                   COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


CHRISTOPHER MICHAEL CARNES
                                         MEMORANDUM OPINION * BY
v.   Record No. 2016-02-1               JUDGE ROBERT J. HUMPHREYS
                                               JULY 1, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Randolph T. West, Judge

          Warren F. Keeling for appellant.
          Paul C. Galanides, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General; Margaret
          W. Reed, Assistant Attorney General, on
          brief), for appellee.


     Christopher Michael Carnes appeals his conviction,

following a bench trial, for malicious wounding, in violation of

Code § 18.2-51.   Carnes contends the trial court erred in

finding the evidence sufficient, as a matter of law, to support

the conviction.   For the reasons that follow, we affirm the

judgment of the trial court.

     In accordance with settled principles of appellate review,

we state the evidence presented at trial in the light most

favorable to the Commonwealth, the prevailing party below.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
Burns v. Commonwealth, 261 Va. 307, 313, 541 S.E.2d 872, 877

(2001).

        On December 14, 2001, Mark A. Reed was at home with his

three sons.    That evening, he received a telephone call from

Carnes, who asked to speak with his sons.    Because he was "tired

of kids coming over a lot," Reed told Carnes that his sons were

not home.    A few moments later, Reed heard a knock at his front

door.    Reed's two older sons answered the door and spoke to the

individual who had knocked, through the closed screen door.

        After a few seconds, Reed approached and saw that it was

Carnes at the door.    Reed told Carnes to leave.   Carnes

responded that "[he] was not leaving."    Reed said, "I think

you're here for no good . . . I'm asking you to leave my

property."    Carnes began "yelling," and "cussing" at Reed,

"saying he wasn't going to do this and wasn't going to do that,"

"he didn't have to leave and there's nothing [Reed] could do

about it . . . ."    Reed again told Carnes to leave and told his

wife, who was standing inside the home, to call the police.

Carnes still refused to leave.

        A few moments later, Reed went out onto the porch and again

asked Carnes to leave.    Reed told Carnes, "You need to leave.

You're here to cause trouble and I don't want any trouble.      We

really don't want you here.    You're too old to be hanging around

my sons, anyway, you know.    I just want you to leave."     However,

Carnes again refused to leave and stated, "he was going to smoke
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dope and do drugs and there wasn't anything [Reed] could do

about it, he could do it at [Reed's] house if he wanted to."

        At that time, Reed put one hand on Carnes's shoulder and

one hand on his back, "to escort [Carnes] off [Reed's] porch."

Carnes backed up and said he was not leaving.       Carnes then

looked "towards his [own] hand" and said, "You see this?"         Reed

asked, "What?"    When Reed glanced down, he saw "something in

[Carnes's] hand."    Reed could not identify the object, but saw

that it was shiny.    He told Carnes, "Well, you're not going to

hit me.    Just leave."   As Reed looked away, Carnes hit Reed in

the face.    Reed was stunned and felt blood running down his

face.    Carnes swung at Reed again, but Reed was able to

partially block the punch.     Reed then grabbed Carnes around the

head and neck, to hold him until the police arrived.

        At that point, Carnes's friend, Jason Critzer, walked onto

the porch.    Reed told him to stop.      Reed's sons then joined the

others on the porch.      One of Reed's sons hit Carnes, so Reed let

go of Carnes, because he "didn't think that was right."       Carnes

then ran into the front yard, yelling, "I'll be back.       You're

going to get it.    I'll be back with my friends."

        Shortly thereafter, the fire department arrived.     Fire

department personnel looked at Reed's wounds and advised him to

go to the emergency room for treatment.       Reed received four

stitches over his eye.



                                  - 3 -
     Carnes was subsequently arrested for, and later indicted

for, malicious wounding, in violation of Code § 18.2-51.     During

Carnes's trial, Reed testified for the Commonwealth as to the

events set forth above.   Reed stated that it was dark when

Carnes came to his home that evening.     He said that when he

walked out onto the porch, the only light was coming from

Christmas lights "blinking off and on."     Reed further testified

that he may have pushed Carnes off of the porch, just before

Carnes ran into the front yard and threatened to return with his

friends.

     At the close of the Commonwealth's evidence, Carnes raised

a motion to strike, stating:

           Your Honor, at this point, I would move to
           strike the charge as being malicious
           wounding. We have evidence that he came to
           see that man's sons. He didn't come to see
           him. There's no evidence that he had a
           deadly weapon. There is no evidence that
           there were such repeated violent blows that
           you could infer intent to be a malicious
           wounding. There is no situation that these
           two men are so different in age or physical
           ability that he was taking advantage of
           somebody's incapacity. So at this point,
           may it please the Court, I would ask the
           Court to strike malicious.

The trial court denied the motion.

     Carnes testified that he went to Reed's home to get some of

his personal items from Reed's son.      He contended that Reed's son

had stolen the items from him.    Reed's son opened the door, but

told Carnes that he was not going to return the items and then

closed the door.   According to Carnes, Reed came to the door a

                                 - 4 -
few moments later, walked out onto the porch, and began yelling

at him.   Reed called him a "drug addict" and told him he had to

leave.    Carnes testified that he told Reed he did not want any

trouble and that he turned and began to walk away.     However, Reed

pushed him from behind.   Carnes stated that he hit Reed, only

after being pushed a number of times.     Carnes further stated that

he wore a "class-style" ring on the hand that he hit Reed with,

but claimed he held nothing in his hand.     He testified Reed

grabbed him by the neck and held him over the top of the brick

wall surrounding the porch.   After Reed loosened his grip, Carnes

"kind of fell over" and left.
     At the close of his evidence, Carnes renewed his motion to

strike, alleging that the evidence proved unlawful wounding, but

not malicious wounding.   The trial court denied the motion and

convicted Carnes of malicious wounding, sentencing him to ten

years in prison, with six years suspended upon certain

conditions.

     On appeal, Carnes contends the trial court erred in finding

the evidence sufficient, as a matter of law, to support the

conviction for malicious wounding.      Carnes argues the evidence

failed to establish that he went to the Reed home with the intent

"to do anyone harm."   We find no error in the trial court's

determination and, therefore, affirm the conviction.




                                - 5 -
     As stated above,

          [w]hen reviewing the sufficiency of the
          evidence after a conviction, we consider
          that evidence in the light most favorable to
          the Commonwealth, and we affirm the
          conviction unless it is plainly wrong or
          without evidence to support it. Horton [v.
          Commonwealth, 255 Va. 606, 614, 499 S.E.2d
          258, 262 (1998) (citing Higginbotham v.
          Commonwealth, 216 Va. 349, 352, 218 S.E.2d
          534, 537 (1975))]. The circuit court
          sitting without a jury in this case acted as
          the fact finder; hence, the court's judgment
          is accorded the same weight as a jury
          verdict. Evans v. Commonwealth, 215 Va.
          609, 613, 212 S.E.2d 268, 271 (1975). As
          the fact finder, the court "need not believe
          the accused's explanation and may infer that
          he is trying to conceal his guilt." Black
          v. Commonwealth, 222 Va. 838, 842, 284
          S.E.2d 608, 610 (1981).

Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899,

906-07 (2001).

     Code § 18.2-51 provides as follows:

          If any person maliciously shoot, stab, cut,
          or wound any person or by any means cause
          him bodily injury, with the intent to maim,
          disfigure, disable, or kill, he shall,
          except where it is otherwise provided, be
          guilty of a Class 3 felony. If such act be
          done unlawfully but not maliciously, with
          the intent aforesaid, the offender shall be
          guilty of a Class 6 felony.

Thus, the statute defines two crimes:   malicious wounding and the

lesser-included offense of unlawful wounding.    The element of

malice distinguishes the two crimes.    See Miller v. Commonwealth,

5 Va. App. 22, 24, 359 S.E.2d 841, 842 (1987).   In order to

sustain a conviction for malicious wounding, the Commonwealth

must therefore prove that the bodily injury was caused with


                              - 6 -
malice, and "with intent to maim, disfigure, disable, or kill."

Code § 18.2-51.

     "'"Malice inheres in the doing of a wrongful act

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

ill will.   It may be directly evidenced by words, or inferred

from acts and conduct which necessarily result in injury."'"

Hernandez v. Commonwealth, 15 Va. App. 626, 631, 426 S.E.2d 137,

140 (1993) (quoting Christian v. Commonwealth, 221 Va. 1078,

1081, 277 S.E.2d 205, 207 (1981) (quoting Dawkins v.
Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947))).

"Malice is evidenced either when the accused acted with a sedate,

deliberate mind, and formed design, or committed any purposeful

and cruel act without any or without great provocation."     Branch

v. Commonwealth, 14 Va. App. 836, 841, 419 S.E.2d 422, 426

(1992).    "Whether malice existed is a question for the fact

finder."    Robertson v. Commonwealth, 31 Va. App. 814, 823, 525

S.E.2d 640, 645 (2000).

     "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.    And a person

is presumed to intend the immediate, direct, and necessary

consequences of his voluntary act."     Nobles v. Commonwealth, 218

Va. 548, 551, 238 S.E.2d 808, 810 (1977) (citations omitted).

     Carnes correctly states that blows inflicted with bare

fists do not generally imply malice, much less an intent to

kill, disable, disfigure or maim the victim.     See Carson v.

Commonwealth, 188 Va. 398, 406, 49 S.E.2d 704, 707 (1948); see


                                - 7 -
also Roark v. Commonwealth, 182 Va. 244, 250, 28 S.E.2d 693,

695-96 (1944).   However, such blows "'may be attended with such

circumstances of violence and brutality'" to allow the trier of

fact to infer that the defendant possessed the requisite intent.

Dawkins, 186 Va. at 64, 41 S.E.2d at 504 (quoting M'Whirt's

Case, 3 Gratt. (44 Va.) 594 (1846)).     Moreover, when viewed in

the light most favorable to the Commonwealth, the evidence, and

reasonable inferences which flow from it, demonstrate that

Carnes struck Reed with something more than his bare fist.    Reed

testified that just before striking him, Carnes looked "towards

his hand" and said, "You see this?"     When Reed looked, he saw a

shiny object.    Carnes then hit Reed, causing an injury which

drew blood and required several stitches to close the wound.

Carnes testified he had nothing in his hand, but conceded that

he wore a "class-type" ring on that hand.

     The courts of this Commonwealth have long held that "[t]he

color of the act [at issue] determines the complexion of the

intent only in those situations where common experience has found

a reliable correlation between a particular act and a

corresponding intent."    Banovitch v. Commonwealth, 196 Va. 210,

217, 83 S.E.2d 369, 373 (1954) (citations omitted).    In Lee v.

Commonwealth, 135 Va. 572, 115 S.E. 671 (1923), albeit in dicta,

the Supreme Court of Virginia specifically noted that if an

injury were inflicted by means of a "knife or steel knuckles,"

"disfigurement would be the natural and probable consequence of a

violent blow in the face with such a weapon."    135 Va. at 577,

                                - 8 -
115 S.E. at 673.

     We hold that Carnes's use of a "shiny object" in inflicting

the injury to Reed, whether his ring or another object, should be

viewed no differently.   Code § 18.2-51 proscribes the infliction

of bodily injury upon another "by any means." (Emphasis added.)

Thus, "[t]he statute, by its explicit terms, does not contain a

limitation upon the means employed.    Indeed, the focus of the

established 'test of the offense of maliciously . . . causing

bodily injury is the intent with which the result is accomplished

rather than the nature of the means.'"    Long v. Commonwealth, 8

Va. App. 194, 197, 379 S.E.2d 473, 475 (1989) (quoting Dawkins,

186 Va. at 63, 41 S.E.2d at 504) (noting that because the statute

specifies "any means," the Commonwealth was not constrained to

prove that the method used to cause bodily harm was inherently

dangerous); see also Pannill v. Commonwealth, 185 Va. 244, 254,

38 S.E.2d 457, 462 (1946) (quoting 40 C.J.S. Homicide § 25) ("A

deadly weapon is one which is likely to produce death or great

bodily injury from the manner in which it is used, and whether a

weapon is to be regarded as deadly often depends more on the

manner in which it has been used than on its intrinsic

character.").

     We disagree, therefore, with Reed's contention that the

evidence presented at trial was insufficient, as a matter of law,

to establish the requisite intent to prove malicious wounding.

The Commonwealth plainly established a basis upon which the trier

of fact, here the trial court, could have reasonably inferred

from Carnes's actions that he purposefully and cruelly intended

to inflict bodily injury upon Reed.

                               - 9 -
     Carnes's contention that he inflicted the blows upon Reed

only in response to being pushed by Reed does not alter our

analysis.   In fact, "[t]he common law in this state has long

recognized the right of a landowner to order a trespasser to

leave, and if the trespasser refuses to go, to employ proper

force to expel him, provided no breach of the peace is committed

in the outset."    Pike v. Commonwealth, 24 Va. App. 373, 375, 482

S.E.2d 839, 840 (1997).   The evidence here, considered most

favorably to the Commonwealth, demonstrated that Reed initially

placed his hands on Carnes only in an effort to "escort" him from

his property.   As Carnes himself conceded, Reed told him to leave

the property a number of times before doing so.   This lawful act,

therefore, does not provide the requisite provocation to dispel

the malicious nature of Carnes's violent response.    See Branch,

14 Va. App. at 841, 419 S.E.2d at 426.   Moreover, the trial court

was clearly permitted to reject Carnes's account of the incident.

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995) ("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.").

     Accordingly, finding no error, we affirm the judgment of

the trial court.

                                                         Affirmed.




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