COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felt on, Judges Benton and Petty Argued at Richmond, Virginia

ROBERT LESLIE SLAYTON MEMORANDUM OPINION * BY v. Record No. 0441-06-2 JUDGE WILLIAM G. PETTY MAY 1, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Margaret P. Spencer, Judge Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, on briefs), for appellant. Alice T. Armstrong, Assistan t Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.
Appellant, Robert Leslie Slayton, challeng es his convictions for one count of statutory burglary, in violation of Code § 18.2-91; one count of aggravat ed malicious wounding, in violation of Code § 18.2-51.2; two counts of malicious wounding, in violation of Code§ 18.2-51; and one count of assault and battery, in violation of Code § 18.2-26. 1 Slayton was convi cted following a bench trial. On appeal, Slayton ar gues that the trial court erred wh en it failed to co nduct an inquiry concerning a conflict of inte rest of his trial counsel. 2 Slayton also challenges the sufficiency of the evidence to support his convictions. Additionally , Slayton argues that the trial court erred in rendering inconsistent verd icts when it acquitt ed him of attempted malicious bodily injury as to one

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

1 Slayton was indicted for one count of attempted malicious wounding, but the trial court convicted him of the lesser-include d offense of assault and battery.

2 At trial Wayne Morgan, Esq., represented Slayton.- 2 - victim, yet convicted him of aggravated malicious wounding and malicious bod ily injury as to the other three victims. We disagree with Slayton and affirm his convictions. I. B ACKGROUND On appeal, we view the evid ence in the light most favora ble to the Comm onwealth, the party prevailing below, and grant to it all reasonab le inferences fairly dedu cible from the evidence. Ragland v. Commonwealth , 16 Va. App. 913, 915, 434 S.E.2d 675, 676-77 (1993). So viewed, the evidence establishes that on Frid ay, August 25, 2000, Slayton dr opped his girlfriend, Bridgett Taylor, off at her co-w orkers Heather Williams’ and Shannon Overton’s ap artment. The three women went to a bar. While at the bar, they met some of Williams’ high school friends: Jermaine Norman, Tony Peters, Sheridan Hard ing, and Corey Jordan. The women left the bar and returned to the apartment around 2:00 a. m. Saturday, August 26. Shortly after they arri ved at the apartment, Williams receiv ed a call from Jo rdan asking if he, Norman, Peters, and Harding could come over to visit. Williams gave them permission to come over, and informed Overton and Tayl or that the men were coming to the apartment. By that time, Slayton and his younger brother Ti mmy had arrived to take Taylor home. The three of them were in Slayton’s truck when Norman, Pe ters, Harding, and Jordan arrived. After their arrival, Slayton and Peters, and eventually Peters’ friends, engaged in a “scuffle” in the apartment’s parking lot. Slayton, his brother, and Taylor a ll left after the fight. Williams and Overton went to apologize to their neighbors for th e disturbance, while Norman , Peters, Harding, and Jo rdan stayed out on the apartment’s front porch. Taylor testified that she realized that she had left her purse behind shortly after they had left the apartment. She stated that sh e asked Slayton to go back to the apartment and retrieve it. Slayton drove to a nearby gas station and called his father to come pick up Taylor and Timmy. Slayton then used his wireless phone to call tw o other men, Tim Anderson and To ny Venable, to return to the- 3 - apartment with him. 3 Neither Slayton nor Taylor attempted to call the apartment and inquire about the purse. Further, Shannon Overton testified th at as Taylor was leav ing the apartment, she reminded Taylor that her purse was in the car they had used to drive to the bar. When Slayton and his companions arrived back at the apartment, No rman, Peters, Harding, and Jordan saw them coming toward s the porch and ran inside the ap artment. Slayton and the other two men rushed in after them. Jordan felt something hit him in the back as he ran through the apartment and out the back door. Peters and Hard ing testified that Slayton and the other two men beat them with baseball bats and kicked them whilethey were lying on the floor trying to protect themselves. Peters testified that as they were running he heard “a smack” and turned around to see Norman on the floor in the hallwa y. Harding testified that he sa w Slayton and Peters fighting and that someone grabbed his shirt and pulled it over his head . Harding could not see at that point, but said he was then beaten with baseballbats – one wooden and one metal. Peters testified that Slayton hit him with a wo oden baseball bat and that he was kicked after he fell to the floor. Slayton’s counsel attempted to impeach Peters’ statement that he saw Slayton with a baseball bat in his hand, by asking Peters wh ether he recalled testif ying at the preliminary hearing that Slayton did not have a bat. When Peters responded that he did not remember his preliminary hearing testimony, Slayton’s couns el ended that line of questioning. Jermaine Norman had no memory of the incident at the apartment. He remembered being on the porch and everyone running. His next memory is waking up in the ambulance. While no one saw how Norman was injured, at the end of the mêlée he was found lying in the hallway, unconscious and bleeding. Dr. John Wright treated Norman’s injury at th e hospital and testified as an expert witness at trial. Dr. Wright explained that Norman’s left eye had ru ptured and that most of the eye’s contents

3 The police were not able to locate these individuals by the time of the trial.- 4 - had been lost. The optic nerv e was severed by some thing sharp, and Norman suffered a severe nasal fracture as well. Because of his injuries, Norman’s left eye had to be removed and he now wears a prosthetic eye. Dr. Wright testified that Norman’s injuries were consistent with blunt force trauma to his head such as bein g struck with a baseball bat. Sl ayton testified th at no one hit Norman, but that he saw Norman injure himself by running into a doorjamb. The trial court convicted Slayton, specifically stating that it did not credit Slayton’s and Taylor’s testimony. This appeal followed. II. A NALYSIS A. Conflict of Interest Slayton argues that his convictions should be reversed beca use the trial court failed to inquire into a conflict of interest between him and his trial coun sel. For the reasons stated below, we have determined that this claim is one for in effective assistance of co unsel, which we cannot hear on direct appeal. During the trial, victim Tony Peters testif ied that Slayton had st ruck him with a wooden baseball bat. On cross-examinat ion, Slayton’s trial counsel attemp ted to impeach Peters’ testimony with a prior inconsistent statem ent by asking Peters whether he remembered testifying at the preliminary hearing that Slayton did not have a bat. When Peters responded that he did not remember making that prior statement, Slayton’s counsel made no further attempt to impeach the witness. Following his conviction, but before sentencing, Slayton wrote a letter to the trial judge claiming that he “was misrepresented.” Slayto n also asked her to “che ck the testim ony at the preliminary [sic].” Slayton claimed, “[n]one of the witnes ses testified that I, in any way, made any kind of assault or helped anyone to do so.” Now, on appeal, Slayton argues that his trial counse l’s failure to impeac h Peters’ testimony, in combination with this le tter, should have alerted the trial court to an actu al conflict of interest:- 5 - namely, that Slayton’s counsel serv ed his own pecuniary interest wh en he failed to withdraw from the representation, thereby losing his fee, in orde r to serve as an impeachment witness on Slayton’s behalf. 4 Relying on Mi ckens v. Taylor , 535 U.S. 162 (2002) , Slayton argues that this conflict was or should have been so apparent to the trial court that its failure to inquire into it was reversible

error. In Mickens , a federal habeas case alle ging ineffective assistance of counsel, the Supreme Court declined to extend the “automatic reversal rule” it en unciated in Holloway v. Arkansas , 435 U.S. 475 (1978). Mickens , 535 U.S. at 168. The Holloway Court held that a trial court must investigate any potential conflicts wh en defense counsel advises the cour t of a conflict of interest in a situation involving the multip le representation of crimin al codefendan ts. Holloway , 435 U.S. at 478-81, 484. The remedy for this failure is an automatic reversal of the conviction, without further inquiry. Id. at 488; see also Mickens , 535 U.S. at 168 (“Holloway presumed . . . that the conflict ‘which [the defendant] and his coun sel tried to avoid by timely obje ctions to the jo int representation undermined the adversarial process” – a presumption th at is “justified because joint representation is inherently suspect . . . .” (quoting Holloway , 435 U.S. at 490)). The Mickens decision emphasized that the Holloway rule applied “only where defense counsel is forced to represent codefendants over his timely objection, unless the trial court has determined that there is no conflict.” Mickens , 535 U.S. at 168 (citing Holloway , 434 U.S. at 488). Mickens also makes clear that Holloway does not apply when “the tria l court is aware of a vague, unspecified possibility of conflict . . . . ” Id. at 169. In this situation, the record would have to show “that [trial] counsel actively represented conflicting interests.” Id. at 175 (quoting Cuyler v. Sullivan , 446 U.S. 335, 350 (1 980)) (emphasis in original) (internal quotation marks omitted).

4 The record is unclear as to whether the ta pe recording of the preliminary hearing was inaudible; however, there was no transcript of the preliminary hearing available.- 6 - Despite the mann er in which Slayton has co uched this issue on appeal, we have determined that it is, in substance, a claim for ineffective assistance of counsel, requiring the resolution of issues not properly before us. “Claims raising ineffectiv e assistance of counsel must be asserted in a habeas corpus proceeding and are not cognizabl e on direct appeal.” Lenz v. Commonwealth , 261 Va. 451, 460, 544 S.E.2d 299, 304 (2001)). 5 We do not hear these issues on direct appeal, because, as our Supreme Court has recognized, this ki nd of inquiry is best made in a separate habeas corpus proceeding. Walker v. Mitchell , 224 Va. 568, 299 S.E.2d 698 (1983). Such a proceeding “affords both sides an op portunity to develop fully the factual and legal base s of their positions with respect to a claim of ineffectiv e assistance of counsel.” Id. at 571, 299 S.E.2d at 669. On the record before us, there is no way of k nowing whether there was an actual conflict of interest, and whether that conflict affected Slayton’s representation at trial. Th is record, like “the ordinary criminal trial record[,] is insufficient to show the reasons counse l employed or did not em ploy a particular trial tactic.” Id. B. Sufficiency of the Evidence Slayton also argues that the tr ial court relied upon insufficien t evidence to convict him of both burglary and bodily injury and aggravated malicious wou nding. For the reasons stated below, we disagree and hold th at the evidence was sufficient. 1. Standard of Review Slayton challenges the trial cour t’s findings of intent and mali ce. Whether malice and intent existed are questions of f act. Branch v. Commonwealth , 14 Va. App. 836, 841 , 419 S.E.2d 422, 426 (1992); Commonw ealth v. Vaughn , 263 Va. 31, 36, 557 S.E.2d 22 0, 223 (2002). On appeal, we can reverse these factual findings only if the trial court’s decision is “plainly wrong or

5 Code § 19.2-317.1, which allowed direct appeal of ineffective assistance of counsel claims under certain circumstan ces, was repealed in 1990. See 1990 Va. Acts, c. 74.- 7 - without evidence” to support it. Code § 8.01-680. Under this standard, we examine the record to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt .” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We are also mindful that circumstantial “evi dence ‘is as competent and is entitled to as much weight as direct evidence, provided itis sufficiently convincing to exclude every reasonable hypothesis except that of guilt.’” Hollins v. Commonwealth , 19 Va. App. 223, 229, 450 S.E.2d 397, 400 (1994) (quoting Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)). “The Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that sp ring from the imaginati on of the defendant.” Hamilton v. Commonwealth , 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is reasonabl e is a question of fact. See Cantrell v. Commonwealth , 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988). 2. Burglary Conviction Slayton challenges the sufficiency of the evid ence supporting the trial court’s finding that he had the intent to commit assault and battery when he entered the apartment. We hold that the trial court based its decision on sufficient evidence of intent. In order to convict an accused of st atutory burglary, the Commonwealth must, as pertinent to this case, prove that the accused entered the dwelling house of another, during the nighttime, “with intent to commit assault a nd battery.” Code §§ 18.2-90 and 18.2-91. Because statutory burglary is an “offense comprised of an act combined with a particular intent, ‘proof of such intent is as necessary as proof of the act itse lf and must be established as a matter of fact.’” Hucks v. Commonwealth , 33 Va. App. 168, 175, 531 S.E.2d 658, 661 (2000) (quoting Ridley v. Commonwealth , 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979)).- 8 - Our Supreme Court has defined intent as “t he purpose formed in a person’s mind which may, and often must, be inferred from the facts and circumstances in a particular case. The state of mind of the offender may be show n by his acts and conduct.” Ridley , 219 Va. at 836, 252 S.E.2d at 314 (citing Patterson v. Commonwealth , 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975)). Thus, the Commonwealth may prove the requisite intent by circumstantial evidence. Hucks , 33 Va. App. at 175, 531 S.E.2d at 661. Here, the evidence establishes that Slayton, after recruiting two friends, returned to the apartment where he had just been involved in a brawl. Witnesses testified that Slayton and his friends came armed with baseball bats, and when the four young men on the porch ran inside the apartment, Slayton and his companions chased after them, beat them with bats, and kicked them. Further, while Slayton and Taylor , his girlfriend, both testified that Slayton returned to the apartment to retrieve Taylor’s purse, neither of them called the apartment to ask permission to return or to inquire whether the purse was there despite having a wireless phone. Finally, Overton, one of the women who lived at the apartment, testified that she specifically told Taylor, before she left with Slayton, that she had left her purse in the car that they had us ed that evening to go out. Based on the above evidence, we conclude th at the trial court did not err in finding the requisite intent for the burglary conviction. The trial court, as th e finder of fact, was not required to “believe the accused’s explanation,” that he retu rned to retrieve his girlfriend’s purse; it could instead infer that he was not truthful. See Black v. Commonwealth , 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981). We hold that there was su fficient evidence from which the trial court could determine that Slayton returned to the apar tment with intent to assault the four men with whom he had recently fought. The trial court wa s entitled to find Slayton’s purportedly innocent explanation incredible.- 9 - 3. Malicious Wounding and Aggravat ed Malicious Wounding Convictions Slayton also argues that the trial court erred in fi nding the requisite intent to support the malicious wounding and aggravated maliciou s wounding convictions . The Commonwealth’s burden for proof of intent is the same for both malicious woun ding and aggravated malicious wounding. Code §§ 18.2 -51 and 18.2-51.2 require a showing of malice and the intent to “maim, disfigure, disable, or kill.” For the reasons stated below, we conclude that the Commonwealth adduced sufficient evidence of malice and intent at trial. Malice Malice is “the doing of a wrongf ul act intentionally, or without just cause or excuse, or as a result of ill will. It may be di rectly evidenced by words, or in ferred from acts and conduct which necessarily result in injury.’ ” Robertson v. Commonwealth , 31 Va. App. 814, 82 3, 525 S.E.2d 640, 645 (2000) (quoting He rnandez v. Commonwealth , 15 Va. App. 626, 63 1, 426 S.E.2d 137, 140 (1993)). Malice is not “confine d to ill will, but includes any ac tion flowing fro m a wicked or corrupt motive, done with an evil mind or wrongful intention, where the act has been attended with such circumstances as to carry in it the plain indi cation of a heart deliberat ely bent on mischief.” Williams v. Commonwealth , 13 Va. App. 393, 39 8, 412 S.E.2d 202, 205 (1991). Our Supreme Court has also held that malice may be inferred “from the deliberat e use of a deadly weapon.” Perricllia v. Commonwealth , 229 Va. 85, 91, 326 S. E.2d 679, 683 (1985). When viewed in the light most favorable to the Commonwealth , the evidence presented at trial proved that Slayton acted w ith malice. After earlier engagi ng in a fight with the victims, Slayton recruited two acquaintances to return to the apartment with him. The three men were armed with two baseball bats. When the four victim s ran into the house, Slayton and his companions chased them inside, beat them with baseball bats, and kicked them. This at tack led to a number of injuries, including cuts, bruises, contusions, and, in the case of Norman, the lo ss of his left eye.- 10 - Moreover, the trial court could have reason ably inferred malice from the fact that one witness identified Slayton as wiel ding a baseball bat during the attack. Our Supreme Court defines a deadly weapon as “one which is likely to produce death or grea t bodily injury from the manner in which it is used, . . . [.] [W]hethe r a weapon is to be regarded as deadly often depends more on the manner in which it has been us ed than on its intr insic character.” Pa nnill v. Commonwealth , 185 Va. 244, 254, 38 S.E.2d 457, 462 (1946); see also Pritchett v. Commonwealth , 219 Va. 927, 929, 252 S.E.2d 352, 353 (1979) (holding that a club is a deadly wea pon). Slayton beat the victims with a baseball bat about the h ead and back; he hit Norm an with enough force to rupture his left eye and sever the optic nerve. The trial court had ample reason to find malice on these facts. We conclude that the trial court could reasonably infer ma lice from the facts that Slayton returned armed, with reinforcements, and engaged in a deliberate, unprovoked attack. Therefore, we will not distur b its finding of malice on appeal. Intent to Maim, Disfigure, Disable, or Kill The Commonwealth was also required to pr ove that Slayton acted with the intent to “maim, disfigure, di sable, or kill.” In determining whether Slayton had the intent to maim, disfigure, di sable, or kill his victims, “[t]he fact finder [was] entitled to draw inferences from those facts proven to be true, so long as the inferences are reasonable and justified.” Cottee v. Commonwealth , 31 Va. App. 546, 555, 525 S.E.2d 25, 30 (2000) (citation omitted). The tr ial court was also able to examine “[t]he nature and extent of the bodily injur[ies] a nd the means by which [they were] accomplished” in finding intent. Campbell v. Commonwealth , 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991). Finally, the trial court was entitled to infer that Slayton “‘intend[ed] the immediate, direct, and necessary consequences of his voluntary acts.’” Id. (quoting Kelly v. Commonwealth , 8 Va. App. 359, 373, 382 S.E.2d 270, 278 (1989)).- 11 - Here, as discussed above, the trial court he ard evidence proving that Slayton returned to the apartment with two companions, armed with baseball bats, and chased the four young men into the apartment. Slayton and his companions th en beat and kicked the victims. The trial court also saw photographs of the victims’ injuries . These photographs reve al that Tony Peters suffered bruising on his back, includ ing a bruise near the kidney area on the right side, and that Sheridan Harding received a cut be hind his ear, a cut on the inside of his lip, and bruising. They also show the severe injury to the left side of Jermaine Norman’s face and left eye, resulting in his permanent disfigurement and disability. It is apparent from these photographs that Slayton inflicted injuries on areas of the victims’ bodies that were likely to result in serious injury, disfigurement, disa bility, or death: the face, head, and back. See Campbell , 12 Va. App. at 485, 405 S.E.2d at 5 (affirming conviction when “the natural consequence” of forceful bl ows “near [victim’s] spinal column and right kidney[] was disfigurement or disablement of the [victim]”); see also Roark v. Commonwealth , 182 Va. 244, 250, 28 S.E.2d 693, 695 (1944) (The intent to maim, disfigure, disable, or kill a person can be inferred from repeated blows applie d to “vital and delicat e parts of the body of a defenseless, unresisti ng person on the ground.”). Thus, we conclude that the evidence presen ted below supports Slayton’s convictions for malicious wounding and aggr avated malicious wounding. C. Inconsistent Verdicts Slayton argues that the trial court committe d reversible error by convicting him of two counts of malicious wounding and one count of aggravated malicious wounding, but acquitting him of one count of attempted malicious wounding. Slayton notes that he did not preserve this issue for appeal in the trial court, and asks us to apply the “ends of justice” exception to Rule 5A:18. We decline to do so.- 12 - Application of the ends of ju stice exception requires proof of an error that was “clear, substantial and material .” Brown v. Commonwealth , 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989). The record “must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth , 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (citing Mounce v. Commonwealth , 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)). Application of the ends of justice exception is a ppropriate where “[the accused] was convicted for conduct that was not a criminal offense” or “the record . . . affirmatively proves that an element of the offense did not occur.” Id. at 221-22, 487 S.E.2d at 272-73. The record in this case does not meet th is well-settled standard. Slayton was not convicted for non-criminal behavior . Moreover, the record does not affirmatively prove that an element of the offense did not occur. On the c ontrary, the record is re plete with evidence of malice and the intent to disfigure, maim, disable, orkill as to three of th e victims, as discussed

supra . See Nobles v. Commonwealth , 218 Va. 548, 238 S.E.2d 808 (1977) (holding conviction for trespass, rather than statut ory burglary, was not inconsistent with conviction for attempted murder because defendant’s intent could change after entering the house). We therefore decline to apply the “ends of just ice” exception in this case. III. C ONCLUSION Based on the foregoing discussi on, we affirm the convictions. Affirmed.