COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia
RONNIE ANTJUAN VAUGHN
OPINION BY
v. Record No. 2694-99-2 JUDGE JERE M. H. WILLIS, JR.
JANUARY 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender; Office of
the Public Defender, on brief), for
appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Ronnie Antjuan Vaughn was convicted of unlawful wounding in
violation of Code § 18.2-51. On appeal, Vaughn argues that the
trial court erred in refusing to instruct the jury on the
lesser-included offense of assault and battery. Finding the
evidence sufficient to support the granting of the
lesser-included offense instruction, we reverse.
∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
I. BACKGROUND
On appeal, when we consider a trial court's refusal 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 proponent of the
instruction, in this case, Vaughn]." Boone v. Commonwealth, 14
Va. App. 130, 131, 415 S.E.2d 250, 251 (1992) (citations
omitted).
So viewed, the evidence discloses that the victim, Samuel
Robinson, was married to Vaughn's aunt, Tyra Vaughn Robinson
(Tyra), with whom he lived at Vaughn's grandmother's house.
Vaughn lived across the street. On April 12, 1997, Vaughn told
Robinson that he had seen a man named "Mark" visiting Tyra at
the grandmother's house while Robinson was at work. Robinson
became concerned because Tyra had an old boyfriend named Mark.
Robinson called Tyra and told her to come home because he
wanted to talk to her. While Robinson was talking to Tyra on
the telephone, Vaughn came from across the street. Vaughn was
upset that Robinson had discussed the matter with Tyra, and the
two men began arguing.
Vaughn and Robinson walked across the street to Vaughn's
house. Robinson testified that on the way across the street,
Vaughn said "he'd get his four five and could take care of
[Robinson]." Robinson understood that Vaughn was referring to a
.45 caliber handgun and this angered Robinson further. The men
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continued to yell at each other as Vaughn stood on the front
porch of his residence, approximately five feet away from
Robinson, who remained on the sidewalk. Robinson subsequently
returned to the other side of the street, but the men continued
to argue and exchange profanities.
Robinson and Vaughn were still arguing when Tyra returned
home. Robinson stopped yelling at Vaughn. He and Tyra walked
down the street where they reconciled their mutual concerns.
Tyra testified that Robinson had calmed down by the time they
returned to Vaughn's grandmother's house.
Tyra testified that as she and Robinson approached the
grandmother's house, she saw Vaughn coming from across the
street and noticed that he had a gun. She called out, "Ronnie,
no," but Vaughn ignored her and said to Robinson, "what the f---
you say now, what you say now." Vaughn then began firing the
gun at Robinson's feet. Robinson was struck in the ankle with a
bullet and fled. Vaughn followed for a short distance and fired
at least one more shot, striking Robinson in the back. Vaughn
then returned to his house.
Robinson was unarmed during the confrontation with Vaughn.
He denied threatening or striking Vaughn.
Vaughn testified to a different version of the events. He
testified that Robinson threatened to beat and kill him. He
said that he called a friend to take him away from the scene,
but the friend explained, upon arrival, that his car was full.
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Instead of giving Vaughn a ride, the friend gave him a handgun.
Vaughn stated that shortly after his friend left, Robinson
charged him. He testified that he fired at the ground in order
to stop Robinson because of the disparity in their sizes 1 and the
"lethal" nature of Robinson's hands. Vaughn stated that he
ultimately fired at waist level, but he denied intending to
shoot Robinson.
The trial court instructed the jury on malicious wounding
and on the lesser-included offense of unlawful wounding. It
refused Vaughn's request for an instruction on the
lesser-included offense of assault and battery. Vaughn was
convicted of unlawful wounding.
II. ANALYSIS
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). "'If any credible evidence in
the record supports a proffered instruction on a lesser included
offense, failure to give the instruction is reversible error.'
'Such an instruction, however, must be supported by more than a
mere scintilla of evidence.'" Brandau v. Commonwealth, 16 Va.
App. 408, 411, 430 S.E.2d 563, 564 (1993) (quoting Boone, 14 Va.
App. at 132, 415 S.E.2d at 251). "[T]he weight of the credible
1
Robinson is six feet, one inch tall and weighs three
hundred pounds. Vaughn is five feet, three inches tall and
weighs one hundred sixty pounds.
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evidence that will amount to more than a mere scintilla of
evidence is a matter to be resolved on a case-by-case basis."
Id. at 412, 430 S.E.2d at 565.
A required element of both malicious and unlawful wounding
is the "intent to maim, disfigure, disable, or kill" the victim.
Code § 18.2-51. "An assault is any attempt or offer, 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." 2A Michie's Jurisprudence, Assault and
Battery § 2 (1992); 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). One cannot be convicted of assault and
battery "without an intention to do bodily harm," but an intent
"to maim, disfigure, disable, or kill" is unnecessary to the
offense. See Boone, 14 Va. App. at 133, 415 S.E.2d at 252
(citation omitted).
Vaughn testified that although he fired the gun, he did not
intend to shoot Robinson. He argued that he merely shot at the
ground in order to stop Robinson from hurting him. From his
testimony, the jury could have found that 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.
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The Commonwealth argues that the deliberate use of a deadly
weapon imports an inference of an "intent to maim, disfigure,
disable, or kill." However, while such evidence will support,
it does not compel, such an inference. The bare use of a deadly
weapon, without attendant circumstances suggesting an "intent to
maim, disfigure, disable, or kill," is insufficient to prove
that intent as a matter of law.
Thus, evidence was before the jury that, if believed,
supported an instruction on the lesser-included offense of
assault and battery. The jury should have been instructed that
unless Vaughn intended "to maim, disfigure, disable, or kill"
Robinson, he could be found guilty only of the lesser-included
offense of assault and battery.
Accordingly, we hold that the trial court erred in refusing
to instruct the jury on the lesser-included offense of assault
and battery. We reverse the judgment of the trial court and
remand the case for further proceedings, if the Commonwealth be
so advised.
Reversed and remanded.
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Coleman, J., dissenting.
The evidence, viewed in the light most favorable to the
defendant Vaughn, proves that he shot Robinson twice with a
deadly weapon, once in the ankle and once in the back. On those
facts, a reasonable fact finder cannot conclude, in my opinion,
that if Vaughn intentionally shot Robinson, which is required to
justify giving an assault and battery instruction, that Vaughn
only intended "an unlawful touching" or simple assault and
battery and did not intend either to maim or disable his victim.
For that reason, I respectfully dissent from the majority
opinion.
Unquestionably, 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). However, a court is
not required to instruct a jury on every lesser-included
offense. See, e.g., Buchanan v. Commonwealth, 238 Va. 389, 409,
384 S.E.2d 757, 769 (1989); Brandau v. Commonwealth, 16 Va. App.
408, 413, 430 S.E.2d 563, 565-66 (1993). In order to require a
lesser-included offense instruction, "more than a mere scintilla
of evidence" must support giving the lesser-included offense
instruction. See Brandau, 16 Va. App. at 411, 430 S.E.2d at
564.
Viewed in the light most favorable to the defendant, the
evidence as to how the shooting occurred supports two possible
views and legal theories, either of which is insufficient, in my
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opinion, to justify granting the proffered assault and battery
jury instruction. First, one view of the evidence is that
Vaughn intentionally fired the gun in Robinson's direction but
that he accidentally shot Robinson intending only to scare him.
Vaughn testified to this version and asked us to accept that
view of the case. A second theory is that he intentionally shot
Robinson. Although Vaughn does not ask us to accept this
account, it is fundamental to his argument that the court should
have instructed on assault and battery. Under the first theory,
that the shooting was accidental and intended only to scare
Robinson, an assault and battery instruction would not be
justified, in my opinion, because the requisite specific intent
to commit a battery is necessarily absent if the shooting was
accidental. Under the second theory, an assault and battery
instruction would not be justified because intentionally
shooting or wounding another with a firearm would, in my
opinion, only justify malicious and unlawful wounding
instructions. Accordingly, under either of the two possible
theories, the evidence fails to support granting an instruction
on simple assault and battery. Thus, I would affirm the trial
court's ruling and the unlawful wounding conviction.
Here, according to Vaughn's theory, the evidence proved
that he fired several shots into the ground in the direction of
Robinson's feet and fired a single shot in Robinson's general
direction as Robinson was moving away, intending only to scare
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Robinson and not intending to shoot or wound him. Nevertheless,
one shot struck Robinson in the ankle and the last shot struck
him in the back. Vaughn testified that, before firing the shot
that struck Robinson in the back, he raised the gun to waist
level. Vaughn also testified that he knew that Robinson was not
armed.
On the foregoing facts, the primary theory advanced by
Vaughn is that he accidentally shot and wounded Robinson. Proof
that the shooting was accidental establishes only that Vaughn
committed a simple assault; such evidence does not prove that
Vaughn committed a battery because no intentional touching,
wounding, or shooting of the victim occurred. "One cannot be
convicted of assault and battery 'without an intention to do
bodily harm -- either an actual intention or an intention
imputed by law . . . .'" Boone v. Commonwealth, 14 Va. App.
130, 133, 415 S.E.2d 250, 251 (1992). "A battery is an unlawful
touching of another. . . . Whether a touching is a battery
depends on the intent of the actor, not on the force applied."
Adams v. Commonwealth, 33 Va. App. 463, 468-69, 534 S.E.2d 347,
350 (2000) (citation omitted). "'[T]he slightest touching of
another . . . if done in a rude, insolent, or angry manner,
constitutes a battery for which the law affords redress.'" Id.
at 469, 534 S.E.2d at 350 (citation omitted). Accordingly,
where Vaughn claims he only intended to scare Robinson and did
not intend to shoot or wound him, Vaughn would not be entitled,
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in my opinion, to have the jury instructed on assault and
battery. See Wynn v. Commonwealth, 5 Va. App. 283, 292, 362
S.E.2d 193, 198 (1987) (holding that shooting at a person
intending only to scare the person where no touching or wounding
occurs supports instructing the jury on simple assault).
A second theory supported by the evidence is that Vaughn
intentionally shot Robinson, once in the ankle and once in the
back. Vaughn argues that he was entitled to a lesser-included
assault and battery instruction because a fact finder could
reasonably conclude that when he twice shot Robinson, he "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.'" The majority accepts this rationale as its
ratione decidendi and relies upon our holding in Boone, 14 Va.
App. at 133, 415 S.E.2d at 252, to support its conclusion. I
disagree that a fact finder could reasonably conclude that a
person who intentionally shot another person could have the
intent to commit only a simple assault and battery.
In Boone, we reversed and remanded a malicious wounding
conviction for failure to give a lesser-included assault and
battery instruction where Boone admitted he beat the victim with
"a two by four" board but testified he "didn't mean to hurt" the
victim, he just "panicked" when the victim "came onto" him with
homosexual advances. In explaining why an assault and battery
instruction was required in Boone we said, "[o]ne cannot be
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convicted of assault and battery 'without an intention to do
bodily harm -- either an actual intention or an intention
imputed by law,' but an intent to maim, disfigure or kill is
unnecessary to the offense." 14 Va. App. at 133, 415 S.E.2d at
251 (emphasis added). Striking a person with a board, depending
upon the circumstances, may be either simple assault and battery
or may be unlawful or malicious wounding depending upon the
perpetrator's intent. In Boone the evidence would have
permitted the fact finder to conclude that Boone delivered the
blows with an intent to do bodily harm but not necessarily with
the intent to maim, disable, disfigure, or kill and, thus, the
evidence required that the jury be instructed on misdemeanor
assault and battery.
Boone, however, is distinguishable from the instant case.
Where, as here, a person intentionally shoots an individual
twice with a deadly weapon, the evidence proves, at a minimum,
that the person intended to disable or inflict serious bodily
injury upon the person. Intentionally shooting a person, other
than in self-defense, does, in my opinion, necessarily prove an
intent to maim or disable the victim. The facts and our holding
in Brandau, 16 Va. App. 408, 430 S.E.2d 563, are analogous to
the circumstances of the instant case and should control the
result here.
In Brandau, we held that the trial court did not err by
refusing to give a lesser-included assault and battery
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instruction in an attempted murder prosecution. Brandau
testified that he was merely trying to scare the person at his
door, who he did not know to be a police officer, when he
intentionally emptied his gun through the door at a height
positioned to strike a person standing outside his door. The
shots wounded the police officer standing behind the door.
Brandau argued that he was entitled to an assault and battery
instruction, because if the jury believed his testimony that he
intended only to scare the person, it could have found that he
did not intend to kill the officer. In upholding the denial of
an assault and battery instruction, we held that the only
conclusion that reasonably could be reached, on those facts and
circumstances, was that by intentionally shooting at the person
several times, Brandau intended to kill the officer. We said
that "no more than a mere scintilla of evidence" supported
Brandau's contention that he only intended to scare the person
at his door. Id. at 412-15, 430 S.E.2d at 565-67.
Similarly, in the instant case, proof that Vaughn
intentionally shot Robinson in the ankle and in the back
supports only the conclusion that he intended to maim or disable
Robinson or inflict serious bodily injury to him. Shooting a
person twice with a deadly weapon, with one of the shots being
in the back, does not warrant giving a misdemeanor assault and
battery instruction. In my opinion, the evidence could not
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reasonably support a conclusion that Vaughn only intended to do
"bodily injury, however slight" to Robinson.
For these reasons, I would affirm the unlawful wounding
conviction.
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