Cottee v. Com., Record No. 2175-98-2.

• Citation: 31 Va. App. 546,525 S.E.2d 25
• Decision Date: 22 February 2000
• Docket Number: Record No. 2175-98-2.
• Parties: Don M. COTTEE, s/k/a Don Meredith Cottee v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

525 S.E.2d 25

31 Va. App. 546

Don M. COTTEE, s/k/a Don Meredith Cottee v. COMMONWEALTH of Virginia.

Record No. 2175-98-2.

Court of Appeals of Virginia, Richmond.

February 22, 2000.

J. Terry Osborne, Richmond, for appellant.

Richard B. Smith, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and COLEMAN and BRAY, JJ.

FITZPATRICK, Chief Judge.

Don Meredith Cottee (appellant) was convicted of one count of aggravated malicious wounding, in violation of Code § 18.2-51.2; one count of malicious wounding, in violation of Code § 18.2-51; and one count of felony hit and run, in violation of Code § 46.2-894. On appeal, he contends (1) Code § 18.2-51.2 is unconstitutionally vague; (2) the evidence is insufficient to convict him of the three charged offenses; and (3) his prior criminal convictions occurring after the instant offense, but for which sentencing had not taken place, should not have been considered in determining his punishment. For the following reasons, we affirm.

I. BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997)

. So viewed, the evidence established that on December 6, 1997, appellant and three friends, Jeffrey Lowney, Dewey Ayers, and Chris Lowney, appeared uninvited at a party at Raymond Hall's home. A number of fights took place at the party, but appellant was not directly involved.

After the fighting ended, appellant and his friends returned to their car that was parked in the driveway. Appellant got into the driver's seat. Ayers was in the front passenger seat, and Jeffrey Lowney got into the back. A number of people from inside the house came outside to ensure that appellant and his friends left the property.

Appellant turned on the headlights and started the car. Robert Hayden and Robert Milby were standing directly in front of the car. Hayden thought appellant was going to reverse his car because another car was parked "maybe about six or seven feet in front of them." After reversing the car momentarily, appellant quickly shifted gears and drove the car forward, pinning both Hayden and Milby underneath. Hayden was trapped beneath the car with a tire on his back and the catalytic converter on the side of his face. The car was partially stuck on a railroad tie that bordered the driveway. Appellant continued to press the gas pedal, alternating between drive and reverse. One of the car tires spun on Hayden's back each time the car moved from drive to reverse. The bystanders screamed at appellant to stop the car because someone was underneath, but appellant "just steadily kept stomping on the gas [pedal] trying to get away." Ayers, who was sitting in the front passenger seat next to appellant, heard the screaming and got out of the car to help. Eventually, guests at the party lifted the car off Hayden and Milby. Once the victims were free, appellant reversed his car and fled the scene.

Dr. Andrea Crawford, an orthopedic surgeon, treated Hayden at the emergency room. Hayden suffered second degree burns on the side of his face and neck, an open fracture of his tibia, and a large burn on his back. The back wound, approximately eighteen inches long by eight inches wide, required a skin graft from his thigh. As a result of the injury to his tibia, five millimeters of bone had to be removed and his leg was permanently shortened. At trial, Dr. Crawford testified that Hayden's injuries to his back and leg would both be a "permanent and significant physical impairment." Milby suffered a dislocated shoulder, a burn on his arm and a cut on his knee.

In his defense, appellant testified that he did not realize he had hit anyone when he started moving his car and did not know he hit anyone until the following day.

The trial court accepted the Commonwealth's evidence and rejected appellant's testimony. Appellant was convicted of the aggravated malicious wounding of Hayden, the malicious wounding of Milby, and felony hit and run. One week after trial, but before sentencing, appellant moved to dismiss the aggravated malicious wounding conviction, contending that Code § 18.2-51.2 was unconstitutionally vague. Appellant also argued the evidence was insufficient as a matter of law to sustain the convictions.

At the sentencing hearing, the trial court denied appellant's motion to dismiss. Prior to sentencing, appellant conceded that the sentencing guidelines were properly calculated. However, counsel urged the trial court to sentence appellant to the lower range of the guidelines because he had yet to be sentenced on two unrelated manslaughter convictions in Gloucester County and did not want to be penalized twice. The trial court sentenced appellant to a total of seventy years on the three convictions, with thirty years suspended.

II. CONSTITUTIONALITY OF CODE § 18.2-51.2¹

Appellant contends Code § 18.2-51.2 is unconstitutionally vague because the phrase "permanent and significant physical impairment" is not adequately defined.² He argues that the wording of the statute is susceptible to various interpretations and, thus, does not allow the accused to "appreciate the gravity of the offense or the punishment."

The Commonwealth contends the statute as drafted is not unconstitutionally vague because it sufficiently describes the types of injuries required for conviction (i.e., ones that are both "permanent" in duration and "significant" in nature). Thus, the Commonwealth concludes there "is nothing uncertain or ambiguous about Code § 18.2-51.2[ ]. . . ." Additionally, the Commonwealth argues that appellant's constitutional challenge is without merit because he agreed at trial that the victim had "significant" injuries and a defendant has "no standing to make a broad and general facial statutory challenge."

"`[T]he person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.'" Los Angeles Police Dept. v. United Reporting Publishing Corp., ___ U.S. ___, ___, 120 S.Ct. 483, 489, 145 L.Ed.2d 451 (1999) (quoting New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3360, 73 L.Ed.2d 1113 (1982)).<sup>3</sup> "This general rule reflects two `cardinal principles' of our constitutional order: the personal nature of constitutional rights and the prudential limitations on constitutional adjudication." Id. at ___, 120 S.Ct. at 489.

It is well settled that a "[d]efendant has no standing to make a broad and general facial statutory challenge . . . ." Woodfin v. Commonwealth, 236 Va. 89, 92, 372 S.E.2d 377, 379 (1988). A litigant may challenge the constitutionality of a law only as it applies to him or her. See Coleman v. City of Richmond, 5 Va.App. 459, 463, 364 S.E.2d 239, 241-42 (1988)

(citing Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941)), reh'g denied, 6 Va.App. 296, 368 S.E.2d 298 (1988). "That the statute may apply unconstitutionally to another is irrelevant; one cannot raise third party rights." Id. at 463, 364 S.E.2d at 242.

At trial in the instant case, appellant conceded that Hayden's injuries would satisfy the elements of Code § 18.2-51.2. However, he argued that the statute was unconstitutional in general, stating the following:

COURT: You're saying the entire statute is unconstitutional for being vague?

[COUNSEL]: Yes, Your Honor.

COURT: But you do acknowledge that this particular victim does have the significant injury that would qualify under the statute if the statute was constitutional?

[COUNSEL]: Yes, Your Honor.

COURT: You are just saying in general the statute is unconstitutional?

[COUNSEL]: Yes, Your Honor.

Because appellant has no standing to make a broad and general facial statutory challenge, and he agreed that Hayden's injuries qualified as both "significant" and "permanent" injuries, the trial court properly denied appellant's motion to dismiss the aggravated malicious wounding conviction based solely upon his facial constitutional challenge.

III. SUFFICIENCY OF EVIDENCE

When the sufficiency of the evidence is challenged on appeal, we determine whether the evidence, viewed in the light most favorable to the prevailing party, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense. See Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997)

; Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991). "In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Watkins v. Commonwealth, 26 Va.App. 335, 349, 494 S.E.2d 859, 866 (1998). "We will not reverse the judgment of the trial court, sitting as the finder of fact in a bench trial, unless it is plainly wrong or without evidence to support it." Reynolds v. Commonwealth, 30 Va.App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).

A. Malicious Wounding Convictions

Appellant contends the evidence was insufficient to establish that he intended to maim, disfigure, disable or kill Milby or Hayden, as required by the malicious wounding statute. He also argues the evidence failed to establish that the injuries sustained by Hayden constituted a "permanent and significant physical impairment" within the meaning of Code § 18.2-51.2. We disagree.

The requisite specific intent "`may, like any other fact, be shown by circumstances. Intent is a state of mind which can be evidenced only by the words or conduct of the person who is claimed to have entertained it.'"...