Present: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 010789 OPINION BY JUSTICE ELIZABETH B. LACY
January 11, 2002
RONNIE ANTJUAN VAUGHN
FROM THE COURT OF APPEALS OF VIRGINIA
Ronnie Antjuan Vaughn was indicted for the malicious
wounding of Samuel Robinson in violation of Code § 18.2-51. A
jury in the Circuit Court for the City of Richmond convicted
Vaughn of the lesser-included offense of unlawful wounding. A
divided panel of the Court of Appeals reversed the conviction
and remanded the case for a new trial, finding that the trial
court erred by refusing to grant Vaughn's request that the
jury also be instructed on the lesser-included offense of
assault and battery. See Vaughn v. Commonwealth, 34 Va. App.
263, 540 S.E.2d 516 (2001). Based on review of the record and
the applicable legal principles, this Court will reverse the
judgment of the Court of Appeals.
FACTS
When reviewing a trial court's refusal to give a
proffered jury instruction, we view the evidence in the light
most favorable to the proponent of the instruction. Blondel
v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991). So
viewed, the facts of this case are as follows.
On April 11, 1997, Robinson and Vaughn were "hanging
out." Robinson had been drinking beer for some time. When
Vaughn told Robinson that he had observed another man visiting
with Robinson's wife while Robinson was out of town, Robinson
became visibly upset. Robinson went to a house across the
street and telephoned his wife, telling her to come home.
Vaughn came into the house and the two men began to
argue. At one point during the argument, Vaughn attempted to
place his hand on Robinson's arm in a conciliatory manner.
Robinson, however, told Vaughn to "get off me," and rebuffed
the gesture.
When the two men returned outside, they continued to
argue and exchange profanities. Vaughn testified that, at one
point, Robinson pushed Vaughn up against a wall and threatened
to kill him and his family. In contrast, Robinson testified
that Vaughn told him that "he'd get his four five [.45 caliber
handgun] and he could take care of me."
Robinson and Vaughn separated when Robinson's wife
arrived. Robinson walked off with his wife. Vaughn, afraid
that Robinson would return and harm him, telephoned a friend
to pick him up. When the friend arrived, his car was full,
but he assured Vaughn that he would return to pick up Vaughn
in ten minutes and gave Vaughn a gun to use "just in case."
2
According to Vaughn, as the car was departing, Robinson
began running toward Vaughn. Although Vaughn told him to
stop, Robinson continued to advance in Vaughn's direction.
Vaughn testified that he was scared of Robinson because of the
disparity in their sizes 1 and the "lethal" nature of Robinson's
hands. Vaughn then fired several shots into the ground at
Robinson's feet because he "was afraid for [his] life."
Vaughn "kept squeezing the trigger" until there were no more
bullets in the gun. When Robinson's foot was hit by one of
the shots, Robinson turned and fled, jumping over a fence on
the side of the property. Robinson testified that he heard
one more shot being fired after he had begun to run away,
although Vaughn denied shooting at Robinson as he was running
away and no one saw Vaughn shooting at Robinson as he was
running away. Robinson was wounded in the foot and in the
lower back.
At trial, Vaughn denied that he intended to shoot
Robinson, asserting instead that he was acting in self-defense
and only fired at Robinson's feet to keep him back. The trial
court instructed the jury on the charges of malicious wounding
and the lesser-included offense of unlawful wounding. The
court refused to give the jury instruction Vaughn proffered on
1
Robinson is six feet, one inch tall, and he weighs
approximately three hundred pounds. Vaughn is five feet,
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the lesser-included offense of assault and battery. Vaughn
was convicted of unlawful wounding and was sentenced to five
years in prison. The Court of Appeals reversed the conviction
and remanded the case for a new trial. The Commonwealth
appeals.
DISCUSSION
The sole issue before us is whether the Court of Appeals
correctly concluded that the defendant was entitled to a jury
instruction on assault and battery, a lesser-included offense
of malicious and unlawful wounding. Malicious and unlawful
wounding requires that the accused has the specific intent to
"maim, disfigure, disable or kill" the victim of the attack.
Code § 18.2-51. The offense of assault and battery requires
that the accused
attempt or offer with force or violence to do a
corporal hurt to another . . . as by striking at
him, or even holding up one's fist at him in a
threatening or insulting manner, or pointing a
weapon at him within reach . . . [and] the actual
infliction of corporal hurt on another . . .
wilfully or in anger, whether by the party's own
hand, or by some means set in motion by him.
Jones v. Commonwealth, 184 Va. 679, 681-82, 36 S.E.2d 571, 572
(1946)(original emphases omitted). We have held that the
intent to put another in fear of bodily harm with a threat to
use bodily force, such as brandishing a deadly weapon, is an
three inches tall and he weighs approximately one hundred-
sixty pounds.
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assault. Commonwealth v. Alexander, 260 Va. 238, 241, 531
S.E.2d 567, 568 (2000); Burgess v. Commonwealth, 136 Va. 697,
706, 118 S.E. 273, 275 (1955).
There is no dispute that the evidence in this case was
sufficient to support a finding that Vaughn intended to maim,
disfigure, or disable Robinson. Vaughan shot a gun aimed in
Robinson's direction; he continued firing the gun until all
shells were spent and continued pulling the trigger after the
gun was empty; and Robinson was wounded by bullets from the
gun, once in the foot or ankle and, in the course of turning
and running from Vaughn, again in the back. Although not
undisputed, there was also credible evidence that the prior
altercation between Vaughn and Robinson had ended and that
Vaughn was the aggressor in the events that resulted in
Robinson's injury.
As Vaughn argues, the evidence in this case also shows
that he attempted, with force, to frighten Robinson and set in
motion the means by which Robinson was ultimately hurt. If
this evidence alone was sufficient to support the lesser-
included assault and battery instruction, such instruction
would be required in every malicious or unlawful wounding case
because every such case must include these underlying
elements. However, we have rejected the concept that a jury
instruction on the lesser-included offense must always be
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given. Guss v. Commonwealth, 217 Va. 13, 14, 225 S.E.2d 196,
197 (1976). If the evidence is sufficient to support "a
conviction of the crime charged, and there is no independent
evidence warranting a conviction [of the lesser-included
offense], an instruction on the lesser-included offense need
not be given." Id. 2 Here, where the evidence of unlawful or
malicious wounding warrants a conviction, more than a
scintilla of evidence must show that Vaughn did not intend to
maim, disfigure, disable, or kill Robinson to support the
lesser-included offense of assault and battery.
Intent, like any fact, may be shown by circumstances. It
is "a state of mind which may be proved by a person's conduct
or by his statements." Howard v. Commonwealth, 207 Va. 222,
228, 148 S.E.2d 800, 804 (1966). In this case, neither
Vaughn's conduct or statements provide circumstantial evidence
that he did not intend to maim, disable, disfigure, or kill
Robinson.
2
We note that in the present case the trial court
rejected the proffered instruction as a matter of law because
a weapon was involved, relying on Jones v. Commonwealth, 184
Va. 679, 36 S.E.2d. 571 (1946). But see Code § 18.2-54; Brown
v. Commonwealth, 222 Va. 111, 116, 279 S.E.2d 142, 145 (1981);
Jackson v. Commonwealth, 218 Va. 490, 493, 237 S.E.2d 791, 793
(1977); Banner v. Commonwealth, 204 Va. 640, 641, 133 S.E.2d
305, 306 (1963); Williams v. Commonwealth, 153 Va. 987, 992,
151 S.E. 151, 152-53 (1930). However, this appeal does not
involve a review of the trial court's rationale for refusing
the instruction.
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Vaughn testified that he did not intend to shoot Robinson
at all and shot only at the ground to stop Robinson from
hurting him, but was unable to explain how Robinson was shot
in the back. This uncontroverted fact is inconsistent with
Vaughan's version of the facts and his claim that he only
intended to make Robinson retreat. Without providing an
alternative explanation for the resulting injury to Robinson's
back, Vaughn has no evidence demonstrating that he did not
intend to maim, disfigure, disable, or kill Robinson. A
finding of assault and battery by the jury in these
circumstances would require denying the uncontroverted
physical evidence and accepting Vaughn's failure to explain
what occurred as affirmative evidence of lesser intent. Thus,
under these circumstances we find no evidence supporting the
jury instruction requested by Vaughn.
Finally, the Court of Appeals concluded that the jury
should have been instructed on the lesser-included offense
because Vaughn's testimony would have allowed a jury to find
that, by shooting at the ground, "Vaughn acted only with the
intent to do Robinson bodily harm to deter his attack, and not
with the specific intent 'to maim, disfigure, disable, or
kill' him." Vaughn, 34 Va. App. 263, 267-68, 540 S.E.2d 516,
518 (2001). This conclusion is not based on affirmative
evidence, but on the jury's ability to reject evidence that is
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uncontroverted. We have previously held that, although the
jury's ability to reject evidence will support an acquittal,
the ability to reject evidence does not supply the affirmative
evidence necessary to support a jury instruction.
Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76
(1998); LeVasseur v. Commonwealth, 225 Va. 564, 590, 304
S.E.2d 644, 658 (1983); Guss, 217 Va. at 15, 225 S.E.2d at
197.
Accordingly, in the absence of any evidence supporting a
jury instruction on the lesser-included offense of assault and
battery, we will reverse the judgment of the Court of Appeals
and reinstate the trial court's judgment.
Reversed.
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