Luck v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia

ANDREW GORDON LUCK
OPINION BY
v. Record No. 1528-99-2 JUDGE RUDOLPH BUMGARDNER, III
JULY 18, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge

Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.

Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

The trial court convicted Andrew Gordon Luck of two counts

of malicious bodily injury of a police officer, Code

§ 18.2-51.1. He contends the trial court erred (1) in finding

the evidence sufficient to convict, and (2) in considering at

sentencing a letter written to the trial court. Finding no

error, we affirm.

When a defendant challenges the sufficiency of the

evidence, we examine the evidence that tends to support the

conviction and allow it to stand unless it is plainly wrong or

unsupported by the evidence. We view the evidence and all

reasonable inferences in the light most favorable to the
Commonwealth. See Commonwealth v. Presley, 256 Va. 465, 466,

507 S.E.2d 72, 72 (1998).

Officer Gregory A. Johnson observed the defendant weaving

his pickup truck through traffic on Jefferson Davis Highway

during the early morning hours of October 29, 1995 while

throwing items out of it. Officer Johnson activated his

flashing lights, but the defendant refused to pull over and

accelerated to 80 miles per hour. That began a chase through

Chesterfield County into Colonial Heights that lasted for

sixteen miles, involved four to five police vehicles, and only

ended when the defendant wrecked after ramming into the side of

a pursuing police vehicle. The defendant drove at 85-90 miles

per hour in the southbound lanes weaving between them like a

race driver, and crossing into the oncoming, northbound lanes to

pass cars. The defendant never stopped for red traffic lights

even when entering a 25 miles per hour zone. Whenever the

police pulled alongside, he would turn into the police vehicle

forcing it to back off to avoid collision.

Eventually State Trooper Thomas, with Trooper Garrett

riding with him, attempted to establish a rolling roadblock to

slow the defendant down. Each time the troopers tried to pass,

the defendant steered into their lane and forced them into

oncoming traffic. Finally, Trooper Thomas got in front of the

defendant by ducking to the inside and accelerating to 130 miles

per hour. He began the rolling roadblock by slowing to the

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defendant's speed of 80 miles per hour. At that point, the

defendant accelerated, rammed the police vehicle, and maneuvered

back in front.

The troopers again tried to pass, but when they came

alongside, the defendant steered into their car with sufficient

force to shatter the windshield and lock the vehicles together.

The two cars crossed nearly all four lanes before Trooper Thomas

"hit the brakes and locked it down, and the vehicles separated

. . . ." Even as the defendant lost control of his car and

started to roll over, he was still trying to push the police car

off the road. The troopers went off the road to the left, but

Trooper Thomas was able to bring his vehicle to a controlled

stop. The defendant kept going until he crashed.

Both troopers were treated in the hospital for injuries

received in the collisions. Trooper Thomas was out of work for

a day or two, continued to be stiff for four to five days, and

took prescribed medication for lower back pain. He suffered a

low back strain from being hit several times by the defendant's

vehicle. Trooper Garrett had similar injuries and suffered from

"mild back discomfort on flexion and extension" with "tenderness

to palpation in the lumbar musculature."

To sustain the convictions of malicious wounding of the two

state troopers, the Commonwealth had to prove the defendant

maliciously caused "bodily injury to another person . . . with

intent to maim, disfigure, disable or kill, and knowing or

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having reason to know that such other person is a law

enforcement officer . . . engaged in the performance of his

public duties." Code § 18.2-51.1. The defendant contends the

injuries were not sufficient to constitute bodily injury because

the troopers suffered no broken bones or bruises. He argues

that the injuries must be observable or determinable by

objective means. The defendant also contends the evidence

failed to establish he had an intent to "maim, disfigure,

disable or kill" the troopers and failed to prove he acted

maliciously.

"'Bodily injury comprehends, it would seem, any bodily hurt

whatsoever.'" Bryant v. Commonwealth, 189 Va. 310, 316, 53

S.E.2d 54, 57 (1949) (citation omitted). See Campbell v.

Commonwealth, 12 Va. App. 476, 483, 405 S.E.2d 1, 4 (1991) (en

banc) (breaking of the skin not required). While the statute

does not define bodily injury, courts have been reluctant to

give juries a definition because the phrase has an "everyday,

ordinary meaning." Stein v. Commonwealth, 12 Va. App. 65, 69,

402 S.E.2d 238, 241 (1991). The evidence permits the finding

that the two troopers suffered bodily injury when they received

soft-tissue injuries that required medical treatment and caused

pain and stiffness. If those injuries did not meet the

requirements for bodily injury, we would have the anomaly of an

"everyday, ordinary" phrase having different meanings in

criminal law and tort law.

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 "[I]ntent is the purpose to use a particular means to

effect a definite result." Banovitch v. Commonwealth, 196 Va.

210, 218, 83 S.E.2d 369, 374 (1954). "The nature and extent of

the bodily injury and the means by which [it is] accomplished

may reflect this intent but are not exclusive factors."

Campbell, 12 Va. App. at 483, 405 S.E.2d at 4. The requisite

intent may be proven from circumstances, which include the

defendant's conduct. See id. at 484, 405 S.E.2d at 4;

Banovitch, 196 Va. at 216, 83 S.E.2d at 373. "The fact finder

is entitled to draw inferences from those facts proven to be

true, so long as the inferences are reasonable and justified."

Cottee v. Commonwealth, 31 Va. App. 546, 555, 525 S.E.2d 25, 30

(2000) (citation omitted). "'[T]he finder of fact may [also]

infer that a person intends the immediate, direct, and necessary

consequences of his voluntary acts.'" Id. (citations omitted).

See Campbell, 12 Va. App. at 484, 405 S.E.2d at 4.

Marked police vehicles, with lights flashing and sirens

sounding, chased the defendant for sixteen miles at 80 miles per

hour. The defendant weaved in and out of traffic, never stopped

for red traffic lights, and passed cars while crossing into the

oncoming lane of travel. At dangerous speeds, he repeatedly

steered into the police vehicles even forcing one into the

opposite lane of travel. When the troopers attempted a rolling

roadblock, the defendant accelerated and struck them from

behind. The defendant rammed the police vehicle to avoid being

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passed, locked the vehicles together, and forced the troopers

off the road.

The fact finder could draw the reasonable and justified

inference that the defendant intended to maim, disfigure,

disable or kill when he repeatedly rammed the police vehicle

while traveling at 80 miles per hour. Indeed, such a finding is

consistent with the defendant's claim that he was merely trying

to elude the police because he was driving a stolen vehicle in

violation of probation. His assertion provides the motive and

explanation for his intentional acts, which could obviously

cause a serious wreck, maiming, disfiguring, disabling, or

killing anyone involved in it. See Moody v. Commonwealth, 28

Va. App. 702, 707, 508 S.E.2d 354, 356 (1998) (even though

defendant warned victim, it was reasonable to infer he "formed

specific intent to run over" him because he did not decelerate,

brake, or swerve to avoid hitting him).

From those same acts a fact finder could reasonably and

justifiably infer that the defendant acted maliciously and that

his acts were purposeful, done deliberately, and while under the

control of reason. "'Malice inheres in the doing of a wrongful

act intentionally, or without just cause or excuse, or as a

result of ill will.'" Long v. Commonwealth, 8 Va. App. 194,

198, 379 S.E.2d 473, 475 (1989) (citation omitted). "Malice is

evidenced either when the accused acted with a sedate,

deliberate mind, and formed design, or committed any purposeful

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and cruel act without any or without great provocation." Branch

v. Commonwealth, 14 Va. App. 836, 841, 419 S.E.2d 422, 426

(1992) (citation omitted). Volitional acts, purposefully or

willfully committed, are consistent with a finding of malice and

inconsistent with inadvertence. See Porter v. Commonwealth, 17

Va. App. 58, 61, 435 S.E.2d 148, 149 (1993). The presence of

malice is a question of fact to be determined by the fact

finder. See Long, 8 Va. App. at 198, 379 S.E.2d at 476.

The manner in which the defendant drove turned his truck

into a weapon. "A motor vehicle, wrongfully used, can be a

weapon as deadly as a gun or a knife." Essex v. Commonwealth,

228 Va. 273, 281, 322 S.E.2d 216, 220 (1984). Cf. Paytes v.

Davis, 156 Va. 229, 234, 157 S.E. 557, 558 (1931) ("A

high-powered car moving rapidly is quite as deadly as a

locomotive."). Compare Moody, 28 Va. App. at 708, 508 S.E.2d at

357 (attempted malicious wounding conviction upheld where

reasonable to infer defendant intended to run down victim), and

Haywood v. Commonwealth, 20 Va. App. 562, 567-68, 458 S.E.2d

606, 609 (1995) (from the evidence could not exclude reasonable

hypothesis that driver intended to elude police, not to kill

them by running roadblocks). Malice may be inferred from the

deliberate use of a deadly weapon. See Morris v. Commonwealth,

17 Va. App. 575, 578, 439 S.E.2d 867, 870 (1994).

Lastly, we consider whether the trial court erred in

considering a letter from the defendant's aunt written to the

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court. At sentencing, the trial judge noted that he did not

ordinarily read such letters, but he read this one and

considered "what was written there." The letter discussed the

family's "anguish . . . in a very, very poignant manner." The

trial court made the letter part of the file and the record,

continued to discuss the case, and then imposed sentence. The

defendant did not object to the trial court's consideration of

the letter. Defense counsel, who was unaware of the letter

until the court mentioned it, did not request an opportunity to

review the letter or make any response to its contents. The

defendant argues that Code § 8.01-384(A) 1 excuses his failure to

object because the trial court had already considered the letter

before he had an opportunity to object. We conclude the

defendant had the opportunity to object but elected not to do

so. Accordingly, Rule 5A:18 bars consideration of this

question. See Ohree v. Commonwealth, 26 Va. App. 299, 308, 494

S.E.2d 484, 488 (1998).

For the foregoing reasons, we affirm the convictions.

Affirmed.

1
Code § 8.01.384(A) provides, in part, that "if a party has
no opportunity to object to a ruling or order at the time that
it is made, the absence of an objection shall not thereafter
prejudice him on a motion for a new trial or on appeal."

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Benton, J., dissenting.

I agree that the evidence was sufficient to prove beyond a

reasonable doubt that the officers suffered bodily injuries and

that Andrew Gordon Luck, a seventeen-year-old juvenile, acted

maliciously in committing the acts that caused those injuries.

I do not agree that the evidence proved Luck had the specific

intent to maim, disfigure, disable, or kill. Indeed, the trial

judge found the evidence did not prove Luck had an intent to

kill but, rather, proved Luck had an intent to injure.

"The necessary intent . . . is the intent in fact, as

distinguished from an intent in law." Hargrave v. Commonwealth,

214 Va. 436, 437, 201 S.E.2d 597, 598 (1974). "Intent in fact

is the purpose formed in a person's mind, which may be shown by

the circumstances surrounding the offense, including the

person's conduct and his statements." Nobles v. Commonwealth,

218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). The evidence

proved Luck was trying to elude and escape from the officers as

they attempted to use their cars to stop his truck. Immediately

prior to the first collision, Luck was travelling southbound on

a four lane highway at approximately eighty miles per hour. An

officer first attempted to pass Luck on the left and "backed

off" when Luck veered his truck into the travel lane in which

the police car was travelling. The officer then tried to pass

Luck on the right and, when he had almost completely passed

Luck's truck, the officer applied the brakes in an attempt to

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slow Luck's truck. One officer said the vehicles were then

travelling about sixty-five miles per hour because the traffic

had increased. At that point, Luck accelerated, hit the left

rear of the officer's car, and moved ahead of that officer's

car. The officer then attempted once again to pass Luck on the

left. As he did so, Luck's truck abruptly hit the right side of

the officer's vehicle, forcing both vehicles into the northbound

lanes. The officer's front bumper and Luck's rear bumper

interlocked, causing the officer to lose control of his car.

Luck's truck continued to the left pushing the officer's car off

the road until Trooper Thomas "really hit the brakes." The

vehicles then disconnected. Luck lost control of his truck and

rolled repeatedly until he came to rest off the roadway in front

of a restaurant. The officer's vehicle slowed and stopped on

the highway.

That injuries resulted is not dispositive proof of Luck's

intent in fact. "Rather, the question is whether [Luck], while

driving his truck, formed the specific intent to use his vehicle

as a weapon for the unequivocal purpose of [maiming,

disfiguring, or disabling,] the police officers." Haywood v.

Commonwealth, 20 Va. App. 562, 566, 458 S.E.2d 606, 608 (1995).

No evidence proved that Luck had any intent other than to get

away. Even assuming, however, as the trial judge found, the

evidence proved an intent to commit bodily injury, that proof

was not sufficient to prove an intent to maim, disfigure, or

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disable, to the exclusion of a malicious intent to do bodily

harm. See Boone v. Commonwealth, 14 Va. App. 130, 132, 415

S.E.2d 250, 251 (1992) (an intent "to do physical injury to the

person of another, 'whether from malice or from wantonness'" is

consistent with the elements of assault and battery).

For these reasons, I would reverse the convictions for

malicious bodily injuries to law enforcement officers with the

intent to maim, disfigure or disable.

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