Record No. 1126-93-3


1994 Va. App. LEXIS 514

July 26, 1994, Decided


Phyllis Marie Mosby (Office of the Public Defender, on brief), for appellant.

Kathleen B. Martin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.


Present: Judges Coleman, Koontz and Elder.




Christopher Allen Walker (Walker) appeals his conviction in a bench trial in the Circuit Court of the City of Danville for malicious wounding pursuant to Code § 18.2-51. Walker contends that the evidence adduced at trial was insufficient to prove the necessary element of malice. We disagree and affirm the conviction.

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Judy Griffith (Mrs. Griffith) testified that she, her husband Dexter Griffith (Mr. Griffith), and her husband’s half-brother John Brooks (Brooks), after leaving a bar, stopped at a convenience store on Route 86 South in Danville to purchase gas and food. While waiting for her husband and Brooks to return with the food, Mrs. Griffith pulled the car away from the gas pumps and toward the take-out window. The parking area in front of the window was blocked by two cars parked horizontally across several spaces.

Mrs. Griffith confronted the drivers and passengers of the two cars, among them Walker. Harsh words and racial epithets were exchanged. When Mr. Griffith and Brooks returned, Mrs. Griffith relinquished the driver’s seat to her husband. As the car backed away from the store, the trio heard a drink bottle strike the rear of the car. Brooks exited the car and demanded to know who had thrown the bottle. Mrs. Griffith saw Walker hit Brooks with “something in his hand.”

Brooks testified that Walker struck him in the left eye and then in the right eye “with something, but I don’t know exactly what it was.” Brooks further testified that he suffered a broken jaw and multiple skull fractures as a result of Walker’s blows.

Mr. Griffith testified that Walker struck Brooks with “something chrome.” Lori Morrell, an employee of the convenience store, testified Walker struck Brooks “more than once” with a “dark . . . possibly black” object in his hand.

After the Commonwealth rested, Walker moved to strike the evidence on the ground that the Commonwealth had not proven the requisite element of malice. Walker argued that the evidence was insufficient to show that he used a pager (as alleged in the indictment) or some other object when he struck Brooks and that use of a weapon or object was required to show malice. The court overruled the motion to strike, and Walker elected to put on a defense.

Michael Lee Foster (Foster) testified for Walker, reiterating the events leading up to the confrontation between Walker and Brooks. Foster further testified that the fight began when Brooks swung his fist at Walker. Walker then struck Brooks, who then swung his fist at Walker a second time. Walker then grabbed Foster’s pager and used it to strike Brooks. Walker testified in his own defense that he struck Brooks first, Brooks struck him, and then he (Walker) used Foster’s pager to strike Brooks a second time.

The sole issue on appeal is whether the evidence adduced at trial was sufficient under the circumstances to demonstrate maliciousness in the wounding of Brooks by Walker. Code § 18.2-51 provides in pertinent part:

   If any person maliciously . . . wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall . . . be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.

Thus, by its own terms the statute defines two crimes–malicious wounding and a lesser included offense of unlawful wounding. The element of malice distinguishes the two, and it is the Commonwealth’s burden to establish that element. Miller v. Commonwealth, 5 Va. App. 22, 24, 359 S.E.2d 841, 842 (1987).

Walker asserts two separate grounds on which he maintains the evidence failed to establish the element of malice. First, relying on Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 273 (1969), he asserts that under ordinary circumstances malice cannot be presumed from a blow with a bare fist.  The statute does not limit the means employed, Dawkins v. Commonwealth, 186 Va. 55, 63, 41 S.E.2d 500, 504 (1947), and the evidence here does not show that Walker used only his fists or that the circumstances were “ordinary.” Accordingly, his reliance on Fletcher is misplaced.

   Malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will. It may be directly evidenced by words, or inferred from acts and conduct which necessarily result in injury. Its existence is a question of fact to be determined by [the trier of fact].

Dawkins, 186 Va. at 61, 41 S.E.2d at 503. Under this standard, the trial judge could reasonably conclude from the evidence that Walker used a blunt object, the pager, to give more stability and mass to his fist in order to increase the severity of the blow. This act and the serious nature of Brooks’s injuries were sufficient to support the judge’s finding of maliciousness.

Walker further contends that the evidence shows he resorted to violence only in response to racial taunts and physical threats, rendering  his actions in the nature of self-defense and therefore absent malice. We disagree. Words alone, no matter how insulting, are not sufficient to justify assault. Smith v. Commonwealth, 192 Va. 186, 189, 64 S.E.2d 761, 763 (1951); Roark v. Commonwealth, 182 Va. 244, 252, 28 S.E.2d 693, 696 (1944). The evidence shows that Walker, not Brooks, initiated the confrontation and that by subsequent acts escalated, rather than merely responded to, any threat of violence. Accordingly, the trial court did not err in rejecting Walker’s claim of self-defense.

For these foregoing reasons, Walker’s conviction is affirmed.


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