                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Retired Judge Olitsky*
Argued at Richmond, Virginia


EARL C. MAYE, JR.
                                           MEMORANDUM OPINION ** BY
v.   Record No. 2311-98-2                 JUDGE ROBERT J. HUMPHREYS
                                               AUGUST 29, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                      James F. D'Alton, Jr., Judge

             Douglas M. Atkins (Bourdow & Bowen, P.C., on
             brief), for appellant.

             Virginia B. Theisen, Assistant Attorney
             General (Mark L. Earley, Attorney General;
             Jeffrey S. Shapiro, Assistant Attorney
             General, on brief), for appellee.


     Earl C. Maye, Jr. appeals his conviction for malicious

wounding.     He argues that the trial court erred when it refused

to grant his proposed jury instruction regarding the elements of

malicious wounding and unlawful wounding, which incorporated the

elements of assault and battery as a lesser-included offense.

We agree and for the reasons that follow, we reverse the

judgment of the trial court.



     *
       Retired Judge Norman Olitsky took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying § 17-116.01.
     **
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                             I.   BACKGROUND

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to the

disposition of this appeal.

     At approximately 2:00 a.m., on February 22, 1997, Maye and

Arthur Ingram were talking on Ingram's front porch about Maye's

belief that Ingram "wanted to do something to him."   According to

Ingram, Maye punched him in the face then turned to two companions

and asked if they were "just going to stand there."   All three men

began beating, kicking and punching Ingram.    During the fight,

Ingram was stabbed in the chest and, according to Ingram, Maye

said "[Y]ou're stabbed now . . . ."

     According to the Commonwealth's evidence, Maye and his

companions continued to strike Ingram as he walked down the street

holding his chest.   Eventually, Ingram passed out in front of his

house.   Ingram testified that Maye was the person who pulled out

the knife and stabbed him.    Further, Ingram denied that he or the

other two assailants had weapons.

     Ingram was taken to the hospital where he underwent surgery.

He suffered three separate stab wounds to the chest, one of which

penetrated his heart.   As of the date of the trial, Ingram still

suffered from chest pains because of the stabbing and displayed

visible scars from the wounds and the surgery.

     Ingram's sister testified that she came out of the house

during the incident and saw Maye and two other men standing near

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Ingram.   She saw Maye kicking Ingram and heard Maye say, "You're

cut Arthur."   She begged Maye to stop and he and the others left.

     On February 24, 1997, Detective Thomas Young talked to Ingram

in the hospital while Ingram was still heavily sedated.      Young

testified that Ingram would "float in and out."       Ingram told Young

that Maye and two others attacked him.       At that time, Ingram told

Young that he did not see a knife.

     Maye testified that on the night of the incident, he, Brian

Redwine, Travis Moss, and another person were walking up the

street and Ingram called to them from his porch and started to

argue.    Maye also testified that earlier that night he gave a

knife to Redwine.   Maye admitted that while he started a fight

with Ingram and struck and kicked him several times, he did not

encourage anyone else to participate.     Maye said he pushed

Redwine away and told him to get out of the fight and when he

turned back around, Ingram was on the ground with blood on his

shirt.    Maye testified that he did not stab Ingram and that

while he started the fight, he "did not want Ingram to get hurt,

not like that bad."

                            II.   ANALYSIS

     A trial court is "bound by the principle that the accused

is entitled, on request, to have the jury instructed on a lesser

included offense that is supported by more than a 'scintilla of

evidence' in the record."    Bunn v. Commonwealth, 21 Va. App.

593, 599, 466 S.E.2d 744, 746 (1996) (citation omitted).

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However, as stated above, the trial court refused Maye's

proffered instruction which included the lesser-included offense

of assault and battery.

     The Commonwealth contends a jury instruction on assault and

battery is inappropriate because the evidence in this case

establishes that Maye actually stabbed Ingram or, at the very

least, was criminally liable for his stabbing as a principal in

the second degree.   It argues that if Maye's version of the

events was accepted by the jury, they would have to find Maye

not guilty.   We disagree.

     When considering whether a trial court erred in refusing to

give a proffered instruction, "we view the evidence with respect

to the refused instruction in the light most favorable to the

defendant."   Boone v. Commonwealth, 14 Va. App. 130, 131, 415

S.E.2d 250, 251 (1992).   So viewed, we note that Maye admitted

that he assaulted Ingram, but denied that he wanted to hurt him

seriously, and denied stabbing him.    Maye also denied any

concert of action with anyone else involved in the incident.

Thus, Maye's evidence, if believed by the jury, tended to prove

that he did not participate as a principal in either the first

or the second degree in the crimes of either malicious or

unlawful wounding and could have established his guilt of

assault and battery.

     It is not our role, nor that of the trial court, to assess

the credibility of Maye's evidence.    That is the task of the

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fact finder, which must be done in the context of instructions

concerning the law applicable to any reasonable construction of

the facts advanced by the parties in the case.    However, here,

the fact finder was not able to adequately perform this task

because the requested instruction, which was clearly supported

by more than a "scintilla of evidence," was refused by the trial

court.

     The Commonwealth also suggests that any error in the

failure to instruct on assault and battery as a lesser-included

offense was harmless as a matter of law.    It bases this argument

on its theory that in convicting Maye of malicious wounding, the

jury necessarily rejected the lesser-included offense of

unlawful wounding on which it had been instructed.    Again, we

disagree.

     Although the jury was instructed on the lesser-included

offense of unlawful wounding, it was not instructed on the

lesser-included offense of assault and battery.

             An element necessary to both malicious and
             unlawful wounding is the "intent to maim,
             disfigure, disable or kill" the victim.
             Assault and battery, however, requires
             [only] proof of "an overt act or an attempt
             . . . with force and violence, to do
             physical injury to the person of another,
             . . . "whether from malice or from
             wantonness," . . . .

Id. at 132, 415 S.E.2d at 251 (citations omitted) (emphasis in

original).



                                 - 5 -
      Our holding in Boone is directly applicable to this case

and the proper instruction of a jury with respect to these two

offenses:

            The jury was instructed that the
            Commonwealth had the burden of proving
            beyond a reasonable doubt that defendant
            wounded [the victim] with the "intent to
            maim, disfigure, disable or kill" him. They
            were not instructed, however, that defendant
            could be convicted of a lesser offense in
            the absence of this intent. The jury was
            thus "given the impermissible choice of
            drawing the conclusion" either that
            defendant intended to maim, disfigure,
            disable, or kill [the victim], with or
            without malice, and was thus guilty of
            either malicious or unlawful wounding, or
            that he did not possess this intent "and was
            not guilty of any offense." [Accordingly,]
            [t]he jury was denied the opportunity to
            assess the evidence as it related to assault
            and battery, an offense that may be
            accompanied by malice, but does not require
            the intent to maim, disfigure or kill.

Id. at 133-34, 415 S.E.2d at 252 (citations omitted).

     As in Boone, the jury could have concluded that Maye lacked

the specific intent to "maim, disfigure, disable or kill" and

acted only with the intent to do bodily harm to Ingram, whether

with or without malice.   Thus, "[c]redible evidence was before

the jury that, if believed, supported an instruction on assault

and battery, and '[i]t is immaterial that the jury might have

rejected the lesser-included offense.'"    Id.   "[W]here it is

impossible to determine from the verdict whether the jury would

have necessarily rejected a lesser-included offense on which it

was not instructed, error in refusing to instruct on that

                                - 6 -
offense is not harmless."   Turner v. Commonwealth, 23 Va. App.

270, 276, 476 S.E.2d 504, 507 (1996), aff'd, 255 Va. 1, 492

S.E.2d 447 (1997).

     We find that it was error for the trial court to refuse a

proper instruction on assault and battery as a lesser-included

offense and that such error was not harmless.    Accordingly, we

reverse the judgment of the trial court and remand this case for

a new trial if the Commonwealth be so advised.

                                            Reversed and remanded.




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