                        COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Duff
Argued at Alexandria, Virginia


ROBERT CHARLES LAIDLER
                                            MEMORANDUM OPINION * BY
v.      Record No. 0161-99-4                 JUDGE CHARLES H. DUFF
                                                 MARCH 28, 2000
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
                   Perry W. Sarver, Judge Designate

             Daniel J. Travostino for appellant.

             Leah A. Darron, Assistant Attorney General
             (Mark L. Earley, Attorney General, on
             brief), for appellee.


        Robert Laidler (appellant) was convicted of two counts of

malicious wounding and one count of assault and battery.     On

appeal, he contends that the trial court erred in refusing to

admit expert testimony, in refusing to admit photographs depicting

his injuries, in finding sufficient evidence to support the

assault and battery conviction, in refusing jury instructions on

accident and unlawful wounding, and in failing to dismiss the

indictments based on a statutory speedy trial violation.     For the

reasons stated below, we affirm in part and reverse and dismiss in

part.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                              BACKGROUND

     "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) (citation omitted).

     So viewed, the evidence proved that Brenda Scott ("Brenda"),

who was separated from her husband Charlie Scott ("Charlie"),

shared a house with appellant in February 1998.    Around February

16, 1998, Brenda moved out of the house she shared with appellant

and began staying at Gary Kitchen's house because a recent storm

had flooded the road to Brenda's house and because she and

appellant were not "getting along."     On February 21, 1998, when

Brenda arrived at Kitchen's house after work, appellant was there.

Also present were Peggy Polson, James Polson, and Jimmy Hottle,

who accompanied appellant.   While discussing their relationship,

appellant and Brenda argued, causing Kitchen to ask appellant to

leave.

     After appellant and Hottle left the house, Cindy Turner,

Charlie, Roger Dellinger and Dellinger's girlfriend visited

Kitchen's house.    Jim Clark and Clark's girlfriend, Pam, arrived a

short time later.   During the evening, Brenda, Charlie, Turner,

Dellinger and Dellinger's girlfriend left Kitchen's house.

     Between 11:30 p.m. and midnight, Kitchen received a telephone

call from appellant.   Thinking it was Charlie, Kitchen addressed

the caller as "Charlie," told him it was late and asked when the

                                - 2 -
group would return.    According to Kitchen, appellant said, "'I'll

have something for them when I get there.'"    Kitchen then realized

the caller was appellant.

        Appellant arrived at Kitchen's house fifteen minutes later,

accompanied by Hottle.    Clark and Kitchen went outside and talked

with appellant, who was angry at being told to leave earlier.

Kitchen and Clark then asked appellant to leave.    Appellant said

he was not leaving and that he wanted to see Brenda.    Appellant

told Clark he had something in the car for him, at which time

appellant entered his car and came out holding his hand behind his

back.

        At that moment, the car containing Charlie, Brenda, Dellinger

and Turner pulled up.    Appellant approached the returning car.

Fearing for Brenda's safety, Clark tried to block appellant's way,

at which time appellant struck Clark several times, inflicting

stab wounds to his lip, nose, shoulder and arm.    Kitchen realized

that appellant had a knife.    Several of the men then disarmed

appellant and threw the knife into appellant's car.

        Thereafter, appellant and Hottle entered appellant's car.

Appellant then exited the car, approached Brenda and stabbed her

in the stomach.    As a result of the stab wound, Brenda required

surgery and was hospitalized for five days.

        Turner was also injured in a scuffle with appellant.   While

appellant faced away from Turner, she "jumped on [appellant's]

back, and brought him to the ground . . . and proceeded hitting

                                 - 3 -
him."    After jumping on appellant's back, Turner and appellant

fell to the ground.    Turner landed on her buttocks.   She later

discovered she had sustained a wound to her left buttock.

        Dr. Joseph A. Haydu treated Clark and Brenda in the emergency

room.    Clark sustained, inter alia, "some complicated facial

lacerations, bruises, [and] a laceration on his left shoulder,

back."    According to Dr. Haydu, Clark's "lacerations were quite

complex" and likely required "over forty or fifty stitches."

Brenda's knife wound penetrated "the muscles of her abdomen,"

requiring surgery.    She was unable to work for six weeks.

        None of the Commonwealth's witnesses saw anyone other than

appellant armed with a weapon.    Moreover, no Commonwealth's

witness saw anyone strike appellant until after appellant stabbed

Clark.

                            EXPERT TESTIMONY

        At trial, appellant sought to have Dr. Joseph Ballo provide

expert testimony that the facial injuries sustained by Clark

were caused by a blunt object like a fist rather than by a

knife.     Clark's medical records were never admitted into

evidence, Dr. Ballo was not present during Dr. Haydu's testimony

and Dr. Ballo never examined Clark.      Appellant wanted Dr. Ballo

to base his opinion on photographs of Clark's face admitted at

trial and on hypothetical questions posed to Dr. Ballo by

defense counsel based on defense counsel's recollection of Dr.

Haydu's testimony.     Because Dr. Ballo was not present when Dr.

                                 - 4 -
Haydu testified and because Dr. Haydu reviewed his personal

medical records pertaining to Clark's injuries before he

testified, records that were not admitted at trial, the trial

judge refused to allow Dr. Ballo to testify.

     Assuming without deciding that the trial court erred in

refusing to allow Dr. Ballo to provide expert opinion testimony

based upon his review of the photographs of Clark's injuries and

hypothetical questions based on Dr. Haydu's testimony, we find

any error harmless.

          In Virginia, non-constitutional error is
          harmless "when it plainly appears from the
          record and the evidence given at the trial
          that the parties have had a fair trial on
          the merits and substantial justice has been
          reached." "[A] fair trial on the merits and
          substantial justice" are not achieved if an
          error at trial has affected the verdict.
          Consequently, under Code § 8.01-678, a
          criminal conviction must be reversed unless
          "it plainly appears from the record and the
          evidence given at the trial that" the error
          did not affect the verdict. An error does
          not affect a verdict if a reviewing court
          can conclude, without usurping the jury's
          fact finding function, that, had the error
          not occurred, the verdict would have been
          the same.

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d

910, 911 (1991) (en banc) (citation omitted).

     A review of the record demonstrates that the proffered

testimony had no effect upon the verdict finding appellant

guilty of the malicious wounding of Clark.   Appellant brandished

a knife and attacked Clark, who merely tried to stand in


                              - 5 -
appellant's path to prevent an attack on Brenda Scott.

Appellant bore no animus toward Clark, and Clark initiated no

force against appellant, who caused serious wounds to Clark's

face, shoulder and arm.   It is uncontroverted that appellant

stabbed Clark in the shoulder and in the arm after injuring

Clark's face, and Clark testified that he initially "thought

[appellant] had hit [him]" until he heard Kitchen yell that

appellant had a knife.

     Moreover, while cross-examining Dr. Haydu about the injury

to Clark's lip, appellant's attorney elicited testimony that the

injury could have been caused by "[a] fist, a knife, [or] a

fall."   Defense counsel was also allowed to ask Dr. Haydu

whether he had ever "encountered lacerations [inside the mouth]

where the history was other than from a knife?"    Dr. Haydu

responded, "Yes."

     The record contained evidence that appellant sought to

elicit from Dr. Ballo, namely, that the lip wound could have

been caused by a fist.    Furthermore, the evidence showed that

appellant brandished a deadly weapon and stabbed Clark, who was

unarmed, in the shoulder and arm.   Accordingly, any error was

harmless and had no effect on the jury's verdict of malicious

wounding.

                PHOTOGRAPHS OF APPELLANT'S INJURIES

     Appellant asked the trial court to admit four photographs

taken of appellant two days after the crimes.   The trial court

                                - 6 -
refused to admit the photographs because bruises take time to

appear and the photographs did not accurately depict appellant's

appearance at the time of the crimes.

     At trial, appellant's attorney explained, "the reason I

offered the photographs was just to corroborate the fact that

[appellant] was injured."   On appeal, appellant contends the

photographs supported his "assertion that he was struck by a

tire iron" and they were "corroborative evidence supporting

[his] theory" that he brandished the knife only after being

attacked.   Appellant also argues for the first time on appeal

that the photographs "materially corroborated [his] insanity

defense."   Assuming the trial court erred in ruling the

photographs inadmissible, we find such error harmless.

     The trial court permitted appellant to describe the

injuries he allegedly received during his attacks on the

victims.    Also, Dorothy Smallwood, a bail bondsman, testified

that she visited appellant the day after the crimes.   Smallwood

testified that appellant "had two black eyes," "an open wound

across his nose," "a bruise and scrape across the head," an

apparent puncture wound on his ear and a "blood-red" eye that

"was painful to look at."   Moreover, a sheriff's deputy

testified that appellant had a cut on his nose and was covered

with blood when she arrested him.   Also, Kitchen and Dellinger

testified that after appellant initiated his attack on Clark,

Dellinger punched appellant in the face trying to disarm him.

                                - 7 -
Because appellant was able to present evidence describing his

facial injuries, any error in excluding the photographs was

harmless.

     As to appellant's assertion that the photographs were

necessary to establish his insanity defense, appellant failed to

make this argument to the trial court.    "The Court of Appeals

will not consider an argument on appeal which was not presented

to the trial court."    Ohree v. Commonwealth, 26 Va. App. 299,

308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18.      Accordingly,

Rule 5A:18 bars our consideration of this question on appeal.

Moreover, the record does not reflect any reason to invoke the

good cause or ends of justice exceptions to Rule 5A:18.

                  ASSAULT & BATTERY OF CINDY TURNER

            Assault and battery . . . requires 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," together with "the actual
            infliction of corporal hurt on another . . .
            willfully or in anger." 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, 132-33, 415 S.E.2d 250,

251 (1992) (citations omitted).

     Turner jumped on appellant's back, forced him to the ground

and, as a result of her action, sustained an injury when she hit

the ground.   There was no evidence that appellant threatened or

directed any violence towards Turner.    Thus, the record contains

                                - 8 -
no evidence that appellant committed "an overt act or an attempt

. . . with force and violence, to do physical injury to" Turner

or that appellant possessed the requisite intent to do bodily

harm to Turner.    Therefore, there was insufficient evidence to

support appellant's conviction for the assault and battery of

Turner.   Accordingly, that conviction is reversed, and the

indictment is dismissed.

                  JURY INSTRUCTION:   UNLAWFUL WOUNDING

     Appellant contends that the trial court erred in refusing

his four proposed instructions defining unlawful wounding.      The

instructions related to the injuries to Clark and Brenda and

defined sudden heat of passion and mutual combat. 1

     "When one instruction correctly states the law, the trial

court does not abuse its discretion by refusing multiple

instructions upon the same legal principle."      Cirios v.


     1
       Contrary to appellant's assertion that the "instructions
were taken from the Virginia Model Jury Instructions, No. 34.500
and are correct statements of the law," the current edition of
Virginia Model Jury Instructions contains no Instruction No.
34.500. Chapter 34 of the Virginia Model Jury Instructions
relates to Illegal Gambling. Chapter 33 of the Virginia Model
Jury Instructions relates to homicide, and Instruction No.
33.500 contained in that chapter provides an instruction on
voluntary manslaughter, which requires the Commonwealth to prove
an intentional killing, committed while "in the sudden heat of
passion upon reasonable provocation; [or] in mutual combat." I
Virginia Model Jury Instructions, Criminal 33.500 (1999 cum.
supp.). Moreover, the Model Instruction in Chapter 37, entitled
"Malicious Wounding and Lesser Included Offenses Combined
Instruction," contains no language of mutual combat. See II
Virginia Model Jury Instructions, Criminal 37.100 (1999 cum.
supp.).


                                 - 9 -
Commonwealth, 7 Va. App. 292, 303-04, 373 S.E.2d 164, 170

(1988).   The principles pertaining to aggravated malicious

wounding, malicious wounding, unlawful wounding and heat of

passion were sufficiently set forth in granted Instructions 8, 9

and 12.   Instructions 8 and 9 instructed the jury that if it

finds that the Commonwealth failed to prove malice, then it

should find appellant guilty of unlawful wounding of Clark and

Scott, respectively.   Instruction 12 defined malice and

instructed the jury that "[h]eat of passion excludes malice."

Furthermore, we find the evidence did not support an instruction

on mutual combat.   See Harper v Commonwealth, 165 Va. 816, 820,

183 S.E. 171, 173 (1936) (holding that "[o]ne who is assaulted

may and usually does defend himself, but the ensuing struggle

cannot be accurately described as mutual combat").

     The trial court properly and sufficiently instructed the

jury regarding unlawful wounding.   Accordingly, the trial court

did not err in refusing appellant's proffered instructions.

                  STATUTORY SPEEDY TRIAL VIOLATION

     Appellant contends the trial court "erred in not dismissing

the indictments because of failure to try [him] within the time

period prescribed in the speedy trial statute."

     "The protection granted an accused under [Virginia's speedy

trial statute] is not self-operative.   'It may be claimed, or it

may be waived.'   Failure to invoke the provisions of the statute

until after final judgment is a waiver of the protection

                              - 10 -
afforded thereunder."     Brooks v. Peyton, 210 Va. 318, 321, 171

S.E.2d 243, 246 (1969) (involving Code § 19.1-191, former speedy

trial statute) (citation omitted).       See also Stephens v.

Commonwealth, 225 Va. 224, 230, 301 S.E.2d 22, 25 (1983)

(stating same as it relates to Code § 19.2-243, the current

speedy trial statute).    Moreover, "[t]he Court of Appeals will

not consider an argument on appeal which was not presented to

the trial court."     Ohree, 26 Va. App. at 308, 494 S.E.2d at 488;

see Rule 5A:18.

     Although counsel and the trial judge informally discussed

the speedy trial requirements, the record fails to show that

appellant alleged a speedy trial violation or moved to dismiss

the indictments based on Code § 19.2-243.

     Accordingly, Rule 5A:18 bars our consideration of this

question on appeal.    Moreover, because delays occasioned by

appellant's requested mental evaluations and his notice of

insanity defense were attributable to appellant so that the

trial commenced within the statutory time limit, the record does

not reflect any reason to invoke the good cause or ends of

justice exceptions to Rule 5A:18.

                              CONCLUSION

     In summary, we affirm appellant's malicious wounding

convictions, finding any errors in refusing to admit the

testimony of Dr. Ballo or the photographs depicting appellant's

injuries harmless.    Because there was insufficient evidence that

                                - 11 -
appellant assaulted Turner, we reverse that conviction and

dismiss the charge.   Because the trial court correctly

instructed the jury on unlawful wounding and because a mutual

combat instruction was not warranted under the facts, the trial

court did not err in refusing appellant's proffered

instructions.   We do not address appellant's alleged violation

of the speedy trial statute because he failed to make this

argument in the trial court.

                                              Affirmed in part,
                                              reversed and
                                              dismissed in part.




                               - 12 -
Benton, J., concurring, in part, and dissenting, in part.

     I concur in the parts of the opinion reversing the

conviction of Robert Charles Laidler for assault and battery,

upholding the trial judge's refusal of instructions, and finding

that the speedy trial issue was not properly preserved for

appeal.   I dissent, however, from the parts of the opinion

finding harmless the trial judge's refusal to permit Dr. Ballo

to testify and refusal to admit in evidence Laidler's

photographs.

                                 I.

     According to the Commonwealth's witnesses, Laidler stabbed

and cut Jim Clark with a knife during a verbal argument.    They

testified that no physical altercation occurred between Clark

and Laidler before Laidler stabbed and cut Clark several times.

     In his defense, Laidler testified that he and Clark argued

after Clark threatened him.   The argument then escalated into a

fistfight between them.   Laidler testified that Gary Kitchen,

who was standing behind Clark, walked off during the fight.   As

Laidler and Clark fought, someone hit Laidler "with [a blunt]

object, across the bridge of his nose."   Laidler testified that

he then rose from the ground, reached inside his car for a knife

to protect himself, and cut Clark once.

     The trial judge erred in ruling that Laidler could not call

as a witness Dr. Joseph Ballo.   The record establishes that Dr.

Ballo would testify that Clark's facial injuries were caused by

                              - 13 -
fists rather than a knife.   That testimony, if believed by the

jury, would have tended to prove, consistent with Laidler's

defense, that he and Clark had been in a fistfight.

     The rule is well settled that an expert in a criminal case

may "testify . . . on the basis of evidence adduced at trial."

Buchanan v. Commonwealth, 238 Va. 389, 416, 384 S.E.2d 757, 773

(1989).    The record reveals that the evidence at trial provided

a sufficient factual basis for the admission of Dr. Ballo's

opinion.   Clark's photograph had been admitted in evidence.   In

addition, Dr. Joseph Haydu had extensively testified concerning

Clark's injuries.   Thus, the trial judge should have permitted

Dr. Ballo to "give an opinion based upon facts in evidence

assumed in a hypothetical question."    Simpson v. Commonwealth,

227 Va. 557, 565, 318 S.E.2d 386, 391 (1984) (citation omitted).

     Moreover, the error was not harmless.    "Error will be

presumed prejudicial unless it plainly appears that it could not

have affected the result."    Joyner v. Commonwealth, 192 Va. 471,

477, 65 S.E.2d 555, 558 (1951).   Thus, to find harmless error

"'it [must] plainly appear[] from the record and the evidence

given at the trial that 'the error did not affect the verdict."

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d

910, 911 (1991) (en banc) (quoting Code § 8.01-678).

     Whether Clark's facial wounds were caused by a knife or by

a fist was put at issue by the conflict between Laidler's

testimony and the testimony of the Commonwealth's witnesses.

                               - 14 -
Laidler's defense to this prosecution was self-defense.      He also

contended that he acted in the heat of passion and not

maliciously.    The trial judge instructed the jury on both of

those issues.

     The trial judge's ruling that barred Dr. Ballo's testimony

deprived Laidler of relevant evidence clearly germane to his

defense.    Laidler claimed that he and Clark engaged in a

fistfight before Laidler was assaulted with a blunt instrument.

If Dr. Ballo's testimony was believed, it provided the jury with

a basis to credit Laidler's testimony explaining why he reached

for his knife.   Furthermore, Dr. Haydu's testimony was

qualitatively different than the proffered testimony of Dr.

Ballo.    Dr. Haydu merely testified that a laceration, which is

"a tearing or cutting," may be caused by "a fist, a knife, a

fall."    He also testified that he had encountered lacerations

that were caused by a fist.   That testimony is significantly

more general than Dr. Ballo's proffered testimony that Clark's

facial injuries were caused, in fact, by a fist, not a knife.

     The Commonwealth had the burden to prove from the evidence

in the record that the trial judge's erroneous ruling was

harmless.    Joyner, 192 Va. at 476-77, 65 S.E.2d at 558; Beverly

v. Commonwealth, 12 Va. App. 160, 164, 403 S.E.2d 175, 177

(1991).    This record does not establish that the error was

harmless.



                               - 15 -
                                  II.

     The trial judge also erred in refusing to admit in evidence

photographs showing Laidler's injuries.    When the party offering

photographic evidence demonstrates its relevance, it is

admissible.     See Lucas v. HCMF Corp., 238 Va. 446, 451, 384

S.E.2d 92, 95 (1989).    The Supreme Court has "long recognized

[the relevance of photographs] and admitted photographs . . .

[to illustrate the testimony of a witness] by holding that a

photograph which is verified by the testimony of a witness as

fairly representing what that witness has observed is admissible

in evidence."     Ferguson v. Commonwealth, 212 Va. 745, 746, 187

S.E.2d 189, 190 (1972).

     Furthermore, the decision to exclude from evidence the

photographs of Laidler's injuries, while admitting the

photographs of Clark's injuries, was unduly prejudicial to

Laidler.    The jury had both the testimonial descriptions and

photographic proof of Clark's injury to review in its

deliberations.    In considering Laidler's claim that Clark

inflicted an equal if not greater injury to him, however, the

jury had only testimonial evidence without any tangible

corroboration.    Due to the imbalance in the evidence on this

critical issue, we cannot say that "the error did not affect the

verdict."     Lavinder, 12 Va. App. at 1005, 407 S.E.2d at 911.

The photograph would have corroborated Laidler's testimony on an

issue material to his defense and provided a precise

                                - 16 -
counterpoint to the damaging photographic evidence admitted to

buttress the testimony of the Commonwealth's witnesses.

     For these reasons, I would reverse the malicious wounding

convictions and remand for a new trial.




                             - 17 -
