                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


ERIC DURRELL JACKSON
                                          MEMORANDUM OPINION ∗∗ BY
v.   Record No. 0388-99-2                 JUDGE DONALD W. LEMONS
                                                MAY 23, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Margaret P. Spencer, Judge

            Conrad C. Lewane for appellant.

            Linwood T. Wells, Jr., Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     Eric Durrell Jackson appeals his conviction for malicious

wounding.    On appeal, he argues that (1) he proved self-defense,

(2) the evidence was insufficient to prove malice, and (3) the

trial court erred by considering his juvenile offenses when

computing his total point score for purposes of determining

sentencing guidelines recommendations.




     ∗
       Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                           I.   BACKGROUND

     In this bench trial, the evidence demonstrated that on

August 9, 1998, Jackson was involved in an altercation with

Alicia Venable in the backyard of her apartment building.

According to Venable, Jackson accused her of taking "some coke

from one of his trash cans."    Venable denied the allegation, and

Jackson became "emotional."     Venable testified that during the

argument, Jackson was "swinging his hand."    She testified that

Jackson "was saying that the girl told him I had took his stuff

out of the trash can.    I thought he was going to swing."   She

later stated that Jackson "wasn't swinging," that she "didn't

know if he was going to swing or not," but that she thought he

"was going to swing at [her]."

     While arguing with Jackson, Venable reached into her pocket

with her right hand and grasped a closed switchblade knife that

she had retrieved earlier from her home to protect herself from

the woman who accused her of taking the "coke" from Jackson's

trash can. 1   According to Venable, when Jackson swung one of his

hands, she moved her right hand up for protection while still

holding the closed switchblade.    Jackson hit Venable in the

face, and she fell to the ground on top of a fire hydrant and

nearby sewer.    According to Venable's testimony, nobody was

present in the immediate area except Jackson and her and Jackson


     1
         Venable testified that the woman was armed with a knife.


                                 - 2 -
kicked her either before or after the punch.     After the blow,

Jackson's mother, Lillian, came out of her house to assist

Venable.    Lillian took Venable to the hospital where she

received seventeen stitches in her head and was treated for a

fractured jaw.

        At trial, the Commonwealth's attorney asked Venable whether

her injuries "were from the punch or punches that [she] received

from the defendant."    Venable responded affirmatively again and

was asked to describe her injuries.      She stated, "My head was

bust open, I got about 17 stitches, and my jaw was fractured."

At the conclusion of her direct examination, the Commonwealth's

attorney asked Venable whether the seventeen stitches she

received were "a result of the one punch."     Venable stated,

             Yeah, but it's a fire hydrant where the
             sewer hole's right there where I landed at,
             and that could have bust my head open. I
             can't say that the punch bust my head open.
             I landed on top of that great big sewer
             thing there. My head could have hit that.

        Jackson's mother testified that she came out of the house

while appellant and Venable were arguing and saw Venable

swinging an open knife at him.    As she ran over to them, she

claimed to have seen Jackson hit Venable one time and Venable

fall.    Appellant's mother could not, however, testify where

Jackson hit Venable.

        Antonio Kidd, Jackson's neighbor, testified that he was in

his house when he heard an argument outside.     He walked to the


                                 - 3 -
door and saw Venable holding an open knife and waving it in

Jackson's face.   Kidd stated that as soon as Jackson hit

Venable, he walked back inside because "it wasn't [his]

business" and that he did not see where Jackson hit Venable nor

did he see her fall to the ground.      Kidd testified that Lillian

Jackson was not outside during the altercation.

     Jackson testified that earlier that day he was playing a

"dice game" outside when police came and he fled.     During his

flight, he dropped some money and when he returned, it was gone.

He later accused Venable of taking the money.     He said that she

pulled a knife on him and was swinging it at him and that he

"just hit her."   He claimed the knife was open and that he

thought Venable would stab him.

     After all the evidence was presented, the judge stated,

"The Court has reviewed the jury instruction on self-defense,

both the jury instruction on the defendant without fault and the

jury instruction on the defendant with fault, and I'm ready to

reach a decision."    The trial court found Jackson guilty of

malicious wounding.   At the sentencing hearing the trial court

considered sentencing guidelines utilizing juvenile

adjudications in 1995 for abduction, use of a firearm in the

commission of a felony and carjacking. 2


     2
       In 1995, Jackson pled guilty to the crimes of abduction,
use of a firearm in the commission of a felony and carjacking.
He was a juvenile at the time and was placed on probation and
given community service. For purposes of sentencing Jackson for

                                - 4 -
                         II.   SELF-DEFENSE

     On appeal, Jackson contends that the evidence at trial

proved that Venable was struck only after she swung an open

knife near his face.   "Self-defense is an affirmative defense

which the accused must prove by introducing sufficient evidence

to raise a reasonable doubt about his guilt."     Smith v.

Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993).

"The trier of fact determines the weight of evidence in support

of a claim of self-defense," Gardner v. Commonwealth, 3 Va. App.

418, 426, 350 S.E.2d 229, 233 (1986), and "[a] trial judge's

factual findings will not be disturbed on appeal unless plainly

wrong or without evidence to support them."     Smith, 17 Va. App.

at 71, 435 S.E.2d at 416.

     Although it was a bench trial, the trial judge consulted

the Virginia Model Jury Instructions to determine the elements

of self-defense.   The Model Jury Instruction for self-defense

"With Fault" states:

               If you find from the evidence that the
          defendant was to some degree at fault in
          provoking or bringing on the [fight], and if
          you further find that when attacked:
          (1) he retreated as far as he safely could
          under the circumstances
          (2) in a good faith attempt to abandon the
          fight; and


the malicious wounding conviction, when computing the points for
Jackson's convictions as a juvenile, he has a total of 134
points, or a range under the guidelines of 6 years to 13 years,
4 months. Without considering those convictions, Jackson would
have 44 points, or a range of 1 year, 10 months to 5 years.

                                - 5 -
          (3) made known his desire for peace by word
          or act; and
          (4) he reasonably feared, under the
          circumstances as they appeared to him, that
          he was in danger of bodily harm; and
          (5) he used no more force that [sic]
          reasonably necessary to protect himself from
          the threatened harm, then you shall find the
          defendant not guilty.

Even if Jackson was entitled to defend himself, the evidence

viewed in the light most favorable to the Commonwealth is

sufficient to prove that he was "to some degree at fault in

provoking or bringing on the fight," that he did not retreat as

far as he safely could under the circumstances, that he did not

make a good faith attempt to abandon the fight, and that he did

not make known his desire for peace.    See Lynn v. Commonwealth,

27 Va. App. 336, 499 S.E.2d 1 (1998), aff'd, 257 Va. 239, 514

S.E.2d 147 (1999).   Accordingly, we hold that the trial judge

properly rejected Jackson's claim of self-defense.

           III.   SUFFICIENCY OF THE EVIDENCE -- MALICE

     When an appellant challenges the sufficiency of the

evidence upon which a conviction is based, this Court must view

the evidence in the light most favorable to the Commonwealth,

granting to the Commonwealth all reasonable inferences fairly

deducible from it.   See Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).   The credibility assigned

to a witness, the weight accorded the testimony and the

inferences to be drawn from proven facts are matters solely for

the fact finder's determination.   See Long v. Commonwealth, 8

                               - 6 -
Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).     Because it hears

and observes the witnesses, the judgment of a trial court

sitting without a jury is entitled to the same weight as a jury

verdict and should not be set aside unless plainly wrong or

without evidence to support it.     See Josephs v. Commonwealth, 10

Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).

     According to "[f]undamental principles," the Commonwealth

must "prove every essential element of the offense beyond a

reasonable doubt."   Moore v. Commonwealth, 254 Va. 184, 186, 491

S.E.2d 739, 740 (1997).   For circumstantial evidence to prove

guilt beyond a reasonable doubt, it must be wholly consistent

with guilt and wholly inconsistent with innocence.      See Bishop

v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984).

     Code § 18.2-51 provides in pertinent part:

          If any person maliciously . . . wound[s] any
          person or by any means cause him bodily
          injury, with the intent to maim, disfigure,
          disable, or kill, he shall . . . be guilty
          of a Class 3 felony. If such act be done
          unlawfully but not maliciously, with the
          intent aforesaid, the offender shall be
          guilty of a Class 6 felony.

Thus, the statute defines two crimes:     malicious wounding and

the lesser-included offense of unlawful wounding.     The element

of malice distinguishes the two, and it is the Commonwealth's

burden to establish that element.      See Miller v. Commonwealth, 5

Va. App. 22, 24, 359 S.E.2d 841, 842 (1987).




                               - 7 -
     On appeal, Jackson argues that the Commonwealth failed to

prove the element of malice.

     It is clear that Jackson's punch caused bodily injury to

Venable.   Venable's testimony, when viewed in the light most

favorable to the Commonwealth, was that her jaw was fractured by

the punch, not by the subsequent fall.

           Q       Did you have any injuries?

           A       Yes, I did.

           Q And were they received from the punch or
           punches that you received from the
           defendant?

           A       Yes.

           Q       Tell the Court what your injuries were.

           A My head was bust open, I got about 17
           stitches, and my jaw was fractured.

               *           *     *    *      *      *        *

           Q Now, can you point on your head as to
           where you received those stitches.

           A       Across here.

           Q Is that a result of the one punch that
           you remember?

           A Yeah, but it's a fire hydrant where the
           sewer hole's right there where I landed at,
           and that could have bust my head open. I
           can't say the punch bust my head open. I
           landed on top of that great big sewer thing
           there. My head could have hit that.

           Q You landed on top of that as a result of
           the punch that the defendant gave you?

           A       Yeah.


                                     - 8 -
Venable initially attributed both the gash in her head and the

fractured jaw directly to the punch.   Later in her testimony,

however, she clarified that the gash may have been caused as a

result of falling against the fire hydrant.   The evidence shows

that Jackson's punch fractured Venable's jaw and sent her to the

ground whereupon she hit her head on a fire hydrant causing the

gash on her head.

     "Malice inheres in the doing of a wrongful act

intentionally, or without just cause or excuse, or as a result

of ill will."   Dawkins v. Commonwealth, 186 Va. 55, 61, 41

S.E.2d 500, 503 (1947).   However,

          [m]alice is not confined to ill will, but
          includes any action flowing from 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 indication of a heart
          deliberately bent on mischief. Malice is
          implied from any willful, deliberate and
          cruel act against another.

Williams v. Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202,

205 (1991).   "Ordinarily, the fist is not regarded as a

dangerous or deadly weapon . . . [; therefore, it follows that

under] ordinary circumstances no malice may be inferred from

such a blow."   Roark v. Commonwealth, 182 Va. 244, 250, 28

S.E.2d 693, 696 (1944).

     The evidence viewed in the light most favorable to the

Commonwealth proved that Jackson, in the midst of an altercation

that he was in some degree at fault in provoking, struck

                               - 9 -
Venable.    Although the force of a single punch was sufficient to

injure Venable severely, we cannot say that this record contains

sufficient evidence from which the fact finder could have

inferred malice.       See, e.g., Dawkins, 186 Va. 55, 41 S.E.2d 500;

Williams, 13 Va. App. 393, 412 S.E.2d 202; Campbell v.

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

This attack consisted of one punch and apparently one kick.

There is no proof of prior animosity between Jackson and

Venable.    The evidence does not indicate that threats preceded

the attack.      After striking the victim, Jackson apparently

walked away from her without intervention by a third party.       Cf.

Shackleford v. Commonwealth, 183 Va. 423, 32 S.E.2d 682 (1945);

Williams, 13 Va. App. 393, 412 S.E.2d 202.       Because the gash to

Venable's head was apparently caused by the fortuitous falling

on a fire hydrant, an inference of malice may not be drawn from

the extent of that injury.

     Accordingly, the evidence was insufficient to support a

finding of malice and, consequently, insufficient to sustain the

malicious wounding conviction.

           IV.    CONSIDERATION OF JACKSON'S JUVENILE OFFENSES

     The trial court imposed a sentence of twenty years with ten

suspended.       Defense counsel's motion that the court re-sentence

Jackson without considering his juvenile convictions was denied.

On appeal, Jackson claims that the trial court should not have

considered the previous offenses that he committed as a juvenile

                                  - 10 -
when computing the sentencing guidelines recommendation because

Code § 16.1-308 (repealed in 1997) was clear and unambiguous in

its language that, "A finding of guilty on a petition charging

delinquency, under the provisions of this law shall not operate

to impose any of the disabilities ordinarily imposed by a

conviction for a crime . . . ."

     We note from the outset that the sentencing guidelines "are

not binding on the trial judge; rather, the guidelines are

merely a 'tool' to assist the judge in fixing an appropriate

punishment."   Belcher v. Commonwealth, 17 Va. App. 44, 45, 435

S.E.2d 160, 161 (1993) (citations omitted); see Code

§ 19.2-298.01; Smith v. Commonwealth, 26 Va. App. 620, 496

S.E.2d 117 (1998).   When Jackson was sentenced for the malicious

wounding conviction, the applicable law was Code § 17.1-805(B),

not Code § 16.1-308.   Code § 17.1-805(B) provides for the

formulation of discretionary felony sentencing guidelines and

specifically states that "previous convictions shall include

prior adult convictions and juvenile convictions and

adjudications of delinquency based on an offense which would

have been at the time of conviction a felony if committed by an

adult under the laws of any state, the District of Columbia, the

United States or its territories."     See Moses v. Commonwealth,

27 Va. App. 293, 302, 498 S.E.2d 451, 455-56 (1998); Harris v.

Commonwealth, 26 Va. App. 794, 807, 497 S.E.2d 165, 171 (1998).

Even in 1995, the predecessor to Code § 17.1-805(B), and the

                              - 11 -
applicable law when Jackson committed the juvenile offenses,

allowed for the trial court to consider, in its discretion,

juvenile convictions for purposes of an adult sentencing

hearing.    See Code § 17-237.

     "It is well settled that when the maximum punishment is

prescribed by statute, 'and the sentence [imposed] does not

exceed that maximum, the sentence will not be overturned as

being an abuse of discretion.'"     Valentine v. Commonwealth, 18

Va. App. 334, 339, 443 S.E.2d 445, 448 (1994) (quoting Abdo v.

Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977)).

     We reverse Jackson's malicious wounding conviction and

remand his case to the trial court for retrial on an offense no

greater than unlawful wounding.     Jackson's juvenile convictions

may be considered for sentencing purposes.

                           V.    CONCLUSION

     For the reasons stated above, we hold that Jackson's claim

of self-defense was properly rejected by the trial court but

that the evidence was insufficient to prove that Jackson acted

with malice.   The conviction for malicious wounding is reversed

and remanded for retrial on an offense no greater than unlawful

wounding.

                                              Reversed and remanded.




                                 - 12 -
