COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Clements 

Argued at Richmond, Virginia 

ROBERT MICHAEL CARFAGNO 

 OPINION BY 

v. Record No. 3186-01-2 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 19, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Margaret P. Spencer, Judge 

 Cynthia E. Payne, Assistant Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General on 

brief), for appellee. 

 Ronald Michael Carfagno was convicted of two counts of 

felonious and unlawful assault and battery on victims selected 

because of their race, in violation of Code § 18.2-57(B). On 

appeal, he challenges the legal sufficiency of the evidence. 

For the reasons that follow, we affirm. 

Background

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth, the party prevailing below, together with all 

reasonable inferences that may be drawn. Ortega v. Commonwealth, 

31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000). So viewed, the 

record shows that on May 7, 2001, Eunice Wilson and her mother, 

Gertrude Smith, stopped at a free-standing phone booth on West 
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Cary Street in the City of Richmond to make a phone call. 

Wilson saw Carfagno walking down the street pushing a child's 

wheelchair filled with various items. Carfagno initially passed 

the two women, then backed up and began to speak to them. He 

asked, "You know why I'm backing the wheelchair up?" When 

Wilson responded, "No," Carfagno replied, "I'm backing it up so 

you all black bitches can see what I got." 

Carfagno continued to make statements to the two women, 

calling them "black bitches and niggers," and stating "I don't 

like you all black bitches no way." Carfagno started hitting 

both women at the same time, eventually pushing Smith to the 

ground. After Carfagno pushed her mother to the ground, Wilson 

began to hit him around his shoulder, face, and chest. The 

fight ended when Carfagno pushed Wilson to the ground. 

A witness to the incident, Alberto Sejas, was at his place 

of employment about thirty-seven feet from the telephone booth, 

when he heard the argument. He heard Carfagno use the racial 

epithet, "black nigger bitch," when he referred to the two women 

and saw Carfagno push Smith to the ground. He then saw Wilson 

"jump in[to]" the fray. 

Wilson suffered a knot on her elbow and a scraped pinky 

finger. As a result of her fall, Smith chipped a bone in her 

back that punctured her intestines. 
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Analysis

 Under Code § 18.2-57(B), punishment for assault and battery 

is enhanced "if a person intentionally selects the person 

against whom an assault and battery resulting in bodily injury 

is committed because of his race."1 Carfagno contends the 

Commonwealth failed to establish that the victims' race 

motivated the assault and battery, arguing the words he used do 

not establish beyond a reasonable doubt that race motivated the 

assault on the victims.2 

 

 1 Code § 18.2-57 provides: 

A. Any person who commits a simple assault 

or assault and battery shall be guilty of a 

Class 1 misdemeanor, and if the person 

intentionally selects the person against 

whom a simple assault is committed because 

of his race, religious conviction, color or 

national origin, the penalty upon conviction 

shall include a mandatory, minimum term of 

confinement of at least six months, thirty 

days of which shall not be suspended, in 

whole or in part. 

B. However, if a person intentionally 

selects the person against whom an assault 

and battery resulting in bodily injury is 

committed because of his race, religious 

conviction, color or national origin, the 

person shall be guilty of a Class 6 felony, 

and the penalty upon conviction shall 

include a mandatory, minimum term of 

confinement of at least six months, thirty 

days of which shall not be suspended, in 

whole or in part. 

 2

 Carfagno also contends that the Commonwealth failed to 

establish the race of the parties involved. Carfagno failed to 

preserve this argument at trial; therefore, his claim on appeal 

is barred under Rule 5A:18. "The Court of Appeals will not 
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 Carfagno raises a question of first impression in Virginia. 

However, we are guided by the reasoning of other state courts 

that have found the use of racial epithets constitutes 

sufficient evidence of the speaker's racial motivation in 

committing the crime. In State v. Henke, 954 S.W.2d 685 (Mo. 

App. 1997), the defendant argued on appeal that the trial court 

erroneously denied his motion to exclude evidence of a statement 

he made, in which he referred to the victim as "chink." The 

Missouri appellate court upheld the defendant's conviction for 

assault, stating the challenged evidence was relevant and 

properly admitted on the question of motive: 

There was no prior exchange between [the 

victim] and these men. There was no 

indication of any prior relationship. 

Henke's statement could reasonably be 

interpreted as evidence of motive, ie. that 

the attack occurred because of Henke's 

racial prejudice against the Chinese. Such 

racial prejudice is demonstrated by the 

derogatory term "chink" used by Henke to 

describe the victim. 

Id. at 687. 

 In People v. Pirozzi, 237 A.D.2d 628 (N.Y. App. 1997), the 

New York appellate court found that racial epithets supported 

the conviction of a police officer charged with a racially 

motivated assault. Id. at 630. In that case, the victim 

testified that "the defendant struck her and stated, '[t]hat's 

 

consider an argument on appeal which was not presented to the 

trial court." Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 

S.E.2d 484, 488 (1998); see also Rule 5A:18. 
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what happened [sic] when you assault a police officer, you 

little black bitch.'" Id. at 629. The court found that, "where 

the officer initially accosted [the victim] and her companion 

for no apparent reason, the use of this racial epithet creates a 

viable inference that the defendant's conduct was racially 

motivated." Id. at 630. 

 In Sterry v. State, 959 S.W.2d 249 (Tex. App. 1997), the 

Texas appellate court held that use of racial epithets 

constituted sufficient evidence upon which the trier of fact 

could find that the victim was selected primarily because of 

bias or prejudice against the victim's race. Id. at 255. In 

upholding the imposition of an enhanced penalty for the racially 

motivated assault, the court noted "the record indicates that 

appellant 1) initiated the confrontation, 2) used racial slurs 

before, during and after the assault, and 3) called people who 

came to the victim's aid 'nigger lovers.'" Id. 

When reviewing a challenge to the legal sufficiency of the 

evidence, we view the evidence in the light most favorable to 

the Commonwealth, the party prevailing below. Ortega, 31 

Va. App. at 786, 525 S.E.2d at 627. We must "discard the 

evidence of the accused in conflict with that of the 

Commonwealth, and regard as true all the credible evidence 

favorable to the Commonwealth and all fair inferences that may 

be drawn" from the credible evidence. Watkins v. Commonwealth, 

26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998). The decision 
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of the trial court will not be disturbed unless plainly wrong or 

without evidence to support it. McGee v. Commonwealth, 25 

Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). "If 

there is evidence to support the conviction," this Court will 

not substitute its judgment for that of the trier of fact, even 

were our opinion to differ. Commonwealth v. Presley, 256 Va. 

465, 466, 507 S.E.2d 72, 72 (1998). 

Applying the standard of review applicable to cases before 

us on appeal and bearing in mind the conclusions reached in 

other jurisdictions regarding the use of racial epithets as 

evidence of motivation, we find the evidence, although 

circumstantial, was sufficient to support the trial court's 

determination that Carfagno assaulted Smith and Wilson because 

of their race. "Circumstantial evidence is sufficient to prove 

guilt beyond a reasonable doubt so long as 'all necessary 

circumstances proved . . . exclude every reasonable hypothesis 

of innocence.'" McNair v. Commonwealth, 31 Va. App. 76, 86, 521 

S.E.2d 303, 308 (1999) (quoting Bishop v. Commonwealth, 227 Va. 

164, 169, 313 S.E.2d 390, 393 (1984)). 

Carfagno made manifest, by word and deed, that racial bias 

motivated his selection of the assault victims in this case. 

See Adams v. Commonwealth, 33 Va. App. 463, 471, 534 S.E.2d 347, 

351 (2000). Carfagno used the term "black bitches," "niggers," 

and "black nigger bitch" in addressing the two women, with whom 

he had no prior relationship. After using a racial epithet to 
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initiate a conversation with the women, Carfagno proceeded to 

assault Smith and her daughter. Carfagno continued to hurl 

racial epithets at the women during the assault, which was 

unprovoked. 

Although Carfagno denied that he used racial epithets in 

addressing Smith and Wilson, both victims and an uninvolved 

bystander testified to the contrary, stating that, before and 

during the assaults, Carfagno employed language replete with 

racial slurs. When a trial court sits as fact finder, it "must 

evaluate the credibility of the witnesses, resolve the conflicts 

in their testimony and weigh the evidence as a whole." Albert 

v. Commonwealth, 2 Va. App. 734, 738, 347 S.E.2d 534, 536 

(1986); see also 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."). The trial court resolved the 

issue of credibility raised by the disputed evidence against 

Carfagno. Moreover, having determined that Carfagno was lying 

about his use of racial epithets to address the women, the trial 

court could consider the testimony as evidence of Carfagno's 

consciousness of guilt and, thus, of guilt itself. Rollston v. 

Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991). 

We find no error in the trial court's conlusion that Carfagno 

assaulted Smith and Wilson because of their race. 
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Carfagno also argues that the evidence was insufficient to 

prove beyond a reasonable doubt that Wilson and Smith suffered 

"bodily injury." We disagree. 

Carfagno pushed Smith to the ground and, as a result, she 

suffered a "chipped bone" in her back that "punctured [her] 

intestines." She was hospitalized after the assault for "three 

or four days" for treatment of her injuries.3 This evidence is 

sufficient to support the trial court's judgment that Smith 

suffered "bodily injury." 

Carfagno further asserts that the Commonwealth failed to 

establish that Wilson's injuries, a scraped pinky and a bump on 

her elbow, were caused by his conduct, arguing that Wilson 

incurred her injuries as a result of her own conduct in 

attacking him. The argument is without merit. 

Carfagno hit and pushed Wilson and eventually knocked her 

to the ground, where he continued "hitting at [her]." Although 

the Commonwealth provided no direct evidence that Wilson's 

scraped pinky and bruised elbow came from one of Carfagno's 

blows, the trial court could reasonably infer from the evidence 

presented that Carfagno's actions caused the injuries. 

3

 Carfagno contends the Commonwealth failed to establish 

that Smith suffered any injury at all, because the evidence of 

her injury resulted from inadmissible hearsay evidence. He 

conceded at oral argument that his hearsay claim is barred on 

appeal under Rule 5A:18 because he failed to timely object to 

the testimony at trial. See Newsome v. Newsome, 18 Va. App. 22, 

24, 441 S.E.2d 346, 348 (1994). 
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"'Inferences . . . are elemental ingredients of the fact finding 

process.'" Morton v. Commonwealth, 13 Va. App. 6, 9, 408 S.E.2d 

583, 584 (1991) (quoting County Court of Ulster v. Allen, 442 

U.S. 140, 156 (1979)). "'An inference . . . permits a finder of 

fact to conclude the existence of one fact from the proof of one 

or more other facts.'" Id. (quoting Carter v. Hercules Powder 

Co., 182 Va. 282, 292, 28 S.E.2d 736, 740 (1944)). 

Accordingly, we affirm the judgment of the trial court. 

 Affirmed.