                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia


RONNIE ANTJUAN VAUGHN
                                               OPINION BY
v.   Record No. 2694-99-2             JUDGE JERE M. H. WILLIS, JR.
                                           JANUARY 30, 2001
COMMONWEALTH OF VIRGINIA


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

          Patricia P. Nagel, Assistant Public Defender
          (David J. Johnson, Public Defender; Office of
          the Public Defender, on brief), for
          appellant.

          Shelly R. James, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Ronnie Antjuan Vaughn was convicted of unlawful wounding in

violation of Code § 18.2-51.   On appeal, Vaughn argues that the

trial court erred in refusing to instruct the jury on the

lesser-included offense of assault and battery.    Finding the

evidence sufficient to support the granting of the

lesser-included offense instruction, we reverse.




     ∗
       Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
                          I.   BACKGROUND

     On appeal, when we consider a trial court's refusal to give

a proffered instruction, "the appropriate standard of review

requires that we view the evidence with respect to the refused

instruction in the light most favorable to [the proponent of the

instruction, in this case, Vaughn]."   Boone v. Commonwealth, 14

Va. App. 130, 131, 415 S.E.2d 250, 251 (1992) (citations

omitted).

     So viewed, the evidence discloses that the victim, Samuel

Robinson, was married to Vaughn's aunt, Tyra Vaughn Robinson

(Tyra), with whom he lived at Vaughn's grandmother's house.

Vaughn lived across the street.   On April 12, 1997, Vaughn told

Robinson that he had seen a man named "Mark" visiting Tyra at

the grandmother's house while Robinson was at work.   Robinson

became concerned because Tyra had an old boyfriend named Mark.

     Robinson called Tyra and told her to come home because he

wanted to talk to her.   While Robinson was talking to Tyra on

the telephone, Vaughn came from across the street.    Vaughn was

upset that Robinson had discussed the matter with Tyra, and the

two men began arguing.

     Vaughn and Robinson walked across the street to Vaughn's

house.   Robinson testified that on the way across the street,

Vaughn said "he'd get his four five and could take care of

[Robinson]."   Robinson understood that Vaughn was referring to a

.45 caliber handgun and this angered Robinson further.   The men

                               - 2 -
continued to yell at each other as Vaughn stood on the front

porch of his residence, approximately five feet away from

Robinson, who remained on the sidewalk.    Robinson subsequently

returned to the other side of the street, but the men continued

to argue and exchange profanities.

        Robinson and Vaughn were still arguing when Tyra returned

home.    Robinson stopped yelling at Vaughn.   He and Tyra walked

down the street where they reconciled their mutual concerns.

Tyra testified that Robinson had calmed down by the time they

returned to Vaughn's grandmother's house.

        Tyra testified that as she and Robinson approached the

grandmother's house, she saw Vaughn coming from across the

street and noticed that he had a gun.    She called out, "Ronnie,

no," but Vaughn ignored her and said to Robinson, "what the f---

you say now, what you say now."    Vaughn then began firing the

gun at Robinson's feet.    Robinson was struck in the ankle with a

bullet and fled.    Vaughn followed for a short distance and fired

at least one more shot, striking Robinson in the back.    Vaughn

then returned to his house.

        Robinson was unarmed during the confrontation with Vaughn.

He denied threatening or striking Vaughn.

        Vaughn testified to a different version of the events.    He

testified that Robinson threatened to beat and kill him.    He

said that he called a friend to take him away from the scene,

but the friend explained, upon arrival, that his car was full.

                                 - 3 -
Instead of giving Vaughn a ride, the friend gave him a handgun.

Vaughn stated that shortly after his friend left, Robinson

charged him.   He testified that he fired at the ground in order

to stop Robinson because of the disparity in their sizes 1 and the

"lethal" nature of Robinson's hands.     Vaughn stated that he

ultimately fired at waist level, but he denied intending to

shoot Robinson.

     The trial court instructed the jury on malicious wounding

and on the lesser-included offense of unlawful wounding.    It

refused Vaughn's request for an instruction on the

lesser-included offense of assault and battery.    Vaughn was

convicted of unlawful wounding.

                           II.    ANALYSIS

     Assault and battery is a lesser-included offense of

malicious wounding.   See Brown v. Commonwealth, 222 Va. 111,

116, 279 S.E.2d 142, 145 (1981).    "'If any credible evidence in

the record supports a proffered instruction on a lesser included

offense, failure to give the instruction is reversible error.'

'Such an instruction, however, must be supported by more than a

mere scintilla of evidence.'"     Brandau v. Commonwealth, 16 Va.

App. 408, 411, 430 S.E.2d 563, 564 (1993) (quoting Boone, 14 Va.

App. at 132, 415 S.E.2d at 251).    "[T]he weight of the credible


     1
       Robinson is six feet, one inch tall and weighs three
hundred pounds. Vaughn is five feet, three inches tall and
weighs one hundred sixty pounds.


                                 - 4 -
evidence that will amount to more than a mere scintilla of

evidence is a matter to be resolved on a case-by-case basis."

Id. at 412, 430 S.E.2d at 565.

     A required element of both malicious and unlawful wounding

is the "intent to maim, disfigure, disable, or kill" the victim.

Code § 18.2-51.    "An assault is any attempt or offer, with force

or violence, to do some bodily hurt to another, whether from

wantonness or malice, by means calculated to produce the end if

carried into execution."    2A Michie's Jurisprudence, Assault and

Battery § 2 (1992); see Johnson v. Commonwealth, 13 Va. App.

515, 517, 412 S.E.2d 731, 732 (1992).    "Battery is the actual

infliction of corporal hurt on another . . . willfully or in

anger . . . ."     Jones v. Commonwealth, 184 Va. 679, 682, 36

S.E.2d 571, 572 (1946).    One cannot be convicted of assault and

battery "without an intention to do bodily harm," but an intent

"to maim, disfigure, disable, or kill" is unnecessary to the

offense.     See Boone, 14 Va. App. at 133, 415 S.E.2d at 252

(citation omitted).

     Vaughn testified that although he fired the gun, he did not

intend to shoot Robinson.    He argued that he merely shot at the

ground in order to stop Robinson from hurting him.    From his

testimony, the jury could have found that Vaughn acted only with

the intent to do Robinson bodily harm to deter his attack, and

not with the specific intent "to maim, disfigure, disable, or

kill" him.

                                 - 5 -
     The Commonwealth argues that the deliberate use of a deadly

weapon imports an inference of an "intent to maim, disfigure,

disable, or kill."   However, while such evidence will support,

it does not compel, such an inference.   The bare use of a deadly

weapon, without attendant circumstances suggesting an "intent to

maim, disfigure, disable, or kill," is insufficient to prove

that intent as a matter of law.

     Thus, evidence was before the jury that, if believed,

supported an instruction on the lesser-included offense of

assault and battery.   The jury should have been instructed that

unless Vaughn intended "to maim, disfigure, disable, or kill"

Robinson, he could be found guilty only of the lesser-included

offense of assault and battery.

     Accordingly, we hold that the trial court erred in refusing

to instruct the jury on the lesser-included offense of assault

and battery.   We reverse the judgment of the trial court and

remand the case for further proceedings, if the Commonwealth be

so advised.

                                         Reversed and remanded.




                               - 6 -
Coleman, J., dissenting.

       The evidence, viewed in the light most favorable to the

defendant Vaughn, proves that he shot Robinson twice with a

deadly weapon, once in the ankle and once in the back.    On those

facts, a reasonable fact finder cannot conclude, in my opinion,

that if Vaughn intentionally shot Robinson, which is required to

justify giving an assault and battery instruction, that Vaughn

only intended "an unlawful touching" or simple assault and

battery and did not intend either to maim or disable his victim.

For that reason, I respectfully dissent from the majority

opinion.

       Unquestionably, assault and battery is a lesser-included

offense of malicious wounding.     See Brown v. Commonwealth, 222

Va. 111, 116, 279 S.E.2d 142, 145 (1981).    However, a court is

not required to instruct a jury on every lesser-included

offense.    See, e.g., Buchanan v. Commonwealth, 238 Va. 389, 409,

384 S.E.2d 757, 769 (1989); Brandau v. Commonwealth, 16 Va. App.

408, 413, 430 S.E.2d 563, 565-66 (1993).    In order to require a

lesser-included offense instruction, "more than a mere scintilla

of evidence" must support giving the lesser-included offense

instruction.    See Brandau, 16 Va. App. at 411, 430 S.E.2d at

564.

       Viewed in the light most favorable to the defendant, the

evidence as to how the shooting occurred supports two possible

views and legal theories, either of which is insufficient, in my

                                 - 7 -
opinion, to justify granting the proffered assault and battery

jury instruction.   First, one view of the evidence is that

Vaughn intentionally fired the gun in Robinson's direction but

that he accidentally shot Robinson intending only to scare him.

Vaughn testified to this version and asked us to accept that

view of the case.   A second theory is that he intentionally shot

Robinson.   Although Vaughn does not ask us to accept this

account, it is fundamental to his argument that the court should

have instructed on assault and battery.   Under the first theory,

that the shooting was accidental and intended only to scare

Robinson, an assault and battery instruction would not be

justified, in my opinion, because the requisite specific intent

to commit a battery is necessarily absent if the shooting was

accidental.   Under the second theory, an assault and battery

instruction would not be justified because intentionally

shooting or wounding another with a firearm would, in my

opinion, only justify malicious and unlawful wounding

instructions.   Accordingly, under either of the two possible

theories, the evidence fails to support granting an instruction

on simple assault and battery.    Thus, I would affirm the trial

court's ruling and the unlawful wounding conviction.

     Here, according to Vaughn's theory, the evidence proved

that he fired several shots into the ground in the direction of

Robinson's feet and fired a single shot in Robinson's general

direction as Robinson was moving away, intending only to scare

                                 - 8 -
Robinson and not intending to shoot or wound him.    Nevertheless,

one shot struck Robinson in the ankle and the last shot struck

him in the back.   Vaughn testified that, before firing the shot

that struck Robinson in the back, he raised the gun to waist

level.   Vaughn also testified that he knew that Robinson was not

armed.

     On the foregoing facts, the primary theory advanced by

Vaughn is that he accidentally shot and wounded Robinson.    Proof

that the shooting was accidental establishes only that Vaughn

committed a simple assault; such evidence does not prove that

Vaughn committed a battery because no intentional touching,

wounding, or shooting of the victim occurred.    "One cannot be

convicted of assault and battery 'without an intention to do

bodily harm -- either an actual intention or an intention

imputed by law . . . .'"     Boone v. Commonwealth, 14 Va. App.

130, 133, 415 S.E.2d 250, 251 (1992).    "A battery is an unlawful

touching of another. . . .    Whether a touching is a battery

depends on the intent of the actor, not on the force applied."

Adams v. Commonwealth, 33 Va. App. 463, 468-69, 534 S.E.2d 347,

350 (2000) (citation omitted).    "'[T]he slightest touching of

another . . . if done in a rude, insolent, or angry manner,

constitutes a battery for which the law affords redress.'"        Id.

at 469, 534 S.E.2d at 350 (citation omitted).    Accordingly,

where Vaughn claims he only intended to scare Robinson and did

not intend to shoot or wound him, Vaughn would not be entitled,

                                 - 9 -
in my opinion, to have the jury instructed on assault and

battery.     See Wynn v. Commonwealth, 5 Va. App. 283, 292, 362

S.E.2d 193, 198 (1987) (holding that shooting at a person

intending only to scare the person where no touching or wounding

occurs supports instructing the jury on simple assault).

        A second theory supported by the evidence is that Vaughn

intentionally shot Robinson, once in the ankle and once in the

back.    Vaughn argues that he was entitled to a lesser-included

assault and battery instruction because a fact finder could

reasonably conclude that when he twice shot Robinson, he "acted

only with the intent to do Robinson bodily harm to deter his

attack, and not with the specific intent 'to maim, disfigure,

disable, or kill.'"    The majority accepts this rationale as its

ratione decidendi and relies upon our holding in Boone, 14 Va.

App. at 133, 415 S.E.2d at 252, to support its conclusion.    I

disagree that a fact finder could reasonably conclude that a

person who intentionally shot another person could have the

intent to commit only a simple assault and battery.

        In Boone, we reversed and remanded a malicious wounding

conviction for failure to give a lesser-included assault and

battery instruction where Boone admitted he beat the victim with

"a two by four" board but testified he "didn't mean to hurt" the

victim, he just "panicked" when the victim "came onto" him with

homosexual advances.    In explaining why an assault and battery

instruction was required in Boone we said, "[o]ne cannot be

                                - 10 -
convicted of assault and battery 'without an intention to do

bodily harm -- either an actual intention or an intention

imputed by law,' but an intent to maim, disfigure or kill is

unnecessary to the offense."   14 Va. App. at 133, 415 S.E.2d at

251 (emphasis added).   Striking a person with a board, depending

upon the circumstances, may be either simple assault and battery

or may be unlawful or malicious wounding depending upon the

perpetrator's intent.   In Boone the evidence would have

permitted the fact finder to conclude that Boone delivered the

blows with an intent to do bodily harm but not necessarily with

the intent to maim, disable, disfigure, or kill and, thus, the

evidence required that the jury be instructed on misdemeanor

assault and battery.

     Boone, however, is distinguishable from the instant case.

Where, as here, a person intentionally shoots an individual

twice with a deadly weapon, the evidence proves, at a minimum,

that the person intended to disable or inflict serious bodily

injury upon the person.   Intentionally shooting a person, other

than in self-defense, does, in my opinion, necessarily prove an

intent to maim or disable the victim.   The facts and our holding

in Brandau, 16 Va. App. 408, 430 S.E.2d 563, are analogous to

the circumstances of the instant case and should control the

result here.

     In Brandau, we held that the trial court did not err by

refusing to give a lesser-included assault and battery

                               - 11 -
instruction in an attempted murder prosecution.   Brandau

testified that he was merely trying to scare the person at his

door, who he did not know to be a police officer, when he

intentionally emptied his gun through the door at a height

positioned to strike a person standing outside his door.    The

shots wounded the police officer standing behind the door.

Brandau argued that he was entitled to an assault and battery

instruction, because if the jury believed his testimony that he

intended only to scare the person, it could have found that he

did not intend to kill the officer.    In upholding the denial of

an assault and battery instruction, we held that the only

conclusion that reasonably could be reached, on those facts and

circumstances, was that by intentionally shooting at the person

several times, Brandau intended to kill the officer.    We said

that "no more than a mere scintilla of evidence" supported

Brandau's contention that he only intended to scare the person

at his door.   Id. at 412-15, 430 S.E.2d at 565-67.

     Similarly, in the instant case, proof that Vaughn

intentionally shot Robinson in the ankle and in the back

supports only the conclusion that he intended to maim or disable

Robinson or inflict serious bodily injury to him.     Shooting a

person twice with a deadly weapon, with one of the shots being

in the back, does not warrant giving a misdemeanor assault and

battery instruction.   In my opinion, the evidence could not



                              - 12 -
reasonably support a conclusion that Vaughn only intended to do

"bodily injury, however slight" to Robinson.

     For these reasons, I would affirm the unlawful wounding

conviction.




                             - 13 -
