                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Duff
Argued at Richmond, Virginia


TONY MURRAY
                                                MEMORANDUM OPINION *
v.   Record No. 1995-97-2                    BY JUDGE CHARLES H. DUFF
                                                   JULY 14, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                   Oliver A. Pollard, Jr., Judge
          (Beverly McLean Murray; Paul C. Bland; Law
          Office of Paul C. Bland, on brief), for
          appellant. Appellant submitting on brief.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          John K. Byrum, Jr., Assistant Attorney
          General, on brief), for appellee.



     Tony Murray appeals his conviction for unlawful wounding.

He asserts that the evidence was insufficient to prove that he

intended to maim, disfigure, disable, or kill his victim.      He

further contends that he met his burden of proving that he acted

in self-defense.   We disagree and affirm.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom."      Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

     So viewed, the evidence proved that on August 18, 1996, Lisa
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Wran was with Murray at her sister's residence where Wran and

Murray were consuming alcohol and drugs.       Wran admitted drinking

four forty-ounce bottles of beer that day, and smoking a

substantial quantity of crack cocaine.      Wran was in the back

bedroom of the residence when Murray entered, and the two began

to argue.   Murray conceded that he had been angry at Wran earlier

that day for talking to other men.       Wran testified that she

picked up a knife and made approximately three attempts to stab

Murray.   Murray and Wran began "tussling" over the knife, and

eventually he wrested the knife from her.      Wran was then

questioned as follows:
          Q: Oh. He got the knife from you?

            A:   Uh-huh (yes).

            Q:   Okay.   What happened then?

            A:   Then he just stabbed me with the knife.


     Wran sustained seven wounds to her back, arm, and chest.

Murray stabbed her twice in the back, and one of the stab wounds

inflicted by Murray to Wran's chest punctured her lung.        Wran

testified that while Murray was stabbing her, she asked him why

he was cutting her, but that he did not answer.      Wran tried to

escape from Murray, but the bedroom door was locked.       She

testified that Murray "wasn't holding me.      He was just holding

the knife."

     In response to a question posed to her by the trial court

regarding what had happened after Murray started stabbing her,




                                   -2-
Wran stated:
          Okay. That I can remember, when he first
          stabbed me, I didn't really know I had got
          cut. But, the second time, that's when I was
          trying to, you know, take the knife or, you
          know, just struggling with him, you know, to
          keep from getting cut, you know. That's--
          Because I'm left-handed. That's why it only
          happened on the left-hand side. But after
          the second or third time, I don't remember,
          you know. I remember a little bit, but, you
          know, we were just struggling. I was trying
          to get away.


     Although denying that he stabbed Wran intentionally, Murray

admitted that he could not remember what happened after Wran

sustained the first stab wound.
     To convict a defendant of unlawful wounding, the

Commonwealth must prove that the defendant caused bodily injury

"with the intent to maim, disfigure, disable, or kill."    Code

§ 18.2-51.   "Intent in fact is the purpose formed in a person's

mind, which may be shown by the circumstances surrounding the

offense, including the person's conduct and his statements."

Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810

(1977).   The trier of fact may infer an intent to maim,

disfigure, disable, or kill based on the defendant's use of a

deadly weapon.   See Williams v. Commonwealth, 13 Va. App. 393,

395, 412 S.E.2d 202, 203 (1991).    "The inferences to be drawn

from proven facts, so long as they are reasonable, are within the

province of the trier of fact."     Hancock v. Commonwealth, 12 Va.

App. 774, 782, 407 S.E.2d 301, 306 (1991).

     "The common law in this state has long recognized that a


                                  -3-
person who reasonably apprehends bodily harm by another is

privileged to exercise reasonable force to repel the assault."

Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25

(1989).   "[T]he law of self-defense is the law of necessity.   A

person only has the privilege to exercise reasonable force to

repel the assault."   Foote v. Commonwealth, 11 Va. App. 61, 69,

396 S.E.2d 851, 856 (1990) (citations omitted).   "The trier of

fact determines the weight of evidence in support of a claim of

self-defense."   Gardner v. Commonwealth, 3 Va. App. 418, 426, 350

S.E.2d 229, 233 (1986).

     Wran testified that Murray stabbed her after he had wrestled

the knife from her.   He stabbed Wran a total of seven times,

including twice in the back.   One wound was inflicted with

sufficient force that it punctured Wran's lung.   Even if we were

to accept Murray's testimony that Wran sustained the first stab

wound while he was trying to wrest the knife from her, Wran's

testimony proved that he continued to stab at her as she was

trying to escape.

     The evidence not only established that Murray intended to

maim, disable, disfigure, or kill Wran, but it also defeats his

assertion that he acted in self-defense.   Once Murray took the

knife from Wran, she no longer posed a mortal threat to him.

Moreover, Murray could not reasonably apprehend that Wran posed a

threat to him, justifying his continued use of a deadly weapon,

as she was trying to escape from the room.   The fact that Wran



                                -4-
sustained two back wounds also tends to belie Murray's assertion

that he was merely defending himself.   Accordingly, based on the

evidence, the trial court could reasonably reject Murray's

self-defense argument.

     The trial court believed the Commonwealth's evidence and

rejected Murray's evidence.   "The weight which should be given to

evidence and whether the testimony of a witness is credible are

questions which the fact finder must decide."    Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

The Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable doubt

that Murray was guilty of unlawful wounding.    Accordingly, the

conviction appealed from is affirmed.

                                                         Affirmed.




                                -5-
Benton, J., dissenting.


     Lisa Wran testified that after she drank four forty-ounce

containers of beer and had consumed nine bags of cocaine she

began to argue with Tony Murray, who was also drinking beer and

"getting high."    During the argument, Wran grabbed a knife and

"planned on stabbing [Murray] with it."   She tried "about two or

three times" to cut Murray.   Wran testified that Murray began

"tussling" and "struggling" with her and "defended himself."

Wran further testified that when she had the knife in her hand,

Murray was "trying to take the knife away" and "wasn't going to

let [Wran] cut him."   During the struggle, Murray wrestled the

knife from Wran.   Wran had no independent knowledge of the number

of times she was cut because she did not recall what happened

after "the second--third time."    She did not recall because she

was "high[ly]" intoxicated during the struggle.
     Wran's lack of memory is evidenced in the following

responses that she gave to the trial judge's questions:
          THE COURT: Ms. Wran, I understand what
          you're saying, the argument, you're drinking,
          you're using cocaine. Your argument, you
          picked up a knife, he took the knife away
          from you.

          THE WITNESS:    Uh-huh (yes).

          THE COURT: And after he first--and you said
          it was a struggle. You said after he stabbed
          you the first time, what I'm asking you, did
          you continue to struggle? Were you grabbing
          for the knife or-- Well, tell me what
          happened--

          THE WITNESS:    The knife that he had?




                                  -6-
           THE COURT:    Tell me what you did after he
           started--

           THE WITNESS:    He stabbed me the first time?

           THE COURT:    After he started stabbing you.

           THE WITNESS: Okay. That I can remember,
           when he first stabbed me, I didn't really
           know I had got cut. But, the second time,
           that's when I was trying to, you know, take
           the knife or, you know, just struggling with
           him, you know, to keep from getting cut, you
           know. That's-- Because I'm left-handed.
           That's why it only happened on the left-hand
           side. But after the second or third time, I
           don't remember, you know. I remember a
           little bit, but, you know, we were just
           struggling. I was trying to get away.

(Emphasis added).


     Murray's testimony is consistent with Wran's testimony.

Murray testified that, when he and Wran were drinking and using

cocaine, they argued.     Wran grabbed a knife and tried to cut him

two or three times.     He testified that he cut Wran during his

struggle to get the knife and that there "was so much confusion

and [Wran] was so wild" while they were "tussling."

     "The common law in this state has long recognized that a

person who reasonably apprehends bodily harm by another is

privileged to exercise reasonable force to repel the assault."
Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25

(1989).   No evidence in this case proved Murray used unreasonable

force when he repelled Wran's assault and wounded her.     Wran's

own testimony proved that she attacked Murray with a knife and

tried to cut him several times.    Wran's testimony also clearly




                                  -7-
proved that she and Murray were wrestling as Murray tried to

disarm her.    Because of her high degree of intoxication, Wran

could not recall what occurred after she received two or three

cuts.    Only after Wran was treated at the hospital and was sober

did she learn that she had been cut seven times.

        Although Wran cannot recall what occurred after the second

or third cut, the majority concludes that Murray was the

aggressor.    The inferences upon which that conclusion is based

are all speculative.    No evidence permits the inferences that

when Wran was cut, Murray had successfully defended himself, was

out of danger, and then embarked on an aggressive course of

violence toward Wran.    That hypothesis is pure speculation.     When

"[t]he circumstances do not describe separate and distinct

events, but one continuing chain of circumstances," neither the

trial judge nor this Court can assume that a person who defends

himself from an unlawful attack was the aggressor.     Foote v.

Commonwealth, 11 Va. App. 61, 68, 396 S.E.2d 851, 856 (1990).

        Wran initially aggressively attacked Murray with a knife.

When Wran attacked Murray, she was angry and highly intoxicated.

Wran's testimony that she twice attempted to cut Murray while

angry and intoxicated, tended to prove, as Murray testified, that

Wran wildly attacked Murray.    Indeed, all the evidence proved

that a struggle occurred as Murray attempted to repel Wran's

assault and secure the knife.    "The law of self defense is the

law of necessity."     McGhee v. Commonwealth, 219 Va. 560, 562, 248




                                  -8-
S.E.2d 808, 810 (1978).   To protect himself from harm, Murray

unavoidably had to struggle with Wran to disarm her.   It was

during that struggle that Wran was wounded.   No evidence proved

Murray had any reasonable avenue to escape other than trying to

wrestle the knife from Wran.    Thus, the evidence was insufficient

to prove Wran was cut except accidentally or while Murray was

defending himself.

     Furthermore, Wran's inability to recall what happened as the

struggle progressed deprived the trier of fact of any proof that

Wran's wounds were inflicted by Murray with the "intent to maim,

disfigure, disable, or kill."    Those elements must be proved

beyond a reasonable doubt to sustain a conviction of unlawful

wounding under Code § 18.2-51.    See Boone v. Commonwealth, 14 Va.

App. 130, 132-33, 415 S.E.2d 250, 250-51 (1992).   Even if we

disregard Murray's testimony that Wran "was so wild" during the

struggle, Wran's own testimony proved that she was highly

intoxicated, tried to cut Murray several times, and struggled

with him as he tried to defend himself.   Because Wran was so

highly intoxicated, she could not recall the details of the

ensuing struggle.    The principle is long standing that "[t]he

guilt of a party is not to be inferred because the facts are

consistent with his guilt, but they must be inconsistent with his

innocence."   Cameron v. Commonwealth, 211 Va. 108, 110-11, 175

S.E.2d 275, 276 (1970).

     Because the facts are not inconsistent with the hypothesis



                                 -9-
that Murray wounded Wran in his struggle to disarm and defend

himself from her attack, I would reverse the conviction.




                              -10-
