                                                COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Beales and Senior Judge Clements
UNPUBLISHED


              Argued at Richmond, Virginia


              SPENCER LEE FORD, JR.
                                                                             MEMORANDUM OPINION* BY
              v.        Record No. 2171-13-2                               JUDGE JEAN HARRISON CLEMENTS
                                                                                   OCTOBER 21, 2014
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                               James A. Luke, Judge Designate

                                  Stephen K. Armstrong (Reed\Armstrong LLP, on briefs), for
                                  appellant.

                                  Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
                                  Herring, Attorney General, on brief), for appellee.


                        Spencer Lee Ford, Jr. (“appellant”) was convicted of aggravated malicious wounding in

              violation of Code § 18.2-51.2. On appeal, he contends the circuit court clerk’s inability to certify

              the record as complete and accurate, as well as the clerk’s declaration that certain portions may be

              false, have deprived him of his due process rights to appellate review. He also maintains the

              evidence was insufficient to support his conviction because it failed to prove he acted with malice

              and because it proved he acted in self-defense. For the reasons that follow, we affirm his

              conviction.

                        As the parties are fully conversant with the record in this case and because this

              memorandum opinion carries no precedential value, this opinion recites only those facts and

              incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

              appeal.

                        *
                            Pursuant to Code § 17.1-413, 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) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). Appellant was involved in a romantic relationship with

Michelle Williams and lived with her and their daughter. The couple began to experience

relationship problems and, in September 2012, Williams asked appellant to move out. Appellant

refused.

       On the evening of September 14, 2012, Williams came home from work and drove

appellant to work at approximately 10:00 p.m. After dropping him off, she visited her boyfriend.

Appellant called Williams and asked her to bring him some papers at his workplace. When

Williams admitted she was at her boyfriend’s home, appellant texted her he “would kill over

[her] or he would kill for [her].” Williams did not interpret appellant’s threat as directed toward

her, however, and delivered his papers at approximately 1:00 a.m. She returned to her

boyfriend’s home briefly before heading home.

       Appellant and Williams continued to argue by text messages. She repeated her desire for

him to move out, and he responded he would move out only if he could take their daughter with

him. Finally, at approximately 2:00 a.m., Williams announced she was tired and was going to

bed. She locked her bedroom door and went to sleep with her daughter lying next to her.

       Later that evening, she awoke to hear appellant entering her bedroom.1 He picked up

their daughter and moved her to his bedroom before returning and kneeling at the head of


       1
        Appellant testified he left work early because he was “angry” with Williams and waited
downstairs in the dark for her to return home. When she returned, appellant did not announce his
presence because he did not want her to know he was in the house. Instead, he waited until she
went upstairs to her bedroom and followed her ten minutes later. Appellant acknowledged he
followed Williams to her room to “confront” her.
                                               -2-
Williams’s bed. With his face close to Williams’s face, he told her he wanted to kill himself and

suggested they seek counseling to save their relationship.

       Williams rejected appellant’s proposal and asked him to move out. When she made clear

she would never give appellant custody of their daughter, he lunged at Williams and began to cut

her. She fell to the floor and struggled with appellant over what she later realized was a box

cutter. When appellant turned on the light, Williams saw blood “gushing” from her neck. She

also noticed appellant was wearing gloves. Williams told appellant she was going to die.

       Appellant tied a garment around Williams’s neck and assured her she would not die.

Despite Williams’s pleas, however, appellant did not call for assistance. When Williams asked

to see their daughter before she died, appellant left the room to retrieve her. Williams seized the

opportunity and secretly called 911.

       Officers Guise and Ballentine arrived at Williams’s house at approximately 4:00 a.m. and

knocked at the front door. After five minutes, Williams ran out of the front door past the

officers. Shortly thereafter, the officers saw appellant standing in the doorway. The officers

shone their flashlights on him. He appeared uninjured.

       Appellant’s right hand was positioned against the door in such a way it was concealed

from the officers’ view. When they asked to see both of his hands, appellant stepped forward

and showed them the box cutter in his right hand. He opened the box cutter blade.

       Appellant ignored Ballentine’s order to drop the knife and turned his back to the officers.

He began slashing himself with the box cutter and fell to the ground. When the officers

approached to render assistance, he asked them to shoot him and to “take care of” Williams. The

officers entered the house and found a pool of blood on the floor next to Williams’s bed as well

as blood spatter on the wall above the headboard.




                                               -3-
       Williams was hospitalized for several days as a result of her injuries and required three

surgeries. Photographs at trial depicted a cut running from beneath her lip across the side of her

face to her left ear. She also sustained a cut across her throat running from one ear to the other.

This wound required multiple staples to close. She had wounds on both forearms, as well as a

cut on her left palm and on her inner left arm that required sutures.

       By the time of trial, Williams still bore scars from her wounds as well as extensive nerve

damage. She noted her lip remained swollen and painful and that she took pain medications

twice daily. Williams denied having ever seen the box cutter used by appellant to inflict her

wounds.

                                              Analysis

                                 I. Uncertified Record On Appeal

       Following his conviction, appellant was sentenced on November 13, 2013, and timely

noted this appeal. The trial court clerk transmitted the record to this Court on February 6, 2014,

but attached a “disclaimer” stating she was “unable to certify that the Table of Contents and

records attached . . . constitute[d] the true and complete record on appeal . . . notwithstanding the

Rules of the Court of Appeals and [the] Code of Virginia . . . .” Specifically, the trial court clerk

“attested” that the records in the case were not “lodged with the Clerk’s Office at the conclusion

of the trial and/or sentencing,” that she had “no knowledge that the case records and exhibits

ultimately deposited with the Clerk’s Office represent the entirety of the record,” that she had

“no knowledge of the authenticity, labeling or description of any exhibit or document presented

during any court proceeding associated with [this] case,” and that “certain names/signatures

purported to be that of the Clerk of this Court or the Clerk’s Deputy may be false and affixed to

records and/or exhibits without authority to act on behalf of the Clerk of Court . . . .”




                                                 -4-
       Appellant asserts the trial court clerk’s inability to certify the accuracy of the exhibits in

the record on appeal deprives him of his right to due process. He maintains the trial court clerk

“has stated that a complete and accurate record does not currently exist,” and asks that we

summon the clerk of the trial court pursuant to Code § 8.01-675.4 to ascertain whether “the

defects in the record may be remedied and the trial court’s record completed and certified.”

Appellant acknowledges that his right to due process has been violated only “in the event . . . the

record cannot be made complete . . . .”2

       Pursuant to Rule 5A:7(a),

               [t]he following constitute the record on appeal from the trial court:

                   (1) the original papers and exhibits filed or lodged in the office
               of the clerk of the trial court, including any report of a
               commissioner in chancery and the accompanying depositions and
               other papers;

                   (2) each instruction marked “given” or “refused” and initialed
               by the judge;

                   (3) each exhibit offered in evidence, whether admitted or not,
               and initialed by the trial judge (or any photograph thereof as
               authorized by § 19.2-270.4(A) and (C)). (All non-documentary
               exhibits shall be tagged or labeled in the trial court and the tag or
               label initialed by the judge.);

                  (4) the original draft or a copy of each order entered by the trial
               court;

                  (5) any opinion or memorandum decision rendered by the
               judge of the trial court;

                   (6) any deposition and any discovery material encompassed
               within Part Four offered in evidence (whether admitted or rejected)
               at any proceeding; and

                   (7) the transcript of any proceeding or a written statement of
               facts, testimony, and other incidents of the case when made a part
               of the record as provided in Rule 5A:8, or the official videotape
               recording of any proceeding in those circuit courts authorized by

       2
         Upon the realization of this contingency, appellant asks that we remand his case for a
new trial or dismiss his conviction.
                                               -5-
                 the Supreme Court to use videotape recordings. This Court may
                 require that any videotape proceedings be transcribed, in whole or
                 in part, and made a part of the record as provided in Rule 5A:8,
                 except that the transcript shall be filed within 60 days after the
                 entry of the order requiring such transcript; and

                    (8) the notice of appeal.

Rule 5A:7(b) provides that, “[i]f disagreement arises as to the contents of any part of the record,

the matter shall, in the first instance, be submitted to and decided by the trial court.” (Emphasis

added).3

          Rule 5A:10 outlines the trial court clerk’s responsibilities with regard to compiling the

record for appeal. Rule 5A:10(a) provides that “[t]he clerk of the trial court shall prepare the

record as soon as possible after notice of appeal is filed. . . .” Pursuant to 5A:10(b)(1), “[t]he

record shall be compiled in the following order:”

                    (i) a front cover setting forth the name of the court and the
                 short style of the case;

                    (ii) a table of contents listing each paper included in the record
                 and the page on which it begins;

                    (iii) each paper constituting a part of the record in
                 chronological order; and

                     (iv) the certificate of the clerk of the trial court that the
                 foregoing constitutes the true and complete record, except omitted
                 exhibits as hereinafter provided.

(Emphasis added). Pursuant to Rule 5A:10(d), “[t]he failure of the clerk of the trial court to

transmit the record as herein provided shall not be a ground for dismissal of the appeal by this

Court.”

          Appellant concedes he could have asked the trial court for relief in ensuring the record on

appeal was complete, accurate, and certified by the trial court clerk. We agree. “[A]n appeal


          3
         Appellant concedes that the exhibits and transcripts were properly made part of the
record pursuant to Rule 5A:7.

                                                  -6-
does not divest the trial court of jurisdiction over ancillary matters reserved to it by statute.”

Askew v. Commonwealth, 49 Va. App. 127, 137, 638 S.E.2d 118, 122 (2006). Pursuant to Code

§ 8.01-428(B),

                 [c]lerical mistakes in all judgments or other parts of the record and
                 errors therein arising from oversight or from an inadvertent
                 omission may be corrected by the court at any time on its own
                 initiative or upon the motion of any party and after such notice, as
                 the court may order. During the pendency of an appeal, such
                 mistakes may be corrected before the appeal is docketed4 in the
                 appellate court, and thereafter while the appeal is pending such
                 mistakes may be corrected with leave of the appellate court.

The term “clerical mistake” includes “oversight or inadvertent omission by . . . clerks of court

and their subordinates.” Belew v. Commonwealth, 284 Va. 173, 178, 726 S.E.2d 257, 260

(2012).

          In Belew the appellant realized that a transcript had been omitted from the record on

appeal and moved the trial court to enter an order including it in the record. By the time the trial

court entered the order, however, more than twenty-one days had passed since final judgment,

and appellant had noted his appeal. The Supreme Court concluded that, despite Rule 1:1, the

trial court retained jurisdiction under Code § 8.01-428(B) to enter the order. Thus, the appellant

was not required to seek relief from the appellate court.

          Here, appellant does not complain that the record on appeal is, in fact, defective or

incomplete. He does not claim that any specific exhibits or portions of the trial transcript are

false or inaccurate and does not identify any materials that have actually been omitted from the

record that was transmitted to this Court by the trial court clerk. Rather, he asserts he has been

deprived of due process because the record is potentially defective or incomplete due to the trial


          4
         “[F]or purposes of [Code § 8.01-428(B)], an appeal ‘is docketed in the appellate court’
when the petition for appeal is received in the appellate court.” Belew v. Commonwealth, 284
Va. 173, 178, 726 S.E.2d 257, 260 (2012) (quoting Lamb v. Commonwealth, 222 Va. 161, 165,
279 S.E.2d 389, 392 (1981)).
                                                -7-
court clerk’s failure to certify it.5 Upon becoming aware of the trial court clerk’s disclaimer,

however, appellant’s remedy “in the first instance” lay with the trial court. See Rule 5A:7(b).

As he concedes, appellant was responsible for ensuring the record on appeal was complete. See

Lawrence v. Nelson, 200 Va. 597, 598-99, 106 S.E.2d 618, 620 (1959) (“An appellant who seeks

the reversal of a decree on the ground that it is contrary to the law and the evidence has the

primary responsibility of presenting to this court, as a part of the printed record, the evidence

introduced in the lower court, or so much thereof as is necessary and sufficient for us to give full

consideration to the assignment of error.”). See also Twardy v. Twardy, 14 Va. App. 651, 658,

419 S.E.2d 848, 852 (1992) (en banc). Thus, upon discovering any “inadvertent” omissions or

errors in the record, see Belew, 284 Va. at 180-81, 726 S.E.2d at 261, appellant was obliged to

ensure the record was complete by moving the trial court to correct the record or by seeking

leave from this Court to have the record corrected.




       5
          Contrary to appellant’s characterization of the trial court clerk’s disclaimer, nothing in
the record indicates the clerk stated “a complete and accurate record does not currently exist.”
Rather, the trial court clerk stated she was “unable to certify . . . the Table of Contents and
records attached [as] . . . the true and complete record on appeal” because “[t]he records in said
case were not lodged with the Clerk’s Office at the conclusion of the trial and/or sentencing
proceedings . . .” and because she had “no knowledge that the case records and exhibits
ultimately deposited with the Clerk’s Office represent the entirety of the record[.]” Likewise, the
trial court clerk based her disclaimer on her purported lack of knowledge of the “authenticity,
labeling or description of any exhibit or document presented during any court proceeding
associated with [this] case,” and affirmatively asserted “certain names/signatures purported to be
that of the Clerk of this Court or the Clerk’s Deputy may be false and affixed to records and/or
exhibits without authority to act on behalf of the Clerk of Court . . . .”
         Effective July 1, 2014, “circuit court clerks shall have custody of and shall keep all court
records, including books, evidence, records, maps, and papers, deposited in their offices or at
such location otherwise designated by the clerk . . . .” See Code § 17.1-242. Based on this
amendment, the circuit court clerk clearly has a statutory duty to maintain “court records,
including . . . evidence.” Thus, any future failure to certify the record on the basis that the clerk
of court did not maintain the record could result in contempt proceedings against the clerk. See
Commonwealth v. Beckley, 8 Va. (4 Call) 4 (1780) (issuing a show cause for the trial court’s
failure to fulfill his duty to provide transcript).

                                                -8-
       Because appellant failed to seek relief through either of these avenues, he may not now

complain he has been deprived of due process on appeal. As a participant in the trial

proceedings and as the party seeking relief on appeal, appellant was in a position to assess the

record and determine whether it was sufficient for this Court to review intelligently his

assignments of error. If he found it lacking, he was obliged to seek relief to complete or correct

it, or bear the risk that the record deprived him of a meaningful opportunity for appellate review.

“The constitutional guarantee of procedural due process affords a litigant the right to reasonable

notice and a meaningful opportunity to be heard.” Carpitcher v. Commonwealth, 273 Va. 335,

347, 641 S.E.2d 486, 493 (2007) (emphasis added). See also Va. Dep’t of Alcoholic Bev.

Control v. Tyson, 63 Va. App. 417, 426, 758 S.E.2d 89, 93 (2014) (“‘Process is not an end in

itself.’” (quoting Olim v. Wakinekona, 461 U.S. 238, 250 (1983))).

       Because appellant sought no relief from the trial court or this Court6 to correct perceived

errors or omissions in the record, he has waived the argument that he was deprived of due

process. “Pursuant to Rule 5A:18, absent good cause or to attain the ends of justice, we will not

consider on appeal an argument that was not presented to the trial court, even if it involves

constitutional claims.” Ashby v. Commonwealth, 33 Va. App. 540, 545, 535 S.E.2d 182, 185

(2000). Appellant does not argue we should consider his argument under these exceptions to

Rule 5A:18, and we will not consider such an argument sua sponte. Edwards v. Commonwealth,

41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).

       Accordingly, we decline to consider this assignment of error.



       6
          The only relief sought by appellant from this Court was to “summon the clerk of the
trial court pursuant to Virginia Code § 8.01-675.4 to see if the defects in the record may be
remedied and the trial court’s record completed and verified.” (Emphasis added). This Court
will not act as an “investigatory” mechanism for appellants to ascertain whether the record is
complete. As noted previously, the duty lay with appellant to identify any omissions or errors in
the record and to bring them to the attention of the trial court or this Court for correction.
                                                -9-
                                  II. Sufficiency of the Evidence

       In his remaining assignments of error, appellant argues the evidence failed to prove he

acted with malice or the intent to maim, disfigure, or kill Williams and that it supported the

finding he acted in self-defense. In support of these arguments, he cites his testimony that

Williams kept a box cutter in her purse and cut him first, prompting him to defend himself.

Appellant contends the trial court erred by adopting Williams’s testimony, including her account

that he was the aggressor. We disagree.

       We review the fact finding of the trial court “with the highest degree of appellate

deference.” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). We

reverse the decision of the trial court only if it is “plainly wrong or without evidence to support

it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). We lack the

authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va. App. 1, 11,

602 S.E.2d 402, 407 (2004), and are “not permitted to reweigh the evidence,” Nusbaum v.

Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007).

       “The 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 its role of

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).

       Appellant had several prior felony convictions. While he testified that Williams cut his

back when he turned away from her during their altercation in the bedroom, he had no apparent

wounds when the police arrived. He admitted he was substantially larger than Williams and,

even assuming she struck the first blow, he acknowledged he could have left her bedroom and

                                                - 10 -
retreated from the dispute. Despite Williams sustaining a cut across her throat from ear to ear,

appellant did not recall cutting her throat.

       Appellant had previously refused to heed Williams’s requests to move out of her home,

and in the hours leading up to the offense, had threatened “to kill” upon learning she was

involved with another man. He lay in wait for her in the dark, entered her locked bedroom

unannounced in the middle of the night, and removed the couple’s child before returning with a

box cutter in hand. When Williams rebuffed appellant’s attempts at reconciliation and refused to

grant him custody of their child, he attacked her. The severity and location of Williams’s

wounds, the pooled blood on the floor next to her bed, and the lack of apparent injuries to

appellant corroborated Williams’s account of the events leading up to her wounds. Accordingly,

we cannot say her testimony was inherently incredible. See Juniper v. Commonwealth, 271 Va.

362, 415, 626 S.E.2d 383, 417 (2006).

       Based on Williams’s testimony and the other evidence presented, the evidence was

sufficient to prove appellant acted with malice and with the intent to permanently harm her. See

Johnson v. Commonwealth, 53 Va. App. 79, 101, 669 S.E.2d 368, 378 (2008) (“To be guilty [of

malicious wounding], a person must . . . intend to permanently, not merely temporarily, harm

another person.” (citation 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.”

Burkeen v. Commonwealth, 286 Va. 255, 259, 749 S.E.2d 145, 147 (2013) (quoting Dawkins v.

Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947)). “Intent may be, and most often is,

proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts.”

Viney v. Commonwealth, 269 Va. 296, 301, 609 S.E.2d 26, 29 (2005). See also Canipe v.

Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 753 (1997) (“Whether or not an accused
                                               - 11 -
acted with malice is generally a question of fact and may be proved by circumstantial

evidence.”).

       Here, appellant made death threats against Williams, returned home early from work, and

hid in the dark until Williams went to bed. Once she was vulnerable, he broke into her room

with a box cutter and viciously slashed her throat and face. Even when he recognized the

severity of her wounds, he did not seek medical assistance. Based on this evidence, the trial

court was entitled to find that appellant acted with malice and with the intent to permanently

injure Williams. Likewise, it did not err in finding that the evidence did not support appellant’s

claim he acted in self-defense.

                                            Conclusion

       For the foregoing reasons, we conclude the trial court did not err and affirm appellant’s

conviction.

                                                                                         Affirmed.




                                               - 12 -
