COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
WILLIAM MacDONALD TERRY
MEMORANDUM OPINION * BY
v. Record No. 0716-99-2 JUDGE JERE M. H. WILLIS, JR.
MAY 9, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his convictions of aggravated malicious
wounding, in violation of Code § 18.2-51.2, and use of a firearm
in the commission of aggravated malicious wounding, in violation
of Code § 18.2-53.1, William MacDonald Terry contends that the
evidence was insufficient to support the convictions. We
affirm.
On November 7, 1998, Terry shot Eric Everett. The bullet
lodged in Everett's back, resting against his spinal cord.
Everett has a scar on his abdomen running from his chest to his
navel. The trial court convicted Terry of aggravated malicious
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
wounding and use of a firearm in the commission of a felony and
sentenced him to a total of fifteen years imprisonment, with
five years suspended.
Conceding that the evidence was sufficient to convict him
of malicious wounding, Terry contends that the evidence was
insufficient to sustain his conviction of aggravated malicious
wounding, because the elements of aggravated malicious wounding
include imposition of "a permanent and significant physical
impairment." Code § 18.2-51.2. See Newton v. Commonwealth, 21
Va. App. 86, 90, 462 S.E.2d 117, 119 (1995). "Where the
sufficiency of the evidence is challenged after conviction, it
is our duty to consider it in the light most favorable to the
Commonwealth and give it all reasonable inferences fairly
deducible therefrom. We should affirm the judgment unless it
appears from the evidence that the judgment is plainly wrong or
without evidence to support it." Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The indictment, tracking the language of Code § 18.2-51.2,
charged that Terry
did feloniously and unlawfully and
maliciously shoot, stab, cut, or wound, or
cause bodily injury to Eric Everett, with
intent to maim, disfigure, disable, or kill,
where the victim was thereby severely
injured and was caused to suffer permanent
and significant physical impairment.
The scar on Everett's stomach was still clearly visible at
trial, three months after surgery required by the shooting. The
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bullet, lodged against Everett's spinal cord, had not been
removed and may never be removed. Due to the location of the
bullet, doctors forbade Everett to lift any weight heavier than
five pounds, thereby limiting his ability to find work and to
live normally. The position of the bullet threatens Everett
with the possibility of paralysis. He testified that he is in
constant pain.
Terry argues that Everett's testimony that he hoped to
undergo surgery that would permit him to return to normal proved
that his injuries were neither permanent nor significant.
However, after viewing Everett's scar and hearing evidence
concerning his medical condition, the trial court determined
that the severity of the wound, the size and character of the
scar, the placement of the bullet and the associated risks, and
the resulting restrictions on Everett's activities proved that
he had suffered a "permanent and significant physical
impairment." The evidence supports this finding.
The judgment of the trial court is affirmed.
Affirmed.
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