Com. v. Vaughn

Decision Date11 January 2002
Docket NumberRecord No. 010789.
Citation263 Va. 31,557 S.E.2d 220
PartiesCOMMONWEALTH of Virginia v. Ronnie Antjuan VAUGHN.
CourtVirginia Supreme Court

Paul C. Galanides, Asst. Atty. Gen. (Randolph A. Beales, Atty. Gen., on brief), for appellant.

Patricia P. Nagel, Asst. Public Defender (Gregory W. Franklin, Asst. Public Defender, on brief), for appellee.

Present: All the Justices.

Justice ELIZABETH B. LACY.

Ronnie Antjuan Vaughn was indicted for the malicious wounding of Samuel Robinson in violation of Code § 18.2-51. A jury in the Circuit Court for the City of Richmond convicted Vaughn of the lesser-included offense of unlawful wounding. A divided panel of the Court of Appeals reversed the conviction and remanded the case for a new trial, finding that the trial court erred by refusing to grant Vaughn's request that the jury also be instructed on the lesser-included offense of assault and battery. See Vaughn v. Commonwealth, 34 Va.App. 263, 540 S.E.2d 516 (2001)

. Based on review of the record and the applicable legal principles, this Court will reverse the judgment of the Court of Appeals.

FACTS

When reviewing a trial court's refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction. Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991). So viewed, the facts of this case are as follows.

On April 11, 1997, Robinson and Vaughn were "hanging out." Robinson had been drinking beer for some time. When Vaughn told Robinson that he had observed another man visiting with Robinson's wife while Robinson was out of town, Robinson became visibly upset. Robinson went to a house across the street and telephoned his wife, telling her to come home.

Vaughn came into the house and the two men began to argue. At one point during the argument, Vaughn attempted to place his hand on Robinson's arm in a conciliatory manner. Robinson, however, told Vaughn to "get off me," and rebuffed the gesture.

When the two men returned outside, they continued to argue and exchange profanities. Vaughn testified that, at one point, Robinson pushed Vaughn up against a wall and threatened to kill him and his family. In contrast, Robinson testified that Vaughn told him that "he'd get his four five [.45 caliber handgun] and he could take care of me."

Robinson and Vaughn separated when Robinson's wife arrived. Robinson walked off with his wife. Vaughn, afraid that Robinson would return and harm him, telephoned a friend to pick him up. When the friend arrived, his car was full, but he assured Vaughn that he would return to pick up Vaughn in ten minutes and gave Vaughn a gun to use "just in case."

According to Vaughn, as the car was departing, Robinson began running toward Vaughn. Although Vaughn told him to stop, Robinson continued to advance in Vaughn's direction. Vaughn testified that he was scared of Robinson because of the disparity in their sizes1 and the "lethal" nature of Robinson's hands. Vaughn then fired several shots into the ground at Robinson's feet because he "was afraid for [his] life." Vaughn "kept squeezing the trigger" until there were no more bullets in the gun. When Robinson's foot was hit by one of the shots, Robinson turned and fled, jumping over a fence on the side of the property. Robinson testified that he heard one more shot being fired after he had begun to run away, although Vaughn denied shooting at Robinson as he was running away and no one saw Vaughn shooting at Robinson as he was running away. Robinson was wounded in the foot and in the lower back.

At trial, Vaughn denied that he intended to shoot Robinson, asserting instead that he was acting in self-defense and only fired at Robinson's feet to keep him back. The trial court instructed the jury on the charges of malicious wounding and the lesser-included offense of unlawful wounding. The court refused to give the jury instruction Vaughn proffered on the lesser-included offense of assault and battery. Vaughn was convicted of unlawful wounding and was sentenced to five years in prison. The Court of Appeals reversed the conviction and remanded the case for a new trial. The Commonwealth appeals.

DISCUSSION

The sole issue before us is whether the Court of Appeals correctly concluded that the defendant was entitled to a jury instruction on assault and battery, a lesserincluded offense of malicious and unlawful wounding. Malicious and unlawful wounding requires that the accused has the specific intent to "maim, disfigure, disable or kill" the victim of the attack. Code § 18.2-51. The offense of assault and battery requires that the accused

attempt or offer with force or violence to do a corporal hurt to another ... as by striking at him, or even holding up one's fist at him in a threatening or insulting manner, or pointing a weapon at him within reach " ... [and] the actual infliction of corporal hurt on another ... wilfully or in anger, whether by the party's own hand, or by some means set in motion by him.

Jones v. Commonwealth, 184 Va. 679, 681-82, 36 S.E.2d 571, 572 (1946)(original emphases omitted). We have held that the intent to put another in fear of bodily harm with a threat to use bodily force, such as brandishing a deadly weapon, is an assault. Commonwealth v. Alexander, 260 Va. 238, 241, 531 S.E.2d 567, 568 (2000); Burgess v. Commonwealth, 136 Va. 697, 706, 118 S.E. 273, 275 (1923).

There is no dispute that the evidence in this case was sufficient to support a finding that Vaughn intended to maim, disfigure, or disable Robinson. Vaughn shot a gun aimed in Robinson's direction; he continued firing the gun until all shells were spent and continued pulling the trigger after the gun was empty; and Robinson was wounded by bullets from the gun, once in the foot or ankle and, in the course of turning and running from Vaughn, again in the back. Although not undisputed, there was also credible evidence that the prior altercation between Vaughn and Robinson had ended and that Vaughn was the aggressor in the events that resulted in Robinson's injury.

As Vaughn argues, the evidence in this case also shows that he attempted, with force, to frighten Robinson and set in motion the means by which Robinson was ultimately hurt. If this evidence alone was sufficient to support the lesser-included assault and...

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