Williams v. Com., 0710-90-1

• Decision Date: 10 December 1991
• Docket Number: No. 0710-90-1,0710-90-1
• Citation: 13 Va.App. 393,412 S.E.2d 202
• Parties: Robert Lee WILLIAMS, A/K/A Robert Askew v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 202

412 S.E.2d 202

13 Va.App. 393

Robert Lee WILLIAMS, A/K/A Robert Askew v. COMMONWEALTH of Virginia.

Record No. 0710-90-1.

Court of Appeals of Virginia.

Dec. 10, 1991.

Henry L. Sadler, III, Norfolk, for appellant.

Janet F. Rosser, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and WILLIS, JJ.

WILLIS, Judge.

On appeal, Robert Lee Williams contends that the evidence was insufficient to support his conviction of maliciously causing bodily injury to Alton Biggs with intent to maim, disfigure, disable or kill him. We find no error and affirm the judgment of the trial court.

"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Josephs v. Commonwealth, 10 Va.App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).

The appellant lived with Judy Lovewine for approximately two years. They separated, and Ms. Lovewine rented an apartment which she shared with one of her daughters.

On November 27, 1989, between approximately 3:00 and 4:00 a.m., the appellant came to Ms. Lovewine's apartment and rang the doorbell. When she did not open the door, he went around and knocked on the back door. When she answered neither door, the appellant left, but returned shortly and resumed knocking on the doors. Finally, at approximately 6:00 a.m., he broke the glass in the back door and entered the apartment. Ms. Lovewine fled. The appellant went to her bedroom and found Alton Biggs, who, having spent the night there, was dressing for work. Each man directed the other to leave. The appellant then attacked Biggs, striking him four or five times with his fists. Biggs neither threatened nor struck the appellant and had no weapon. The appellant continued striking Biggs until the police arrived.

Biggs was taken to the hospital, where he was admitted and treated for five days. His eye was disfigured and swollen by two to three inches. He was treated with antibiotics for an injury to his jaw. At trial, on March 9, 1990, Biggs testified that he was still receiving treatment for his eye, having visited the doctor eight or nine times. He testified that he had been treated for his jaw injury on four occasions and had another appointment scheduled.

Two days before the incident, Ms. Lovewine had received a note from the defendant stating: "Hey Judy, your ass and that negro ass can run but you can't hide. Robert." The appellant admitted that the day before he wrote the note, he had seen Ms. Lovewine with Biggs.

The appellant contends that the evidence was insufficient to establish that he acted maliciously or with the intent to maim, disfigure, disable or kill. He argues that, under the evidence, he could be guilty of no more than simple assault and battery.

Ordinarily, the fist is not regarded as a dangerous or deadly weapon. Hence, usually, death is not held to be a natural and probable result of a blow with the bare fist. Under ordinary circumstances no malice may be inferred from such a blow even though death results. However, an assault with the bare fist may be attended with such circumstances of violence and brutality that an intent to kill will be presumed.

Roark v. Commonwealth, 182 Va. 244, 250, 28 S.E.2d 693, 695-96 (1944) (citations omitted).

In Roark, the defendant and the victim quarreled. The defendant struck the victim a single blow with his fist, knocking him to the ground. The victim died as a result of striking his head on the sidewalk. Stating that those circumstances would not support an imputation of malice, the Supreme Court held that the trial court erred in instructing the jury as to murder. Id. at 254, 28 S.E.2d at 697.

In Shackelford v. Commonwealth, 183 Va. 423, 32 S.E.2d 682 (1945), the defendant entered into an argument with his estranged wife. His sister-in-law, the victim, intervened. The defendant said, "This is the third time that you have messed in my business and this time I will finish you." Id. at 425, 32 S.E.2d at 683. He struck the victim with his fists, first on the nose, next in the eye, and finally on the back of her ear. His wife grabbed him, preventing further assault, and the victim fled. Upholding the defendant's conviction of causing bodily injury with intent to maim, the Supreme Court said:

The gravamen of the accused's contention is that the Commonwealth failed to establish the specific intent to maim, disable and kill, and that no such intent may be presumed from the blows struck with the naked fist.

The accused relies upon [Roark ], wherein it was held that under ordinary circumstances no malice may be presumed by a blow from the fist even though death results. "However, an assault with the bare fists may be attended with such circumstances of violence and brutality that an intent to kill will be presumed." (citations omitted.)

Id. at 426, 32 S.E.2d at 684. Noting that the defendant, a strong man, had made an unprovoked attack upon a woman, striking her at least three severe blows on her face and head with the expressed intention to "finish" her, and that the attack was brought to an end only by the intervention of the defendant's wife and the flight of the victim, the court concluded:

This evidence, plus the unprovoked and brutal attack by the accused upon a defenseless woman in her own home in the early hours of the morning, is clearly sufficient to establish the specific intent defined in the statute.

Id. at 427, 32 S.E.2d at 684.

In Dawkins v. Commonwealth, 186 Va. 55, 41 S.E.2d 500 (1947), the defendant, a large man who had been a professional wrestler, rammed his car into the victim's car several times. When the victim, an...