COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia
ROBERT MICHAEL MORGAN
MEMORANDUM OPINION * BY
v. Record No. 1590-98-3 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 5, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
John E. Falcone (Smith & Falcone, on briefs),
for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Robert M. Morgan appeals his conviction by a jury of
unlawful wounding in violation of Code § 18.2-51.2. He argues
the trial court erred (1) in failing to give a supplemental
instruction defining "maim and disable," and (2) in finding the
evidence sufficient to sustain the conviction. Finding no
error, we affirm.
The trial court gave the jury the unlawful wounding
instruction requested by the defendant. It stated:
Robert Morgan is charged with the crime of
unlawfully causing bodily injury. The
Commonwealth must prove beyond a reasonable
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
doubt each of the following elements of that
crime:
That Robert Morgan caused bodily injury to
David Riley and that such bodily injury was
with the intent to maim, disfigure, disable
or kill David Riley, and that the act was
done unlawfully. . . .
During deliberations, the jury advised the court, "we're
interested in the legal definition as it relates to the words
'maim and disable.'" The trial court asked counsel how to
respond. The defendant suggested that the court inform the jury
that it should rely on the given instructions. The trial court
indicated that it would tell the jury to apply their
understanding of the "ordinary meaning" of the words. The
defendant agreed to the trial court's suggestion. He stated,
"the language suggested by the Court is good. The jury is
simply to apply the ordinary meanings of the terms."
After reviewing legal authority, however, the defendant
suggested that some reference to the "permanency" aspect of the
terms would be appropriate. The Commonwealth disagreed. The
trial court stated that unless both parties agreed to a new
instruction, it would not provide one to the jury. The trial
court explained its plan to tell the jury to apply the ordinary
meaning of the terms. It asked if there was any comment or any
improvements on the proposed response, and the defendant
replied, "No, sir." The court then instructed the jury on using
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the ordinary meaning of the words. The defendant did not
object.
"Maim" and "disable" do not have a distinct legal meaning.
A trial court is not required to define unambiguous terms for
the jury. See Roach v. Commonwealth, 251 Va. 324, 346, 468
S.E.2d 98, 111 (1996). Words used in a statute are to be given
their ordinary, everyday meaning, unless they are terms of art.
See Stein v. Commonwealth, 12 Va. App. 65, 69, 402 S.E.2d 238,
241 (1991); see also, Black v. Commonwealth, 20 Va. App. 186,
192, 455 S.E.2d 755, 758 (1995) (finding that the court did not
err when it declined to define the statutory term "banking
house"). The trial court's instruction to the jury that they
should apply the ordinary meanings of those words was not error.
The defendant argues the court was required to instruct the
jury on the "permanency" element of unlawful wounding. However,
he did not proffer the definition he wanted regarding the
"permanency" requirement before trial, nor did he do so when the
subject arose during the trial. See Pavlick v. Commonwealth, 27
Va. App. 219, 230, 497 S.E.2d 920, 925 (1998) (en banc) (failure
to proffer limiting instruction prevents this Court from
determining whether trial court erred in failing to grant it)
(citing Rule 5A:18).
Next, we consider whether the evidence was sufficient to
support the conviction of unlawful wounding. On appeal we view
the evidence in the light most favorable to the Commonwealth and
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grant to it all reasonable inferences fairly deducible
therefrom. See Archer v. Commonwealth, 26 Va. App. 1, 11, 492
S.E.2d 826, 831 (1997).
So viewed the evidence established that on August 30, 1997,
David Riley was stopped in the road preparing to turn left when
the defendant sped past him on the right. The defendant veered
into a yard and came back onto the highway never slowing down.
The defendant sped away.
Riley followed the defendant to get his license number and
to report him to police. Riley accelerated to catch up with the
defendant. The defendant's car came within sight approximately
one mile down the road, and Riley saw him make an abrupt right
hand turn. When Riley turned, the defendant jammed on his
brakes and immediately stopped. The defendant, agitated and
excited, exited his car and ran back towards Riley's truck. The
defendant twice demanded "what the f-ing problem was" and
pointed his finger in Riley's face.
When Riley exited his truck, the defendant said, "I'll give
you a problem" and punched Riley's face with his fist. Riley's
glasses went flying, and blood squirted out of his face. Riley
fell backwards as the defendant continued hitting him. When
Riley's back hit the ground, the defendant put his knee on
Riley's chest, held Riley's hair at the top of his head, and
continued hitting him about the face and head. Each time Riley
tried to get up, the defendant hit him until he was down. The
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defendant stopped only when someone yelled at him. As the
defendant left, he hollered, "I'll beat the pulp out of you
again if you come around me."
Throughout the encounter, Riley never threw a punch. He
just tried to defend himself. Riley had knots all over his
head, a fractured nose, and a black eye. He had a scar under
his left eye from two cuts that required stitches, and two
broken teeth that were removed.
The defendant testified that Riley pulled in front of him
to turn left and came to an abrupt stop. The defendant swerved
to avoid hitting the truck because his brakes didn't work
properly. He stopped his car to talk to Riley. As he
approached the truck, Riley yelled at him. When Riley exited
the truck, the door hit the defendant in the chest. The
defendant tried to tell Riley that his brakes didn't work.
However, when Riley hit him, the defendant hit him back.
The fact finder determines the credibility of the witnesses
and the weight accorded their testimony and may accept or reject
the testimony in whole or in part. See Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
The fact finder is also entitled to disbelieve the self-serving
testimony of the accused and to conclude that he is lying to
conceal his guilt. See Speight v. Commonwealth, 4 Va. App. 83,
88, 354 S.E.2d 95, 98 (1987) (en banc).
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We conclude that the evidence of this severe, brutal
beating is sufficient to support the conviction. Accordingly,
we affirm.
Affirmed.
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