                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Chafin and Senior Judge Coleman
UNPUBLISHED


              Argued at Richmond, Virginia


              TYRONE L. HARRIS
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1637-13-2                                   JUDGE SAM W. COLEMAN III
                                                                               DECEMBER 16, 2014
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                                              Leslie M. Osborn, Judge

                               Mark Mokris for appellant.

                               Christopher P. Schandevel, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Tyrone L. Harris was convicted following a bench trial of abduction, attempted murder,

              robbery, and aggravated malicious wounding. On appeal, Harris contends the evidence is

              insufficient to support his conviction for aggravated malicious wounding because the evidence

              failed to establish the victim suffered a permanent injury or disfigurement.1 For the reasons that

              follow, we disagree and affirm the trial court’s decision.

                                                        BACKGROUND

                     In reviewing the sufficiency of the evidence on appeal, we examine the record in the light

              most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        In his petition for appeal, appellant asserted that the evidence was insufficient to support
              all four of his convictions. However, we granted the appeal only as to the aggravated malicious
              wounding conviction. We thus limit our analysis to this issue and do not address appellant’s
              other convictions. See Parker v. Commonwealth, 42 Va. App. 358, 373, 592 S.E.2d 358, 366
              (2004) (recognizing that we will only consider “those arguments presented in the petition for
              appeal and granted by this Court”).
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

The judgment of a trial court will be disturbed only if plainly wrong or without evidence to

support it. See id. The credibility of a witness, the weight accorded the testimony, and the

inferences to be drawn from proven facts are matters to be determined by the fact finder. See

Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

       So viewed, the evidence proved that on July 16, 2012, Donna Lynn Morris arranged to

purchase marijuana from appellant. Appellant asked her to meet him alone at a rural intersection

not far from Morris’ house. Morris agreed and carried ten dollars with which to purchase the

drugs. She testified that when she arrived, appellant indicated he had thrown the marijuana into

the woods. Morris agreed to help appellant search for it. Appellant led Morris into the woods

and away from the road. While Morris looked down at her telephone, appellant struck her in the

head with a rock and she lost consciousness.

       When she regained consciousness, she realized that she had been moved some distance

from where she had been struck. She was lying in a gully behind a pile of rocks surrounded by

underbrush approximately twenty feet from where she had been struck. She also noted that a

ring had been removed from her finger and that her phone and cash were missing. She staggered

from the site and reached a neighbor’s house. The neighbor called for emergency help.

       Morris was treated at a hospital for her wounds. She explained she received thirteen

staples to close a gash above her left temple. She noted the wound was still visible, that her hair

had not grown back in the injured area, and that she still had a knot on her head. Morris also

testified she has been experiencing severe headaches almost daily since the attack. She

previously had not suffered from such severe head pain.




                                               -2-
                                             ANALYSIS

       Appellant argues the evidence was insufficient to support his conviction for aggravated

malicious wounding because the victim suffered only “a cosmetically hidden injury” and because

no medical evidence proved the cause or permanency of her headaches.2

       When faced with a challenge to the sufficiency of the evidence, we “‘presume the

judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly

wrong or without evidence’ to support it.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584

S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570

S.E.2d 875, 876-77 (2002)). A reviewing court does not “ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 318-19 (1979) (emphasis in original). We ask only whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Kelly, 41 Va. App.

at 257, 584 S.E.2d at 447. “‘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 basic facts to ultimate facts.’” Id. at 257-58, 584 S.E.2d at 447

(quoting Jackson, 443 U.S. at 319). Thus, we do not “substitute our judgment for that of the trier

of fact” even if our opinion were to differ. Wactor v. Commonwealth, 38 Va. App. 375, 380,

564 S.E.2d 160, 162 (2002).

       Code § 18.2-51.2(A) provides:

               If any person maliciously shoots, stabs, cuts or wounds any other
               person, or by any means causes bodily injury, with the intent to

       2
          To the extent appellant argues on appeal that Code § 18.2-51.2 is vague as applied to
him, he neither included this argument in this assignment of error nor presented this issue to the
trial court. Accordingly, we do not address this argument. Pursuant to Rule 5A:20(c), this Court
considers only the issues set forth in the assignments of error. Additionally, “[a]s a precondition
to appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court to
preserve the issue on appeal.” Thomas v. Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d
738, 742, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).
                                                 -3-
               maim, disfigure, disable or kill, 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.

       Under Code § 18.2-51.2, a “physical impairment” is “‘any physical condition, anatomic

loss, or cosmetic disfigurement.’” Lamm v. Commonwealth, 55 Va. App. 637, 644, 688 S.E.2d

295, 298 (2010) (quoting Newton v. Commonwealth, 21 Va. App. 86, 90, 462 S.E.2d 117, 119

(1995)). Under the plain language of the statute, the physical impairment must be permanent

and significant. See Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011)

(“‘When the language of a statute is unambiguous, we are bound by the plain meaning of that

language.’” (quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639

S.E.2d 174, 178 (2007))). Appellant concedes the scarring from the wound is permanent, but

argues the victim’s “cosmetically hidden injury” did not rise to a “significant physical

impairment.”

       This Court has found visible scars to be “permanent and significant” impairments,

Newton, 21 Va. App. at 90, 462 S.E.2d at 119, as well as scars connected with nerve damage,

Martinez v. Commonwealth, 42 Va. App. 9, 24-25, 590 S.E.2d 57, 64 (2003), and also scarring

that is not visible during ordinary daily activities, Cottee v. Commonwealth, 31 Va. App. 546,

557, 525 S.E.2d 25, 30 (2000).

       Here, the trial court viewed the victim’s scarring almost a year after the attack. The court

also heard evidence regarding the extent of the victim’s injuries and the means required to treat

them. The trial judge specifically noted he “could easily see that [the victim] had a serious injury

to [her head] and has a permanent scar with regard to that.”

       Citing Newton, appellant contends, however, that “[w]hile cosmetic disfigurement caused

by bodily injury can stand alone as a reason to sustain an aggravated malicious wounding, case

law indicates that unless there is an additional permanent injury then the disfigurement must be


                                               -4-
‘obvious and visible.’” Appellant misconstrues this Court’s holding in Newton. In Newton, we

observed that the trial court, in convicting Newton of aggravated malicious wounding, made a

finding that five months after the attack the victim’s scarring was still “‘obvious and visible.’”

Newton, 21 Va. App. at 90, 462 S.E.2d at 119. However, this language, used by the trial court in

that case, was not adopted as an additional element which must be proven to support an

aggravated malicious wounding conviction where the physical impairment at issue is permanent

scarring, as appellant appears to suggest. Rather, in Newton, we held simply that “[t]he trial

court reasonably could have found from the number of wounds, the need for stiches for some of

them, and the resulting scars, still visible after five months, that [the victim’s] injuries constituted

‘permanent and significant physical impairment.’” Id. Whether a victim’s scarring is “obvious

and visible” is merely one factor the finder of fact may consider in determining whether the

victim has suffered a permanent and significant physical impairment resulting from a serious

injury. Neither this Court nor the Supreme Court of Virginia has held that a victim’s scars must

be “obvious and visible” in order to support a conviction for aggravated malicious wounding.

Here, the evidence of Morris’ scars and of the treatment she received for her injuries provided

the trial court with sufficient evidence to conclude appellant caused Morris to suffer “permanent

and significant physical impairment” as required by Code § 18.2-51.2(A).

        Appellant further asserts that because “the causal nature of headaches are not discernable

and visible in the sense that they would be readily observable to a normal person[,] expert

[medical] testimony should be required.” However, because we find the victim’s head injuries

and scarring constituted permanent and significant physical impairment, we need not decide

whether the evidence proved her headaches contributed to her permanent and significant physical

impairment.




                                                 -5-
       In summary, the record supports the trial court’s determination that Morris’ physical

impairment was “permanent and significant.” Almost a year after the attack, Morris’ scarring

was still readily visible to the trial court. The trial court reasonably found from the need for

thirteen staples and the resulting visible scarring that appellant severely injured Morris and that

she was caused to suffer “permanent and significant physical impairment.” We, therefore, affirm

appellant’s aggravated malicious wounding conviction.

                                                                                           Affirmed.




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