COURT OF APPEALS OF VIRGINIA 

Present: Judges Beales, Powell and Alston 

Argued at Richmond, Virginia 

TRAVIS WAYNE LAMM, A/K/A 

 TRAVIS LAMB 

 OPINION BY 

v. Record No. 0085-09-2 JUDGE RANDOLPH A. BEALES 

 FEBRUARY 9, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Cheryl V. Higgins, Judge 

 Christopher C. Graham (Eustis & Graham, PC, on brief), for 

appellant. 

 Kathleen B. Martin, Senior Assistant Attorney General (William C. 

Mims, Attorney General, on brief), for appellee. 

 Travis Wayne Lamm (appellant) was convicted by a jury of aggravated malicious 

wounding, pursuant to Code § 18.2-51.2. He argues on appeal that the trial court erred by denying 

his motion for a new trial based on after-discovered evidence.1

 He claims that, after the trial, the 

victim’s “permanent and significant physical impairment” disappeared.2

 We find the trial court did 

not err. 

 1

 In his question presented, appellant also suggests that he made a motion to set aside the 

verdict pursuant to Rule 3A:15. However, on brief, he argues only that he is entitled to a new 

trial, not to dismissal of his conviction. Therefore, pursuant to Rule 5A:20(e), we do not 

consider this second contention in his question presented. See Mason v. Commonwealth, 49 

Va. App. 39, 46 n.2, 636 S.E.2d 480, 483 n.2 (2006). 

2

 Under Code § 18.2-51.2(A), 

[i]f any person maliciously shoots, stabs, cuts or wounds any other 

person, or by any means causes bodily injury, with the intent to 

maim, disfigure, disable or kill, he shall be guilty of a Class 2 
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d.” 

 

I. BACKGROUND 

 Appellant’s girlfriend, Ms. S.3

, received a call from appellant asking her to pick him up 

from a bar. When Ms. S. arrived, appellant was “very intoxicate

 Ms. S. first drove to her own house, then she drove appellant to his home. Rather than 

getting out of the car, appellant told Ms. S. that he wanted to have sexual intercourse with her. 

Ms. S. refused, and an argument ensued. Appellant then began assaulting Ms. S. 

 During his assault, appellant attempted to strangle Ms. S. She eventually was able to get out 

of the car, but appellant caught her and hit her in the back of the head. He then began hitting Ms. S. 

numerous times in the face. At trial, Ms. S. could not say how many times he hit her because she 

passed out during the attack. When she came around, Ms. S.’s nose and face were bleeding. She 

tried to call for help on her cell phone, but appellant grabbed it and broke it. 

 Ms. S. then told appellant that she needed to go to the hospital. Appellant apparently 

agreed. He gave his t-shirt to Ms. S. to hold against her nose, and he drove her to the hospital. 

When they arrived there, appellant parked the car, gave the keys to Ms. S., and walked away. 

 Ms. S. went into the emergency room, where she received immediate attention. Eventually, 

Ms. S. had to have her nose reset and had “some metal plates” put in her forehead, according to her 

surgeon. As a result of appellant’s attack, Ms. S. lost her sense of smell and her sense of taste. In 

addition, a number of her teeth were “numb.” Ms. S. testified at trial that she had not regained her 

sense of taste or smell, and her teeth were still numb. 

 At trial, Ms. S.’s facial plastic surgeon, Dr. Stephen Park, explained to the jury that appellant 

broke “bones in her face” around her nose and eye sockets. He characterized it as a “complex 

felony if the victim is thereby severely injured and is caused to 

suffer permanent and significant physical impairment. 

3

 We use this designation for the victim rather than her actual name so as to better protect 

her privacy. 
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fracture,” rather than indicating the number of broken bones in her face, although he identified four 

areas of her face where the bone was broken. Dr. Park explained that during surgery he had to bring 

“these broken bones back into alignment, put some metal plates to hold them in position, [and] put 

some splints inside her nose to re-project it to give it its definition.” He described these plates as 

“permanent” in the sense that they would not dissolve, but “not permanent” in the sense that they 

could perhaps eventually be removed. There was no evidence that the plates would ever be 

removed, given that Dr. Park testified that he anticipated no further surgery. Dr. Park also testified 

that Ms. S. had informed him that “she couldn’t smell very well.” When asked by the prosecutor if 

this condition was likely to be permanent, Dr. Park responded, “Unpredictable.” He described 

Ms. S.’s prognosis as “good.” 

 After hearing this evidence, the jury convicted appellant of aggravated malicious wounding 

and recommended a sentence of twenty years. At the subsequent sentencing hearing before the trial 

court, the Commonwealth informed the trial court that Ms. S.’s sense of taste and of smell had 

returned, admitting that this development might justify a reduction in the jury’s recommended 

sentence.4

 Appellant argued that this development was “more than just mitigating,” contending that 

the trial court should grant him a new trial “pursuant to Rule 3A:15.” 

 The Commonwealth called Ms. S. as a witness during this hearing. She testified that she 

was now “able to taste and smell everything.” She also explained that these senses returned after 

the jury trial, over the course of about a month. 

 The trial court denied appellant’s motion for a new trial and then sentenced appellant to 

twenty years in prison, with ten years of that sentence suspended. Appellant then appealed his 

conviction to this Court. 

4

 This sentencing hearing was finally held almost eleven months after appellant’s assault 

on Ms. S. and over five months after appellant’s jury trial. 
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II. ANALYSIS 

A. Standard of Review 

Rule 3A:15(c) allows a trial court to “grant a new trial if it sets aside the verdict” based 

on after-discovered evidence. A motion for a new trial based on after-discovered evidence “is a 

matter submitted to the sound discretion of the circuit court and will be granted only under 

unusual circumstances after particular care and caution has been given to the evidence 

presented.” Orndorff v. Commonwealth, 271 Va. 486, 501, 628 S.E.2d 344, 352 (2006); see also

Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983) (“Motions for new 

trials based on after-discovered evidence are addressed to the sound discretion of the trial judge, 

are not looked upon with favor, are considered with special care and caution, and are awarded 

with great reluctance.”). 

B. After-Discovered Evidence 

To establish that a trial court should grant a motion for a new trial based on 

after-discovered evidence, a defendant must prove four things: 

1). that the evidence was discovered after the trial; 

2). that the evidence could not have been discovered, through the exercise of due 

diligence, prior to the trial; 

3). that the evidence is not merely cumulative, corroborative, or collateral; 

4). that the evidence is material to the extent that it is likely to produce different results 

from a new trial. 

See Garnett v. Commonwealth, 275 Va. 397, 416-17, 657 S.E.2d 100, 112, cert. denied, 129 

S. Ct. 116 (2008); Orndorff, 271 Va. at 501, 628 S.E.2d at 352; Odum, 225 Va. at 130, 301 

S.E.2d at 149. The Virginia courts have used this standard for over 100 years. See, e.g.,

Thompson v. Commonwealth, 49 Va. (8 Gratt.) 637, 641 (1851) (“[A]fter-discovered evidence 
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in order to afford proper ground for a new trial, must be such as reasonable diligence on the part 

of the party offering it, could not have secured at the former trial: must be material in its object, 

and not merely cumulative and corroborative or collateral; and must be such as ought to be 

decisive, and productive, on another trial, of an opposite result on the merits.”). 

 Here, the first three prongs were clearly proven by appellant. On appeal, the 

Commonwealth argues only that the evidence of Ms. S.’s recovery was not material to the extent 

that the outcome of the trial would have been affected by the return of her sense of smell and of 

taste. The Commonwealth argues that the plates that remained in Ms. S.’s face would still 

require that a jury convict appellant of aggravated malicious wounding. 

Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923), Whittington v. 

Commonwealth, 5 Va. App. 212, 361 S.E.2d 449 (1987), and Gatling v. Commonwealth, 14 

Va. App. 60, 414 S.E.2d 862 (1992), are three of the very few cases where our appellate courts 

have found that a motion for a new trial should have been granted. All of these cases involved 

evidence that, if believed credible, would clearly have resulted in an acquittal. For example, in 

Hines, the only evidence linking Hines to the murder of a police officer was a cap found at the 

scene that several people testified belonged to Hines. 136 Va. at 734, 117 S.E. at 844. After the 

trial, it was discovered that another man (who owned a similar cap, owned the same caliber gun 

as the one that killed the officer, did not have an alibi for that night, and was working as a 

bootlegger like Hines on the night of the murder and near the scene of the murder) had confessed 

to the murder of the officer and said that Hines was not guilty. Id. at 737, 117 S.E. at 845. The 

Supreme Court found, “this new evidence, if [the factfinder] had heard and believed it, would 

necessarily have produced a different result.” Id. at 750-51, 117 S.E. at 849 (emphasis added). 

In Whittington, this Court concluded that, when the after-discovered evidence is a 

retraction of the testimony of the Commonwealth’s key witness -- who was the only other person 
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there during the commission of the alleged crime -- saying the crime never occurred, the 

defendant’s motion for a retrial should be granted. 5 Va. App. at 216-17, 361 S.E.2d at 452. 

Similarly, in Gatling, this Court found that a trial court erred in denying a motion for a new trial 

where the newly discovered evidence indicated that the victim of a rape had told a friend that 

Gatling did not rape her. 14 Va. App. at 63, 414 S.E.2d at 864. 

Here, we are confronted with a situation in which the credibility of after-discovered 

evidence is unquestioned, unlike in Hines, Whittington, and Gatling (in fact, the Commonwealth 

concedes it is true), which makes appellant’s argument initially appear to be strong for reversal 

and remand of his case. However, unlike in Hines, Whittington, and Gatling -- where the 

after-discovered evidence, if believed, would clearly prove the defendants were not guilty -- in 

the case before this Court, the new evidence would not definitively prove that appellant did not 

commit aggravated malicious wounding. Here, unlike in Hines, Whittington, and Gatling, the 

jury had evidence, in addition to the loss of taste and smell, to consider as proof of the 

“aggravated” element of appellant’s conviction, which requires that the injury inflicted in the 

attack be permanent and significant. Code § 18.2-51.2. 

To be convicted of aggravated malicious wounding under Code § 18.2-51.2, the injuries 

inflicted on the victim must be both a “significant physical impairment” and “permanent.” Case 

law defines “physical impairment” for purposes of this criminal statute as “‘any physical 

condition, anatomic loss, or cosmetic disfigurement.’” Newton v. Commonwealth, 21 Va. App. 

86, 90, 462 S.E.2d 117, 119 (1995) (quoting Code § 51.5-3) (emphasis omitted). To prove an 

injury is permanent, the Commonwealth need not present definitive testimony that a victim’s 

injuries will never improve, but instead can leave it to the common sense of the jury to determine 

if the injuries are permanent. Martinez v. Commonwealth, 42 Va. App. 9, 23-25, 590 S.E.2d 57, 

64 (2003). Though the victim’s injuries in the instant case are perhaps not as visible as the 
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injuries discussed in cases like Cottee v. Commonwealth, 31 Va. App. 546, 556-57, 525 S.E.2d 

25, 30-31 (2000), or Newton, 21 Va. App. at 90, 462 S.E.2d at 119, where the records included 

evidence of the victims’ scarring on the day of trial, it would strain credulity here to hold as a 

matter of law that the insertion of permanent metal plates in Ms. S.’s face does not constitute a 

permanent physical injury, especially as the evidence proved that those plates remained in 

Ms. S.’s face at the time of trial and the surgeon said he did not intend to remove them. In 

addition, the after-discovered evidence that was presented during appellant’s sentencing hearing 

did not indicate that Ms. S.’s numbness in her teeth had stopped. This numbness was before the 

jury for its consideration as part of the significant and permanent injury done to Ms. S. by 

appellant. The jury also examined pictures of Ms. S. taken fairly soon after appellant’s attack, 

and they could observe her on the witness stand, which gave them additional evidence to 

consider in determining whether she was permanently and significantly injured. 

We also note that Dr. Park testified before the jury that he could not say if Ms. S.’s loss 

of smell and taste was permanent. He gave this trial testimony over five months after appellant’s 

attack on Ms. S., when she still had not recovered her sense of smell and of taste. Thus, the jury 

had evidence before it that her sense of smell and taste might well return. Her eventual recovery 

of her sense of smell and taste, almost a year after appellant’s brutal attack on Ms. S., did not 

require that the trial court grant appellant’s motion for a new trial based on this evidence. The 

improvement in her taste and smell was foreseeable by the jury, and additional evidence before 

the jury – independent of her sense of taste and smell – proved that Ms. S. was significantly and 

permanently injured by appellant’s attack even after the return of these senses. 
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III. CONCLUSION 

 Keeping in mind the steep burden imposed by the standard of review for motions 

requesting a new trial based on after-discovered evidence, we find the trial court did not err in 

denying appellant’s motion for a new trial based on after-discovered evidence. 

Affirmed.