Blow v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Haley and Petty
Argued by teleconference

JERRY LEMONE BLOW, SR.
OPINION BY
v. Record No. 1644-07-2 JUDGE WILLIAM G. PETTY
AUGUST 19, 2008
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge

Karen L. Stallard, Supervising Appellate Defender (Office of the
Public Defender, on brief), for appellant.

Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on brief), for appellee.

Following a bench trial, appellant, Jerry Lemone Blow, Sr., was convicted of unlawful

wounding of a law enforcement officer, in violation of Code § 18.2-51.1, and the malicious

wounding of his daughter, in violation of Code § 18.2-51. 1 On appeal, Blow presents two

challenges to his convictions. First, he argues that the evidence was insufficient to warrant a

conviction for the unlawful wounding of a police officer. Second, he argues the trial court erred by

applying the doctrine of transferred intent in finding him guilty of the malicious wounding of his

daughter. As discussed below, we affirm his convictions.

I. BACKGROUND

On appeal, we “view the evidence in the light most favorable to the Commonwealth, the

party prevailing below, and grant all reasonable inferences fairly deducible therefrom.” Clifton

1
Blow was also convicted of eluding a law enforcement officer in violation of Code
§ 46.2-817(B) and the malicious wounding of his wife in violation of Code § 18.2-51. He does not
challenge these convictions on appeal.
v. Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996) (citing Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). That principle requires us to

“discard the evidence of the accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn

therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis

and citation omitted). We present the facts below with that standard in mind.

On the morning of November 26, 2007, Blow and his wife had an argument in the living

room of their home. Eventually, the argument escalated and Blow attacked his wife with a kitchen

knife, stabbing her several times. The couple’s daughter was also in the room during the attack.

While Blow was “standing over” his prone wife and stabbing her, his daughter ran up behind Blow

and “jumped on his back and . . . tried to grab the knife.” As a result, Blow cut his daughter’s hand

with the knife. The daughter “yelled out, ‘Daddy, I cut my hand. Daddy, I cut my hand.’” 2 At that

point, Blow stopped stabbing his wife, took some money out of her pocketbook, and left the house.

After Blow’s departure, his daughter went to the neighbor’s house and asked them to call

the police. As part of their response, the police issued a broadcast for officers to be on the look out

for Blow and his green Saturn car. Later that morning, Officer John Dean of the Richmond police

observed the green Saturn, activated the siren and lights of his marked police car, and followed

Blow as he was pulling onto Interstate 64. However, instead of pulling over, Blow fled from the

officer.

Thus began a chase through the City of Richmond and Henrico County that lasted for 28

miles on Interstates 64, 95, and 195, as well as other roads. The chase involved a number of police

officers in ten patrol cars from the City of Richmond, Henrico County, and the State Police. During

2
At trial the daughter testified that when she tried to grab for the knife she “ended up cutting
[her]self.”

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the chase, Blow performed a number of illegal u-turns, changed lanes erratically, and reached

speeds exceeding 100 miles per hour.

Near the end of the chase, State Trooper Adam Kulpa led the pursuit. Eventually, he

maneuvered his patrol car in front of the Saturn while traveling about 55 or 60 miles per hour.

Kulpa testified that at that time he “noticed the suspect vehicle move at a faster rate than I was going

and ran into the back of my vehicle. At this point, I had not decelerated. I was maintaining my

speed.” The cars “broke contact,” and Kulpa took his foot off of the accelerator to help him

maintain control of his car. “Then,” Kulpa testified, “a brief moment later, I’ll estimate 5 to 10

seconds, my vehicle was struck a second time by the suspect vehicle.” Blow passed Kulpa’s car on

the right-hand side and then suddenly swerved to the left, striking the front passenger side of

Kulpa’s cruiser with the rear driver’s side of the Saturn. Blow then lost control of the Saturn, “spun

out,” and hit the wall on the left side of the highway. Kulpa sustained injuries to his upper back and

neck as a result of the collision.

Based upon Trooper Kulpa’s testimony and a review of the video recording from Kulpa’s

car, the trial court concluded that two of the three collisions resulted from deliberate acts on Blow’s

part:

In the video [Trooper Kulpa] . . . goes past on the left and gets
ahead of [Blow’s Saturn]. He is maintaining his position and he is
struck in the rear.

He is struck in the rear again, but the Court would not find that that
was intentional. The statement was that he was hit. There is a
little blurring on the video, but it is not forceful. It doesn’t look
forceful. The police car maintains control, anyway.

The second hit, the police officer says took 5 to 10 seconds
afterwards, but he took his foot off the accelerator and was hit 1 to
2 seconds later. If you’re both maintaining speed and he lets his
foot off the accelerator, the likely result of that is that you would,
he would hit you again. That may not have been Mr. Blow’s
intent.

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 He then pulls to the right and passes the car and hits the car from
the right-hand side. From the video, the police car did not move
out of the lane in watching that, and so your car intentionally
struck him twice.

After finding Blow guilty, the court sentenced him to a total of nineteen years incarceration,

with fourteen years, six months suspended. This appeal followed.

II. ANALYSIS

The appellate standard of review for sufficiency of the evidence issues is well

established. “‘[T]he judgment of the trial court sitting without a jury is entitled to the same

weight as a jury verdict.’” Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42

(1991) (quoting Evans v. Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975)). Thus,

we “presume the judgment of the trial court to be correct” and reverse only if the trial court’s

decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39

Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see Code § 8.01-680. We are mindful that

“great deference must be given to the factfinder who, having seen and heard the witnesses,

assesses their credibility and weighs their testimony.” Walton v. Commonwealth, 255 Va. 422,

426, 497 S.E.2d 869, 871 (1988). Therefore, we do not “substitute our judgment for that of the

trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).

Instead, “the relevant question” on appeal “is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979).

A. Unlawful Wounding of Trooper Kulpa

Both on brief and at oral argument, Blow argues that the evidence was insufficient to show

that he had the specific intent to maim, disable, disfigure or kill Trooper Kulpa. Instead, Blow

contends, the evidence failed to exclude his proposed reasonable hypothesis of innocence: that he
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merely intended to flee from the officers, rather than to injure the trooper. We conclude that the

record supports the trial court’s finding that Blow had the necessary intent to injure Trooper Kulpa. 3

Intent may, and usually must, be proved by circumstantial evidence, Servis v.

Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), such as a person’s conduct

and statements, Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989). And

Blow is correct that while “[c]ircumstantial evidence is as competent and is entitled to as much

weight as direct evidence[,]” it must “exclude every reasonable hypothesis except that of guilt.”

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). However, as we

explained in Haskins v. Commonwealth, 44 Va. App. 1, 9, 602 S.E.2d 402, 406 (2004), whether a

defendant’s hypothesis of innocence is reasonable is a question of fact and is “subject to deferential

appellate review.” Where, as here, “the factfinder has rejected the hypothesis as unreasonable, that

determination cannot be overturned as arbitrary unless no reasonable factfinder would have come to

that conclusion.” Id. at 12, 602 S.E.2d at 406 (citations omitted) (emphasis in the original).

We find these facts similar to those in Luck v. Commonwealth, 32 Va. App. 827, 531

S.E.2d 41 (2000), where we affirmed a conviction for malicious bodily injury of a police officer.

There, the trial court found that Luck had led police on a sixteen-mile, high-speed chase during

which he drove dangerously, including “repeatedly steer[ing] his car into police vehicles” and

3
Blow relies on our holding in Haywood v. Commonwealth, 20 Va. App. 562, 567, 458
S.E.2d 606, 607 (1995), reversing a conviction for attempted capital murder of a law
enforcement officer when the “evidence failed to exclude [a] reasonable hypothesis” of
innocence. That case, however, is inapposite to the case before us for two reasons. First, the
intent involved in Haywood was a very narrow one – the specific intent to kill. Here, the
Commonwealth was not limited to proving the intent to kill. Instead, it could meet its burden by
proof of any one of several specific intents, i.e., the intent to maim, disable or disfigure. Second,
in Haywood we specifically noted that there was no evidence “that [Haywood] ever swerved or
aimed his truck to hit the police cars.” Id. Here, the trial court specifically found that Blow did
just that.

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accelerating and striking police cruisers from behind when they attempted a “rolling roadblock.”

Id. at 830, 832-33, 531 S.E.2d at 42-43.

Here, the evidence established that Blow, while attempting to flee, led the officers on a

dangerous, high-speed, twenty-eight-mile-long car chase. During this chase, Blow drove

recklessly on busy highways, changed lanes erratically, and made illegal u-turns. Despite the

lengthy chase, Blow was unable to escape Trooper Kulpa and was about to be forced to a stop.

From these facts the trial court could reasonably infer that Blow intended to prevent this from

happening by deliberately crashing into Trooper Kulpa’s car. This act would “obviously cause a

serious wreck, maiming, disfiguring, disabling or killing anyone involved in it.” Id. at 833, 531

S.E.2d at 43. Thus, the trial court properly rejected Blow’s hypothesis of innocence as

unreasonable in light of its amply supported factual finding that Blow intended to injure Trooper

Kulpa.

B. Transferred Intent

Blow also argues that his conviction for the malicious wounding of his daughter must be

reversed because the trial court erroneously applied the doctrine of transferred intent in order to

find the specific “intent to maim, disfigure, disable or kill” required for a conviction of malicious

wounding. Code § 18.2-51. Blow argues that the doctrine of transferred intent does not apply

for two reasons. First, he claims that the doctrine is inapplicable on these facts because, he

argues, the stabbing of his wife and the cutting of his daughter were two separate and distinct

acts. Second, he contends that his conviction for the malicious wounding of his wife eliminated

the justification for the doctrine because he did not escape criminal responsibility for his

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actions. 4 For the reasons discussed below, we disagree with Blow and affirm his conviction for

the malicious wounding of his daughter.

The doctrine of transferred intent permits a fact finder to transpose a defendant’s criminal

intent to harm an intended victim to another unintended, but harmed, victim. It originated in the

English common law and has been frequently applied in American criminal cases. See

generally, William L. Prosser, Transferred Intent, 45 Tex. L. Rev. 650 (1966-1967) (hereinafter

Prosser); see also Harvey v. State, 681 A.2d 628, 634-37 (Md. Ct. Spec. App. 1996) (discussing

the history and development of the doctrine of transferred intent); Wayne R. LaFave, Substantive

Criminal Law § 6.4(d) (2d ed. 2003) (hereinafter LaFave).

The policy behind the doctrine of transferred intent is to impose criminal liability on a

defendant whose intentional act causes harm to an unintended victim; in other words, the

defendant is not absolved of criminal responsibility merely because he has the misfortune to

harm a bystander rather than his intended victim as a result of his wrongful act. See LaFave at

§ 6.4(d). Hence, “if an accused attempts to injure one person and an unintended victim is injured

because of the act, the accused’s intent to injure the intended victim is transferred to the injury of

the unintended victim, even though this wounding was accidental or unintentional.” Crawley v.

Commonwealth, 25 Va. App. 768, 773, 492 S.E.2d 503, 505 (1997) (citations omitted). As we

examine the trial court’s application of this legal principle to the case before us, we are bound by

the trial court’s factual findings unless they are “plainly wrong” or without evidentiary support;

however, we review the trial court’s application of the law de novo. Code § 8.01-680; see also

McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).

4
In a footnote, Blow also invites us to “consider whether the doctrine is ever
appropriately applied in the case of a stabbing rather than a shooting.” However, he makes no
argument nor does he cite any cases to explain why this is anything other than a distinction
without a difference. Accordingly, we decline the invitation. See Rule 5A:20.
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 Although Blow suggests in his brief that the doctrine of transferred intent is “tolerated

without enthusiasm,” it is clear that the doctrine is a viable part of our law. The doctrine has

been accepted, discussed, and applied in our Commonwealth in a number of cases. See, e.g.,

Riddick v. Commonwealth, 226 Va. 244, 308 S.E.2d 117 (1983) (affirming murder conviction

on theories of transferred intent and concert of action); Crawley, 25 Va. App. at 768, 492 S.E.2d

at 503 (declining to apply doctrine of transferred intent to an inchoate crime); Henderson v.

Commonwealth, 17 Va. App. 444, 438 S.E.2d 292 (1993) (affirming murder conviction when the

defendant shot and killed one man, believing him to be another); Long, 8 Va. App. 194, 379

S.E.2d 473 (affirming a malicious wounding conviction when the defendant commanded his dog

to “kill” one person, but the dog attacked someone else). Thus, the only question before us is the

application of the doctrine to the facts of this case.

1.

Initially, Blow argues that the trial court should be reversed because, in his view, his

daughter’s voluntary attempt to aid her mother, rather than his criminal assault on his wife,

caused his daughter’s injuries. We disagree.

The evidence shows that Blow created the situation that caused his daughter’s injury

through his intentional acts: he attacked his wife and stabbed her numerous times with a kitchen

knife, while his daughter was present. In this context, it was certainly reasonably foreseeable

that his daughter would come to her mother’s aid. When his daughter was injured during Blow’s

on-going attack, that injury was “within the res gestae of” his original criminal act. Davis v.

Commonwealth, 12 Va. App. 408, 410-11, 404 S.E.2d 377, 378-79 (1991) (discussing the related

concept of the felony murder rule). 5 Because his daughter’s injury was reasonably related to the

5
See Wilfred J. Ritz, Felony Murder, Transferred Intent, and the Palsgraf Doctrine in the
Criminal Law, 16 Wash. & Lee L. Rev. 169, 169 (1959) (discussing the “common origin” and
relationship between the felony murder rule and the doctrine of transferred intent).
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criminal act Blow directed at his wife, and because Blow had the requisite intent to maim his

wife when he cut his daughter, the doctrine of transferred intent applies. “It is fairly clear that

when the defendant intends [a criminal act] his intention will be ‘transferred’ to make him liable

for [the unintended crime], provided that the harm is direct and immediate, i.e. within the scope

of the [intended crime].” Prosser at 655 (emphasis added).

Thus, the daughter’s injury, which occurred as she attempted to prevent Blow from

stabbing her mother again, was a natural and probable consequence of his crime. See Harris v.

State, 505 S.E.2d 239, 240-41 (Ga. Ct. App. 1998) (affirming conviction and finding the doctrine

of transferred intent applicable when the intended victim’s friend intervened in an attack, “hitting

and pulling on [the defendant] to make him stop . . .” and “attempting to grab the knife . . .

cutting her hand in the process.” The Georgia court concluded that “[i]n legal contemplation, the

intent follows the act through to its legitimate [i.e. probable] results.”).

2.

Blow also argues that transferred intent should not be applied to these facts because “the

justifications underlying the doctrine [of transferred intent] are absent.” He posits that the basis

for “engaging in the fiction of transferred intent” is to prevent a situation where, because of a

“lucky accident in killing or injuring the wrong person, a defendant could escape liability for

completing an act he intended.” Id. (Internal quotation marks omitted). Blow argues that his

conviction for the malicious wounding of his wife eliminated the justification for transferring the

intent directed toward his wife in order to convert the accidental wounding of his daughter into a

similar crime.

We note that the states are split on the application of the doctrine of transferred intent

when both the intended victim and the unintended victim are injured. See LaFave at § 6.4(d)

n.47 (collecting cases). Some states hold that the doctrine of transferred intent would not apply

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on the facts before us. For instance, the Maryland Supreme Court has held that the doctrine of

transferred intent “was intended to enable conviction of a defendant of the crime he intended to

commit only when that crime was not committed upon the intended victim.” Ford v. State, 625

A.2d 984, 998 (Md. 1993) (emphasis in original) (citing Gladden v. State, 330 A.2d 176 (Md.

1974)). The Maryland court explained:

[T]ransferred intent makes a whole crime out of two halves by
joining the intent as to one victim with the harm caused to another
victim. Transferred intent does not make two crimes out of one.
Where the crime intended has actually been committed against the
intended victim, transferred intent is unnecessary and should not be
applied to acts against unintended victims.

Id. (emphasis in original); but see Poe v. State, 671 A.2d 501, 504 (Md. 1996) (recognizing an

exception to the rule in Ford when “the defendant intends to murder one victim and instead kills

an unintended victim” while wounding the intended victim); accord Harvey, 681 A.2d at 644

(reviewing Maryland cases, including Ford and Poe, and concluding that “the fate of the intended

victim is immaterial. If the unintended victim is killed, the transferred intent doctrine applies. If

the unintended victim is not killed [but is only wounded], the transferred intent doctrine does not

apply.”); cf. Bell v. State, 768 So.2d 22, 26 (Fla. Dist. Ct. App. 2000) (reversing appellant’s

conviction for attempted murder based on transferred intent when he only injured the unintended

victim); People v. Bland, 48 P.3d 1107, 1110 (Cal. 2002) (following Ford and Poe and applying

transferred intent when both victims were killed, but concluding that transferred intent has no

application to attempted murder). 6

6
The case before us does not involve an inchoate crime; instead, Blow stands convicted
of two counts of the completed crime of malicious wounding. See Crawley, 25 Va. App. at 773,
492 S.E.2d at 505 (declining to apply the doctrine to an inchoate crime). We also note that the
California court “express[ed] no opinion” in Bland “regarding the application of transferred
intent to a crime, such as battery, that is not inchoate and does not involve a battery.” 48 P.3d at
1119 n.7.

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 These states, however, remain in the minority. The majority of states apply transferred

intent more broadly, allowing the application of the doctrine when any harm comes to an

unintended victim as a result of a defendant’s volitional act. See LaFave at § 6.4(d) n.47. For

example, the Georgia Court of Appeals affirmed a defendant’s convictions for two counts of

aggravated assault when she intentionally shot one victim during a fight and unintentionally shot

a bystander who sought to intervene in the fracas. Fussel v. State, 369 S.E.2d 511, 513 (Ga. Ct.

App. 1988). The court explained:

When an unintended victim is struck down as a result of an
unlawful act actually directed against someone else, the law
prevents the actor from taking advantage of his own wrong and
transfers the original intent from the one against whom it was
directed to the one who actually suffered from it.

Id. (citing Cook v. State, 340 S.E.2d 891 (Ga. 1986)) (internal quotation marks and citation

omitted).

Similarly, the Supreme Court of South Carolina affirmed a conviction of assault and

battery with intent to kill 7 that relied on the doctrine of transferred intent when the intended

victim was killed and the unintended victim was injured. State v. Fennell, 531 S.E.2d 512 (S.C.

2000). There, the defendant had an argument with another man, retrieved a gun from his car,

and “emptied his gun at” the first victim, killing him. Id. at 514. One of his shots went astray,

however, and struck a bystander who survived his injuries. Id. The court concluded that intent is

not “in limited supply.” Id. at 515. The court explained that “[t]he mental state . . . is not

extinguished at the moment a bullet strikes and kills the intended victim, such that there is no

mental state left upon which to convict an unintended victim who is also injured or killed.” Id.

7
Assault and battery with intent to kill, as defined in S.C. Code Ann. § 16.3-620 (1985),
is a felony requiring the mens rea of malice aforethought. State v. Fennell, 531 S.E.2d 512, 517
(S.C. 2000).

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 The South Carolina court decided that the use of transferred intent to convict the

appellant of felony assault and battery with intent to kill was appropriate, and concluded:

A person who, acting with malice, unleashes a deadly force in an
attempt to kill or injure an intended victim should anticipate that
the law will require him to answer fully for his deeds when that
force kills or injures an unintended victim. Accordingly, . . . the
doctrine of transferred intent may be used to convict a defendant
. . . when [he] kills the intended victim and also injures an
unintended victim.

Id. at 517. 8

Finally, while no Virginia appellate decision has specifically addressed this question, our

Supreme Court has suggested that a transferred intent instruction could be appropriate when the

appellant killed one victim and wounded another “[w]ith a single shotgun blast.” Jones v.

Commonwealth, 217 Va. 231, 232, 228 S.E.2d 127, 128 (1976). And this Court stated, albeit in

dicta, that “had appellant missed [his intended victim] and shot [an unintended victim], or shot

both [victims], appellant would have been found guilty of maliciously wounding [his unintended

victim], even if he only intended to wound [someone else].” Crawley, 25 Va. App. at 773, 492

S.E.2d 503 at (emphasis added).

Based on our review of the law of both this Commonwealth and other jurisdictions, we

do not accept Blow’s argument that the “justifications underlying the doctrine [of transferred

8
Other cases discussing transferred intent and applying the majority view include:
Ochoa v. State, 981 P.2d 1201, 1205 (Nev. 1999) (determining that transferred intent applies in
all crimes where an unintended victim is harmed as a result of defendant’s specific intent to harm
an intended victim regardless of whether the intended victim is injured); State v. Hinton, 630
A.2d 593 (Conn. 1993) (rejecting defendant’s argument that under Connecticut’s murder statute,
Conn. Gen. Stat. § 53a-54a, the actual killing of the intended victim extinguished the intent so
that it could not be transferred to another, unintended victim and applying transferred intent
when defendant fired a gun into a group, killing three people and seriously injuring a fourth);
State v. Warlock, 569 A.2d 1314 (N.J. 1990) (affirming murder convictions when defendant
killed both intended and unintended victims); State v. Stringfield, 608 P.2d 1041 (Kan. Ct. App.
1980) (applying transferred intent to convict defendant of voluntary manslaughter and
aggravated battery when the defendant fatally shot the intended victim and wounded an
unintended victim).
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intent] are absent” in this case. On the contrary, we agree with the reasoning of the majority of

states: this is precisely the kind of situation in which transferred intent should, and does, operate.

As another of our sister courts has explained: “Human beings are not fungible. Therefore, a

separate injury to each constitutes a separate crime, and the law does not give the defendant a

discount on the second and subsequent victims of his intentional conduct.” State v. Hinton, 630

A.2d 593, 598 (Conn. 1993).

Based on this discussion, we hold that the doctrine of transferred intent is applicable

when, as here, the defendant completes his intended crime and, in doing so, injures an

unintended victim. Thus, the trial court was correct in concluding that Blow’s intent to maim,

disfigure, disable or kill his wife was transferred and combined with the injury he caused to his

daughter to support his conviction of malicious wounding.

III. CONCLUSION

Thus, we conclude that the evidence was sufficient to support Blow’s convictions, and

we affirm.

Affirmed.

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