COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Richmond, Virginia 

DAVID GLENN GRABER 

 MEMORANDUM OPINION* BY 

v. Record No. 0688-94-2 JUDGE LARRY G. ELDER 

 OCTOBER 3, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 E. Blay Bryan for appellant. 

 Richard B. Smith, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on 

 brief), for appellee. 

 David Glenn Graber (appellant) appeals his conviction for 

attempted malicious wounding in violation of Code § 18.2-51. 

Appellant contends the evidence was insufficient to establish (1) 

he specifically intended to wound his wife and (2) he acted with 

malice when he attacked his wife. Because the evidence was 

sufficient to support malicious intent, we affirm the conviction 

for attempted malicious wounding. 

 On the night of November 3, 1993, appellant visited his 

wife, from whom he was separated, at his sister-in-law's house. 

After an emotional conversation between appellant and his wife 

turned into an argument, appellant grabbed his wife by the throat 

and lifted her up against the wall. Although she resisted, 

appellant held her against the wall with his hands until she lost 

 

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

designated for publication. 
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consciousness. Appellant told police he was surprised at how 

quickly his wife lost consciousness and that he immediately laid 

her on the floor so that she did not injure herself. 

 When his wife regained consciousness, appellant sat on top 

of her and threatened her with further harm if she did not 

"straighten up." Appellant then brought his wife into the 

bedroom, where he forced her to undress and beat her five or six 

times on her buttocks with a belt, causing multiple bruises. 

 Appellant was tried at a bench trial and convicted of 

attempted malicious wounding and abduction. The abduction 

conviction is not before us on appeal. 

 When reviewing the sufficiency of the evidence to support a 

conviction, we view the evidence and all reasonable inferences 

fairly deducible from the evidence in the light most favorable to 

the Commonwealth, and we will not disturb the verdict unless 

plainly wrong or without support in the evidence. Maynard v. 

Commonwealth, 11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) 

(en banc). This standard "gives full play to the responsibility 

of the trier of fact to resolve conflicts in the testimony, to 

weigh the evidence, and to draw reasonable inferences from basic 

facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 319 

(1979). 

 First, we hold the trial court was not plainly wrong in 

finding appellant acted with the requisite intent to maim or kill 

his wife when he pinned her to the wall and choked her into 
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unconsciousness. The trial court is entitled to infer 

appellant's intent from the facts and circumstances, and it 

appropriately concluded beyond a reasonable doubt that these were 

acts from which appellant reasonably should have anticipated that 

disabling injury or death might result to his wife. 

"Intent is the purpose formed in a person's mind which 

may, and often must, be inferred from the facts and 

circumstances in a particular case." Ridley v. 

Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 

(1979). Intent may be shown by a person's conduct and 

by his statements. Hargrave v. Commonwealth, 214 Va. 

436, 437, 201 S.E.2d 597, 598 (1974). 

Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 

(1989). Importantly, the fact finder may infer that the 

defendant intended the "natural and probable consequences" of his 

actions, and that the means by which the act was accomplished 

reflected the defendant's intent. See Campbell v. Commonwealth, 

12 Va. App. 476, 483-84, 405 S.E.2d 1, 4 (1991) (en banc). 

 As we have said before, there need not be a breaking of the 

skin to constitute malicious wounding. Id. at 483, 405 S.E.2d 

at 4. Furthermore, while a simple assault with a bare fist (or 

hand) may not give rise to an intent to maim, an assault with 

one's fist or hand may be attended with such circumstances of 

violence that an intent to maim or kill may be presumed. See

Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 273 

(1969). In this case, the trial court was not plainly wrong in 

inferring from all the facts and circumstances that appellant 

intended to maim or kill his wife by choking her, and it did not 
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err in deciding that appellant intended the natural and probable 

consequences of these actions. 

 Second, we hold the trial court was not plainly wrong in 

finding sufficient evidence beyond a reasonable doubt that 

appellant acted with malice when he pinned his wife against the 

wall and choked her into unconsciousness. 

"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 

necesarily [sic] result in injury. Its existence is a 

question of fact [for the fact finder]." 

Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 475-76 

(1989) (emphasis added) (citation omitted). Appellant's malice 

was evidenced by the fact that he committed the purposeful and 

cruel choking of his wife without great provocation. See Branch 

v. Commonwealth, 14 Va. App. 836, 841, 419 S.E.2d 422, 426 

(1992). While the evidence shows appellant committed these 

violent acts partially as a result of an emotional discussion, we 

hold sufficient evidence existed from which the trial court could 

have concluded that appellant acted with deliberation and 

purpose, rather than in the heat of passion. 

 As the Supreme Court has stated, "[a]n attempt is composed 

of two elements: the intention to commit the crime, and the doing 

of some direct act toward its consummation which is more than 

mere preparation but falls short of execution of the ultimate 

purpose." Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 

212, 213 (1978) (emphasis added). For the foregoing reasons we 
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hold that appellant intended to commit the crime and the facts 

clearly demonstrate a "direct act toward its consummation." 
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 Accordingly, we affirm the conviction. 

Affirmed.
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Benton, J., concurring. 

 To support a conviction in a criminal case, the evidence 

must prove every element of the offense beyond a reasonable 

doubt. In re Winship, 397 U.S. 358, 364 (1970). The pertinent 

elements applicable to the malicious wounding offense are 

"maliciously . . . cause . . . bodily injury, with the intent to 

maim, disfigure, disable, or kill." Code § 18.2-51. Thus, proof 

of an attempt to commit the offense requires proof beyond a 

reasonable doubt of (a) malice, (b) a direct, ineffectual act 

done toward the commission of bodily injury, and (c) the intent 

required by the statute. Slusher v. Commonwealth, 196 Va. 440, 

443, 83 S.E.2d 719, 721 (1954). 

 The evidence in this case proved that Graber was estranged 

from his wife. After midnight, he went to the residence where 

his wife was living and began to argue with her. In anger, 

Graber threw his wife against the wall and held his hands around 

her neck. As she struggled to remove his hands from her throat, 

he used such force that she lapsed into unconsciousness. When 

his wife regained consciousness, she was lying on the floor. 

Graber was sitting on her with his hands still at her throat. 

 From the proof of these acts, the jury could find beyond a 

reasonable doubt, that Graber acted with malice and attempted to 

cause bodily harm to his wife. In addition, the evidence that 

Graber used great force upon his wife's neck, a sensitive part of 

a person's anatomy, was sufficient to prove beyond a reasonable 
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doubt that he intended to maim, disfigure, or disable her by 

choking. See Dawkins v. Commonwealth, 186 Va. 55, 62, 41 S.E.2d 

500, 505 (1947); Shackelford v. Commonwealth, 183 Va. 423, 

426-27, 32 S.E.2d 682, 684 (1945). For these reasons, I would 

also affirm the conviction.