Cottee v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia

DON M. COTTEE, S/K/A
DON MEREDITH COTTEE
OPINION BY
v. Record No. 2175-98-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF KING AND QUEEN COUNTY
Thomas B. Hoover, Judge

J. Terry Osborne for appellant.

Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Don Meredith Cottee (appellant) was convicted of one count

of aggravated malicious wounding, in violation of Code

§ 18.2-51.2; one count of malicious wounding, in violation of

Code § 18.2-51; and one count of felony hit and run, in

violation of Code § 46.2-894. On appeal, he contends (1) Code

§ 18.2-51.2 is unconstitutionally vague; (2) the evidence is

insufficient to convict him of the three charged offenses; and

(3) his prior criminal convictions occurring after the instant

offense, but for which sentencing had not taken place, should

not have been considered in determining his punishment. For the

following reasons, we affirm.
 I. BACKGROUND

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on December 6, 1997,

appellant and three friends, Jeffrey Lowney, Dewey Ayers, and

Chris Lowney, appeared uninvited at a party at Raymond Hall's

home. A number of fights took place at the party, but appellant

was not directly involved.

After the fighting ended, appellant and his friends

returned to their car that was parked in the driveway.

Appellant got into the driver's seat. Ayers was in the front

passenger seat, and Jeffrey Lowney got into the back. A number

of people from inside the house came outside to ensure that

appellant and his friends left the property.

Appellant turned on the headlights and started the car.

Robert Hayden and Robert Milby were standing directly in front

of the car. Hayden thought appellant was going to reverse his

car because another car was parked "maybe about six or seven

feet in front of them." After reversing the car momentarily,

appellant quickly shifted gears and drove the car forward,

pinning both Hayden and Milby underneath. Hayden was trapped

beneath the car with a tire on his back and the catalytic

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converter on the side of his face. The car was partially stuck

on a railroad tie that bordered the driveway. Appellant

continued to press the gas pedal, alternating between drive and

reverse. One of the car tires spun on Hayden's back each time

the car moved from drive to reverse. The bystanders screamed at

appellant to stop the car because someone was underneath, but

appellant "just steadily kept stomping on the gas [pedal] trying

to get away." Ayers, who was sitting in the front passenger

seat next to appellant, heard the screaming and got out of the

car to help. Eventually, guests at the party lifted the car off

Hayden and Milby. Once the victims were free, appellant

reversed his car and fled the scene.

Dr. Andrea Crawford, an orthopedic surgeon, treated Hayden

at the emergency room. Hayden suffered second degree burns on

the side of his face and neck, an open fracture of his tibia,

and a large burn on his back. The back wound, approximately

eighteen inches long by eight inches wide, required a skin graft

from his thigh. As a result of the injury to his tibia, five

millimeters of bone had to be removed and his leg was

permanently shortened. At trial, Dr. Crawford testified that

Hayden's injuries to his back and leg would both be a "permanent

and significant physical impairment." Milby suffered a

dislocated shoulder, a burn on his arm and a cut on his knee.

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 In his defense, appellant testified that he did not realize

he had hit anyone when he started moving his car and did not

know he hit anyone until the following day.

The trial court accepted the Commonwealth's evidence and

rejected appellant's testimony. Appellant was convicted of the

aggravated malicious wounding of Hayden, the malicious wounding

of Milby, and felony hit and run. One week after trial, but

before sentencing, appellant moved to dismiss the aggravated

malicious wounding conviction, contending that Code § 18.2-51.2

was unconstitutionally vague. Appellant also argued the

evidence was insufficient as a matter of law to sustain the

convictions.

At the sentencing hearing, the trial court denied

appellant's motion to dismiss. Prior to sentencing, appellant

conceded that the sentencing guidelines were properly

calculated. However, counsel urged the trial court to sentence

appellant to the lower range of the guidelines because he had

yet to be sentenced on two unrelated manslaughter convictions in

Gloucester County and did not want to be penalized twice. The

trial court sentenced appellant to a total of seventy years on

the three convictions, with thirty years suspended.

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 II. CONSTITUTIONALITY OF CODE § 18.2-51.2 1

Appellant contends Code § 18.2-51.2 is unconstitutionally

vague because the phrase "permanent and significant physical

impairment" is not adequately defined. 2 He argues that the

wording of the statute is susceptible to various interpretations

and, thus, does not allow the accused to "appreciate the gravity

of the offense or the punishment."

The Commonwealth contends the statute as drafted is not

unconstitutionally vague because it sufficiently describes the

types of injuries required for conviction (i.e., ones that are

both "permanent" in duration and "significant" in nature).

Thus, the Commonwealth concludes there "is nothing uncertain or

ambiguous about Code § 18.2-51.2[ ] . . . ." Additionally, the

Commonwealth argues that appellant's constitutional challenge is

1
The Commonwealth contends appellant's constitutional
challenge to Code § 18.2-51.2 is procedurally barred because the
issue was not raised at trial. However, in his post-trial motion
to dismiss appellant argued the statute was unconstitutionally
vague. After considering argument by both parties, the trial
court denied the motion. Because the constitutional issue was
raised and ruled upon by the trial court, we conclude it was
properly preserved.
2
Code § 18.2-51.2 provides in relevant part as follows:

If any person maliciously shoots, stabs,
cuts or wounds any other person, or by any
means causes bodily injury, with the intent
to maim, disfigure, disable or kill, he
shall be guilty of a Class 2 felony if the
victim is thereby severely injured and is
caused to suffer permanent and significant
physical impairment.

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without merit because he agreed at trial that the victim had

"significant" injuries and a defendant has "no standing to make

a broad and general facial statutory challenge."

"'[T]he person to whom a statute may constitutionally be

applied may not challenge that statute on the ground that it may

conceivably be applied unconstitutionally to others in

situations not before the Court.'" Los Angeles Police Dept. v.

United Reporting Publishing Corp., 120 S. Ct. 483, 489 (1999)

(quoting New York v. Ferber, 458 U.S. 747, 767 (1982)). 3 "This

general rule reflects two 'cardinal principles' of our

constitutional order: the personal nature of constitutional

rights and the prudential limitations on constitutional

adjudication." Id. at 489.

It is well settled that a "[d]efendant has no standing to

make a broad and general facial statutory challenge . . . ."

Woodfin v. Commonwealth, 236 Va. 89, 92, 372 S.E.2d 377, 379

(1988). A litigant may challenge the constitutionality of a law

only as it applies to him or her. See Coleman v. City of

Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42 (1988)

(citing Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285,

288 (1941)), reh'g denied, 6 Va. App. 296, 368 S.E.2d 298

3
Exceptions to this traditional rule are First Amendment
challenges based upon the overbreadth doctrine, see Gooding v.
Wilson, 405 U.S. 518, 520-21 (1972), or facial attacks on the
ground of vagueness when the issue touches First Amendment
concerns. See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983).

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(1988). "That the statute may apply unconstitutionally to

another is irrelevant; one cannot raise third party rights."

Id. at 463, 364 S.E.2d at 242.

At trial in the instant case, appellant conceded that

Hayden's injuries would satisfy the elements of Code

§ 18.2-51.2. However, he argued that the statute was

unconstitutional in general, stating the following:

COURT: You're saying the entire statute is
unconstitutional for being vague?

[COUNSEL]: Yes, Your Honor.

COURT: But you do acknowledge that this
particular victim does have the significant
injury that would qualify under the statute
if the statute was constitutional?

[COUNSEL]: Yes, Your Honor.

COURT: You are just saying in general the
statute is unconstitutional?

[COUNSEL]: Yes, Your Honor.

Because appellant has no standing to make a broad and general

facial statutory challenge, and he agreed that Hayden's injuries

qualified as both "significant" and "permanent" injuries, the

trial court properly denied appellant's motion to dismiss the

aggravated malicious wounding conviction based solely upon his

facial constitutional challenge.

III. SUFFICIENCY OF EVIDENCE

When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

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most favorable to the prevailing party, and the reasonable

inferences fairly deducible from that evidence support each and

every element of the charged offense. See Moore v.

Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr

v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).

"In so doing, we must discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all

the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom." Watkins v.

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).

"We will not reverse the judgment of the trial court, sitting as

the finder of fact in a bench trial, unless it is plainly wrong

or without evidence to support it." Reynolds v. Commonwealth,

30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987)).

A. Malicious Wounding Convictions

Appellant contends the evidence was insufficient to

establish that he intended to maim, disfigure, disable or kill

Milby or Hayden, as required by the malicious wounding statute.

He also argues the evidence failed to establish that the

injuries sustained by Hayden constituted a "permanent and

significant physical impairment" within the meaning of Code

§ 18.2-51.2. We disagree.

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 The requisite specific intent "'may, like any other fact,

be shown by circumstances. Intent is a state of mind which can

be evidenced only by the words or conduct of the person who is

claimed to have entertained it.'" Moody v. Commonwealth, 28 Va.

App. 702, 706, 508 S.E.2d 354, 356 (1998) (quoting Banovitch v.

Commonwealth, 196 Va. 210, 216, 83 S.E.2d 369, 373 (1954)). The

fact finder is entitled to draw inferences from those facts

proven to be true, so long as the inferences are reasonable and

justified. See id. Additionally, "the fact finder may infer

that a person intends the immediate, direct, and necessary

consequences of his voluntary acts." Id. at 706-07, 508 S.E.2d

at 356 (citing Sandstrom v. Montana, 442 U.S. 510, 522-23

(1979); Stokes v. Warden, 226 Va. 111, 117, 306 S.E.2d 882, 885

(1983)).

In the instant case, the Commonwealth's evidence proved

that appellant, who knew his car was surrounded by numerous

bystanders, deliberately chose to accelerate his car forward,

pinning two people underneath. The headlights of the car were

illuminated, and appellant continued to move the car forward and

backward, despite the shouts of the bystanders and his

passenger's exiting to help the victims. In finding appellant

guilty, the trial court noted:

You get in the car, headlights are on. From
the evidence that I've heard, you back up a
distance. You were parked somewhat parallel
to a railroad tie. With the headlights on,
you then drive at least somewhat in the

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 direction of the railroad ties. There are
people standing around the railroad ties,
and most of them get out of the way, but two
people you hit and run over, literally run
over.

* * * * * * *

The people wanted to get your
attention, obviously, from the evidence that
I've heard, to tell you that there was
someone underneath your car and to quit
spinning and burning the tires, that there
were people underneath that car. But you
persisted trying to get away from the
railroad ties and the people you had run
over at a time when you weren't even
supposed to be at the people's property.

. . . And the way that you drove into
that group of people and went into them and
over the railroad ties clearly shows to this
Court the malicious nature, . . . .

We agree with the trial court's determination that these facts

and circumstances were sufficient to prove beyond a reasonable

doubt that appellant possessed the intent to maim, disable,

disfigure or kill Milby and Hayden.

Regarding the "permanent and significant" nature of

Hayden's injuries, the evidence established that the victim

suffered an open fracture of his leg, second degree burns on his

face and neck, as well as a large wound on his back. The trial

court viewed the scar on Hayden's back, which measured

approximately eighteen inches long and eight inches wide. Dr.

Crawford testified that the scars on Hayden's back and leg were

both "permanent and significant." In finding appellant guilty,

the trial judge stated the following:

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 What a horrible injury that I saw today.
And that's after a skin graft has taken
place which is a further injury to him,
where skin has to be taken from a donor site
on his thigh, further pained him, and put on
his back to try to put some kind of skin to
patch the hole that you as the driver caused
by the spinning of the tire as you burned a
hole in his back. And you can look at that
wound and see and imagine exactly how it
would fit the pattern of the width of a tire
that is spinning and spinning and spinning
and spinning as it burns a hole in his back.

. . . [I]f there's a case of aggravated
injuries that indicate and qualify by
statute as being permanent, aggravated and
serious injuries, this is it.

Considering the nature and severity of Hayden's injuries, the

trial court was not plainly wrong when it found that Hayden

suffered from a "permanent and significant physical impairment"

within the meaning of Code § 18.2-51.2. The Commonwealth's

evidence was competent, was not inherently incredible and was

sufficient to prove beyond a reasonable doubt that appellant was

guilty of the aggravated malicious wounding of Hayden and the

malicious wounding of Milby.

B. Felony Hit and Run

Appellant also argues the evidence was insufficient to

establish that he violated Code § 46.2-894. That section

provides in pertinent part:

The driver of any vehicle involved in an
accident in which a person is . . . injured
. . . shall immediately stop . . . and
report his name, address, driver's license
number, and vehicle registration number
forthwith . . . . The driver shall also

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 render reasonable assistance to any person
injured in such accident, including taking
such injured person to a physician, surgeon,
or hospital if it is apparent that medical
treatment is necessary or is requested by
the injured person.

In order to be guilty of violating the statute, "'the driver

must be aware that harm has been done; it must be present in his

mind that there has been an injury; and then, with that in his

mind, he must deliberately go away without making himself

known.'" Johnson v. Commonwealth, 14 Va. App. 769, 772, 418

S.E.2d 730, 731 (1992) (quoting Herchenbach v. Commonwealth, 185

Va. 217, 220, 38 S.E.2d 328, 329 (1946)). "If an injury is

inflicted under such circumstances as would ordinarily

superinduce the belief in a reasonable person that injury would

flow, or had flowed, from the accident or collision, then it is

the duty of the operator to stop his vehicle." Id.

To establish the knowledge element of the offense, "the

Commonwealth must prove that the defendant possessed actual

knowledge of the occurrence of the accident, and such knowledge

of injury which would be attributed to a reasonable person under

the circumstances of the case." Kil v. Commonwealth, 12 Va.

App. 802, 810-11, 407 S.E.2d 674, 679 (1991) (interpreting

former Code § 46.1-176).

Viewed in the light most favorable to the Commonwealth, the

evidence established that appellant got into his car, started

the engine and "revved" it, put it into reverse and then quickly

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shifted gears and drove forward into the two victims. Several

bystanders were shouting that people were trapped under the car

and Ayers, one of the passengers, got out to assist in moving

the car off the trapped men. The facts show that appellant knew

the accident occurred and knew or should have known of the

victims' injuries. The trial court rejected appellant's

testimony that he was unaware that he caused any injury and that

remaining at the scene of the accident would have placed his own

personal safety at risk. The Commonwealth's evidence was

competent, was not inherently incredible and was sufficient to

prove beyond a reasonable doubt that appellant violated Code

§ 46.2-894.

IV. SENTENCING

Finally, appellant contends the trial court erroneously

considered two manslaughter convictions that occurred after the

instant offense, but for which sentencing had not taken place,

in determining the appropriate sentencing guidelines.

Therefore, appellant argues, he was subject to an enhanced

punishment in violation of the Fifth Amendment's Double Jeopardy

Clause.

At trial, appellant conceded that the sentencing guidelines

properly included the subsequent convictions from Gloucester

County. The following colloquy occurred:

COURT: Shouldn't both courts have his
entire record before each court. Shouldn't
I know he has had other problems in

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 Gloucester and shouldn't Gloucester know he
has had problems in King and Queen?

[COUNSEL]: Yes, Your Honor, but I submit to
the Court that the Court should also
consider the fact that these other offenses
occurred after this offense and he has not
been sentenced . . . for those . . . .

* * * * * * *

COURT: Well, under the Virginia sentencing
guidelines suggested procedures, has
anything been done in this report that is
not in accordance with those procedures?

[COUNSEL]: No, Your Honor, we acknowledge
that the prior conviction without sentencing
would be appropriate on the sentencing
guidelines.

COURT: And have the sentencing guidelines
then, in your opinion, been prepared
correctly and according to the Virginia
sentencing guidelines procedures?

[COUNSEL]: Yes, Your Honor, they have been.

Having agreed to the trial court's use of the two prior

convictions, appellant's argument is barred on appeal. See Rule

5A:18; see also Buck v. Commonwealth, 247 Va. 449, 452-53, 443

S.E.2d 414, 416 (1994) (holding that an appellate court will not

consider an argument on appeal different from one raised at

trial even if it is related to the same issue). Additionally,

the record does not show affirmatively that a miscarriage of

justice occurred and, therefore, provides insufficient grounds

for invocation of the ends of justice exception. See Thomas v.

Commonwealth, 18 Va. App. 656, 659, 446 S.E.2d 469, 471 (1994)

(en banc) (holding that the sentencing judge may consider

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"offenses for which the defendant has been convicted but not

sentenced"); see also United States v. Watts, 519 U.S. 148,

153-54 (1997) (noting that the federal sentencing guidelines

"direct[ ] sentencing courts to consider all other related

conduct, whether or not it resulted in a conviction").

For the foregoing reasons, appellant's convictions are

affirmed.

Affirmed.

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