McNeil v. Commonwealth
| Decision Date | 27 September 2022 |
| Docket Number | 0568-21-1 |
| Parties | ROSCOE MCNEIL, JR. v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Kenneth R Melvin, Judge
(Gregory K. Matthews; Gregory K. Matthews, PC, on brief), for appellant. Appellant submitting on brief.
Rebecca M. Garcia, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Judges Malveaux, Fulton and Friedman Argued at Norfolk, Virginia
Roscoe McNeil, Jr. ("appellant") was convicted in a bench trial of malicious wounding, in violation of Code § 18.2-51.[1] On appeal, he challenges the sufficiency of the evidence and argues that the Commonwealth failed to prove he acted with malice. For the following reasons, we affirm the trial court.
Meade v. Commonwealth, 74 Va.App. 796, 802 (2022) (citation omitted) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)).
In September 2019, appellant lived in a rented room in the home of Olenthia Harrington-Jude and her husband, Alfred Jude. Olenthia testified that on the evening of September 5, she made a bowl of tuna salad for herself, Alfred, and appellant. Although appellant usually bought his own food and cooked for himself, Olenthia and her husband were sharing with appellant that evening.
After appellant filled up a large bowl with almost all the tuna salad, Olenthia admonished him and accused him of giving food to people in the park. Appellant then walked toward his room with the tuna salad, and Olenthia followed and asked him why he kept taking food out of the house. Olenthia testified that as she approached appellant's room she did not have a weapon or other object in her hands, did not touch appellant, and "did not holler . . . [or] curse" but spoke to appellant in a normal tone. When appellant attempted to close his door, Olenthia "put [her] foot up there to hold the door" so appellant could not shut it in her face.
After putting her foot in the doorway, Olenthia asked appellant "why [he] took my food out [of] the house." Appellant opened the door and began pushing Olenthia and stabbing her with a knife. Olenthia characterized the weapon as a "[r]egular knife," not a "steak knife." She stated that appellant stabbed her four times, including on her stomach and wrist, and the trial court observed her scars. The stabbing caused Olenthia to bleed, and she "holler[ed] a lot" from the pain. Olenthia went to the hospital, where her wounds were stitched and bandaged.
Alfred testified that he was in his bedroom when he heard his wife and appellant arguing about food. Appellant called Olenthia "[a]ll kinds of dumb bitches," and Alfred called 911 when he heard Olenthia say, Alfred observed his wife "bleeding bad" from multiple stab wounds. He also stated that there was a footprint on appellant's door from when Olenthia was "trying to hold it and talk to him" and appellant "tr[ied] to slam the door in [her] face."
Portsmouth Police Officers Shelton-Gonzalez and Starowicz came to the home. Olenthia told the officers that appellant had stabbed her with a knife from his dresser, and the officers noted stab wounds to her abdomen, chest, left shoulder, and left forearm. Officer Starowicz testified that appellant sounded intoxicated, exhibited slurred speech, and had an odor of alcohol coming from him. Appellant repeatedly told the officer that he paid more rent than Olenthia and that she had been pushing on his door. He also stated that he had taken the knife from Olenthia and "stabbed her one time but was unsure where he stabbed her."
After the Commonwealth rested, appellant moved to strike the evidence and the trial court denied the motion. Appellant then testified in his own defense. He asserted that Olenthia's "whole statement" was "a lie," although he acknowledged on cross-examination that he had stabbed her. Appellant said that on the evening of September 5, he had cooked a dozen eggs. Olenthia asked appellant if she could use the eggs to make tuna salad and also asked him for some other ingredients. After the food had been prepared, appellant took "two spoons full" and Olenthia accused him of giving food away to others. Appellant denied Olenthia's accusation and told her she could "have it back." He then walked to his room, shut the door, made a phone call, and tried to find a football game on the television.
At that point, appellant said, Olenthia "c[a]me pushing at my door." Appellant demonstrated to the court that he stood behind his partially open door and explained that he and Olenthia could not see each other. Appellant testified that he "begged [Olenthia] to let me shut the door," "begged her to leave me alone," and "did not argue with her." He also stated that he called a member of his church "to come and get me because she's arguing, and I didn't want to argue with her." When asked how Olenthia "ended up bleeding," appellant said that he "just stuck the knife outside the door." Appellant explained that he had the knife in his room because he ate there and had to cut up his food due to dental problems. He said that at the time he stuck out the knife, all he could see was Olenthia's "arm and a foot in the door." Appellant also alleged that Olenthia had been drinking and that Alfred watched the altercation. He denied stabbing Olenthia more than once.
After appellant rested, he renewed his motion to strike. The trial court granted the motion with respect to aggravated malicious wounding but denied it with respect to malicious wounding.
Appellant contended in closing that both he and Olenthia had been arguing and "getting hot and bothered," he had attempted "to retreat from that argument," and taking the argument together with Olenthia's efforts to enter his room, "there is enough provocation to negate the [element of] malice." The trial court disagreed and convicted appellant.
This appeal followed.
Appellant challenges the sufficiency of the evidence to sustain his conviction for malicious wounding.
"When reviewing the sufficiency of the evidence, '[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). "If there is evidentiary support for the conviction, 'the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.'" Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va.App. 273, 288 (2017)).
Appellant argues that the evidence was insufficient to prove he acted with malice and that, instead, the evidence demonstrated that he acted under the heat of passion when he stabbed Olenthia. He contends that there was an argument between Olenthia and himself and he tried to get away from her, but Olenthia followed him to his room and "tr[ied] to invade his space." Further, Olenthia's injuries were consistent with his testimony that he "was trying to protect his space and that both parties were agitated." Accordingly, appellant contends, "the circumstances . . . show that [he] was under the influence of passion" when he stabbed Olenthia, rather than that he acted with malice.[2]
"The presence of malice 'is a question of fact to be determined by [the trier of fact].'" Fletcher v. Commonwealth, 72 Va.App. 493, 507 (2020) (alteration in original) (quoting Long v. Commonwealth, 8 Va.App. 194, 198 (1989)). This Court defers to the trial court's findings of fact unless they are plainly wrong or without evidentiary support. Green v. Commonwealth, 72 Va.App. 193, 200 (2020).
"Malice inheres in the 'doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will.'" Tizon v. Commonwealth, 60 Va.App 1, 11 (2012) (quoting Dawkins v. Commonwealth, 186 Va. 55, 61 (1947)). It 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." Fletcher, 72 Va.App. at 507 (quoting Branch v. Commonwealth, 14 Va.App. 836, 841 (1992)). Malice "may be directly evidenced by words, or inferred from acts and conduct which necessarily result in injury." Ramos v. Commonwealth, 71 Va.App. 150, 162 (2019) (quoting Burkeen v. Commonwealth, 286 Va. 255, 259 (2013)). Thus, "malice may be either express or implied," Watson-Scott v. Commonwealth, 298 Va. 251, 256 (2019) (quoting Essex v. Commonwealth, 228 Va. 273, 280 (1984)), and it "may be proved by circumstantial evidence," Palmer v. Commonwealth, 71 Va.App. 225, 237 (2019) (quoting Canipe v. Commonwealth, 25 Va.App. 629, 642 (1997)). ...
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