PRESENT:   All the Justices

CHRISTOPHER BURKEEN
                                               OPINION BY
v.     Record No. 122178               JUSTICE S. BERNARD GOODWYN
                                            October 31, 2013
COMMONWEALTH OF VIRGINIA


              FROM THE COURT OF APPEALS OF VIRGINIA

     In this appeal, we consider whether the Court of Appeals

erred in affirming the conviction of Christopher Burkeen for

malicious wounding, in violation of Code § 18.2-51, when

Burkeen struck the victim with a bare fist only once.

                        Procedural Background

     Burkeen was indicted for malicious wounding in the Circuit

Court of the City of Newport News.    The circuit court found

Burkeen guilty as charged.    Burkeen appealed his conviction to

the Court of Appeals.    A three-judge panel of the Court of

Appeals affirmed Burkeen’s conviction by ruling that the

evidence was sufficient to establish his intent to maliciously

wound the victim and his violation of Code § 18.2-51.    Burkeen

v. Commonwealth, Record No. 2566-11-1 (November 27, 2012).

Burkeen appeals.

     Burkeen’s assignment of error states:

          The Court of Appeals erred when it found that the
     evidence was sufficient to prove intent to maim,
     disfigure, disable or kill where the defendant struck
     the victim with a single blow with his bare fist.
                               Facts

     Around closing time on December 30, 2009, Donald Mayer

stood outside a bar where he had been playing pool.   Burkeen

approached Mayer and asked to see his pool cue.   Mayer

acquiesced.    Burkeen asked Mayer how much the cue cost, and

Mayer informed Burkeen that he purchased it for $230.     Burkeen

responded, “You’ll take $200.”   Mayer told Burkeen that the

pool cue was not for sale, and then Burkeen said, “No, you’ll

take $200 for it.”   Mayer put his hand on his cue that Burkeen

was holding.   Burkeen let go of the cue and immediately punched

Mayer in the face.

     Mayer held his nose, which began bleeding.   Burkeen then

called Mayer a “bitch” and said that he could “kick [his] ass”

and take Mayer’s cue if he wanted to.   Burkeen also proclaimed

that he was in the Army and could bench press 200 pounds.

     Keith Taylor saw Burkeen with his arm raised as if he was

going to hit Mayer again, and he quickly moved to shield Mayer

from Burkeen’s attack.   Burkeen proceeded to hit Taylor on the

back of his head three to five times, until Taylor fell to the

ground.   Burkeen stopped his attack and ran when a bystander

mentioned that he had called the police.

     A doctor testified that as a result of the blow delivered

by Burkeen, Mayer had “fractures of the orbit, the malar

region, which is a series of bones around the cheek, and nasal


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fractures.”   The doctor treated Mayer by performing “major

reconstructive surgery” to address this “significant injury,”

which was caused by a “significant force.”    Mayer continues to

have headaches, and he has visible scars and puffiness around

his eyes because of scar tissue.

                             Analysis

     Burkeen argues that, as a matter of law, a single blow

from a bare fist is not sufficient evidence of the intent to

maim, disfigure, disable or kill, which is required for a

malicious wounding conviction.   He notes that this Court has

only sustained a conviction for malicious wounding from a bare

fist in cases that involved multiple blows.   Therefore, Burkeen

contends, the Court of Appeals erred in ruling that there was

sufficient evidence to convict him of malicious wounding.

     The Commonwealth responds that the evidence in this case

was sufficient to convict Burkeen of malicious wounding.

     The standard of review in this case is well-settled.

     When considering a challenge to the sufficiency of
     the evidence to sustain a conviction, . . . . [t]his
     Court will only reverse the judgment of the trial
     court if the judgment is plainly wrong or without
     evidence to support it. If there is evidence to
     support the conviction[,] the reviewing court is not
     permitted to substitute its own judgment, even if its
     opinion might differ from the conclusions reached by
     the finder of fact at the trial.

Clark v. Commonwealth, 279 Va. 636, 640-41, 691 S.E.2d 786, 788

(2010) (citations and internal quotation marks omitted).


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Additionally, when considering the sufficiency of the evidence

to sustain a conviction, this Court reviews “the evidence in

the light most favorable to the prevailing party at trial and

consider[s] all inferences fairly deducible from that

evidence.”   Id. at 640, 691 S.E.2d at 788 (citation and

internal quotation marks omitted).

     The circuit court convicted Burkeen of malicious wounding

pursuant to Code § 18.2-51.   To be convicted of malicious

wounding, the Commonwealth must prove that the defendant

maliciously stabbed, cut, or wounded “any person or by any

means cause[d] him bodily injury, with the intent to maim,

disfigure, disable, or kill.”    Id.; Dowdy v. Commonwealth, 220

Va. 114, 116, 255 S.E.2d 506, 508 (1979) (“It is elementary

that the burden is on the Commonwealth to prove every essential

element of the offense beyond a reasonable doubt.”) (internal

quotation marks omitted).

     “Malice ∗ inheres in the doing of a wrongful act

intentionally, or without just cause or excuse, or as a result

of ill will.   [Malicious intent to wound] may be directly

evidenced by words, or inferred from acts and conduct which

necessarily result in injury.”   Dawkins v. Commonwealth, 186

Va. 55, 61, 41 S.E.2d 500, 503 (1947).   The Court of Appeals

     ∗
       The instant assignment of error only contests “intent”
and does not implicate “malice.” Malice is discussed here only
because it is an integral element of the offense.

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has stated, “To be guilty [of malicious wounding], a person

must [also] intend to permanently, not merely temporarily, harm

another person.”   Johnson v. Commonwealth, 53 Va. App. 79, 101,

669 S.E.2d 368, 378 (2008) (citation omitted).   We agree with

the ruling of the Court of Appeals in Johnson.

     “Under ordinary circumstances an intent to maim may not be

presumed from a blow with a bare fist.   But an assault with a

bare fist may be attended with such circumstances of violence

and brutality that an intent to kill may be presumed.”

Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 273

(1969) (citation omitted); see Johnson, 53 Va. App. at 103, 669

S.E.2d at 380 (“Although we have not previously held in a

reported opinion that a single blow with a bare fist may

constitute sufficient evidence to prove an intent to

permanently injure, we hold that under the circumstances of

this case the jury could make such a determination.”).

     “Intent is a state of mind which can be evidenced only by

the words or conduct of the person who is claimed to have

entertained it.”   Banovitch v. Commonwealth, 196 Va. 210, 216,

83 S.E.2d 369, 373 (1954) (citations omitted).   The intent to

maliciously wound, therefore, “may, like any other fact, be

shown by circumstances.”   Id.

     In Roark v. Commonwealth, 182 Va. 244, 251, 28 S.E.2d 693,

696 (1944), an attack with a bare fist did not constitute


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malicious wounding.    Roark got into an argument with the

victim, shouting “You don’t know a . . . damned thing about

what you are talking about.”    Id. at 246, 28 S.E.2d at 694.

“Thereupon Roark struck [the victim] with [his non-dominant

hand] and knocked him down on the sidewalk.”     Id. at 246, 252,

28 S.E.2d at 694, 696.    Seeing the victim’s injury, Roark

rushed him to the hospital and offered to pay for all his

medical expenses.     Id. at 246, 28 S.E.2d at 694.   “The relation

of the parties, the facts leading up to the blow, the use of

the left hand or fist, and the acts of [the] defendant

immediately after the blow clearly show that defendant did not

intend to inflict serious bodily injury upon [the victim].”

Id. at 252, 28 S.E.2d at 696.    Therefore, this Court found that

the defendant did not act with the requisite intent, and as a

consequence, there was insufficient evidence for a malicious

wounding conviction.     Id.

     However, this Court found the attendant violence and

brutality that evidences an intent to maliciously wound in

Shackelford v. Commonwealth, 183 Va. 423, 32 S.E.2d 682 (1945).

“The accused, a strong, hale, heavy-set man, made an unprovoked

attack upon a frail woman 50 years of age in her own kitchen.”

Id. at 426, 32 S.E.2d at 684.    Further, “[w]hile the attack

apparently lasted only a few moments, it was brought to an end

not by the voluntary action of the accused but by the attempts


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of [his wife] to stop him . . . and the fact that [the victim]

made her escape from the room.”       Id. at 427, 32 S.E.2d 684.

The defendant admitted that he had not only struck the victim,

“but that he had ‘followed up’ the blow.”       Id.   All of these

actions and statements were evidence of the brutal and violent

circumstances of the crime and the defendant’s intent to maim.

Id.

      In Fletcher, 209 Va. at 638, 166 S.E.2d at 271, the

defendant struck the awakening victim with a bare fist,

resulting in a “blow-out fracture of the orbital floor with

incarceration of muscle and the orbital tissue in the

fracture.”   The defendant also attacked two other individuals

in the same incident.   This Court held that the assault upon

the victim “with the bare fist was attended with such

circumstances of violence and brutality that [there was

sufficient evidence of] an intent to maim.”       Id. at 640-41, 166

S.E.2d at 273.

      It is proper for a court to consider not only the method

by which a victim is wounded, but also the circumstances under

which that injury was inflicted in determining whether there is

sufficient evidence to prove an intent to maim, disfigure,

disable or kill.   See Dawkins, 186 Va. at 63, 41 S.E.2d at 504.

In the present case, the victim did nothing to provoke the

attack, and he was hit with extreme force in a vulnerable area


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of his body while he was defenseless and not expecting such a

blow.    The blow resulted in serious and disfiguring injury.

Burkeen bragged of his strength and training while taunting and

cursing the victim after the first blow, indicating his intent

to inflict such harm upon the victim.     Additionally, Burkeen

was poised to attack the victim further until Taylor

intervened, at which time Taylor was attacked instead.     In

fact, Burkeen only discontinued his attack when he heard that

the police had been called.

        We hold that, under the circumstances, there was

sufficient evidence of violence and brutality for the circuit

court to find that, although Burkeen delivered only one blow

with a closed fist, he acted with malice and he intended to

maim Mayer.    Accordingly, we will affirm the judgment of the

Court of Appeals.

                                                     Affirmed.




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