COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Haley and Powell Argued at Richmond, Virginia

RODERICK WILLIAMS, JR. MEMORANDUM OPINION * BY v. Record No. 1018-10-2 J UDGE CLEO E. POWELL MAY 3, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Daniel T. Balfour, Judge Samuel P. Simpson, V (Montgomery & Simpson, LLLP, on brief), for appellant. Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.

Roderick Williams, Jr. (“Williams”) was c onvicted of malicious wounding, in violation of Code § 18.2-51. On appeal, Williams argue s that the evidence is insufficient to prove malicious wounding where the tria l court found that the defendant “unluckily” caused felonious injury to the defendant and that the defendant ’s actions were “malic ious with no intent.” 1 For the reasons that follow, we agr ee and reverse Williams’s convictio n. I. BACKGROUND Larry William Vaughan has three children in common with Latisha Roy. Their relationship ended in early 2009. On the morn ing of October 13, 2009, Vaughan went to Roy’s

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Williams literally argues that the trial cour t erred in its applica tion of Code § 18.2-51 by declining to reduce the charge to unlawful wounding af ter ruling that the de fendant “unluckily” caused felonious injury to the defendant, and fu rther stating that the de fendant’s actions were “malicious with no intent.” This is essentially an argument that the evidence is insufficient to sustain the conviction under Code § 18.2-51.- 2 - house to pick up his youngest son to take him to ge t his hair cut. As he knelt down to zip his son’s jacket, Roy’s new boyfriend, Roderick Willia ms, struck Vaughan in his left eye. Vaughan was initially unconscious but as soon as he revi ved, he ran from the house. Because of the blood coming from his eye, his girlfriend, who had been waiting in his truck, drove him to the hospital. As a result of the attack, Vaughan lost his left eye and it will eventually be replaced with a prosthetic eye. At trial, defense counsel argue d that there was sufficient evidence to prove “a felonious wounding” but not aggravated, malicious woundi ng. He also argued that one punch is not enough to prove the intent to mai n, disfigure, disable or kill. In ruling on Williams’s motion to strike the evidence at the end of the presentation of evidence, the trial court stated that I think [defense counsel] has got a po int, that I have a feeling what happened is the man walked out, saw the, from what I’ve heard, which is a little skimpy, but I unde rstand you’ve got to put your case on what you want me to hear and don’t want me to hear, I don’t think that it was intentiona lly aggravated, malicious, if the words in there right, I suspect he came out and he hit him across the face and unluckily it hit him in the eye. He thought he would have hit him somewhere else.

And so I don’t think it was an intent to permanently, to put out all that language here, but so I’m going to sustain your Motion to Strike on the, on that and then leave you all to argue on what’s left, which is the [Code § 18].2-51.

The court also stated “I don’t th ink he intended to do it, but I think he probably hit him in the

side of the face.” Finall y, the court stated that

The Court further considers wh ether or not he think it’s malicious or unlawful. The Court notes the case handed to him by the Commonwealth 2 in which, in that case, a single blow to the ear

2 The case to which the court was referring was Johnson v. Commonwealth , 53 Va. App. 79, 669 S.E.2d 368 (2008), a case in which the appellant was found guilty of malicious wounding.- 3 - ended up being the how offense of intentionally malicious wounding. The facts are pretty cl ose to this. But I’ve already ruled, and I’m not going to compare to that extent. But I do believe that it is malicious w ith no intent. So, I’ll so find. (Footnote added). This appeal follows.

II. ANALYSIS

A. Standard of Review Where the sufficiency of the evidence is challenged after conviction, it is our duty to consid er it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment unless it appears from the evidence that th e judgment is plainly wrong or without evidence to support it. Higginbotham v. Commonwealth , 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). “This principle requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and

all fair inferences to be drawn therefrom.’” James v. Commonwealth , 53 Va. App. 671, 675, 674 S.E.2d 571, 579 (2009) (quoting Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted)). B. Sufficiency of the Evidence to Prove Malicious Wounding Code § 18.2-51 states that “[ i]f any person maliciously shoot, stab, cut or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall . . . be guilty of a Class 3 felony.” To support a conviction for malicious wounding under Code § 18.2-51, the Commonwealth must prove that the defendant inflicted the victim’s injuries “ma liciously and with the intent to maim, disfigure, di sable or kill.” Campbell v. Commonwealth , 12 Va. App. 476, 483, 405 S.E.2d 1, 4 (1991) (en banc). “‘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 necessarily result in injury.’” Hernandez v. Commonwealth , 15 Va. App. 626, 631, 426 S.E.2d 137, 140 (1993) (citations omitted).- 4 - “Malice is evidenced either when the accused acted with a sedate, deliberate mind, and formed design, or committed a purposeful and cruel act without any or w ithout great provocation.” Branch v. Commonwealth , 14 Va. App. 836, 841, 419 S.E.2d 422, 426 (1992). Whether malice existed is a question for the fact finder. See id.

Robertson v. Commonwealth , 31 Va. App. 814, 823, 525 S.E.2d 640, 645 (2000). While malice may be proven, Code § 18.2-51 cannot be satisfied unless malice is coupled with the requisite intent. “To be guilty under Code § 18.2-51, a person must intend to permanently, not merely temporarily, harm another person.” Johnson v. Commonwealth , 53 Va. App. 79, 101, 669 S.E.2d 368, 378 (2008) (citing Campbell , 12 Va. App. at 484, 405 S.E.2d at 4); see also Lee v. Commonwealth , 135 Va. 572, 578, 115 S.E. 671, 673 (1923). Here, Williams argues that the trial court found no eviden ce of the intent to maim, disable, disfigure or kill based on the trial cour t’s statements. Specifical ly, the trial court found

The Court further considers whether or not he think it’s malicious or unlawful. The Court notes the case handed to him by the Commonwealth in which, in that cas e, a single blow to the ear ended up being the how offense of intentionally malicious wounding. The facts are pretty cl ose to this. But I’ve already ruled, and I’m not going to compare to that extent. But I do believe that it is malicious w ith no intent. So, I’ll so find. Williams was originally charged with aggr avated malicious wounding in violation of Code § 18.2-51.2, which requires that one commit the acts proscribed by Code § 18.2-51 and in so doing causes the victim “to suffer permanent and significant physical impairments.” The trial court reduced the charge from aggravated malicious wounding to malicious wounding and

convicted Williams of that offense. That convict ion is without evidence to support it. It is clear that the victim suffered “permanent and signi ficant physical impairments.” Code § 18.2-51.2. What is relevant, however, is th at the trial court found “I don’t think he intended to do it, but I think he probably hit him in the side of the face.”- 5 - At least four times, the trial court stated that he did not find intent. Specifically, the trial

court stated: 1) “I don’t think it was intentionally aggravated, malicious . . . [;]” 2) “I suspect he came out and he hit him across the face and unluckily hit him in the eye . . . [;]” 3) “And so I don’t think it was an intent to permanently . . . [;]” 4) “But I do believe that it is malicious with no intent.” (Emphasis added).

While some of the trial court’s comments ma de after the motion to strike indicate an intent to differentiate between aggravated malicious wounding and malicious wounding, the

basis for the distinction was that Williams’s acts were not intentionally aggravated. The court further stated that the blow was “unluckily” deli vered, again indicating a fa ilure to find that the

blow was delivered with an inte nt to permanently disfigure.

The court reiterated its f actual findings when it made its final ruling. The court specifically distinguished Johnson 3 stating that while “[t]he facts are pretty close to this[,]” it was “not going to compare to that extent.” Johnson was a malicious wounding case, where the sole issue was whether a single blow could satisfy the element of intent to maim, disfigure, disable or kill. It appears that the trial court was saying that the facts here did not rise to the leve

of those in l

Johnson . Referring to Johnson , the court finally said “[b] ut I do believe that it is

malicious with no intent.”

3 In Johnson , 53 Va. App. at 99-105, 669 S.E.2d at 378-80, this Court considered whether the evidence could be sufficient to prove appellant’s intent to maim , disable, disfigure, or kill where the appellant punched the victim once. In th at case, the jury found sufficient evidence and in giving the proper level of deference to infe rences drawn by the fact finder, this Court concluded that, while one punch may not always give rise to such an inference, under the facts of that case, there was sufficient evidence for the jury to infer appellant’s intent. Id.- 6 - Intent to permanently maim, disfigure, disabl e or kill must be present in order to prove a crime of either malicious or unlawful wounding. Because the trial court specifically made the factual findings that 1) “I don’t think it was an intent to perman ently . . .” and 2) “[b]ut I do believe that it is malicious with no intent,” the ru ling of the trial court is inconsistent with its factual findings and, is therefore, plainly wrong or without evidence to support it. The Attorney General argues that Williams is fixating on isolated statements of the trial

court. It is well settled that “[a]bsent clear evidence to the cont rary in the record, the judgment of a trial court comes to us on a ppeal with a presumption that the law was correctly applied to the facts.” Yarborough v. Commonwealth , 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977); Craddock v. Commonwealth , 40 Va. App. 539, 547, 580 S.E.2d 454, 458 (2003). This means the “judge is presumed to know the law and to apply it corr ectly in each case.” Crest v. Commonwealth , 40 Va. App. 165, 172 n.3, 578 S.E.2d 88, 91 n.3 (2003). Only “clear evidence to the contrary in the record,” Campbell v. Commonwealth , 39 Va. App. 180, 186, 571 S.E.2d 906, 909 (2002) (citation omitted), suffices to rebut the presumption. In reviewing the reco rd, therefore, we will not “fix upon isolated statements of the trial judge taken out of the full context in which they were made, and use them as a predicate for holding the law has been misapplied.” Bullock v. Commonwealth , 48 Va. App. 359, 368, 631 S.E.2d 334, 339-40 (2006) (citation omitted). And a “trial court’s remark is not, in and of itself, the full context simply because it represents the only point at which the court expressly addresse d the issue in dispute.” Parker v. Commonwealth , 41 Va. App. 643, 656-57, 587 S.E.2d 749, 755 (2003) (citations, internal brack ets, and quotation marks omitted).

Groves v. Commonwealth , 50 Va. App. 57, 61-62, 646 S.E.2d 28, 30-31 (2007). The statements made here are more than merely isolated statemen ts in the record. Because the question of intent is one for the fact finder and it does not appear that the trial c ourt found the specific intent to “maim, disfigure, disable or kill,” the evidence is insufficient to prove intent.- 7 - III. CONCLUSION For the foregoing reasons, we reverse Williams’s conviction and remand the matter to the circuit court for a new trial on a charge of a ssault and battery if the Commonwealth be so

advised. See Britt v. Commonwealth , 276 Va. 569, 576, 667 S.E.2d 763, 766 (2008) (remanding for a new trial rather than the imposition of a new sentence on the lesser offense because both parties have not consen ted to that relief).

Reversed and remanded.