                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Chief Judge Huff, Judges Chafin and Decker
              Argued at Salem, Virginia


              ALEXANDER MICHAEL EDWARDS
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0939-16-3                                     CHIEF JUDGE GLEN A. HUFF
                                                                                    APRIL 11, 2017
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                                                 John T. Cook, Judge

                               Joshua Farmer (Farmer Legal, PLLC, on brief), for appellant.

                               Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Alexander Michael Edwards (“appellant”) appeals his convictions of two counts of

              malicious wounding, in violation of Code § 18.2-51, and conspiracy to murder, in violation of

              Code § 18.2-22. Following a bench trial in the Circuit Court of Campbell County (“trial court”),

              appellant was sentenced to twenty-one years in prison, with fifteen years suspended on these

              charges.1 On appeal, appellant contends that the trial court erred in two respects:

                               1. The trial court erred in denying [appellant’s] motion to strike at
                               the close of the Commonwealth’s evidence and in ruling that the
                               Commonwealth’s evidence was sufficient, as a matter of law, to
                               sustain convictions for malicious wounding in that the
                               Commonwealth failed to present evidence that [appellant] acted
                               with the requisite malicious intent to maim, disfigure, disable, or
                               kill.

                               2. The trial court erred in denying [appellant’s] motion to strike at
                               the close of the Commonwealth’s evidence and in ruling that the
                               Commonwealth’s evidence was sufficient, as a matter of law, to

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                         Appellant’s other convictions are not at issue in this appeal.
               sustain a conviction for conspiracy to commit a murder in that the
               Commonwealth failed to present evidence that two or more
               persons agreed to commit the crime.

For the following reasons, this Court affirms the trial court’s ruling in part and reverses in part.

                                        I. BACKGROUND

       On appeal, “we consider the evidence and all reasonable inferences flowing from that

evidence in the light most favorable to the Commonwealth, the prevailing party at trial.”

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       From late November to December of 2013, appellant, who was twenty years old at the

time, was living in the same house as two girls, K.M. (twelve years old), who suffers from a

learning disability, and F.M. (eleven years old); their brother S.M. (thirteen years old); their

mother; and mother’s boyfriend, Daniel. During this time, Daniel, who worked as a tattoo artist,

was operating his business out of their home and was keeping his tattoo gun in the house.

         On December 22, 2013, while appellant was home alone with S.M., K.M., and F.M.,

appellant used Daniel’s tattoo gun to tattoo F.M.’s and K.M.’s arms against their wishes.

Appellant “yanked” the girls’ arms and pulled them into the kitchen to administer the tattoos.

Despite having no experience tattooing, appellant tattooed K.M.’s name on her left shoulder and

then, without changing the needle, tattooed both of F.M.’s shoulders and one wrist with their

dog’s name, Reesee. The girls’ arms hurt while appellant applied the tattoos, and F.M. stated

that she cried throughout the incident. S.M. refused to get a tattoo from appellant and was upset

about appellant tattooing his sisters. When mother and Daniel arrived home later that day,

fighting ensued among appellant, mother, and Daniel, and ceased only after law enforcement

intervened.

                                                 -2-
        K.M. and F.M. later testified that even though they did not want the tattoos, they had not

left the kitchen because they were afraid of appellant and felt helpless against him. When they

tried to resist and told appellant they did not want tattoos, appellant stated that “if he didn’t do it,

then he would do something,” which F.M. understood to mean that he would hurt them. F.M.

had witnessed appellant fight S.M. and had seen appellant punch a wall and a door when he

became angry. K.M. had witnessed appellant hit S.M. with a belt and hold him down in the

grass outside their house. Appellant had also sexually assaulted K.M. on numerous occasions

while he was living with them.

        In January 2014, one of K.M.’s school resource officers contacted Investigator Stuart T.

Herndon (“Herndon”) of the Campbell County Sheriff’s Office regarding the injury to K.M.’s

left shoulder. Herndon, accompanied by a child protective services worker, reported to K.M.’s

school and saw that K.M. had a tattoo with a burn mark over it on her left shoulder. The burn

was the result of an attempt by Daniel to remove the tattoo with a “hot razor” with mother’s

consent. Daniel had also tried to remove F.M.’s tattoos using his tattoo gun and the “brush back”

method. Appellant was later taken into custody.

        While appellant was awaiting trial in jail, Herndon received a letter from another inmate,

Robert T. Farrar (“Farrar”), who had been housed in the same area as appellant. The letter was

written by appellant, addressed to Farrar, and stated the following:

                Dear Robbie, need these two people killed to keep them from
                testifying in my case . . . . I got $5,000.00 in payments for you to
                handle this. Without these two, the Commonwealth has no case on
                my sex charges. Alex Edwards.

In addition to the letter, appellant verbally asked Farrar to “let him know” if he could help

appellant find someone to kill two potential witnesses for the prosecution. Farrar told appellant

that he knew some people but later testified that he “never intended on—asking any of them.”

Appellant had previously admitted to Farrar that he had sexually abused K.M., and Farrar later
                                                  -3-
testified that this confession had repulsed him. Therefore, when he received the letter, Farrar

gave the letter to authorities the next day because he knew “[he] couldn’t sit there and keep that

information to [himself]. [He] had to tell somebody.”

       After the close of the Commonwealth’s evidence, appellant moved to strike the malicious

wounding and conspiracy charges. As to the malicious wounding charges, defense counsel

argued that appellant intended “to put art on . . . the children’s body, . . . and there’s certainly—

there’s no intent to put—to maim, disfigure, disable or kill.” As to the conspiracy charge,

appellant argued there was no evidence that Farrar agreed with appellant to commit any act in

furtherance of murder. The trial court denied the motions to strike. Appellant did not present

evidence, and the trial court found him guilty of the charges. This appeal followed.

                                  II. STANDARD OF REVIEW

       The standard of appellate review of a denial of a motion to strike is well established in

Virginia.

               When the sufficiency of [the Commonwealth’s] evidence is
               challenged by a motion to strike, the trial court should resolve any
               reasonable doubt as to the sufficiency of the evidence in the
               [Commonwealth’s] favor and should grant the motion only when it
               is conclusively apparent that [the Commonwealth] has proven no
               cause of action against defendant, or when it plainly appears that
               the trial court would be compelled to set aside any verdict found
               for the [Commonwealth] as being without evidence to support it.

Avent v. Commonwealth, 279 Va. 175, 198-99, 688 S.E.2d 244, 257 (2010) (alterations in

original) (quoting Banks v. Mario Indus., 274 Va. 438, 454-55, 650 S.E.2d 687, 696 (2007)).

“What the elements of the offense are is a question of law that we review de novo. Whether the

evidence adduced is sufficient to prove each of those elements is a factual finding, which will not

be set aside on appeal unless it is plainly wrong.” Lawlor v. Commonwealth, 285 Va. 187,

223-24, 738 S.E.2d 847, 868 (2013). “[I]f there is evidence to support the conviction, the

reviewing court is not permitted to substitute its judgment, even if its view of the evidence might
                                                 -4-
differ from the conclusions reached by the finder of fact at the trial.” Commonwealth v.

McNeal, 282 Va. 16, 20, 710 S.E.2d 733, 735 (2011) (quoting Commonwealth v. Taylor, 256

Va. 514, 518, 506 S.E.2d 312, 314 (1998)).

                                          III. ANALYSIS

       On appeal, appellant contends that the trial court erred in denying his motions to strike

the malicious wounding charges and the conspiracy charge. With regard to the malicious

wounding, appellant concedes that he wounded K.M. and F.M. and acted with malice;

nevertheless, he argues that the evidence was insufficient to prove that he intended to disfigure

them by applying the tattoos. Concerning the conspiracy, appellant argues that there was

insufficient evidence of an agreement.2 This opinion addresses each assignment of error in turn.

                                     A. Malicious Wounding

       Code § 18.2-51 provides that it is a felony to “maliciously shoot, stab, cut, or wound any

person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or

kill.” (Emphasis added). To support a conviction under this statute, the injury must have been

“inflicted maliciously and with intent to maim, disfigure, disable or kill.” Campbell v.

Commonwealth, 12 Va. App. 476, 483, 405 S.E.2d 1, 4 (1991) (en banc) (emphasis added)

(superseded on other grounds).

               When a statute makes an offense to consist of an act combined
               with a particular intent, that intent is just as necessary to be proved
               as the act itself, and must be found as a matter of fact before a
               conviction can be had; and no intent in law or mere legal
               presumption, differing from the intent in fact, can be allowed to
               supply the place of the latter.



       2
         The Commonwealth concedes that the evidence was insufficient to support a conviction
for conspiracy. While concessions of law are not binding on this Court, Wright v.
Commonwealth, 278 Va. 754, 760 n.3, 685 S.E.2d 655, 658 n.3 (2009), concessions of fact may
be binding, Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en
banc).
                                             -5-
Banovitch v. Commonwealth, 196 Va. 210, 215-16, 83 S.E.2d 369, 373 (1954) (quoting Thacker

v. Commonwealth, 134 Va. 767, 770, 114 S.E. 504, 505 (1922)).

       “A person’s intent in performing an act is the purpose formed in the person’s mind for the

performance of the act.” Campbell, 12 Va. App. at 483, 405 S.E.2d at 4. Unless admitted by the

accused, intent must be proved by facts and circumstances “consistent with guilt” and

“exclud[ing] every reasonable theory of innocence.” Commonwealth v. Hudson, 265 Va. 505,

513, 578 S.E.2d 781, 785 (2003). “While no single piece of evidence may be sufficient, the

‘combined force of many concurrent and related circumstances, each insufficient in itself, may

lead a reasonable mind irresistibly to a conclusion.’” Stamper v. Commonwealth, 220 Va. 260,

273, 257 S.E.2d 808, 818 (1979) (quoting Karnes v. Commonwealth, 125 Va. 758 764, 99 S.E.

562, 564 (1919).

               [M]alice inheres in the intentional doing of a wrongful act without
               legal justification or excuse, or as the result of ill will. Malice and
               the specific intent to maim, etc., may be evidenced by words or
               inferred from acts and conduct under the rule that a person is
               presumed to have intended the natural and probable consequences
               of his voluntary act.

Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 272 (1969) (emphasis added).

       As used in Code § 18.2-51, “[t]he word ‘disfigure’ means a ‘permanent and not merely a

temporary and inconsequential disfigurement.’” Id. at 484, 405 S.E.2d at 4 (quoting Lee v.

Commonwealth, 135 Va. 572, 578, 115 S.E. 671, 673 (1923)). Disfigurement is further defined

as “[a]n impairment or injury to the appearance of a person or thing.” Disfigurement, Black’s

Law Dictionary (10th ed. 2014). Consequently, for the evidence to support a specific intent to

disfigure, the evidence must be sufficient to find that the accused intended to “impair or injure”

the appearance of the victim. Although “the nature and extent of the bodily injury and the means

by which [such injury was] accomplished may reflect this intent,” these factors are not exclusive;



                                                -6-
“the critical issue is . . . the intent with which the injuries were inflicted.” Campbell, 12

Va. App. at 483, 405 S.E.2d at 4.

       In this case, the evidence was sufficient for a reasonable fact finder to conclude that

appellant specifically intended to disfigure F.M. and K.M. when he tattooed their arms. In

finding that appellant intended to “impair or injure” K.M.’s and F.M.’s appearances, the fact

finder was able to consider the following: K.M. and F.M. were unequivocal in their resistance to

having appellant tattoo their arms; appellant was inexperienced in administering tattoos and did

not change the needle between tattooing each girl; the girls were hurt by the tattooing; and,

despite F.M. crying, appellant forced her to receive three separate tattoos. Further, appellant

does not dispute that the tattoos permanently disfigured F.M. and K.M. and it may be inferred

that one “intend[s] the natural and probable consequences of his voluntary act.” Fletcher, 209

Va. at 640, 166 S.E.2d at 272. Thus, the finding that appellant intended to disfigure K.M. and

F.M. was not plainly wrong or without evidence in support. Accordingly, this Court affirms

appellant’s malicious wounding convictions.

                                           B. Conspiracy

       Under Code § 18.2-22, it is unlawful for any person to “conspire, confederate or combine

with another, either within or without this Commonwealth, to commit a felony within this

Commonwealth.” Code § 18.2-22(a). “In Virginia, the crime of conspiracy is complete when

the parties agree to commit an offense.” Gray v. Commonwealth, 260 Va. 675, 680, 537 S.E.2d

862, 865 (2000). “The agreement is the essence of the conspiracy offense.” Fortune v.

Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 49 (1991) (quoting Zuniga v.

Commonwealth, 7 Va. App. 523, 527-28, 375 S.E.2d 381, 384 (1988)).

               An agreement requires plurality of intent, a meeting of the minds.
               “It must be shown that the requisite intent existed as to at least two
               persons. That is, there must be a common design, so that if only

                                                 -7-
                one party to the agreement has the necessary mental state then
                even that person may not be convicted of conspiracy.”

Id. (quoting W. LaFave & A. Scott, Criminal Law § 461, at 470 (1972)). “One who has no

intention of following through with the common scheme but, instead, has the explicit intent to

foil the ultimate conspiratorial success has not entered into an agreement.” Id. at 648, 406

S.E.2d at 49.

       In this case, this Court holds that the evidence was not sufficient as a matter of law to

convict appellant of conspiracy to commit murder. Although appellant sought Farrar’s

assistance in murdering the two witnesses, there is no evidence that Farrar agreed to assist

appellant. Instead, the evidence demonstrated that Farrar was repulsed by appellant’s

descriptions of his offenses against the girls and that Farrar handed the note to the authorities the

next day in order to “foil the ultimate conspiratorial success.” See Fortune, 12 Va. App. at 648,

406 S.E.2d at 49. While Farrar acknowledged that he knew of people who could assist appellant,

he also testified that he did not intend to ask any of them and his actions that followed support

that conclusion. No evidence refuted this testimony. Thus, there was no evidence of an

agreement. Accordingly, this Court holds as a matter of law that the trial court erred to convict

appellant of conspiracy to commit murder.

                                        IV. CONCLUSION

       For the foregoing reasons, this Court affirms appellant’s malicious wounding convictions

but reverses appellant’s conspiracy conviction and dismisses the indictment.

                                                   Affirmed in part; reversed and dismissed in part.




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