                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia


JAMES HALL
                                            MEMORANDUM OPINION * BY
v.      Record No. 2572-96-2              JUDGE JERE M. H. WILLIS, JR.
                                              DECEMBER 30, 1997
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                          Donald W. Lemons, Judge
               Matthew T. Paulk, Assistant Public Defender
               (David J. Johnson, Public Defender, on
               brief), for appellant.

               Eugene Murphy, Assistant Attorney General
               (Richard Cullen, Attorney General, on brief),
               for appellee.



        On appeal from his bench trial conviction for malicious

wounding, James Hall contends that the evidence was insufficient

to prove his malicious intent to maim, disfigure, disable or

kill.       We affirm the judgment of the trial court.

        At approximately noon on March 25, 1996, Hall entered the

Fantastic Thrift Store in Richmond.      He walked to the electronics

section, placed a telephone in a plastic bag and exited the
                            1
store.      Michael Cridten, the store manager, followed Hall and
called for him to stop.      Hall began to run away.
        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        1
      For the purposes of this opinion, we assume that the proper
spelling of the victim's name is Michael Cridten, as he testified
 at trial. The transcript and indictment offered different
spellings of the victim's last name, Critden and Crittenden,
respectively.
     Cridten and another store employee, Steve Heck, caught Hall.

Hall resisted their efforts to apprehend him and told them that

he had acquired immune deficiency syndrome (AIDS).   Hall

stipulated at trial that he had tested positive for the human

immunodeficiency virus (HIV).

     As Cridten and Heck returned to the store with Hall, five or

six men, one of whom carried a baseball bat, surrounded them.

The men demanded that Cridten and Heck free Hall.    Continuing to

struggle, Hall bit Cridten on the hand, breaking the skin.       He

bit Heck on the wrist.   Cridten and Heck released Hall but

followed him.   They caught him again, and held him until a police

detective arrived.
     At trial, Hall testified that he told Cridten and Heck that

he had AIDS merely to avoid being physically assaulted.     He

stated that he bit them because he "didn't want to go to jail."
          On appeal, we review the evidence in the
          light most favorable to the Commonwealth,
          granting to it all reasonable inferences
          fairly deducible therefrom. The judgment of
          a trial court sitting without a jury is
          entitled to the same weight as a jury verdict
          and will not be set aside unless it appears
          from the evidence that the judgment is
          plainly wrong or without evidence to support
          it.


Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987) (citing Code § 8.01-680).

     A conviction of malicious wounding, under Code § 18.2-51,

requires proof that the assailant maliciously intended to maim,

disfigure, disable or kill his victim.   Because direct evidence



                                - 2 -
of malicious intent is often lacking, see Servis v. Commonwealth,

6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), proof of the

defendant's purpose may "'be inferred from the facts and

circumstances in a particular case,'" and may be "shown by a

person's conduct and by his statements."    Long v. Commonwealth, 8

Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).

     Hall does not dispute the dangerous nature of the

instrumentality that he employed to cause bodily injury. 2

Rather, he contends that he lacked the specific intent to maim,

disfigure, disable or kill.   Citing Haywood v. Commonwealth, 20
Va. App. 562, 458 S.E.2d 606 (1995), he argues that he intended

merely to escape.

     In Haywood, the police sought to stop the defendant, who was

fleeing in a vehicle.   Two officers attempted to block his flight

by moving their vehicles into his path.    Id. at 564-65, 458

S.E.2d at 607.   The defendant did not stop, and the officers

moved out of his way.   Id.   In reversing Haywood's convictions

for attempted capital murder, we noted that:   "There was no

     2
      While we are not asked to decide whether Hall's teeth are a
dangerous weapon, we note that "[a] deadly weapon is one which is
likely to produce death or great bodily injury from the manner in
which it is used," Pannill v. Commonwealth, 185 Va. 244, 254, 38
S.E.2d 457, 462 (1946), and "the Commonwealth was not constrained
to prove that the method [] used to cause bodily harm was
inherently dangerous." Long, 8 Va. App. at 197, 379 S.E.2d at
475. See United States v. Sturgis, 48 F.3d 784, 787-88 (4th
Cir.), cert. denied, 116 S. Ct. 107 (1995) (upholding conviction
for assault with a dangerous weapon where defendant bit two
correctional officers while he was HIV positive); Dawkins v.
Commonwealth, 186 Va. 55, 63, 41 S.E.2d 500, 504 (1947).




                                - 3 -
evidence that Haywood ever swerved or aimed his truck to hit the

police cars when they pulled out of his path or that he turned

his truck around in an attempt to hit the police cars after

passing by them."   Id. at 567, 458 S.E.2d at 608-09.    We

concluded that the Commonwealth failed to exclude the reasonable

hypothesis that Haywood merely intended to avoid apprehension.

Had he swerved toward the officers or injured them, the trier of

fact might have inferred that he sought to kill them.     See id.;
Matthews v. State, 476 N.E.2d 847, 850 (Ind. 1985) (upholding

conviction for attempted battery despite contention that

defendant sought only to escape from police officers when he

fired shots).

     Hall did not merely attempt to bite or threaten to bite

Cridten and Heck and, by so doing, attempt to escape.    Rather, he

announced that he was infected with AIDS.   Shortly thereafter, he

bit Cridten, breaking the skin.   This supports the inference that

he intended to infect Cridten with AIDS, a deadly disease.     See
Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4

(1991) (en banc).   That he may have had escape as his primary

goal does not preclude his harboring a secondary criminal

purpose.   See Hughes v. Commonwealth, 18 Va. App. 510, 530-31,

446 S.E.2d 451, 463 (1994) (en banc) (Coleman, J., concurring).

     Finally:
          "Malice inheres in the doing of a wrongful
          act intentionally, or without just cause or
          excuse, or as a result of ill will. It may
          be directly evidenced by words, or inferred
          from acts and conduct which necesarily [sic]



                               - 4 -
          result in injury. Its existence is a
          question of fact to be determined by [the
          trier of fact]."


Long, 8 Va. App. at 198, 379 S.E.2d at 475-76 (quoting Dawkins v.

Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947)).

     The trial court's finding that the biting was performed with

the requisite malicious intent is neither plainly wrong nor

without evidence to support it.   Accordingly, we affirm the

judgment of the trial court.
                                                        Affirmed.




                               - 5 -
Benton, J., dissenting.



     Because Hall's conviction was "based solely on

circumstantial evidence, all necessary circumstances proved must

be consistent with guilt and inconsistent with innocence,"

Haywood v. Commonwealth, 20 Va. App. 562, 567, 458 S.E.2d 606,

609 (1995), and must "exclude every reasonable hypothesis of

innocence."   Garland v. Commonwealth, 225 Va. 182, 184, 300

S.E.2d 783, 784 (1983).    "When, from the circumstantial evidence,

'it is just as likely, if not more likely,' that a 'reasonable

hypothesis of innocence' explains the accused's conduct, the

evidence cannot be said to rise to the level of proof beyond a

reasonable doubt."     Littlejohn v. Commonwealth, 24 Va. App. 401,

414, 482 S.E.2d 853, 859 (1977) (citation omitted).

     The majority holds that the evidence "supports the inference

that [Hall] intended to infect Cridten with AIDS, a deadly

disease."   Although the evidence might have supported that

inference, the Commonwealth's evidence also supports the

inference that Hall bit Cridten merely to avoid apprehension.

Thus, the evidence failed to exclude another reasonable

hypothesis explaining Hall's acts and intention.    This other

hypothesis "would exonerate [Hall] of the charge[] of [malicious

wounding]."   Haywood, 20 Va. App. at 567, 458 S.E.2d at 609.

     The evidence proved that after Cridten confronted Hall about

the theft, Hall ran.    Cridten and Heck caught Hall and tackled

him to the ground.   As they pulled Hall to his feet, Hall told



                                 - 6 -
them he had the AIDS virus.    Heck testified that when Hall said

he had the AIDS virus, Hall also said "let me go . . . take it

easy."    Hall testified that he wanted "them [to] turn [him] loose

because they [were] handling [him] pretty rough."

        When Cridten and Heck were leading Hall back to the store, a

group of men, one of whom was carrying a baseball bat, surrounded

them and told Cridten and Heck to release Hall.       Cridten then

began to explain to the men that he was holding Hall because Hall

had stolen from his store.    At this point, Hall began to

struggle, hitting, scratching, and biting in an attempt to get

away.    Indeed, when Cridten released his grip, Hall ran away.

Hall testified that he bit Cridten's hand in an attempt to escape

because he didn't want to go to jail.
        From this evidence, it is just as likely, if not more

likely, that Hall bit Cridten in an attempt to escape and avoid

police apprehension as it is that he intended to maim, disfigure,

disable or kill Cridten.     See id.     "'[W]here a fact is equally

susceptible of two interpretations one of which is consistent

with the innocence of the accused, [the trier of fact] cannot

arbitrarily adopt that interpretation which incriminates him.'"
Id. (quoting Corbett v. Commonwealth, 210 Va. 304, 307, 171

S.E.2d 251, 253 (1969)).    Although the circumstantial evidence

permits an inference that Hall may have intended to infect

Cridten by biting him after informing Cridten that he was

infected with AIDS, the circumstantial evidence clearly did not




                                 - 7 -
exclude an equally, if not more probable, reasonable hypothesis

of innocence that when Hall bit Cridten he intended only to

escape from Cridten's grip.   Therefore, I would reverse Hall's

conviction.




                               - 8 -
