denied the motion and
convicted Carnes of malicious wounding, sentencing him to ten
years in prison, with six years suspended upon certain
conditions.
On appeal, Carnes contends the trial court erred in finding
the evidence sufficient, as a matter of law, to support the
conviction for malicious wounding. Carnes argues the evidence
failed to establish that he went to the Reed home with the intent
"to do anyone harm." We find no error in the trial court's
determination and, therefore, affirm the conviction.
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As stated above,
[w]hen reviewing the sufficiency of the
evidence after a conviction, we consider
that evidence in the light most favorable to
the Commonwealth, and we affirm the
conviction unless it is plainly wrong or
without evidence to support it. Horton [v.
Commonwealth, 255 Va. 606, 614, 499 S.E.2d
258, 262 (1998) (citing Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d
534, 537 (1975))]. The circuit court
sitting without a jury in this case acted as
the fact finder; hence, the court's judgment
is accorded the same weight as a jury
verdict. Evans v. Commonwealth, 215 Va.
609, 613, 212 S.E.2d 268, 271 (1975). As
the fact finder, the court "need not believe
the accused's explanation and may infer that
he is trying to conceal his guilt." Black
v. Commonwealth, 222 Va. 838, 842, 284
S.E.2d 608, 610 (1981).
Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899,
906-07 (2001).
Code § 18.2-51 provides as follows:
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,
except where it is otherwise provided, 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.
Thus, the statute defines two crimes: malicious wounding and the
lesser-included offense of unlawful wounding. The element of
malice distinguishes the two crimes. See Miller v. Commonwealth,
5 Va. App. 22, 24, 359 S.E.2d 841, 842 (1987). In order to
sustain a conviction for malicious wounding, the Commonwealth
must therefore prove that the bodily injury was caused with
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malice, and "with intent to maim, disfigure, disable, or kill."
Code § 18.2-51.
"'"Malice inheres in the doing of a wrongful act
intentionally, or without just cause or excuse, or as a result of
ill will. It may be directly evidenced by words, or inferred
from acts and conduct which necessarily result in injury."'"
Hernandez v. Commonwealth, 15 Va. App. 626, 631, 426 S.E.2d 137,
140 (1993) (quoting Christian v. Commonwealth, 221 Va. 1078,
1081, 277 S.E.2d 205, 207 (1981) (quoting Dawkins v.
Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947))).
"Malice is evidenced either when the accused acted with a sedate,
deliberate mind, and formed design, or committed any purposeful
and cruel act without any or without great provocation." Branch
v. Commonwealth, 14 Va. App. 836, 841, 419 S.E.2d 422, 426
(1992). "Whether malice existed is a question for the fact
finder." Robertson v. Commonwealth, 31 Va. App. 814, 823, 525
S.E.2d 640, 645 (2000).
"Intent in fact is the purpose formed in a person's mind,
which may be shown by the circumstances surrounding the offense,
including the person's conduct and his statements. And a person
is presumed to intend the immediate, direct, and necessary
consequences of his voluntary act." Nobles v. Commonwealth, 218
Va. 548, 551, 238 S.E.2d 808, 810 (1977) (citations omitted).
Carnes correctly states that blows inflicted with bare
fists do not generally imply malice, much less an intent to
kill, disable, disfigure or maim the victim. See Carson v.
Commonwealth, 188 Va. 398, 406, 49 S.E.2d 704, 707 (1948); see
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also Roark v. Commonwealth, 182 Va. 244, 250, 28 S.E.2d 693,
695-96 (1944). However, such blows "'may be attended with such
circumstances of violence and brutality'" to allow the trier of
fact to infer that the defendant possessed the requisite intent.
Dawkins, 186 Va. at 64, 41 S.E.2d at 504 (quoting M'Whirt's
Case, 3 Gratt. (44 Va.) 594 (1846)). Moreover, when viewed in
the light most favorable to the Commonwealth, the evidence, and
reasonable inferences which flow from it, demonstrate that
Carnes struck Reed with something more than his bare fist. Reed
testified that just before striking him, Carnes looked "towards
his hand" and said, "You see this?" When Reed looked, he saw a
shiny object. Carnes then hit Reed, causing an injury which
drew blood and required several stitches to close the wound.
Carnes testified he had nothing in his hand, but conceded that
he wore a "class-type" ring on that hand.
The courts of this Commonwealth have long held that "[t]he
color of the act [at issue] determines the complexion of the
intent only in those situations where common experience has found
a reliable correlation between a particular act and a
corresponding intent." Banovitch v. Commonwealth, 196 Va. 210,
217, 83 S.E.2d 369, 373 (1954) (citations omitted). In Lee v.
Commonwealth, 135 Va. 572, 115 S.E. 671 (1923), albeit in dicta,
the Supreme Court of Virginia specifically noted that if an
injury were inflicted by means of a "knife or steel knuckles,"
"disfigurement would be the natural and probable consequence of a
violent blow in the face with such a weapon." 135 Va. at 577,
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115 S.E. at 673.
We hold that Carnes's use of a "shiny object" in inflicting
the injury to Reed, whether his ring or another object, should be
viewed no differently. Code § 18.2-51 proscribes the infliction
of bodily injury upon another "by any means." (Emphasis added.)
Thus, "[t]he statute, by its explicit terms, does not contain a
limitation upon the means employed. Indeed, the focus of the
established 'test of the offense of maliciously . . . causing
bodily injury is the intent with which the result is accomplished
rather than the nature of the means.'" Long v. Commonwealth, 8
Va. App. 194, 197, 379 S.E.2d 473, 475 (1989) (quoting Dawkins,
186 Va. at 63, 41 S.E.2d at 504) (noting that because the statute
specifies "any means," the Commonwealth was not constrained to
prove that the method used to cause bodily harm was inherently
dangerous); see also Pannill v. Commonwealth, 185 Va. 244, 254,
38 S.E.2d 457, 462 (1946) (quoting 40 C.J.S. Homicide § 25) ("A
deadly weapon is one which is likely to produce death or great
bodily injury from the manner in which it is used, and whether a
weapon is to be regarded as deadly often depends more on the
manner in which it has been used than on its intrinsic
character.").
We disagree, therefore, with Reed's contention that the
evidence presented at trial was insufficient, as a matter of law,
to establish the requisite intent to prove malicious wounding.
The Commonwealth plainly established a basis upon which the trier
of fact, here the trial court, could have reasonably inferred
from Carnes's actions that he purposefully and cruelly intended
to inflict bodily injury upon Reed.
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Carnes's contention that he inflicted the blows upon Reed
only in response to being pushed by Reed does not alter our
analysis. In fact, "[t]he common law in this state has long
recognized the right of a landowner to order a trespasser to
leave, and if the trespasser refuses to go, to employ proper
force to expel him, provided no breach of the peace is committed
in the outset." Pike v. Commonwealth, 24 Va. App. 373, 375, 482
S.E.2d 839, 840 (1997). The evidence here, considered most
favorably to the Commonwealth, demonstrated that Reed initially
placed his hands on Carnes only in an effort to "escort" him from
his property. As Carnes himself conceded, Reed told him to leave
the property a number of times before doing so. This lawful act,
therefore, does not provide the requisite provocation to dispel
the malicious nature of Carnes's violent response. See Branch,
14 Va. App. at 841, 419 S.E.2d at 426. Moreover, the trial court
was clearly permitted to reject Carnes's account of the incident.
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995) ("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.").
Accordingly, finding no error, we affirm the judgment of
the trial court.
Affirmed.
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