                     COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia


TERRANCE JONES
                                            MEMORANDUM OPINION * BY
v.   Record No. 1686-98-2                    JUDGE MARVIN F. COLE
                                                FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                      Robert G. O'Hara, Jr., Judge

          Connie Louise Edwards (Connie Louise Edwards,
          P.C., on briefs), for appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Terrance Jones, appellant, appeals his conviction for

malicious wounding.    Appellant contends that the court erred by

failing to consider his "not objected to statements" and that the

evidence was insufficient to support his malicious wounding

conviction.    For the following reasons, we find no error and

affirm the conviction.

                                 Facts

     On September 13, 1997, appellant and Michele Kendred went to

appellant's home.    Appellant asked Kendred whether she wanted to

move into his home.     When Kendred refused appellant's offer, he


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
began choking her.   Kendred yelled, and appellant grabbed her

and pushed her into the bathroom.   Appellant hit her in the face

with his closed fist, pushed her into the bathtub, and hit her

again in the face with his closed fist.   Appellant's mother and

Baron Daniels intervened.    While Daniels struggled with

appellant in an effort to stop the attack, Kendred and her

two-year-old daughter left appellant's home.   Kendred, carrying

her daughter, got as far as the yard before appellant grabbed

her and hit her in the face until she and her daughter fell to

the ground.   After Kendred got up, appellant again hit her in

the face with his closed fist, and knocked her to the ground.

Kendred never pushed or slapped appellant during the attacks.

As a result of these attacks, Kendred was bleeding, bruised,

swollen and had two black eyes.

     At trial, defense witness Daniels testified that he heard

appellant say "it ain't right, she smacked me . . . she's in my

house, it ain't right."   Appellant's mother testified that

appellant said "she smacked me and all I was doing was wanting

to get dressed to go out."

                      Appellant's Statements

     Appellant argues that the trial court erred in failing to

consider his statements made to his mother and Daniels about

Kendred's action before he began assaulting her.   The trial

court, in response to appellant's argument regarding the

sufficiency of the evidence to show heat of passion, commented

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that "all we have is a hearsay statement of two other persons

that's what he said."    Appellant did not object, or present any

argument in response to the court's statement.    Moreover, there

was no indication that the court refused to consider these

statements when considering the evidence.    On appeal, appellant

contends that because the Commonwealth had not objected to the

statements that were admitted under exceptions to the hearsay

rule, the court should have considered the statements.

     "The Court of Appeals will not consider an argument on

appeal which was not presented to the trial court."      Ohree v.

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).

See Rule 5A:18.   Accordingly, Rule 5A:18 bars our consideration

of this question on appeal.    Moreover, the record does not

reflect any reason to invoke the good cause or ends of justice

exceptions to Rule 5A:18.

                        Sufficiency of the Evidence

     In challenging the sufficiency of the evidence supporting

his malicious wounding conviction, appellant specifically argues

that he acted in the heat of passion, which he contends excludes

malice, and that the evidence was insufficient to prove he acted

with the requisite intent.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v.



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Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

     So viewed, the evidence proved that appellant choked

Kendred, grabbed her and pushed her into the bathtub while

hitting her in the face with his closed fist.   Kendred never

pushed appellant or slapped him during this attack.   Appellant's

mother and Daniels intervened and were able to end the attack

temporarily.    Kendred picked up her daughter and tried to leave

appellant's house.    Appellant followed Kendred outside.   Even

though Kendred was carrying her daughter and, therefore, could

not defend herself, appellant grabbed her and hit her in the

face until she and her daughter fell to the ground.   When

Kendred arose, appellant began hitting her a third time until

she fell back to the ground.   Photographs admitted at trial

showed Kendred shortly after the attacks with a swollen face,

bloody nostrils, bruises, and black eyes.   Sergeant David Allen,

who responded to the scene, recalled at trial that Kendred "had

a large amount of blood around her face and forehead area.     Her

nose was swollen and she was bleeding from her nostrils."

     Heat of Passion

     To establish the heat of passion defense, an accused must

prove he committed the crime with "passion" and upon "reasonable

provocation."    See Canipe v. Commonwealth, 25 Va. App. 629, 643,

491 S.E.2d 747, 753 (1997).    "[I]t is necessary to consider the

nature and degree of provocation as well as the manner in which

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it was resisted."        Miller v. Commonwealth, 5 Va. App. 22, 25,

359 S.E.2d 841, 842 (1987) (citations omitted).        If the evidence

demonstrates that there was reasonable opportunity for the

accused's passion to cool, or that his passion in fact cooled,

then the wounding is attributable to malice and not heat of

passion.     See id.     "[T]he trial court must consider all of the

circumstances in evidence."        Id.   Whether the accused acted in

the heat of passion is a question for the fact finder to

determine.     See id.

     Kendred refused to move into appellant's home, but neither

pushed nor slapped him.       Appellant's mother testified that

appellant said Kendred "smacked" him.        Defense witness Daniels

testified that appellant complained that Kendred "smacked" him

in his own house.      The fact finder believed Kendred's testimony,

and rejected the testimony of appellant's mother and Daniels.

"The credibility of the witnesses and the weight accorded the

evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented."

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995).    The Commonwealth's evidence was competent, was not

inherently incredible, and was sufficient to prove that

appellant acted with malice, and not out of the heat of passion,

as there was no reasonable provocation.

     Even if the fact finder had accepted appellant's evidence

that Kendred provoked him, the evidence showed that appellant

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had the time and opportunity to "cool" down.    Appellant's mother

and Daniels intervened in the attack, allowing Kendred and her

daughter to leave appellant's house.   However, appellant did not

use the opportunity to "cool" down.    Instead, he chased Kendred

outside and continued attacking her, even though she was

carrying her daughter and was defenseless.    Moreover, even if

the court had accepted appellant's version that Kendred slapped

him, appellant's response of choking her, hitting her

continuously with his fists, chasing her outside and hitting her

so that she and her daughter fell to the ground, and then

hitting her again as she tried to stand, resulting in

substantial injuries, is far out of proportion to the "slap."

Therefore, the court could still find that appellant acted with

malice and not from the heat of passion.     See Davidson v.

Commonwealth, 167 Va. 451, 455, 187 S.E. 437, 439 (1936) ("if

the punishment inflicted for a slight transgression is in its

nature out of all reason and beyond all proportion to the

offense offered, then the inference of law is that the

perpetrator was actuated by malice, and he loses the presumption

that the act was done in a moment of human frailty").

     Intent to Maim, Disable, Disfigure or Kill

     "'[A]n assault with the bare fist may be attended with such

circumstances of violence and brutality that an intent to kill

will be presumed.'"   Williams v. Commonwealth, 13 Va. App. 393,



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395, 412 S.E.2d 202, 203 (1991) (quoting Roark v. Commonwealth,

182 Va. 244, 250, 28 S.E.2d 693, 695-96 (1944)).

       In Williams, the defendant broke into Judy Lovewine's

apartment and attacked Alton Biggs.      The defendant struck Biggs

four or five times with his fists and stopped only when the

police arrived.   Biggs's eye was disfigured and swollen and

required medical treatment.   Biggs's jaw was injured and

required treatment with antibiotics.     We found that the evidence

supported the trial court's determination that the attack on

Biggs was made by the defendant with the intent to maim,

disfigure, disable or kill.    See id. at 398, 412 S.E.2d at 205.

       In Shackelford v. Commonwealth, 183 Va. 423, 32 S.E.2d 682

(1945), the defendant, using his fists, struck the victim on her

nose, eye, and ear.   When the defendant's wife grabbed him to

prevent further attack, the victim was able to flee.     Noting

that the defendant, a strong man, made an unprovoked attack upon

a woman, striking her at least three times on her face,

threatened to "finish" her, and that the attack ended only

because defendant's wife intervened, the Court found the

evidence sufficient to support the requisite intent for a

malicious wounding conviction.     See id. at 427, 32 S.E.2d at

684.

       In Bryant v. Commonwealth, 189 Va. 310, 53 S.E.2d 54

(1949), the two defendants called the victim out of his home,

threatened to kill him, and then beat him with their fists until

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blood ran out of his ears, nose, and mouth.   Affirming the

defendant's convictions for maiming, the Court said "one may

permanently maim, disfigure, disable or kill with the fists, or

knees, if the force is applied with violence and brutality."

Id. at 317, 53 S.E.2d at 57.

     Here, the evidence supports the finding that appellant

acted with the specific intent to maim, disfigure, disable or

kill when he attacked Kendred.    Although using his bare fist,

appellant's attack involved such circumstances of violence and

brutality that the fact finder could presume such intent.

     The Commonwealth's evidence was sufficient to prove beyond

a reasonable doubt that appellant committed malicious wounding.

     For the foregoing reasons, the judgment of the trial court

is affirmed.

                                                         Affirmed.




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