                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Judges Alston, McCullough 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 General, 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, appellant contends that “[t]he trial court erred in

              refusing to reduce the aggravated [malicious wounding] charge . . . to ordinary [malicious

              wounding] . . . where the Commonwealth presented no medical evidence and there was a failure

              to prove ‘permanent and significant physical impairment.’” Finding no error, we affirm

              appellant’s conviction.

                                                         I. Background1

                     When reviewing a challenge to the sufficiency 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 opinion is not designated for publication.
                     1
                       As the parties are fully conversant with the record in this case and because this
              memorandum opinion carries no precedential value, this opinion recites only those facts and
              incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
              appeal.
party below, granting to it all reasonable inferences 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 that David Cornett was a teacher of building

maintenance at the Culpeper Juvenile Correctional Facility and was in his classroom on March 7,

2012. On that day, Cornett walked amongst the twelve students in his classroom, stopping at one

point to answer questions appellant had regarding a plumbing fixture. 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 help before collapsing to the floor.

       Officer Brennan responded soon after the incident and observed Cornett as Cornett was

leaving the correctional facility with emergency medical services. Officer Brennan described

Cornett as appearing “very lethargic” and making slow, “cautionary” movements.

       Cornett was taken directly to the hospital, where he received six stitches near his right

temple. Cornett was released from the hospital later that day. Two days later, Cornett returned

to the hospital’s emergency room complaining 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 also described significant symptoms and physical limitations that he

began experiencing after the attack. Cornett testified that he currently suffers from headaches

and experiences sensitivity to light. He has also experienced cognitive difficulties; he testified

that he has difficulty concentrating, multi-tasking, 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

                                                 -2-
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. Appellant 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 wounding any malicious wounding where the victim is

“severely injured and is caused to suffer permanent 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 experienced significant ongoing

impairments.2 Thus, the trial court concluded that the Commonwealth presented “substantial and

credible testimony that [Cornett] has significant impairment and that that impairment is

permanent.”

        The trial court found appellant guilty of aggravated malicious wounding and sentenced

appellant to fifty years’ imprisonment, with twenty-two years suspended. This appeal followed.

                                            II. Analysis

                                      A. Standard of Review

        When the sufficiency of the evidence is challenged on appeal, we “‘review the evidence

in the light most favorable to the party prevailing at trial and consider any reasonable inferences

from proven facts.’” Calloway v. Commonwealth, 62 Va. App. 253, 261, 746 S.E.2d 72, 76

(2013) (quoting Towler v. Commonwealth, 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. Virginia, 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 that it had “substantial and credible testimony that
[Cornett] has significant impairment and that that impairment is permanent.” We offer no
opinion on the trial court’s representations in this regard.
                                                  -3-
ask only whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. at 319. “‘The judgment of a trial court sitting without a jury is

entitled to the same weight as a jury verdict and will not be set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence to support 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, [appellant contends] there was no
               proof whatsoever that Cornett’s injury had caused a permanent and
               significant physical impairment, and 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 improve” 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. Commonwealth, 55 Va. App. 637, 644-45, 688 S.E.2d 295, 298-99

(2010). Adhereing to this standard, and in reliance on the common sense determination of the

jury, we also have affirmed convictions of aggravated 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 physical evidence that the victim’s injuries are

significant and permanent, the evidence is sufficient to support a conviction 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).

                                                -4-
       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 determination that the victim’s

injuries constituted “permanent and significant physical impairment.” Id.

       We applied a similar analysis in Martinez. Martinez shot his victim in her left shoulder.

42 Va. App. at 24, 590 S.E.2d at 64. The bullet lodged near the victim’s spine and had to be

surgically removed. Id. At Martinez’s trial two years after the incident, the victim “showed her

scars to the jury” and testified that 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 testified that she experienced some improvement

after her surgery, she explained that she still experienced difficulty gripping with her left hand

and “could not pick up money or change and could 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 impairment.” 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 whether the injuries were permanent and significant.’” Id. We

rejected Martinez’s argument, holding that the jury could reasonably conclude from the victim’s

testimony and the physical evidence adduced at trial that the victim suffered 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 the Commonwealth, the record amply supports the

trial court’s determination that Cornett’s physical impairment is “permanent and significant.”

                                                 -5-
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 six stitches to close a cut above

his right eye. At trial, eight months after the 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 “additional 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 testified that since the attack he has experienced

persistent headaches, sensitivity to light, difficulty walking, and cognitive 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 Correctional Facility. At the time of appellant’s trial, Cornett was

receiving bi-weekly medical treatment from two doctors.

       After observing the still visible 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 significant. A rational fact finder could make the

same conclusion based on the evidence presented. We therefore affirm appellant’s conviction.

                                                                                           Affirmed.




       3
         Considering the nature of Cornett’s symptoms, particularly his altered gait and
cognitive deficits, the trial court was well-situated to observe the severity of his impairments. In
fact, appellant’s attorney even conceded that Cornett “exhibit[ed] some problems” at trial.
                                                  -6-
