COURT OF APPEALS OF VIRGINIA

Present: Judges Alston, McCull ough and Senior Judge Annunziata Argued at Alexandria, Virginia

WILLIAM L. BALLARD MEMORANDUM OPINION * BY v. Record No. 0304-13-4 JUDGE ROSSIE D. ALSTON, JR. MAY 20, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CULPEPER COUNTY Susan L. Whitlock, Judge Charles E. Haden for appellant. Elizabeth C. Kiernan, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.

William L. Ballard (appellant) appeals his conviction of aggravated malicious wounding, in violation of Code § 18.2-51.2. On appeal, appella nt contends that “[t]he trial court erred in refusing to reduce the aggravated [malicious wo unding] charge . . . to ordinary [malicious wounding] . . . where the Commonw ealth presented no medical evidence and there was a failure to prove ‘permanent and signi ficant physical impairment.’” Finding no error, we affirm appellant’s conviction. I. Background 1 When reviewing a challenge to the suffici ency of the evidence to support a conviction, this Court views the evidence in the light most favorable to the Commonwealth as the prevailing

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

1 As the parties are fully conversant with the record in this ca se and because this memorandum opinion carries no precedential value, th is opinion recites only those facts and incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.UNPUBLISHED- 2 - party below, granting to it all reasonable inferenc es drawn from that evidence. See Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997). So viewed, the evidence at trial proved th at David Cornett was a teacher of building maintenance at the Culpeper Juvenile Correctiona l Facility and was in his classroom on March 7, 2012. On that day, Cornett walked amongst the tw elve students in his classroom, stopping at one point to answer questions appell ant had regarding a plumbing fixtur e. Later, at the end of the class period, when Cornett began “gathering up the tools from different” students, appellant approached Cornett, and, using a “three or four pound” metal bathroom spigot, struck Cornett above his right temple. The blow was unexpected and caught Cornett off guard, but he remained standing. Appellant struck Cornett a second time, hitting Cornett in the same place as the first strike. Cornett managed to radio for he lp before collapsing to the floor. Officer Brennan responded soon after the incident and obser ved Cornett as Cornett was leaving the correctional facility with emergenc y medical services. O fficer Brennan described Cornett as appearing “very lethargic” a nd making slow, “cautionary” movements. Cornett was taken directly to the hospital, wh ere he received six st itches near his right temple. Cornett was released from the hospital la ter that day. Two days later, Cornett returned to the hospital’s emergency room complaini ng of “extreme headaches” and neck pain. Eight months after the incident, Cornett testified at appellant’s trial that he still had a scar above his right eye. Cornett al so described significant symptoms and physical limitations that he began experiencing after the attac k. Cornett testified that he cu rrently suffers from headaches and experiences sensitivity to light . He has also experienced cogni tive difficulties; he testified that he has difficulty concentrating, multi-task ing, and recalling words. Cornett has even experienced changes to his gait that have made walking difficult. As a result of his injuries, Cornett undergoes medical treatment with two doctors approximately every two weeks. Cornett- 3 - can no longer drive, and he is also no longer employed at the Culpeper Juvenile Correctional Facility. Following the Commonwealth’s case-in-chief, appellant made a motion to strike the charge of aggravated malicious wounding. Appe llant argued that the Commonwealth had not proven that Cornett’s injuries would “continue into the future ,” as required by Code § 18.2-51.2, which defines as aggravated malicious woundi ng any malicious wounding where the victim is “severely injured and is caused to suffer perman ent and significant physical impairment.” The trial court denied appellant’s motion to strike, noting that “a significant period for healing” had elapsed since the incident, yet Cornett still had a visible scar and experi enced significant ongoing impairments. 2 Thus, the trial court co ncluded that the Commonwealth presented “substantial and credible testimony that [Cornett] has signifi cant impairment and that that impairment is permanent.” The trial court found appellant guilty of a ggravated malicious wounding and sentenced appellant to fifty years’ imprisonm ent, with twenty-two years susp ended. This appeal followed. II. Analysis

A. Standard of Review When the sufficiency of the evidence is ch allenged on appeal, we “ ‘review the evidence in the light most favorable to th e party prevailing at trial and c onsider any reasonable inferences from proven facts.’” Calloway v. Commonwealth, 62 Va. App. 253, 261, 746 S.E.2d 72, 76 (2013) (quoting Towler v. Co mmonwealth, 59 Va. App. 284, 290, 718 S.E.2d 463, 467 (2011)). A reviewing court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Jackson v. Vi rginia, 443 U.S. 307, 318-19 (1970). Rather, we

2 Interestingly, the trial court noted that its finding would be different if it was dealing “only with the scar,” but the trial court added th at it had “substantial and credible testimony that [Cornett] has significant impair ment and that that impairment is permanent.” We offer no opinion on the trial court’s repres entations in this regard.- 4 - ask only whether “ any rational trier of fact could have f ound the essential elements of the crime beyond a reasonable doubt.” Id. at 319. “‘The judgme nt of a trial court sit ting without a jury is entitled to the same weight as a jury verdict a nd will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to suppor t it.’” Montague v. Commonwealth, 40 Va. App. 430, 435, 579 S.E .2d 667, 669 (2003) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). B. Sufficiency Appellant argues on appeal, as he did at trial, that Cornett’s mere report of ongoing symptoms at the time of trial did not constitute proof that he had suffered a “permanent and significant physical impairment” within the meaning of [Code § 18.2-51.2]. To the contrary, [a ppellant contends] there was no proof whatsoever that Cornett’s injury had caused a permanent and significant physical impairment, a nd thus the trier of fact had no reasonable basis for inferring that the symptoms were permanent. For the following reasons, we disagree.

We have held in numerous cases that “the Commonwealth need not present definitive testimony that a victim’s injuries will never impr ove” in order to establish that an injury is permanent, but may instead “leave it to the common sense of the jury to determine if the injuries are permanent.” Lamm v. Commonwea lth, 55 Va. App. 637, 644-45, 688 S.E.2d 295, 298-99 (2010). Adhereing to this standard, and in re liance on the common sense determination of the jury, we also have affirmed convictions of a ggravated malicious wounding even in the absence of expert medical evidence in the record. So long as a rational fact finder can reasonably conclude from the victim’s testimony and the phy sical evidence that the victim’s injuries are significant and permanent, the evidence is suffi cient to support a conv iction of aggravated malicious wounding. See Martinez v. Commonwealth, 42 Va. App. 9, 25, 590 S.E.2d 57, 64 (2003); Newton v. Commonwealth, 21 Va. App. 86, 90, 462 S.E.2d 117, 119 (1995).- 5 - Our decision in Newton is instructive. There, the appellant used a box cutter to repeatedly cut the victim. Newton, 21 Va. App. at 88, 462 S.E.2d at 118. “One of the wounds to [the victim’s] face required ten to twenty stitches. At trial, five months after the attack, the scar

from that facial wound was still ‘obvious and visible,’ even though [the victim] had grown a beard.” Id. at 90, 462 S.E.2d at 119. Another scar on the victim’s ear was also visible. Id. Considering the “number of wounds, the need for stitches for some of them, and the resulting scars, still visible after five months,” we upheld the trial court’s determin ation that the victim’s injuries constituted “permanent and significant physical impairment.” Id. We applied a similar analysis in Martinez. Ma rtinez shot his victim in her left shoulder. 42 Va. App. at 24, 590 S.E.2d at 64. The bullet lo dged near the victim’s spine and had to be surgically removed. Id. At Martinez’s trial tw o years after the incident, the victim “showed her scars to the jury” and testified th at she “still had not regained full use of her left arm and hand.” Id. at 25, 590 S.E.2d at 64. While the victim te stified that she experienced some improvement after her surgery, she explained th at she still experienced difficu lty gripping with her left hand and “could not pick up money or change and coul d not button her clothes.” Id. Martinez argued that the evidence was insufficient to prove that the victim’s injuries were “severe, causing her ‘to suffer permanent and significant physical impair ment.” Id. at 24, 590 S.E.2d at 64. Martinez further asserted that “no expert testimony ‘described the nature of [the victim’s] wounds, the prognosis for recovery or whethe r the injuries were permanent and significant.’” Id. We rejected Martinez’s argument, hol ding that the jury could reasonabl y conclude from the victim’s testimony and the physical evidence adduced at tr ial that the victim su ffered a permanent and significant physical impairment as a result of the shooting. Id. at 25, 590 S.E.2d at 64. Viewed in the light most favorable to th e Commonwealth, the record amply supports the trial court’s determination that Cornett’s physica l impairment is “permane nt and significant.”- 6 - Cornett was twice struck on the side of his head with a heavy metal object. The force of the strikes caused Cornett to collapse to the floor, and he received si x stitches to close a cut above his right eye. At trial, eight months after th e attack, the scarring above Cornett’s eye was still visible. See Lamm, 55 Va. App. at 645, 688 S. E.2d at 299 (stating that the opportunity to observe the victim during testimony provided “add itional evidence to consider in determining whether the victim was permanently and significantly injured”). 3 Cornett’s injuries manifested in other, more profound, ways as well. Cornett te stified that since the at tack he has experienced persistent headaches, sensitivity to light, di fficulty walking, and cogni tive deficiencies – including difficulty concentrating, multi-tasking, and recalling words. Cornett explained that as a result of his injuries he is no longer capable of driving and that he is no longer employed with the Culpeper Juvenile Correctiona l Facility. At the time of appellant’s trial, Cornett was receiving bi-weekly medical tr eatment from two doctors. After observing the still visibl e scar above Cornett’s eye and hearing Cornett testify about his enduring injuries, the trial court determined that the physical impairment Cornett suffered at the hands of appellant was permanent and signifi cant. A rational fact finder could make the same conclusion based on the evidence presented. We therefore affirm a ppellant’s conviction.

Affirmed.

3 Considering the nature of Cornett’s symptoms, particul arly his altered gait and cognitive deficits, the trial court was well-situated to observe the se verity of his impairments. In fact, appellant’s attorney even conceded that Cornett “exhibit[ed] some problems” at trial.