COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Duff 

Argued at Richmond, Virginia 

TONY MURRAY 

 MEMORANDUM OPINION*

v. Record No. 1995-97-2 BY JUDGE CHARLES H. DUFF 

 JULY 14, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

 (Beverly McLean Murray; Paul C. Bland; Law 

Office of Paul C. Bland, on brief), for 

appellant. Appellant submitting on brief. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

John K. Byrum, Jr., Assistant Attorney 

General, on brief), for appellee. 

 Tony Murray appeals his conviction for unlawful wounding. 

He asserts that the evidence was insufficient to prove that he 

intended to maim, disfigure, disable, or kill his victim. He 

further contends that he met his burden of proving that he acted 

in self-defense. We disagree and affirm. 

 "Where the sufficiency of the evidence is challenged after 

conviction, it is our duty to consider it in the light most 

favorable to the Commonwealth and give it all reasonable 

inferences fairly deducible therefrom." Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 

 So viewed, the evidence proved that on August 18, 1996, Lisa 

 

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

designated for publication. 
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Wran was with Murray at her sister's residence where Wran and 

Murray were consuming alcohol and drugs. Wran admitted drinking 

four forty-ounce bottles of beer that day, and smoking a 

substantial quantity of crack cocaine. Wran was in the back 

bedroom of the residence when Murray entered, and the two began 

to argue. Murray conceded that he had been angry at Wran earlier 

that day for talking to other men. Wran testified that she 

picked up a knife and made approximately three attempts to stab 

Murray. Murray and Wran began "tussling" over the knife, and 

eventually he wrested the knife from her. Wran was then 

questioned as follows: 

 Q: Oh. He got the knife from you? 

 A: Uh-huh (yes). 

 Q: Okay. What happened then? 

 A: Then he just stabbed me with the knife. 

 Wran sustained seven wounds to her back, arm, and chest. 

Murray stabbed her twice in the back, and one of the stab wounds 

inflicted by Murray to Wran's chest punctured her lung. Wran 

testified that while Murray was stabbing her, she asked him why 

he was cutting her, but that he did not answer. Wran tried to 

escape from Murray, but the bedroom door was locked. She 

testified that Murray "wasn't holding me. He was just holding 

the knife." 

 In response to a question posed to her by the trial court 

regarding what had happened after Murray started stabbing her, 
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Wran stated: 

 Okay. That I can remember, when he first 

stabbed me, I didn't really know I had got 

cut. But, the second time, that's when I was 

trying to, you know, take the knife or, you 

know, just struggling with him, you know, to 

keep from getting cut, you know. That's-- 

Because I'm left-handed. That's why it only 

happened on the left-hand side. But after 

the second or third time, I don't remember, 

you know. I remember a little bit, but, you 

know, we were just struggling. I was trying 

to get away. 

 Although denying that he stabbed Wran intentionally, Murray 

admitted that he could not remember what happened after Wran 

sustained the first stab wound. 

 To convict a defendant of unlawful wounding, the 

Commonwealth must prove that the defendant caused bodily injury 

"with the intent to maim, disfigure, disable, or kill." Code 

§ 18.2-51. "Intent in fact is the purpose formed in a person's 

mind, which may be shown by the circumstances surrounding the 

offense, including the person's conduct and his statements." 

Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 

(1977). The trier of fact may infer an intent to maim, 

disfigure, disable, or kill based on the defendant's use of a 

deadly weapon. See Williams v. Commonwealth, 13 Va. App. 393, 

395, 412 S.E.2d 202, 203 (1991). "The inferences to be drawn 

from proven facts, so long as they are reasonable, are within the 

province of the trier of fact." Hancock v. Commonwealth, 12 Va. 

App. 774, 782, 407 S.E.2d 301, 306 (1991). 

 "The common law in this state has long recognized that a 
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person who reasonably apprehends bodily harm by another is 

privileged to exercise reasonable force to repel the assault." 

Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25 

(1989). "[T]he law of self-defense is the law of necessity. A 

person only has the privilege to exercise reasonable force to 

repel the assault." Foote v. Commonwealth, 11 Va. App. 61, 69, 

396 S.E.2d 851, 856 (1990) (citations omitted). "The trier of 

fact determines the weight of evidence in support of a claim of 

self-defense." Gardner v. Commonwealth, 3 Va. App. 418, 426, 350 

S.E.2d 229, 233 (1986). 

 Wran testified that Murray stabbed her after he had wrestled 

the knife from her. He stabbed Wran a total of seven times, 

including twice in the back. One wound was inflicted with 

sufficient force that it punctured Wran's lung. Even if we were 

to accept Murray's testimony that Wran sustained the first stab 

wound while he was trying to wrest the knife from her, Wran's 

testimony proved that he continued to stab at her as she was 

trying to escape. 

 The evidence not only established that Murray intended to 

maim, disable, disfigure, or kill Wran, but it also defeats his 

assertion that he acted in self-defense. Once Murray took the 

knife from Wran, she no longer posed a mortal threat to him. 

Moreover, Murray could not reasonably apprehend that Wran posed a 

threat to him, justifying his continued use of a deadly weapon, 

as she was trying to escape from the room. The fact that Wran 
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sustained two back wounds also tends to belie Murray's assertion 

that he was merely defending himself. Accordingly, based on the 

evidence, the trial court could reasonably reject Murray's 

self-defense argument. 

 The trial court believed the Commonwealth's evidence and 

rejected Murray's evidence. "The weight which should be given to 

evidence and whether the testimony of a witness is credible are 

questions which the fact finder must decide." Bridgeman v. 

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). 

The Commonwealth's evidence was competent, was not inherently 

incredible, and was sufficient to prove beyond a reasonable doubt 

that Murray was guilty of unlawful wounding. Accordingly, the 

conviction appealed from is affirmed. 

 Affirmed. 
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Benton, J., dissenting. 

 Lisa Wran testified that after she drank four forty-ounce 

containers of beer and had consumed nine bags of cocaine she 

began to argue with Tony Murray, who was also drinking beer and 

"getting high." During the argument, Wran grabbed a knife and 

"planned on stabbing [Murray] with it." She tried "about two or 

three times" to cut Murray. Wran testified that Murray began 

"tussling" and "struggling" with her and "defended himself." 

Wran further testified that when she had the knife in her hand, 

Murray was "trying to take the knife away" and "wasn't going to 

let [Wran] cut him." During the struggle, Murray wrestled the 

knife from Wran. Wran had no independent knowledge of the number 

of times she was cut because she did not recall what happened 

after "the second--third time." She did not recall because she 

was "high[ly]" intoxicated during the struggle. 

 Wran's lack of memory is evidenced in the following 

responses that she gave to the trial judge's questions: 

 THE COURT: Ms. Wran, I understand what 

you're saying, the argument, you're drinking, 

you're using cocaine. Your argument, you 

picked up a knife, he took the knife away 

from you. 

 THE WITNESS: Uh-huh (yes). 

 THE COURT: And after he first--and you said 

it was a struggle. You said after he stabbed 

you the first time, what I'm asking you, did 

you continue to struggle? Were you grabbing 

for the knife or-- Well, tell me what 

happened-- 

 THE WITNESS: The knife that he had? 
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 THE COURT: Tell me what you did after he 

started-- 

 THE WITNESS: He stabbed me the first time? 

 THE COURT: After he started stabbing you. 

 THE WITNESS: Okay. That I can remember, when he first stabbed me, I didn't really 

know I had got cut. But, the second time, 

that's when I was trying to, you know, take 

the knife or, you know, just struggling with 

him, you know, to keep from getting cut, you 

know. That's-- Because I'm left-handed. 

That's why it only happened on the left-hand 

side. But after the second or third time, I 

don't remember, you know. I remember a 

little bit, but, you know, we were just 

struggling. I was trying to get away. 

(Emphasis added). 

 Murray's testimony is consistent with Wran's testimony. 

Murray testified that, when he and Wran were drinking and using 

cocaine, they argued. Wran grabbed a knife and tried to cut him 

two or three times. He testified that he cut Wran during his 

struggle to get the knife and that there "was so much confusion 

and [Wran] was so wild" while they were "tussling." 

 "The common law in this state has long recognized that a 

person who reasonably apprehends bodily harm by another is 

privileged to exercise reasonable force to repel the assault." 

Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25 

(1989). No evidence in this case proved Murray used unreasonable 

force when he repelled Wran's assault and wounded her. Wran's 

own testimony proved that she attacked Murray with a knife and 

tried to cut him several times. Wran's testimony also clearly 
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proved that she and Murray were wrestling as Murray tried to 

disarm her. Because of her high degree of intoxication, Wran 

could not recall what occurred after she received two or three 

cuts. Only after Wran was treated at the hospital and was sober 

did she learn that she had been cut seven times. 

 Although Wran cannot recall what occurred after the second 

or third cut, the majority concludes that Murray was the 

aggressor. The inferences upon which that conclusion is based 

are all speculative. No evidence permits the inferences that 

when Wran was cut, Murray had successfully defended himself, was 

out of danger, and then embarked on an aggressive course of 

violence toward Wran. That hypothesis is pure speculation. When 

"[t]he circumstances do not describe separate and distinct 

events, but one continuing chain of circumstances," neither the 

trial judge nor this Court can assume that a person who defends 

himself from an unlawful attack was the aggressor. Foote v. 

Commonwealth, 11 Va. App. 61, 68, 396 S.E.2d 851, 856 (1990). 

 Wran initially aggressively attacked Murray with a knife. 

When Wran attacked Murray, she was angry and highly intoxicated. 

 Wran's testimony that she twice attempted to cut Murray while 

angry and intoxicated, tended to prove, as Murray testified, that 

Wran wildly attacked Murray. Indeed, all the evidence proved 

that a struggle occurred as Murray attempted to repel Wran's 

assault and secure the knife. "The law of self defense is the 

law of necessity." McGhee v. Commonwealth, 219 Va. 560, 562, 248 
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S.E.2d 808, 810 (1978). To protect himself from harm, Murray 

unavoidably had to struggle with Wran to disarm her. It was 

during that struggle that Wran was wounded. No evidence proved 

Murray had any reasonable avenue to escape other than trying to 

wrestle the knife from Wran. Thus, the evidence was insufficient 

to prove Wran was cut except accidentally or while Murray was 

defending himself. 

 Furthermore, Wran's inability to recall what happened as the 

struggle progressed deprived the trier of fact of any proof that 

Wran's wounds were inflicted by Murray with the "intent to maim, 

disfigure, disable, or kill." Those elements must be proved 

beyond a reasonable doubt to sustain a conviction of unlawful 

wounding under Code § 18.2-51. See Boone v. Commonwealth, 14 Va. 

App. 130, 132-33, 415 S.E.2d 250, 250-51 (1992). Even if we 

disregard Murray's testimony that Wran "was so wild" during the 

struggle, Wran's own testimony proved that she was highly 

intoxicated, tried to cut Murray several times, and struggled 

with him as he tried to defend himself. Because Wran was so 

highly intoxicated, she could not recall the details of the 

ensuing struggle. The principle is long standing that "[t]he 

guilt of a party is not to be inferred because the facts are 

consistent with his guilt, but they must be inconsistent with his 

innocence." Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 

S.E.2d 275, 276 (1970). 

 Because the facts are not inconsistent with the hypothesis 
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that Murray wounded Wran in his struggle to disarm and defend 

himself from her attack, I would reverse the conviction.