                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Kelsey and Petty
UNPUBLISHED


              Argued at Richmond, Virginia


              JACOB JAVAY RUFF, A/K/A
               JACOB JARVAYA RUFF
                                                                            MEMORANDUM OPINION BY
              v.     Record No. 0569-13-2                                    JUDGE WILLIAM G. PETTY
                                                                                  MAY 13, 2014
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                                 James S. Yoffy, Judge

                               (Dannie R. Sutton, Jr.; McDonald, Sutton & DuVal PLC, on brief),
                               for appellant. Appellant submitting on brief.

                               Susan Baumgartner, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Jacob Ruff was convicted of attempted aggravated malicious wounding under Code

              §§ 18.2-51.2(B) and 18.2-26. On appeal, Ruff presents two assignments of error: (1) the trial

              court erred in finding the evidence sufficient to convict Ruff, and (2) Ruff could not be convicted

              under Code § 18.2-51.2(B) because it is a gender-specific statute that applies only to female

              assailants. For the reasons stated below, we affirm Ruff’s conviction.

                                                                I.

                     “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

              granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

              26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

              438, 443, 358 S.E.2d 415, 418 (1987)).



                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                  II.

        Ruff argues that the evidence was insufficient to convict him under Code § 18.2-51.2(B)

because the Commonwealth failed to prove that he acted with malice or with the specific intent

to maim, disfigure, disable or kill the victim or cause the involuntary termination of her

pregnancy. Moreover, Ruff contends that Code § 18.2-51.2(B) is inapplicable to male assailants.

We disagree.

                                   A. Sufficiency of the Evidence

        “‘When reviewing the sufficiency of the evidence to support a conviction, [this] Court

will affirm the judgment unless the judgment is plainly wrong or without evidence to support

it.’” Mayfield v. Commonwealth, 59 Va. App. 839, 850, 722 S.E.2d 689, 695 (2012) (quoting

Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). In our review, we

have “a duty to examine all the evidence that tends to support the conviction.” Bolden, 275 Va.

at 147, 654 S.E.2d at 586. Accordingly, “[w]e ‘must discard all evidence of the accused that

conflicts with that of the Commonwealth and regard as true all credible evidence favorable to the

Commonwealth and all fair inferences reasonably deducible therefrom.’” Holcomb v.

Commonwealth, 58 Va. App. 339, 346, 709 S.E.2d 711, 714 (2011) (quoting Lea v.

Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993)).

        Moreover, “[a]n appellate court does not ‘ask itself whether it believes that the evidence

at the trial established guilt beyond a reasonable doubt.’” Williams v. Commonwealth, 278 Va.

190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19

(1979)). “Rather, the relevant question is whether ‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at

319). “‘This familiar standard gives full play to the responsibility of the trier of fact fairly to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

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basic facts to ultimate facts.’” Brown v. Commonwealth, 56 Va. App. 178, 185, 692 S.E.2d 271,

274 (2010) (quoting Jackson, 443 U.S. at 319).

       So viewed, the evidence proved that in the early morning hours of May 9, 2012, Ruff was

asleep in bed with his pregnant1 girlfriend, S. Williams. The two were at Williams’s apartment.

Williams received a phone call at around 1:00 a.m. from her sister. Ruff, however, believed that

the phone call was from another man and accused Williams of cheating on him.

       While they were still lying in bed, Ruff slapped Williams on the face and took her phone.

Ruff got out of bed and held the bedroom door closed, preventing Williams from leaving the

room. He then punched Williams in the face causing Williams to fall to the ground. As

Williams was on the ground, Ruff kicked her in the stomach, saying, “I’m going to kill you and

that baby; it ain’t mine.” Williams pleaded with Ruff, “Please don’t kill my baby,” while

holding her stomach in the hope of deflecting further blows to her unborn child. Ruff proceeded

to pummel Williams with punches on other places on her body. Williams knocked on the wall of

her apartment, pleading for help from her neighbor. Finally, approximately twenty to thirty

minutes after the beating had begun, Ruff stopped punching Williams and left the apartment just

as a neighbor arrived to render aid to Williams.

       Williams was transported to the hospital by ambulance. She received treatment for her

injuries, which were mostly to her face from Ruff’s punches. Williams gave birth to her

daughter two months later. Williams’s daughter was healthy, but she was born one month

premature.

       At trial, Ruff testified in his own defense. Ruff admitted to getting into an argument with

Williams and punching her in the face, knocking her to the ground. Ruff denied, however,

kicking Williams in the stomach or punching her once she was on the ground. He also denied


       1
           Williams was six months pregnant at the time.
                                               -3-
saying that he was going to kill Williams and her child. He claimed that he punched Williams

after she initiated a physical confrontation by pushing him several times. Ruff said that he was

merely trying to leave the apartment to defuse the argument.

       Ruff was charged with attempted aggravated malicious wounding of a pregnant woman

under Code § 18.2-51.2(B), which provides that

               [i]f any person maliciously shoots, stabs, cuts or wounds any other
               woman who is pregnant, or by any other means causes bodily
               injury, with the intent to maim, disfigure, disable or kill the
               pregnant woman or to cause the involuntary termination of her
               pregnancy, he shall be guilty of a Class 2 felony if the victim is
               thereby severely injured and is caused to suffer permanent and
               significant physical impairment.

“‘An attempt is composed of two elements: the intention to commit the crime, and the doing of

some direct act towards its consummation which is more than mere preparation but falls short of

execution of the ultimate purpose.’” Hopson v. Commonwealth, 15 Va. App. 749, 752, 427

S.E.2d 221, 223 (1993) (quoting Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212,

213 (1978)).

       Thus, the Commonwealth had to prove at trial that Ruff acted “maliciously” and “with

the intent to maim, disfigure, disable or kill [Williams] or to cause the involuntary termination of

her pregnancy.” Code § 18.2-51.2(B). “‘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 necessarily result in injury.’”

Hernandez v. Commonwealth, 15 Va. App. 626, 631, 426 S.E.2d 137, 140 (1993) (quoting

Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947)). “Malice is evidenced

either when the accused acted with a sedate, deliberate mind, and formed design, or committed a

purposeful and cruel act without any or without great provocation.” Branch v. Commonwealth,

14 Va. App. 836, 841, 419 S.E.2d 422, 426 (1992).

                                                 -4-
       Moreover, “‘[i]ntent is a state of mind that may be proved by an accused’s acts or by his

statements and that may be shown by circumstantial evidence.’” Wilson v. Commonwealth, 249

Va. 95, 101, 452 S.E.2d 669, 673-74 (1995) (quoting Wright v. Commonwealth, 245 Va. 177,

193, 427 S.E.2d 379, 390 (1993)). “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). “‘[I]ntent is the purpose formed in a man’s mind, and is usually proved

by his conduct, sometimes by his statements . . . .” Shackelford v. Commonwealth, 183 Va. 423,

426, 32 S.E.2d 682, 684 (1945) (quoting Merritt v. Commonwealth, 164 Va. 653, 662, 180 S.E.

395, 399 (1935)).

       On appeal, Ruff argues that the Commonwealth failed to prove that he acted with malice

or with the specific intent to maim, disfigure, disable or kill Williams or cause the involuntary

termination of her pregnancy. Specifically, Ruff contends that the trial court should have

believed his version of events over Williams’s version of events. Ruff testified that he did not

start the physical altercation; instead, he was defending himself and trying to leave the

apartment. Further, Ruff testified that he neither kicked Williams in the stomach nor said he was

going to kill her and her baby.

       It is a well-settled rule that “[t]he credibility of the witnesses and the weight accorded the

evidence are matters solely for the fact finder who has the opportunity to see and hear that

evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d

730, 732 (1995). In observing testimony and judging witness credibility, “the fact finder is

entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused

is lying to conceal his guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998).

                                                -5-
       The trial court heard the testimony of the witnesses. The trial court observed the

demeanor of the witnesses. The trial court questioned the witnesses. At the conclusion of the

evidence, the trial court found Ruff’s version of events to be “suspect.” The trial court went on

to say that the “manner in which [Ruff] testified” led it to believe that Ruff was not a credible

witness. The trial court also noted that Ruff had two prior felony convictions. In contrast, the

trial court found Williams to be a credible witness. After reviewing the evidence, we hold that

there was sufficient evidence to support the trial court’s decision that Ruff had the intent to cause

the involuntary termination of Williams’s pregnancy and that he acted with malice.

                             B. Applicability of Code § 18.2-51.2(B)

       Ruff next argues that Code § 18.2-51.2(B) is inapplicable to male assailants. Ruff’s

argument, however, was not properly preserved for this Court’s consideration.

       Rule 5A:18 provides, in relevant part: “No ruling of the trial court . . . will be considered

as a basis for reversal unless an objection was stated with reasonable certainty at the time of the

ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of

justice.” “Rule 5A:18 requires a litigant to make timely and specific objections, so that the trial

court has ‘an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary

appeals and reversals.’” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189

(2010) (quoting West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 (2004)).

       “Under settled principles, the ‘same argument must have been raised, with specificity, at

trial before it can be considered on appeal.’” Johnson v. Commonwealth, 58 Va. App. 625, 637,

712 S.E.2d 751, 757 (2011) (quoting Correll v. Commonwealth, 42 Va. App. 311, 324, 591

S.E.2d 712, 719 (2004)). “‘Making one specific argument on an issue does not preserve a

separate legal point on the same issue for review.’” Id. (quoting Edwards v. Commonwealth, 41

Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc)).

                                                -6-
       Here, Ruff’s Code § 18.2-51.2(B) argument was not properly preserved for this Court’s

consideration on appeal because he did not present an argument to the trial court on the statute’s

gender applicability. Rule 5A:18 therefore bars this Court’s consideration of Ruff’s Code

§ 18.2-51.2(B) argument as a basis for reversal. See Jones v. Commonwealth, 29 Va. App. 503,

520-21, 513 S.E.2d 431, 440 (1999).

       Nevertheless, Ruff asks this Court to invoke the ends of justice exception to Rule 5A:18.

“‘The ends of justice exception is narrow and is to be used sparingly . . . .’” Redman v.

Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (quoting Brown v.

Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10 (1989)). “In order to avail oneself of the

exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not

that a miscarriage might have occurred.” Id.

       Ruff’s argument would fail on the merits because it would result in an absurd reading of

Code § 18.2-51.2(B). Ruff argues that the statute applies only to women. This reading is

contrary to the plain language of the statute. As the plain language of the statute indicates, and

which Ruff ignores in his argument, it applies to “any person.” Thus, Ruff failed to show that a

miscarriage of justice has occurred; therefore, the ends of justice exception does not apply.

                                                III.

       For the foregoing reasons, we affirm Ruff’s conviction.

                                                                                            Affirmed.




                                                -7-
