COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Lemons 

Argued at Norfolk, Virginia 

KENNETH McKAE PEELE 

 MEMORANDUM OPINION* BY 

v. Record No. 1792-97-1 JUDGE DONALD W. LEMONS 

 SEPTEMBER 22, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

James A. Cales, Jr., Judge 

 Dianne G. Ringer, Senior Assistant Public 

Defender, for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Kenneth McKae Peele was convicted in a bench trial of 

malicious wounding. On appeal, he contends that the evidence was 

insufficient to support his conviction. We disagree and affirm 

the conviction. 

 On March 20, 1996 at approximately 9:30 p.m., Kevin 

Brantley, the victim, drove into the drive-through lane at a 

Bojangles restaurant located in the City of Portsmouth. After 

placing his order, Brantley drove around the corner of the 

building to the pick-up window. Peele was standing in the 

drive-through lane. When Brantley approached the window, Peele 

told him that he had almost been hit by Brantley's car. Brantley 

stated that he had not expected anyone in the drive-through lane. 

 

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

designated for publication. 
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 Then Peele leaned into the pick-up window and remained in the 

drive-through lane. Brantley leaned out of his car window and 

asked if there was a problem. There was no response from Peele, 

and he continued to stand at the window. A few moments later, 

Brantley stepped out of the car to "see what was going on." 

 Brantley testified that Peele circled around the car and 

approached him from behind the car. Brantley stated that Peele 

and another man attacked him, hitting and kicking him beside 

Brantley's car. Brantley testified that Peele knocked him to the 

ground, striking him with his fists and feet. As a result of 

this beating, Brantley suffered a broken bone in his neck, as 

well as various cuts, bruises, and scrapes on his face. 

 Upon routine patrol, Deputies Gerald Lee Boone and Paul A. 

Ewing of the Portsmouth Sheriff's Office observed Peele and two 

other men standing around Brantley. The deputies testified that 

they watched Peele hit Brantley twice with his fists, and also 

saw Peele use his knee to strike Brantley in the face as Brantley 

fell to the ground. 

 In Peele's defense, Tomika Kilabrew testified that she was 

working at the pick-up window at Bojangles on the night of the 

incident. Kilabrew testified that she heard Peele and Brantley 

exchange words, including racial epithets. She also testified 

that Brantley appeared annoyed with her and her manager because 

she was serving Peele, a pedestrian, at the pick-up window. 

Kilabrew was preparing orders and did not observe the beginning 
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of the fight. 

 Peele testified on his own behalf that he had been standing 

in the drive-through lane when Brantley drove toward him. Peele 

stated that Brantley threatened to run him over and used racial 

slurs. Peele further testified that after he refused to move 

away from the window, Brantley got out of his car and approached 

him. Peele stated that he acted out of self-defense. 

 Peele maintains that the evidence was insufficient to 

convict him of malicious wounding because neither "malice" nor 

"intent to permanently maim, disfigure or kill" was proven. 

Additionally, he alleges that the trial court erred in rejecting 

his claim of self-defense. 

 "When the sufficiency of the evidence is an issue on appeal, 

an appellate court must view the evidence and all reasonable 

inferences fairly deducible therefrom in the light most favorable 

to the Commonwealth." Cheng v. Commonwealth, 240 Va. 26, 42, 393 

S.E.2d 599, 608 (1990) (citing Stockton v. Commonwealth, 227 Va. 

124, 145-46, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873 

(1984)). On appeal, the decision of a trial court sitting 

without a jury is afforded the same weight as a jury's verdict 

and will not be disturbed unless plainly wrong or without 

evidence to support it. King v. Commonwealth, 217 Va. 601, 604, 

231 S.E.2d 312, 315 (1977). 

 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. However, whether a criminal 

conviction is supported by evidence 
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sufficient to prove guilt beyond a reasonable 

doubt is not a question of fact but one of 

law. 

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 

601-02 (1986). 

 "Intent is the purpose formed in a person's mind that may, 

and often must, be inferred from the facts and circumstances in a 

particular case, and may be shown by a person's conduct." 

Hernandez v. Commonwealth, 15 Va. App. 626, 632, 426 S.E.2d 137, 

140 (1993) (citing Long v. Commonwealth, 8 Va. App. 194, 379 

S.E.2d 473 (1989)). Even in an unarmed assault, the intent to 

maim, disfigure or kill can be inferred from the grievous nature 

of the injuries inflicted. Hernandez, 15 Va. App. at 631, 426 

S.E.2d at 140 (citing Roark v. Commonwealth, 182 Va. 244, 250, 28 

S.E.2d 693, 695-96 (1944)). 

 "The element in malicious wounding that distinguishes it 

from unlawful wounding is malice, expressed or implied, and 

malice in its legal acceptation, means any wrongful act done 

willfully or purposefully." Hernandez, 15 Va. App. at 631, 426 

S.E.2d at 140 (citing Williamson v. Commonwealth, 180 Va. 277, 

280, 23 S.E.2d 240, 241 (1942)). Proof of malice may, and most 

often must, be inferred by the fact finder from the facts and 

circumstances of a particular case, which may be shown by a 

person's conduct. Long, 8 Va. App. at 198, 379 S.E.2d at 475-76. 

 Peele contends that the evidence revealed reasonable 

provocation sufficient to negate malice. "[M]alice and heat of 

passion are mutually exclusive; malice excludes passion, and 
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passion presupposes the absence of malice." Barrett v. 

Commonwealth, 231 Va. 102, 106, 341 S.E.2d 190, 192 (1986). 

"[I]n order to determine whether the accused acted in the heat of 

passion, it is necessary to consider the nature and degree of 

provocation as well as the manner in which it was resisted." Id.

 Words alone are never sufficient to constitute provocation. See

Martin v. Commonwealth, 184 Va. 1009, 1021, 37 S.E.2d 43, 48 

(1946). 

 Finally, Peele argues that he was entitled to use force 

against Brantley on the basis of self-defense. "[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). The 

amount of force used to defend oneself, however, must not be 

excessive and must be reasonable in relation to the perceived 

threat. Id. 

 The evidence before the trial court was in conflict. 

According to Brantley, there was no provocation, no uttering of 

racial slurs, and no physical movement toward Peele. Brantley 

testified that Peele and another man approached Brantley, 

trapping him between themselves and his open car door. According 

to Brantley, Peele knocked him to the ground and continued to 

strike him with fists and feet. The officers corroborated 

Brantley's testimony, and also stated that they observed Peele 

strike Brantley in the face with his knee. Brantley sustained 
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cuts and bruises, including a broken bone in his neck and 

bleeding from his nose, forehead and cheek. 

 Conversely, Peele testified that Brantley got out of his car 

and began to move toward Peele in a threatening manner, as if to 

strike him, using abusive language. Peele testified that the 

fight took place in front of the car as Brantley approached him. 

 The court also heard the testimony of a witness who stated that 

she heard Brantley utter racial slurs toward Peele. This 

witness, however, by her own admission, did not see the inception 

of the fight. 

 The trial judge resolved questions of credibility against 

the appellant. 

 "In testing the credibility and weight to be 

ascribed to the evidence, we must give [the] 

trial court[]. . . the wide discretion to 

which a living record, as distinguished from 

a printed record, logically entitles them. 

The living record contains many guideposts to 

the truth which are not in the printed 

record; not having seen them ourselves, we 

should give great weight to the conclusions 

of those who have seen and heard them." 

Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259 

(1989) (quoting Bradley v. Commonwealth, 196 Va. 1126, 1136, 86 

S.E.2d 828, 834 (1955)). 

 The credible evidence presented was sufficient to allow the 

court to conclude that Peele did not act in self-defense or in 

response to sufficient provocation and that he did act with 

malicious intent to maim, disfigure or kill his victim. 

Accordingly, the conviction is affirmed. 
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 Affirmed.