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 J UDGE RANDOLPH A. BEALES FEBRUARY 9, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge Christopher C. Graham (Eustis & Graham, PC, on brief), for appellant. Kathleen B. Martin, Senior Assi stant Attorney Ge neral (William C. Mims, Attorney General, on brief), for appellee.
Travis Wayne Lamm (appella nt) 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-d iscovered evidence. 1 He claims that, after the tr ial, the victim’s “permanent and significant physical impairment” disappeared. 2 We find the trial court did

not err.

1 In his question presented, appe llant also suggests that he ma de a motion to set aside the verdict pursuant to Rule 3A:15. However, on brie f, 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 contenti on 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- 2 - 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, appe llant told Ms. S. that he wanted to have sexual intercourse with her. Ms. S. refused, and an argument ensued. Appellant then bega n assaulting Ms. S. During his assault, appellant a ttempted to strangle Ms. S. She eventually was able to get out of the car, but appella nt 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 no t say how many times he hit her because she passed out during the a ttack. 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 th e emergency room, where she received immediate attention. Eventually, Ms. S. had to have her nose rese t 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. tes tified at trial that she had not regained her sense of taste or smell, and her teet h were still numb. At trial, Ms. S.’s facial plas tic surgeon, Dr. Stephen Park, expl ained to the jury that appellant broke “bones in her face” around her nose and eye so ckets. He characteri zed it as a “complex

felony if the victim is thereby se verely 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.- 3 - fracture,” rather than indicating the number of broken bones in her face, alth ough he identified four areas of her face where the bone wa s broken. Dr. Park ex plained that during surg ery he had to bring “these broken bones back into al ignment, put some meta l plates to hold them in position, [and] put some splints inside her nose to re-project it to give it its defin ition.” He described these plates as “permanent” in the sense that they would not dissol ve, but “not permanent” in the sense that they could perhaps eventually be removed. There wa s no evidence that the plates would ever be removed, given that Dr. Park testified that he anticip ated 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 respo nded, “Unpredictable.” He described Ms. S.’s prognosis as “good.” After hearing this evidence, th e jury convicted appellant of aggravated malicious wounding and recommended a sentence of twen ty years. At the subsequent se ntencing hearing before the trial court, the Commonwea lth informed the trial cour t 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 mitiga ting,” 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 hear ing. She testified that she was now “able to taste and smell everything.” She also e xplained 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 almo st eleven months after appellant’s assault on Ms. S. and over five months after appellant’s jury trial.- 4 - 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 ev idence. 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 a nd caution has been gi ven 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 s ound 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 tria l court should grant a motion for a new trial based on after-discovered evidence, a defe ndant 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 cu mulative, 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- 5 - 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 ha ve 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 clearl y 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 aff ected by the return of he r 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 appella nt 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 ha ve been granted. All of these cases involved evidence that, if believed credible, would clearly have resulted in an acqu ittal. 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 Hi nes. 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 th at night, and was working as a bootlegger like Hines on the night of the murder a nd 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- 6 - there during the commission of the alleged cr ime -- saying the crime never occurred, the defendant’s motion for a retrial should be gran ted. 5 Va. App. at 216-17, 361 S.E.2d at 452. Similarly, in Gatling , this Court found that a trial court e rred 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 argu ment 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 woul d 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 appellan t’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 impair ment” and “permanent.” Case law defines “physical impairment” for purposes of this criminal stat ute 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 no t 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 in stant case are perhaps not as visible as the- 7 - 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 credul ity here to hold as a matter of law that the insertion of permanent meta l plates in Ms. S.’s face does not constitute a permanent physical injury, especi ally as the evidence proved that those plates remained in Ms. S.’s face at the time of trial and the surge on 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 signi ficant 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 wa s permanently and significantly injured. We also note that Dr. Park testified before th e 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 he r sense of smell and of taste. Thus, the jury had evidence before it that her sense of smell a nd 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 foreseeab le 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 ev en after the return of these senses.- 8 - III. CONCLUSION Keeping in mind the steep burden imposed by the standard of review for motions requesting a new trial based on af ter-discovered evidence, we find the trial court did not err in denying appellant’s motion for a new tria l based on after-dis covered evidence. Affirmed.