Fary v. Commonwealth
| Docket Number | Record No. 1079-21-2 |
| Decision Date | 18 April 2023 |
| Citation | 77 Va.App. 331,885 S.E.2d 516 |
| Parties | Michael Melvin FARY v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
Devin G. Hensley, Gloucester (Martin, Ingles & Hensley Ltd., on brief), for appellant.
Timothy J. Huffstutter, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O'Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White
OPINION BY JUDGE ROBERT J. HUMPHREYS
After a bench trial, the Circuit Court of King William County convicted Michael Melvin Fary of seven counts of attempted malicious wounding, in violation of Code §§ 18.2-26, 18.2-51, and one count of misdemeanor reckless operation of a boat, in violation of Code § 29.1-738. On appeal, a three-judge panel of this Court heard Fary's challenge to the sufficiency of the evidence to support his convictions for attempted malicious wounding and affirmed the judgment of the circuit court with one judge dissenting. Fary v. Commonwealth , No. 1079-21-2, 2022 WL 3588373 (Va. Ct. App. Aug. 23, 2022). This Court granted Fary's petition for rehearing en banc and stayed the panel decision affirming the judgment of the circuit court. Rule 5A:35(b). Sitting en banc, the Court considers anew the legal sufficiency of the evidence to support Fary's convictions for attempted malicious wounding. This case also permits us to clarify and correct some of our precedent with respect to appellate review of any alleged reasonable hypothesis of innocence.
BACKGROUND
On July 18, 2020, Douglas Creekmore ("Creekmore"), his wife, Lindsay Creekmore, and their one-year-old daughter were boating with friends on the Mattaponi River. Along for the boat ride were Gretchen Frayser and her three minor children. In total, seven people occupied the Creekmores’ seventeen-foot fiberglass "Sunbird" bowrider boat. Creekmore was driving the Sunbird downriver when Ms. Creekmore, who was sitting in the seat forward of the driver's seat, alerted him that there was a boat not far ahead of them. The boat ahead of them was a sixteen-foot aluminum "jon boat," olive in color. Creekmore testified that instead of slowing quickly, which would cause a "huge wake towards the other ... boat," he "stayed on the plane and went up to the right of the boat to try to keep as less wake as possible." He was traveling about twenty-two to twenty-four miles per hour as he moved around the jon boat. After passing the jon boat, Creekmore looked back to see if everything was okay; he saw the jon boat had turned and rocked but no one had fallen out.
In the jon boat were Fary and his girlfriend, Carrol Messler. They were returning from delivering fishing supplies to Fary's son when they ran out of gas. They were sitting in the middle of a narrow channel in the bend of the river while Fary switched the gas hose from the empty tank to a full tank. Fary became "pissed off" about the way the Sunbird vessel passed him at a close distance and "almost swamped" his boat. From a distance, Frayser could see that Fary appeared to be very upset and yelling right after the Sunbird passed his jon boat.
A couple of minutes after the Sunbird passed the jon boat, one of the minor children told Creekmore that Fary was following them. Creekmore looked back and saw Fary following about a quarter mile behind them. Creekmore continued on for fifteen to twenty-five minutes; Fary continued behind him. Creekmore continued downriver and passed Rainbow Acres Campground, thinking Fary might turn off there, but he did not. At this point Creekmore believed Fary must be "really angry." Creekmore traveled about a half mile past Rainbow Acres, then decided to turn his boat around and head back to Rainbow Acres, thinking that if Fary was planning to confront him, he should be around other people as a safety measure. When Creekmore turned around, Fary turned around and followed him to Rainbow Acres.
At Rainbow Acres, Creekmore pulled up to the end of a fuel dock. Fary motored the jon boat close to the Sunbird. When Fary's motor was in neutral and about fifteen feet away from the Sunbird, Fary started yelling and cursing; he said, "You fucking wanna swamp me?" Creekmore apologized. Fary's demeanor was "hostile"; he stood up and called Creekmore a "motherfucker." Fary sat down, put his boat in gear, and slammed into the Sunbird at a 90-degree angle, in such a way that the jon boat came "up on top of [the Sunbird]" at the gunwale (the top portion of the hull) towards the stern, starboard side of the vessel. The children were screaming and crying. Three of the children were sitting on the rear seat forward of the transom, and one of them was hit on the side of the head by the jon boat as it rode up on the Sunbird.1 The pitch of the jon boat as it was on the Sunbird was so steep that it made the jon boat slide back down into the water. Ms. Creekmore, who was seated near the bow of the boat, rushed to the back to check on the children. By this time, Fary was standing again and both men were cursing at each other.
Then, Fary sat back down, restarted his engine, and rammed into the Sunbird a second time. This time the jon boat came up on the Sunbird on the starboard side by the driver's seat and rose up to hit part of the hardware holding the canopy over the boat.
Creekmore shoved the jon boat off from his boat with his hands. Frayser testified that Fary was cursing both times as he ran his boat into the Sunbird. Creekmore told Fary that he was crazy and he should go away. Fary threw his hands up and said, "I'm sorry," and drove back upriver.
Howard Emory, an employee at Rainbow Acres, observed the incident and wrote down the jon boat's registration number and provided it to his supervisor. Mr. Emory testified at trial that initially he could not see the boats from his position on the dock because of the low tide, but he said the jon boat slammed into the larger boat that came in for gas, and then "[b]acked off[ ] and slammed into it a second time." He later said,
As the Creekmores departed Rainbow Acres, Ms. Creekmore called the non-emergency police number to report the incident. Officer Daniel Rabago of Virginia Department of Wildlife Resources met the Creekmores at the Walkerton Boat Ramp, where he took pictures of the Sunbird and verbal statements from the Creekmores and Frayser. Officer Rabago then went to Fary's home, where he spoke with Fary and took pictures of the jon boat.
At trial, Officer Cameron Dobyns, a member of the boat incident reconstruction team at the Department of Wildlife Resources, testified to the reconstruction report he prepared after inspecting the Sunbird and the jon boat. During his detailed examination of both vessels, he noted recent damage, fresh scuff marks and scratches, and paint transfer from one boat to another. Based on his observations, he opined that the jon boat hit the Sunbird at a 90-degree horizontal angle, towards the stern on the starboard side, noting aluminum and olive drab paint transfer at a fresh gouge in the fiberglass of the Sunbird at the gunwale. Further forward on the starboard side, Officer Dobyns opined that the jon boat hit the Sunbird at a 150-degree horizontal angle and went up onto the starboard side of the Sunbird, hitting the gunwale, the hardware extending above the gunwale to hold the canopy,2 and the top of the windshield frame by the driver's seat before reentering the water. He found olive drab paint on each of these parts of the Sunbird. The damage to the Sunbird was cosmetic, and it remained operable after the incident.
Fary presented his own evidence. First, Messler testified that the jon boat ran into the Sunbird only once and it was because the Sunbird stopped abruptly in front of them near the dock at Rainbow Acres. She also testified that Fary was not angry and he was not cursing, but the people in the Sunbird were cursing at them. Fary testified that when he approached the Sunbird at the Rainbow Acres dock, he planned to throw a wake, "to wake him the way he did me." He said that he tried to hit a pole to stop his boat but the wake pushed him into the Sunbird and that he hit the boat on accident. He also testified that his boat ran into the Sunbird only once. In closing argument, defense counsel argued that Fary regrets what happened, but he had no intent to maim, maliciously hurt, or kill any of the people on the boat.
The circuit court found that the physical evidence did not support Fary's version of the incident that he only hit the Sunbird one time and that was by accident, bumping off of a pole near the dock. The circuit court found Fary guilty on "all seven counts of attempted malicious wounding when you look [at] all the facts in the case."
ANALYSIS
Fary's single assignment of error is that the circuit court erred by convicting him of seven counts of attempted malicious wounding because the evidence was insufficient to prove that he had the specific intent to maliciously wound anyone when his boat contacted the victims’ boat.
"Under the governing standard, ‘we review factfinding with the highest degree of appellate deference.’ " Commonwealth v. Barney , ––– Va. ––––, ––––, 884 S.E.2d 81 (2023) (quoting Bowman v. Commonwealth , 290 Va. 492, 496, 777 S.E.2d 851 (2015) ). "When presented with a sufficiency-of-the-evidence challenge in criminal cases, we review the evidence in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Id. at ––––, 884 S.E.2d 81 (quoting Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781 (2003) ). "Viewing the record through this evidentiary prism requires us to ...
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