                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, Russell and Senior Judge Haley
PUBLISHED


            Argued at Richmond, Virginia


            JOQUAN WAYNE HAWKINS
                                                                                   OPINION BY
            v.     Record No. 0908-14-2                                     JUDGE JAMES W. HALEY, JR.
                                                                                  APRIL 21, 2015
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
                                          Thomas B. Hoover, Judge

                           David B. Hargett for appellant.

                           Eugene Murphy, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   In a jury trial, Joquan Wayne Hawkins, appellant, was convicted of aggravated malicious

            wounding.1 On appeal, he argues “[t]he trial court erred in failing to grant the motion to strike the

            aggravated portion of the charge of aggravated malicious wounding because the only qualifying

            injury which was severe and permanent and significant physical impairment was the scar that was

            caused by the surgery rather than the shooting.” Finding no error, we affirm the conviction.

                                                             Facts

                   This Court considers “the evidence presented at trial in the light most favorable to the

            Commonwealth, the prevailing party below.” Bolden v. Commonwealth, 275 Va. 144, 148, 654

            S.E.2d 584, 586 (2008).




                   1
                     Appellant was also convicted of two counts of use of a firearm in the commission of a
            felony, malicious wounding, and three counts of shooting into an occupied vehicle. However, he
            challenges only the aggravated malicious wounding conviction on appeal.
        Appellant shot the victim in the abdomen with a .45 caliber Glock pistol. The bullet caused

a “through and through” wound, entering and exiting the victim’s abdomen. As a result of the

shooting, the victim had surgery in his abdominal area, and he was hospitalized for two weeks.

        At trial, the victim showed the two bullet holes to the jury. The record indicates he pointed

to a wound located above his right hip and a wound located on the lower left quadrant of his

abdomen. In addition, the victim exhibited the surgical scar to the jury. The trial court described

the scar as follows.

                        The scar is a thick scar. This is not a hairline scar, this is a
                thick scar, half-inch wide. Midline surgical incision goes below
                his sternum, down to his navel. It curves around his navel and then
                goes a couple of inches, two, three inches down below his navel
                ....

        The trial court also stated the scar was “very clear and obvious” eleven months after the

injury, and the “points” where the staples or sutures entered the victim’s skin were still visible at

the time of trial.

        The Commonwealth presented no medical evidence. On cross-examination, the victim

agreed that after the shooting, he is able to do all the physical activities he could perform prior to

the shooting. When asked by the trial court if he had any “disabilities from the shooting,”

appellant replied, “No, Sir, I mean I have . . . sometimes, every now and then, stomach pain as

far as that.”

        At the conclusion of the evidence, appellant made a motion to strike the aggravated

portion of the charge. Appellant asserted that the bullet he fired did not cause the large scar,

rather the surgery caused the scar. Appellant concluded he could not be held responsible for

causing the surgical scar, the injury that the Commonwealth relied upon as proof that appellant

committed aggravated malicious wounding.




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       The trial court denied the motion to strike, ruling:

                       When you get a gunshot wound that goes from one side of
               your pelvis to the other side of the pelvis, it’s going to cause some
               kind of injury and the surgery has to be done. [The] surgical
               incision was obviously directly related to that and that significant
               surgical scar is sufficient for the Commonwealth to proceed on the
               charge of aggravated malicious wounding.

                                               Analysis

       In ruling on a defendant’s motion to strike the Commonwealth’s evidence, a trial court

must view that evidence in the light most favorable to the Commonwealth. Cirios v.

Commonwealth, 7 Va. App. 292, 298, 373 S.E.2d 164, 167 (1988). A motion to strike tests the

legal sufficiency of the evidence. See Rule 3A:15.

       Code § 18.2-51.2(A), the statute defining aggravated malicious wounding, provides in

pertinent part: “If any person maliciously shoots . . . any other person . . . with the intent to

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.”

       Appellant does not deny that he fired the bullet that entered and exited the victim’s

abdomen. Appellant does not deny that the surgical scar is a permanent and significant physical

impairment pursuant to Code § 18.2-51.2. Appellant’s Brief at 3. See also Newton v.

Commonwealth, 21 Va. App. 86, 90, 462 S.E.2d 117, 119 (1995) (scars caused by defendant

cutting victim with a box cutter visible after five months constituted “permanent and significant

physical impairment”). Rather, appellant maintains that the scar is attributable to the surgery and

not to his shooting the victim. Appellant asserts that a fair reading of Code § 18.2-51.2 “shows

that the statute criminalizes acts which are attributable to” appellant, and appellant did not

“directly” cause the surgical scar.




                                                 -3-
       When analyzing the offense of aggravated malicious wounding, it has been stated:

                       The impairment must be caused by the defendant.
               Presumably, as in homicide, there is both a cause-in-fact and
               proximate causation issue. The latter is obviously the more
               difficult. The rules applicable in homicide cases are probably
               transferrable so that if the defendant had the appropriate mental
               state and did the appropriate act, and the impairing outcome was
               foreseeable, he should be convicted. So if a victim with a
               preexisting weakness is maliciously shot by a defendant who
               intends to kill and the combination of weakness and injury
               produces impairment, the impairment is foreseeable and
               proximately caused by the defendant.

Ronald J. Bacigal, Criminal Offenses and Defenses 56 (2014).

       Therefore, in addressing appellant’s argument, we consider the principles of causation.

Causation is circumscribed by reasonably foreseeable consequences of an act. The concept of

proximate causation is “applicable in both civil and criminal cases.” Brown v. Commonwealth,

278 Va. 523, 529, 685 S.E.2d 43, 46 (2009) (citing Robinson v. Commonwealth, 274 Va. 45, 53,

645 S.E.2d 470, 474 (2007)). “A proximate cause is ‘an act or omission that, in natural and

continuous sequence unbroken by a superseding cause, produces a particular event and without

which that event would not have occurred.’” Id. (quoting Williams v. Joynes, 278 Va. 57, 62,

677 S.E.2d 261, 264 (2009)). “‘An intervening act which is reasonably foreseeable cannot be

relied upon as breaking the chain of causal connection between an original act of negligence and

subsequent injury.’” Gallimore v. Commonwealth, 246 Va. 441, 447, 436 S.E.2d 421, 425

(1993) (quoting Delawder v. Commonwealth, 214 Va. 55, 58, 196 S.E.2d 913, 915 (1973)).

Furthermore, “an intervening event, even if a cause of the harm, does not operate to exempt a

defendant from liability if the intervening event was put into operation by the defendant’s

negligent acts.” Id.

       “‘Generally, negligence (whether ordinary, gross, or willful and wanton), contributory

negligence, and proximate cause are issues for a jury’s resolution. They only become questions


                                               -4-
of law to be determined by a court, when reasonable minds could not differ.’” Forbes v.

Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d 457, 459 (1998) (quoting Tubman v.

Commonwealth, 3 Va. App. 267, 273-74, 348 S.E.2d 871, 875 (1986)).

       Applying these principles to appellant’s case, we cannot say the trial court erred by

denying appellant’s motion to strike the aggravated malicious wounding charge. Appellant shot

the victim in the abdomen with a .45 caliber Glock pistol. But for appellant shooting the victim,

the victim would not have had abdominal surgery resulting in the large scar, a permanent and

significant physical impairment. In addition, the surgery did not relieve appellant from liability

or break the chain of the causal connection between the shooting and the scar because the

surgery was a reasonably foreseeable consequence of the shooting.

       As the Supreme Court has stated in the context of a murder conviction:

                       When a defendant has inflicted wounds upon a victim that
               result in an affliction or a disease, the defendant is criminally
               responsible for the victim’s death from that affliction or disease if
               the wounds caused the death indirectly through a chain of natural
               effects and causes. An intervening event, even if a cause of death,
               does not exempt the defendant from liability if that event was put
               into operation by the defendant’s initial criminal acts.

Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265-66 (1998) (citations omitted).

       In Jenkins, the defendant shot the victim and the victim received medical treatment in the

hospital. Four days later, the victim died while still in the hospital. The medical examiner

testified the victim “‘died as a result of [the] aspiration following the gunshot wound to the

abdomen.’” Id. at 518, 499 S.E.2d at 264. Other evidence indicated “many factors” contributed

to the victim’s death “but all were” the result of the gunshot wound. Id. at 521, 499 S.E.2d at

266. The Court found the evidence was sufficient to prove “the required causal connection

between Jenkins’ acts and the victim’s death.” Id.




                                                -5-
       We also find the analysis in Brown is instructive here. In Brown, the defendant was

convicted of involuntary manslaughter where, during a high-speed chase of Brown, a police

officer’s vehicle struck another vehicle, killing that driver, the victim. Brown argued his actions

did not directly cause the death of the victim, but rather the victim died “solely because” the

officer conducted a high-speed chase into a populated area. Brown, 278 Va. at 527, 685 S.E.2d

at 45. The Court found the high-speed chase was “a direct result of Brown’s reckless driving”

and his decision to flee. Id. at 530, 685 S.E.2d at 47. Furthermore, the Court found Brown’s

actions “‘put into operation’” the high-speed chase, thus, Brown was responsible for the victim’s

death and Brown’s conduct “was a cause without which [the victim]’s death would not have

occurred.” Id. (citation omitted).

       Similarly, here, appellant’s shooting of the victim “put into operation” the victim’s need

for surgery, and appellant’s conduct was a cause “without which” the victim’s surgery and

resulting surgical scar would not have occurred.

       We find additional support for our conclusion in State v. Anderson, 370 N.W.2d 703

(Minn. Ct. App. 1985), in which the court found the defendant responsible for causing a surgical

scar where the defendant’s actions caused the need for the surgery. In Anderson, the defendant

was convicted of assault in the first degree, which was defined as assaulting another and

inflicting great bodily harm. Id. at 705. “Great bodily harm” was defined, in part, as: “Bodily

injury which . . . causes serious permanent disfigurement . . . .” Id. (quoting Minn. Stat.

§ 609.02, subd. 8 (1982)).

       In Anderson, the evidence showed the defendant kicked and “stamped on” the victim’s

stomach area, resulting in a lacerated liver. Surgical repair of that internal laceration created a

scar. Id. Despite the fact that the defendant did not inflict the surgical incision that created the




                                                 -6-
scar, the court held the evidence was sufficient for the jury to find the surgical scar constituted

“serious and permanent disfigurement.” Id. at 706.

       We conclude the trial court did not err in denying appellant’s motion to strike the

evidence because the Commonwealth presented a prima facie case for consideration by the fact

finder. Accordingly, we affirm appellant’s conviction.

                                                                                      Affirmed.




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