COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia
JAMES HALL
MEMORANDUM OPINION * BY
v. Record No. 2572-96-2 JUDGE JERE M. H. WILLIS, JR.
DECEMBER 30, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Matthew T. Paulk, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
On appeal from his bench trial conviction for malicious
wounding, James Hall contends that the evidence was insufficient
to prove his malicious intent to maim, disfigure, disable or
kill. We affirm the judgment of the trial court.
At approximately noon on March 25, 1996, Hall entered the
Fantastic Thrift Store in Richmond. He walked to the electronics
section, placed a telephone in a plastic bag and exited the
1
store. Michael Cridten, the store manager, followed Hall and
called for him to stop. Hall began to run away.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
For the purposes of this opinion, we assume that the proper
spelling of the victim's name is Michael Cridten, as he testified
at trial. The transcript and indictment offered different
spellings of the victim's last name, Critden and Crittenden,
respectively.
Cridten and another store employee, Steve Heck, caught Hall.
Hall resisted their efforts to apprehend him and told them that
he had acquired immune deficiency syndrome (AIDS). Hall
stipulated at trial that he had tested positive for the human
immunodeficiency virus (HIV).
As Cridten and Heck returned to the store with Hall, five or
six men, one of whom carried a baseball bat, surrounded them.
The men demanded that Cridten and Heck free Hall. Continuing to
struggle, Hall bit Cridten on the hand, breaking the skin. He
bit Heck on the wrist. Cridten and Heck released Hall but
followed him. They caught him again, and held him until a police
detective arrived.
At trial, Hall testified that he told Cridten and Heck that
he had AIDS merely to avoid being physically assaulted. He
stated that he bit them because he "didn't want to go to jail."
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. The judgment of
a trial court sitting without a jury is
entitled to the same weight as a jury verdict
and will not be set aside unless it appears
from the evidence that the judgment is
plainly wrong or without evidence to support
it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987) (citing Code § 8.01-680).
A conviction of malicious wounding, under Code § 18.2-51,
requires proof that the assailant maliciously intended to maim,
disfigure, disable or kill his victim. Because direct evidence
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of malicious intent is often lacking, see Servis v. Commonwealth,
6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), proof of the
defendant's purpose may "'be inferred from the facts and
circumstances in a particular case,'" and may be "shown by a
person's conduct and by his statements." Long v. Commonwealth, 8
Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).
Hall does not dispute the dangerous nature of the
instrumentality that he employed to cause bodily injury. 2
Rather, he contends that he lacked the specific intent to maim,
disfigure, disable or kill. Citing Haywood v. Commonwealth, 20
Va. App. 562, 458 S.E.2d 606 (1995), he argues that he intended
merely to escape.
In Haywood, the police sought to stop the defendant, who was
fleeing in a vehicle. Two officers attempted to block his flight
by moving their vehicles into his path. Id. at 564-65, 458
S.E.2d at 607. The defendant did not stop, and the officers
moved out of his way. Id. In reversing Haywood's convictions
for attempted capital murder, we noted that: "There was no
2
While we are not asked to decide whether Hall's teeth are a
dangerous weapon, we note that "[a] deadly weapon is one which is
likely to produce death or great bodily injury from the manner in
which it is used," Pannill v. Commonwealth, 185 Va. 244, 254, 38
S.E.2d 457, 462 (1946), and "the Commonwealth was not constrained
to prove that the method [] used to cause bodily harm was
inherently dangerous." Long, 8 Va. App. at 197, 379 S.E.2d at
475. See United States v. Sturgis, 48 F.3d 784, 787-88 (4th
Cir.), cert. denied, 116 S. Ct. 107 (1995) (upholding conviction
for assault with a dangerous weapon where defendant bit two
correctional officers while he was HIV positive); Dawkins v.
Commonwealth, 186 Va. 55, 63, 41 S.E.2d 500, 504 (1947).
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evidence that Haywood ever swerved or aimed his truck to hit the
police cars when they pulled out of his path or that he turned
his truck around in an attempt to hit the police cars after
passing by them." Id. at 567, 458 S.E.2d at 608-09. We
concluded that the Commonwealth failed to exclude the reasonable
hypothesis that Haywood merely intended to avoid apprehension.
Had he swerved toward the officers or injured them, the trier of
fact might have inferred that he sought to kill them. See id.;
Matthews v. State, 476 N.E.2d 847, 850 (Ind. 1985) (upholding
conviction for attempted battery despite contention that
defendant sought only to escape from police officers when he
fired shots).
Hall did not merely attempt to bite or threaten to bite
Cridten and Heck and, by so doing, attempt to escape. Rather, he
announced that he was infected with AIDS. Shortly thereafter, he
bit Cridten, breaking the skin. This supports the inference that
he intended to infect Cridten with AIDS, a deadly disease. See
Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4
(1991) (en banc). That he may have had escape as his primary
goal does not preclude his harboring a secondary criminal
purpose. See Hughes v. Commonwealth, 18 Va. App. 510, 530-31,
446 S.E.2d 451, 463 (1994) (en banc) (Coleman, J., concurring).
Finally:
"Malice inheres in the doing of a wrongful
act intentionally, or without just cause or
excuse, or as a result of ill will. It may
be directly evidenced by words, or inferred
from acts and conduct which necesarily [sic]
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result in injury. Its existence is a
question of fact to be determined by [the
trier of fact]."
Long, 8 Va. App. at 198, 379 S.E.2d at 475-76 (quoting Dawkins v.
Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947)).
The trial court's finding that the biting was performed with
the requisite malicious intent is neither plainly wrong nor
without evidence to support it. Accordingly, we affirm the
judgment of the trial court.
Affirmed.
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Benton, J., dissenting.
Because Hall's conviction was "based solely on
circumstantial evidence, all necessary circumstances proved must
be consistent with guilt and inconsistent with innocence,"
Haywood v. Commonwealth, 20 Va. App. 562, 567, 458 S.E.2d 606,
609 (1995), and must "exclude every reasonable hypothesis of
innocence." Garland v. Commonwealth, 225 Va. 182, 184, 300
S.E.2d 783, 784 (1983). "When, from the circumstantial evidence,
'it is just as likely, if not more likely,' that a 'reasonable
hypothesis of innocence' explains the accused's conduct, the
evidence cannot be said to rise to the level of proof beyond a
reasonable doubt." Littlejohn v. Commonwealth, 24 Va. App. 401,
414, 482 S.E.2d 853, 859 (1977) (citation omitted).
The majority holds that the evidence "supports the inference
that [Hall] intended to infect Cridten with AIDS, a deadly
disease." Although the evidence might have supported that
inference, the Commonwealth's evidence also supports the
inference that Hall bit Cridten merely to avoid apprehension.
Thus, the evidence failed to exclude another reasonable
hypothesis explaining Hall's acts and intention. This other
hypothesis "would exonerate [Hall] of the charge[] of [malicious
wounding]." Haywood, 20 Va. App. at 567, 458 S.E.2d at 609.
The evidence proved that after Cridten confronted Hall about
the theft, Hall ran. Cridten and Heck caught Hall and tackled
him to the ground. As they pulled Hall to his feet, Hall told
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them he had the AIDS virus. Heck testified that when Hall said
he had the AIDS virus, Hall also said "let me go . . . take it
easy." Hall testified that he wanted "them [to] turn [him] loose
because they [were] handling [him] pretty rough."
When Cridten and Heck were leading Hall back to the store, a
group of men, one of whom was carrying a baseball bat, surrounded
them and told Cridten and Heck to release Hall. Cridten then
began to explain to the men that he was holding Hall because Hall
had stolen from his store. At this point, Hall began to
struggle, hitting, scratching, and biting in an attempt to get
away. Indeed, when Cridten released his grip, Hall ran away.
Hall testified that he bit Cridten's hand in an attempt to escape
because he didn't want to go to jail.
From this evidence, it is just as likely, if not more
likely, that Hall bit Cridten in an attempt to escape and avoid
police apprehension as it is that he intended to maim, disfigure,
disable or kill Cridten. See id. "'[W]here a fact is equally
susceptible of two interpretations one of which is consistent
with the innocence of the accused, [the trier of fact] cannot
arbitrarily adopt that interpretation which incriminates him.'"
Id. (quoting Corbett v. Commonwealth, 210 Va. 304, 307, 171
S.E.2d 251, 253 (1969)). Although the circumstantial evidence
permits an inference that Hall may have intended to infect
Cridten by biting him after informing Cridten that he was
infected with AIDS, the circumstantial evidence clearly did not
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exclude an equally, if not more probable, reasonable hypothesis
of innocence that when Hall bit Cridten he intended only to
escape from Cridten's grip. Therefore, I would reverse Hall's
conviction.
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