Leal v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia

JORGE MANUEL LEAL
OPINION BY
v. Record No. 1806-00-1 JUDGE G. STEVEN AGEE
FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge

Michael Morchower (Anthony G. Spencer;
Morchower, Luxton & Whaley, on briefs), for
appellant.

Margaret W. Reed, Assistant Attorney General
(Randolph A. Beales, Attorney General;
Richard B. Smith, Senior Assistant Attorney
General, on brief), for appellee.

Jorge Manuel Leal (Leal) was convicted by a Newport News

Circuit Court jury of malicious wounding by a mob of John Binns

(Binns), in violation of Code § 18.2-41. 1 On appeal, Leal argues

that the trial court erred by denying his proffered jury

instruction on the offense of assault and battery by a mob in

regards to his alleged involvement in the altercation with

Binns. Finding the evidence sufficient to support the granting

1
Leal was also convicted by the same jury of assault and
battery by mob of Teresa Evans, in violation of Code § 18.2-42,
arising out of the same series of events. This conviction is
not the subject of this appeal.
of the proffered instruction, we reverse the decision of the

trial court and remand this matter for a new trial.

I. BACKGROUND

Leal testified at trial in his own defense. According to

his testimony, Leal drove his employees, 2 Darrell Ayers, Jerry

Cox and Rob Conner, to an Econo Lodge where they were renting

rooms.

While Ayers went to his room to retrieve a jacket, Leal

waited with the others in his van. He noticed a nearby car in

the motel parking lot with its hood up and a woman leaning under

the hood. Leal exited the van and walked over to ask the woman,

Teresa Evans (Evans), if her car needed a jump-start.

According to Leal, he returned to his van after Evans told

him that she did not need assistance. As he returned to the

van, Ayers came out of his room and he and Evans began yelling

at each other. Hearing the exchange, Binns, Evans' boyfriend,

came out to the parking lot from his room and "everything

started going crazy." The evidence was in conflict as to what

then occurred. 3

2
The men worked for Leal in his construction business.
3
At trial, Evans testified that while she was leaning under
the hood of her car she heard Ayers yell, "Party time." She
looked up and saw several men exit a van. Evans attempted to
retreat to her hotel room, but the four men blocked her path and
a fifth pulled a two-by-four from the back of the van and
informed her, "You ain't goin' nowhere, Bitch." Laughing, the
men began to circle her while pushing her between them. The men

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 Leal testified that Binns ran toward him, shoved him and

charged at his waist. Leal said he then grabbed Binns by the

hair and the intertwined pair "started doing circles."

According to Leal, he never punched Binns and after the pair had

"done about six to eight circles," Ayers then appeared and hit

Binns. Ayers' punch knocked Binns out. Leal released Binns,

who then fell to the ground.

Leal testified that he then leaned against his van to catch

his breath. He saw Evans and Binns lying on the ground with

Ayers, now joined by Conner, striking Binns between his head and

chest. Leal further testified that he then intervened and

stopped the others from further striking Binns. Leal claimed he

did not know how Evans ended up on the ground. Leal, Ayers,

Conner and Cox then left the premises. The four men were all

indicted on two charges of malicious wounding by a mob.

Binns suffered a broken nose, a shattered cheekbone and

swelling and bruising across most of his upper body; he bled

proceeded to strike her with the board causing her to fall to
the ground. While she lay on the ground, Leal held her down by
her hair and she was subjected to Ayers' kicks. She yelled for
Binns and lost consciousness.
Binns testified that he heard Evans cry for help and he ran
to the parking lot where he saw four men, including the
defendant, attacking Evans. When he ran to help Evans, he was
hit with a wooden object. One of the men then hit Binns in the
knees, and he fell to the ground. The men, including Leal, then
began kicking him.
Neither a wooden board nor any wooden object was mentioned
in the police report or in the handwritten statements submitted
several days after the altercation by Evans and Binns.

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from his ears, nose and mouth for several days. He did not seek

immediate medical attention because his injuries, though severe,

were apparently not life-threatening, and he wanted to avoid

medical bills. Evans' injuries were less severe, and she too

did not seek medical attention.

At the close of the evidence, Leal requested jury

instructions on assault by a mob in both cases, arguing (1)

assault by a mob is a lesser-included offense of malicious

wounding by a mob and (2) the evidence supported the

instruction. 4

4
Leal argued:

Judge, our position is that we are entitled
to a lesser included on both of these
charges . . . in that, this is truly . . . a
jury issue for the jury to determine.
[N]umber one, if Mr. Leal was part of a mob,
but if he is part of a mob, is the injury
sufficient to meet the definition? Is it
malicious? And have all of the elements of
the felony statute been satisfied? Which
would be, one that he is a member of a mob;
two, that a member or members caused bodily
injury; and three, that the bodily injury
was with intent to maim, disfigure, disable
or kill. And I think the jury would find
that there is no such intent, which takes it
out of the realm of being a felony and would
reduce it to a misdemeanor. They might find
that there was a mob, and they might find
there was bodily injury. But they might
find that the evidence does not establish
the requisite intent, and that is a[n]
option that the jury has.

* * * * * * *

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 The trial court granted the instruction on assault and

battery by a mob in regards to the attack on Evans, but refused

such an instruction regarding the attack on Binns, stating:

"[I]t's either he didn't do anything to cause injury or he did."

The jury found Leal guilty of assault by a mob against Evans and

malicious wounding by a mob against Binns.

II. ANALYSIS

Leal alleges on appeal that the trial judge erred in

refusing the jury instruction on assault by a mob on the charge

relating to the altercation with Binns. He contends the offense

of assault and battery by a mob is a lesser-included offense of

malicious wounding by a mob and the evidence supported the

requested instruction. As such, he argues the trial court

should have instructed the jury on the lesser offense and the

trial court's failure to do so constitutes reversible error. We

agree.

A. A LESSER-INCLUDED OFFENSE

When reviewing a trial court's refusal of a proposed jury

instruction on a lesser-included offense, we must first decide

I think the jury can [make the finding that
the intent was not there]. [T]he jury may
find that this happened spontaneously, and
that there was no intent to cause the kind
of damage that was caused. The jury may
find that it was somewhat self-defense, and
that it went too far, that there was never
the requisite intent to cause the kind of
damage that was caused.

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whether the proffered instruction presents a lesser-included

offense. See Sanchez v. Commonwealth, 32 Va. App. 238, 241, 527

S.E.2d 461, 463 (2000). Whether the offense of assault and

battery by a mob, Code § 18.2-42, is a lesser-included offense

of malicious wounding by a mob, Code § 18.2-41, is a question of

first impression in the Commonwealth. We hold that it is a

lesser-included offense.

"The elements of the greater offense as charged must be

examined in relation to the purported lesser offense, and where

every commission of the greater offense is also a commission of

the lesser offense, a lesser offense may be deemed to exist."

Id. (citation omitted). "A lesser-included offense is an

offense which is composed entirely of elements that are also

elements of the greater offense." Kauffman v. Commonwealth, 8

Va. App. 400, 409, 382 S.E.2d 279, 283 (1989).

For a defendant to be guilty of malicious wounding by a mob

under Code § 18.2-41, the Commonwealth must prove that (1) a mob

was formed in which the defendant was a part, (2) the mob caused

bodily injury, and (3) the mob acted with the malicious "intent

to maim, disable, disfigure or kill" another. For a conviction

under Code § 18.2-42, assault and battery by a mob, the

Commonwealth must prove that (1) a mob was formed in which the

defendant was a part and (2) the mob committed "simple assault

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or battery." An assault is any attempt, with force or violence,

to do some bodily hurt to another, whether from wantonness or

malice, by means calculated to produce the end if carried into

execution. See Johnson v. Commonwealth, 13 Va. App. 515, 517,

412 S.E.2d 731, 732 (1992). "Battery is the actual infliction

of corporal hurt on another . . . willfully or in anger . . . ."

Jones v. Commonwealth, 184 Va. 679, 682, 36 S.E.2d 571, 572

(1946).

The requisite intent under Code § 18.2-41 to maliciously

maim, disable, disfigure or kill is the only difference between

the two offenses. One cannot be found to have a malicious

intent "to maim, disable, disfigure or kill" without also having

an intent to do bodily harm. Therefore, assault and battery by

a mob is a lesser-included offense of malicious wounding by a

mob as all of the elements of the former are also elements of

the latter, which is the greater offense. 5

B. ENTITLEMENT TO THE REQUESTED JURY INSTRUCTION

Having determined that assault and battery by mob is a

lesser-included offense of malicious wounding by mob under Code

§ 18.2-41, we must now determine whether Leal was entitled to an

instruction on the lesser offense.

5
We have long held, as to individual offenders, that
assault and battery is a lesser-included offense of malicious
wounding. See Brown v. Commonwealth, 222 Va. 111, 116, 279
S.E.2d 142, 145 (1981).

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 "'A defendant is entitled to have the jury instructed[, on

request,] only on those theories of the case that are supported

by the evidence.'" Connell v. Commonwealth, 34 Va. App. 429,

436, 542 S.E.2d 49, 52 (2001) (citation omitted); see also

Delacruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103,

105 (1990); Stewart v. Commonwealth, 10 Va. App. 563, 570, 394

S.E.2d 509, 513-14 (1990). "[Our] responsibility in reviewing

jury instructions is 'to see that the law has been clearly

stated and that the instructions cover all issues which the

evidence fairly raises.'" Darnell v. Commonwealth, 6 Va. App.

485, 488, 370 S.E.2d 717, 719 (1988) (citation omitted).

On appeal, although the Commonwealth prevailed at trial,

when we consider the refusal of the trial court to give a

proffered instruction, "'the appropriate standard of review

requires that we view the evidence with respect to the refused

instruction in the light most favorable to the defendant.'"

Seegers v. Commonwealth, 18 Va. App. 641, 643, 445 S.E.2d 720,

722 (1994) (citations omitted).

Jury instructions are only proper if supported by the

evidence. More than a scintilla of evidence is necessary to

support a lesser-included offense instruction requested by the

defendant. Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d

75, 76 (1998); Brandau v. Commonwealth, 16 Va. App. 408, 411,

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430 S.E.2d 563, 564 (1993). To justify the grant of Leal's

requested instruction on the lesser offense, the record must

contain more than a scintilla of evidence that the injury to

Binns was caused by an intent to do bodily harm rather than by a

malicious intent to "maim, disable, disfigure or kill" Binns.

We agree with Leal that there was more than a scintilla of

evidence on the issue of lack of malicious intent. Therefore,

Leal was entitled to the lesser-included offense instruction on

the offense of assault by a mob. "If any credible evidence in

the record supports a proffered instruction on a lesser-included

offense, failure to give the instruction is reversible error."

Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251

(1992) (citation omitted).

It was Leal's testimony that Binns, whom neither he nor his

acquaintances knew beforehand, was injured after Binns

aggressively approached him, shoved him and again charged him,

grabbing him by the waist. Leal further testified that he

grabbed Binns' hair in self-defense and the pair, intertwined,

went around in circles. As Leal tried to repel Binns, one of

his acquaintances witnessed the struggle and proceeded to hit

Binns, knocking Binns to the ground. When the acquaintance and

another proceeded to strike Binns while he was on the ground,

Leal said he intervened and stopped further aggression.

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 From Leal's testimony, the jury could have found, if they

believed his version of events, that Leal and his acquaintances

acted only with the intent to do Binns bodily harm in order to

deter his attack on Leal, and not with the specific, malicious

intent "to maim, disable, disfigure or kill" him. Leal

testified that the acts taken against Binns were not planned by

him or his acquaintances, but were done only after provocation,

out of a spontaneous intent to protect Leal. Leal's testimony

leaves the group's intent open to question, the answer to which

was the province of the jury. With more than a scintilla of

evidence to support a finding only of intent to do bodily harm,

Leal was entitled to the instruction on the lesser offense.

Citing Bennett v. Commonwealth, 236 Va. 448, 374 S.E.2d 303

(1988), the Commonwealth argues, however, that Leal was not

entitled to an instruction on the lesser-included offense of

assault by a mob because his theory of defense to the charge of

malicious wounding by a mob at trial was self-defense. The

Commonwealth misreads Bennett and a prior Supreme Court decision

relied upon by the Bennett Court, Frye v. Commonwealth, 231 Va.

370, 345 S.E.2d 267 (1986). Neither case stands for the

proposition that a defendant is only entitled to instructions on

his theory of defense. Rather, both cases hold entitlement to a

requested instruction turns on whether there is evidence to

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support the instruction. We previously addressed this same

argument by the Commonwealth in a similar setting in Donkor v.

Commonwealth, 26 Va. App. 325, 494 S.E.2d 497, vacated on other

grounds, 256 Va. 443, 507 S.E.2d 75 (1998).

Citing Bennett v. Commonwealth, 236 Va. 448,
470, 374 S.E.2d 303, 317 (1988); Frye v.
Commonwealth, 231 Va. 370, 388, 345 S.E.2d
267, 280 (1986) . . ., the Commonwealth
argues that appellant was not entitled to an
instruction on the lesser-included offense
of malicious wounding because his theory of
defense at trial was self-defense. These
cases do not hold that a defendant is
entitled only to instructions on his theory
of defense; rather, they hold that a
defendant is entitled to instructions only
when the evidence supports them. Bennett,
236 Va. at 470, 374 S.E.2d at 317 (citing
Frye, 231 Va. at 389, 345 S.E.2d at 281);
Frye, 231 Va. at 388-89, 345 S.E.2d at 280
(citing Tuggle v. Commonwealth, 228 Va. 493,
508, 323 S.E.2d 539, 548 (1984), vacated on
other grounds, 471 U.S. 1096, 105 S. Ct.
2315, 85 L.E.2d 835, aff'd on remand, 230
Va. 99, 334 S.E.2d at 838 (1985)) . . . .

Id. at 331-32, 494 S.E.2d at 500. 6

We find the Supreme Court's recent decision in Commonwealth

v. Vaughn, ___ Va. ____, ___ S.E.2d ___ (2002), distinguishable

from the case at bar. The defendant in Vaughn was convicted of

the unlawful wounding of the victim who was shot in the back and

ankle. On appeal, the defendant claimed the trial court erred

in refusing his proffered jury instruction on the

6
We note the significant contrast to the defendant's claims
in Bennett and Frye, where each defendant denied his presence or
participation in the acts underlying the crimes charged.

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lesser-included offense of assault and battery. The defendant

contended he was entitled to the instruction because he

testified that he fired at the victim in an attempt to frighten

him away, aiming at the ground in front of the victim.

The Supreme Court affirmed the trial court's refusal to

give the lesser offense instruction, because there was not "more

than a scintilla" of affirmative evidence to support the

requested instruction unless the jury ignored uncontroverted

facts to the contrary. The jury's ability to reject

uncontroverted evidence may support an acquittal, but it does

not supply affirmative evidence to support a jury instruction on

the lesser-included offense. The Supreme Court reasoned that

when there is uncontroverted evidence the jury must reject in

order to convict the defendant of the lesser offense, a

scintilla of affirmative evidence does not exist and a jury

instruction on a lesser-included offense is not warranted. Id.

at ___, ___ S.E.2d at ____.

In Vaughn, the jury would have had to ignore the

uncontroverted evidence of the victim's back wound in order to

find the defendant only committed assault and battery.

Accordingly, there could not be "more than a scintilla" of

affirmative evidence to support the lesser-included offense

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instruction where its foundation required the jury to reject

uncontroverted facts. Id.

In the case at bar, however, the Commonwealth did not

present any uncontroverted evidence that would have to be

rejected in order to find the defendant guilty of the lesser

offense of assault and battery by a mob. Leal did not contest

that a confrontation between himself and Binns occurred, that a

group was involved, and that blows were struck against Binns

resulting in injury. Only the intent behind these actions was

in question. Moreover, the instant case does not involve a

firearm, which was present in Vaughn. There is no

uncontroverted fact for the jury to ignore, as in Vaughn, in

order to convict on the lesser-included offense.

Leal's evidence was not incredible as a matter of law;

therefore, the assessment of the credibility of Leal's evidence

was for the jury. The jury's decision must be accomplished in

the context of instructions concerning the law applicable to any

reasonable construction of the facts advanced by the parties in

the case. However, here, the jury was unable to perform this

task because the trial court refused the requested instruction.

That refusal was error.

Our decision in Boone, 14 Va. App. 130, 415 S.E.2d 250, is

applicable to the matter at bar. In Boone, the trial court

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erred when it gave a malicious wounding instruction but refused

a requested assault and battery instruction. We held:

The jury was instructed that the
Commonwealth had the burden of proving
beyond a reasonable doubt that defendant
wounded [the victim] with the "intent to
maim, disfigure, disable or kill" him. They
were not instructed, however, that defendant
could be convicted of a lesser offense in
the absence of this intent. The jury was
thus "given the impermissible choice of
drawing the conclusion" either that
defendant intended to maim, disfigure,
disable, or kill [the victim], with or
without malice, and was thus guilty of
either malicious or unlawful wounding, or
that he did not possess this intent "and was
not guilty of any offense." [Accordingly,]
[t]he jury was denied the opportunity to
assess the evidence as it related to assault
and battery, an offense that may be
accompanied by malice, but does not require
the intent to maim, disfigure or kill.

Id. at 133-34, 415 S.E.2d at 252 (internal citation omitted).

If the jury believed Leal's testimony, it could have

concluded that the mob lacked the specific intent to "maim,

disable, disfigure or kill" Binns and acted only with the intent

to do bodily harm, whether with or without malice. Thus,

"[c]redible evidence was before the jury that, if believed,

supported an instruction on assault and battery." Id. at 134,

415 S.E.2d at 252. It was error not to grant the proffered

instruction.

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 This error was not harmless. "[W]here it is impossible to

determine from the verdict whether the jury would have

necessarily rejected a lesser-included offense on which it was

not instructed, error in refusing to instruct on that offense is

not harmless." Turner v. Commonwealth, 23 Va. App. 270, 276,

476 S.E.2d 504, 507 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447

(1998).

Accordingly, we reverse the judgment of the trial court and

remand this case for a new trial if the Commonwealth be so

advised.

Reversed and remanded.

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