                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia


WILLIAM EDWARD JENKINS
                                         MEMORANDUM OPINION * BY
v.   Record No. 0967-01-4                 JUDGE LARRY G. ELDER
                                             NOVEMBER 5, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF WARREN COUNTY
                       Dennis L. Hupp, Judge

           S. Jane Chittom, Appellate Defender (Public
           Defender Commission, on briefs), for
           appellant.

           Michael T. Judge, Assistant Attorney General
           (Jerry W. Kilgore, Attorney General, on
           brief), for appellee.


     William Edward Jenkins (appellant) appeals from his jury

trial conviction for malicious wounding. 1   On appeal, he contends

the evidence was insufficient to prove he intended to wound the

victim.   We hold the evidence was sufficient to prove intent,

and we affirm.

     When considering the sufficiency of the evidence on appeal

in a criminal case, we view the evidence in the light most

favorable to the Commonwealth, granting to the evidence all


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Appellant also was convicted for two counts of assault and
battery arising out of the same events, but only the malicious
wounding conviction is before us in this appeal.
reasonable inferences fairly deducible therefrom.    Higginbotham

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

The conclusions of the fact finder on issues of witness

credibility may be disturbed on appeal only if this Court finds

that the witness' testimony was "inherently incredible, or so

contrary to human experience as to render it unworthy of

belief."    Fisher v. Commonwealth, 228 Va. 296, 299-300, 321

S.E.2d 202, 204 (1984).

     Appellant was convicted for malicious wounding in violation

of Code § 18.2-51, which provides as follows:

                 If any person 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, he shall,
            except where it is otherwise provided, 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.

     Appellant contends the evidence was insufficient to prove

he intended to wound the victim.   First, he argues, a wound is a

breaking of the skin, not just bruising, and must be inflicted

with an actual weapon, not the perpetrator's hands, feet, or

teeth.    Second, he contends, even though the evidence supports a

finding that he intended to kick the victim, no evidence proved

either that the kicking resulted in direct contact between

appellant's foot and the victim's head or that appellant

intended to cause the victim to come in contact with the glass

window.

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        Appellant is correct that establishing a wound within the

meaning of Code § 18.2-51 requires proof of a breaking of the

skin.     See, e.g., Johnson v. Commonwealth, 184 Va. 409, 412-13,

35 S.E.2d 594, 595 (1945) (affirming continuing validity of

Harris v. Commonwealth, 150 Va. 580, 142 S.E. 354 (1928)).

Here, the evidence established the victim had two wounds, "[a]

very large [semi-circular] flap evulsion laceration" to his

right scalp and "a small puncture wound to the right side of his

proximal forearm just below the elbow."

        Citing Fletcher v. Commonwealth, 209 Va. 636, 166 S.E.2d

269 (1969), appellant concedes that proof of kicking, if severe

enough, is sufficient to prove malicious bodily injury in

violation of Code § 18.2-51.      Id. at 640-41, 166 S.E.2d at 273.

However, he argues that severe kicking is insufficient to prove

malicious wounding under the same statute.     Because he was

indicted for malicious wounding rather than malicious bodily

injury, he contends, proof of kicking is insufficient to support

his conviction.

        We disagree.   Although Fletcher involved a charge of

malicious bodily injury rather than malicious wounding, the

portion of Fletcher upon which appellant relies focused on the

evidence required to prove whether the defendant acted with

intent to "maim, disable, disfigure or kill."      Id. at 640, 166

S.E.2d at 273.    The Court in Fletcher made no distinction in the

method of proof based on whether the harm actually inflicted was

                                  - 3 -
a "wound[ing]" or a "bodily injury."    Id.   Because Code

§ 18.2-51 requires proof of an intent to "maim, disfigure,

disable, or kill" for both offenses, this part of the Court's

holding in Fletcher applies equally to offenses of malicious

bodily injury and malicious wounding.    See Shakelford v.

Commonwealth, 183 Va. 423, 426, 32 S.E.2d 682, 684 (1945)

(analyzing sufficiency of evidence to prove intent to "maim,

disable [or] kill" in reference to malicious wounding and

malicious bodily injury and applying the principle that "'an

assault with the bare fists may be attended with such

circumstances of violence and brutality that an intent to kill

will be presumed'" without distinguishing between the two

offenses (quoting McWhirt's Case, 44 Va. (3 Gratt.) 594, 611

(1846)), cited with approval in Fletcher, 209 Va. at 640, 166

S.E.2d at 273; see also Boone v. Commonwealth, 14 Va. App. 130,

133, 415 S.E.2d 250, 252 (1992) ("recogniz[ing]" applicability

of Fletcher principle to offense of malicious wounding).

     Finally, we hold the evidence was sufficient to prove

appellant acted with the requisite intent to "maim, disfigure,

disable or kill," despite the absence of direct evidence that

appellant's kicking the victim resulted in contact between

appellant's foot and the victim's head or that appellant

intended to cause the victim to come in contact with the plate

glass window.



                              - 4 -
     "Intent is the purpose formed in a person's mind which may,

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

a particular case."   Ridley v. Commonwealth, 219 Va. 834, 836,

252 S.E.2d 313, 314 (1979).   "Circumstantial evidence is as

competent and is entitled to as much weight as direct evidence,

provided it is sufficiently convincing to exclude every

reasonable hypothesis except that of guilt."   Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

          When facts are equally susceptible to more
          than one interpretation, one which is
          consistent with the innocence of the
          accused, the trier of fact cannot
          arbitrarily adopt an inculpatory
          interpretation. The fact finder, however,
          is entitled to draw inferences from proved
          facts, so long as the inferences are
          reasonable and justified. Furthermore, the
          fact finder may infer that a person intends
          the immediate, direct, and necessary
          consequences of his voluntary acts. Thus,
          when the fact finder draws such inferences
          reasonably, not arbitrarily, they will be
          upheld.

Moody v. Commonwealth, 28 Va. App. 702, 706-07, 508 S.E.2d 354,

356 (1998) (citations omitted); see Fletcher, 209 Va. at 640,

166 S.E.2d at 272 (in context of malicious wounding statute,

noting principle that person is presumed to intend natural and

probable consequences of his voluntary act).

     In a prosecution for violating Code § 18.2-51, "[t]he

nature and extent of the . . . injury and the means by which

accomplished may reflect [an intent to maim, disfigure, disable

or kill] but are not exclusive factors."   Campbell v.

                               - 5 -
Commonwealth, 12 Va. App. 476, 483, 405 S.E.2d 1, 4 (1991) (en

banc).    The requisite intent may be inferred from an assault

with bare fists if the assault is "attended with [sufficient]

circumstances of violence and brutality," Fletcher, 209 Va. at

640, 273 S.E.2d at 273, such as an assault to "vital and

delicate parts of the body of a defenseless, unresisting person

on the ground," Roark v. Commonwealth, 182 Va. 244, 250, 28

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

     Here, the evidence, viewed in the light most favorable to

the Commonwealth, established that the attack on the victim was

unprovoked, occurred simply because appellant "like[d] to

fight," and involved two aggressors against the lone victim.

The evidence established that appellant intentionally punched

the victim, which caused him to fall against the plate glass

window.   The victim then fell to the ground next to the window

and was unable to get up because appellant and Kevin Good kept

kicking him.   Appellant was wearing boots during the attack.

Appellant's and Good's repeated kicks pushed the victim up

against the window, and a kick delivered by appellant's booted

foot forced the victim's head back into the window, causing the

large laceration to his scalp.    When appellant saw that the

victim was bleeding, he stopped the attack only briefly.

Appellant kicked the victim several more times before fleeing.

The only reasonable hypothesis flowing from the evidence is that

appellant intentionally delivered the punches and kicks which

                                 - 6 -
caused the victim to fall to the ground and which pushed his

head into the plate glass window.   The fact that these blows

pushed the victim into the window, inflicting a scalp laceration

which required sutures, was "an immediate, direct, and necessary

consequence[] of [appellant's] voluntary acts," id., and, thus,

a consequence appellant could reasonably have anticipated, see

David v. Commonwealth, 2 Va. App. 1, 5, 340 S.E.2d 576, 578

(1986).   Under these circumstances, the evidence was sufficient

to prove appellant acted with the requisite intent.

     For these reasons, we affirm appellant's conviction.

                                                         Affirmed.




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