COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Bray 

Argued at Richmond, Virginia 

RICHARD DONALD HEGEDUS 

 MEMORANDUM OPINION*

v. Record No. 1759-96-2 BY JUDGE JOSEPH E. BAKER 

 JULY 1, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Matthew P. Geary for appellant. 

 Thomas D. Bagwell, Senior Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Robert Donald Hegedus (appellant) appeals from a judgment of 

the Circuit Court of the City of Richmond (trial court) that 

approved a jury verdict convicting him of malicious wounding and 

abduction. The sole issue presented by this appeal is whether 

the trial court erred when it refused appellant's request for an 

unlawful wounding instruction. Appellant contends that, on the 

evidence contained in this record, he was entitled to the 

instruction because unlawful wounding is a lesser-included 

offense of malicious wounding. Appellant concedes that the 

Commonwealth's evidence is sufficient to support a malicious 

wounding conviction if the jury had been properly instructed and 

elected to reject his evidence. However, he asserts that without 

proper instruction, the jury was denied the opportunity to assess 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

the totality of the evidence as it related to unlawful wounding. 

 When we consider a trial court's refusal to grant a 

proffered instruction, we must review the evidence with respect 

to the refused instruction in the light most favorable to the 

appellant. Seegars v. Commonwealth, 18 Va. App. 641, 643, 445 

S.E.2d 720, 722 (1994). Then, "[i]f [the] proffered instruction 

finds any support in credible evidence, its refusal is reversible 

error." McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 

290, 293 (1975). 

I. Carolyn Ragland's Testimony 

 Carolyn Ragland (Ragland) and appellant met at an adult 

nursing home where appellant was a patient and Ragland was an 

employee. The two commenced a relationship in March 1995, 

despite the fact that Ragland was married. In June 1995, Ragland 

discontinued the relationship with appellant because she "needed 

space." 

 At appellant's request, Ragland went to appellant's 

apartment around midnight on June 17, 1995 to pick up some things 

she had left there. During her visit, appellant became violent, 

struck her with his hands, and threatened to kill her. She 

repeatedly asked to leave but appellant would not let her because 

he feared that she would go to the police. Ragland testified 

that appellant forced her to have sex with him. 

 In an attempt to escape, Ragland picked up a hammer to use 

against appellant. Appellant took the hammer from her and a 
- 3 - 

 

struggle ensued. Ragland said she pulled off appellant's glasses 

and "he hit me, not as hard as you would hit with a hammer, but 

he hit me and I started bleeding everywhere." Ragland added that 

appellant hit her only once with the hammer.1

 Ragland finally 

escaped at around 7:00 a.m., wearing only one of appellant's 

shirts. According to Ragland, she had a gash in her head that 

needed stitches. On cross-examination, Ragland added that the 

hammer "finally slipped out of [appellant's] hand because [she] 

was fighting him." 

II. Appellant's Testimony 

 Testifying in his own behalf, appellant gave an account that 

differed substantially from Ragland's testimony. Appellant 

testified that he told Ragland he desired to return to the type 

of relationship he had previously enjoyed with her. He told her 

he "wished [they] were a little closer like [they] had been." 

Appellant talked with Ragland "a little bit more," and then 

acknowledged that he was sorry they could not get "a little 

closer." He told Ragland that he would leave Richmond because 

she was the only reason he was staying in Richmond. Appellant 

claimed that Ragland responded by saying, "we [will] talk about 

it in the morning." Appellant testified that he and Ragland then 

had consensual sex. 

 1James Foster, a detective with the Richmond Police 

Department, examined Ragland at a Richmond hospital. He 

testified that he noticed a hammerhead-shaped indentation in 

Ragland's skull. 
- 4 - 

 Afterwards, appellant noticed a ten dollar bill was missing 

from his dresser and became suspicious that Ragland had taken it. 

 He found what he believed to be his ten dollar bill inside 

Ragland's wallet. Appellant said he confronted Ragland about the 

money, told her to leave the apartment, and began to remove his 

apartment key from her key ring. Ragland approached him from 

behind and began to hit him with a hammer. 

 Appellant slapped her with the back of his hand, causing her 

mouth to bleed. Ragland began to call appellant by her husband's 

name, "Junie," and continued to swing at appellant with the 

hammer. He pulled her hair, grabbed her by the chin and pushed 

her onto the bed. Appellant said that he and Ragland began to 

struggle for the hammer and "during the struggle, it came out of 

[their] hands and glanced across the top of her head." 

III. Analysis 

 Unlawful wounding is an offense composed entirely of 

elements that are elements of the greater offense of malicious 

wounding. See Miller v. Commonwealth, 5 Va. App. 22, 359 S.E.2d 

841 (1987). Therefore, unlawful wounding is a lesser-included 

offense of malicious wounding. The only distinction between the 

two crimes is that malicious wounding includes the additional 

element of malice. See Barrett v. Commonwealth, 231 Va. 102, 

105-06, 341 S.E.2d 190, 192 (1986). 

 In Thomas v. Commonwealth, 186 Va. 131, 139, 41 S.E.2d 476, 

480 (1947), the Virginia Supreme Court defined malice as follows: 

 Malice . . . includ[es] not only anger, 
- 5 - 

hatred and revenge, but every other unlawful 

and unjustifiable motive. It is not confined 

to ill-will towards one or more individual 

persons, but is intended to denote an action 

flowing from any wicked and corrupt motive, a 

thing done malo animo, where the fact has 

been attended with such circumstances as 

carry in them the plain indications of a 

heart regardless of social duty, and fatally 

bent on mischief. And therefore malice is 

implied from any deliberate or cruel act 

against another, however sudden. 

 However, "[m]alice and heat of passion are mutually 

exclusive; malice excludes passion, and passion presupposes the 

absence of malice." Barrett v. Commonwealth, 231 Va. at 106, 341 

S.E.2d at 192. Heat of passion may be founded upon rage, fear, 

or a combination of both. Id. "In order to determine whether 

the accused acted in the heat of passion, it is necessary to 

consider the nature and degree of provocation as well as the 

manner in which it was resisted." Miller, 5 Va. App. at 25, 359 

S.E.2d at 842. "If all of the evidence demonstrates that the 

accused reflected or deliberated, that his passion cooled, or 

that there was reasonable time or opportunity for cooling, then 

the wounding is attributable to malice and not heat of passion." 

Id.

 In reviewing jury instructions, it is the responsibility of 

the trial court to see that the law is clearly stated and that 

the instructions cover all the issues fairly raised. Stewart v. 

Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509, 513 (1990). 

A criminal defendant is entitled to jury instructions for all 

lesser-included offenses supported by the evidence. Kauffman v. 
- 6 - 

Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279, 283 (1989); 

see also Jones v. Commonwealth, 218 Va. 757, 759, 240 S.E.2d 658, 

660 (1978) cert. denied, 439 U.S. 892 (1978). "A jury, not the 

trial court, weighs the evidence and assesses the credibility of 

the witnesses. It is immaterial that the jury might have 

rejected the lesser-included offense." Barrett, 231 Va. at 107, 

341 S.E.2d at 193. 

 The jury is not required to accept, in 

toto, either the theory of the Commonwealth 

or that of an accused. They have the right 

to reject that part of the evidence believed 

by them to be untrue and to accept that found 

by them to be true. In so doing, they have 

broad discretion in applying the law to the 

facts and in fixing the degree of guilt, if 

any, of a person charged with a crime. 

Id. (quoting Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 

4 (1958)). 

 The jury could have rejected the self-defense evidence 

offered by appellant and then have found that appellant's actions 

resulted from emotion or heat of passion rather than malice. 

Ragland's testimony suggests an unprovoked assault by appellant. 

 Appellant's testimony suggests that he was simply defending 

himself against Ragland's attack. It is not inconceivable that 

the jury could have concluded that appellant was reasonably 

provoked by the theft of his ten dollar bill and attacked Ragland 

in the heat of passion. Moreover, both Ragland and appellant 

testified that Ragland, not appellant, first grabbed the hammer. 

 In addition, the evidence was susceptible to a reasonable 
- 7 - 

interpretation that Ragland's injury from the hammer occurred 

inadvertently during appellant's struggle with Ragland for the 

hammer. Therefore, we hold that the proffered instruction is 

supported by the record. 

 Viewing the evidence presented at trial in the light most 

favorable to appellant's proffer of an unlawful wounding 

instruction, the trial court erred when it refused to instruct 

the jury on the lesser-included offense of unlawful wounding. 

Accordingly, for the reasons stated, the judgment of the trial 

court is reversed and the case is remanded to the trial court for 

such further action as the Commonwealth may be advised. 

 Reversed and remanded.