David John Roebuck v. Commonwealth of Virginia ( 2000 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Willis, Lemons and Frank
    Argued at Chesapeake, Virginia
    DAVID JOHN ROEBUCK
    MEMORANDUM OPINION * BY
    v.   Record No. 1060-99-1                JUDGE JERE M. H. WILLIS, JR.
    JANUARY 27, 2000
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
    Everett A. Martin, Jr., Judge
    David H. Moyer (Bashara & Hubbard, on brief),
    for appellant.
    Jeffrey S. Shapiro, Assistant Attorney
    General (Mark L. Earley, Attorney General, on
    brief), for appellee.
    On appeal from his conviction of unlawful wounding, in
    violation of Code § 18.2-51, David John Roebuck contends that
    the evidence was insufficient to support the conviction because
    the Commonwealth did not prove felonious intent or a wounding.
    We affirm.
    "When considering the sufficiency of the evidence on appeal
    of a criminal conviction, we must view all the evidence in the
    light most favorable to the Commonwealth and accord to the
    evidence all reasonable inferences fairly deducible therefrom."
    Traverso v. Commonwealth, 
    6 Va. App. 172
    , 176, 
    366 S.E.2d 718
    ,
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    721 (1988).   "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).
    On August 25, 1998, Derrick Danner argued with Terry Winer,
    who complained to Roebuck.   Roebuck went looking for Danner, but
    could not find him.   Roebuck searched unsuccessfully a second
    time, carrying a baseball bat and bragging to Winer's son that
    he come along to watch the "big fight."   Finally, after a third
    search, Roebuck found Danner, who was sitting on an outside
    bench in the trailer park.   Roebuck struck Danner from behind,
    knocking him unconscious.    Winer, who was present, testified
    that Roebuck struck Danner in the face approximately thirteen
    times and that he bragged if he had had a brick, it would have
    been the "grand finale."
    The indictment, tracking Code § 18.2-51, charged that
    Roebuck "did maliciously wound or cause bodily injury to"
    Danner.   Roebuck was convicted in a bench trial of unlawful
    wounding, a lesser offense included within Code § 18.2-51.     He
    was sentenced to five years imprisonment, with three years
    suspended, and ordered to pay Danner $2,500 restitution.
    Roebuck contends that the evidence is insufficient to
    support his conviction.    He argues, first, that the evidence
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    failed to prove that he acted with the intent required by the
    statute.
    Code § 18.2-51 states:
    If any person maliciously shoot, stab,
    cut, or wound any person or by any means
    cause him bodily injury, with the intent to
    maim, disfigure, disable, or kill, he shall
    . . . be guilty of a Class 3 felony. If
    such act be done unlawfully but not
    maliciously, with the intent aforesaid, the
    offender shall be guilty of a Class 6
    felony[, the lesser-included offense of
    unlawful wounding].
    Roebuck relies on the general proposition that a blow struck
    with bare fists, under ordinary circumstances, is insufficient
    to imply an attack with the intent to "maim, disfigure, disable,
    or kill."    Id.   See also Williams v. Commonwealth, 
    13 Va. App. 393
    , 395-96, 
    412 S.E.2d 202
    , 203-04 (1991).    He argues that the
    trial court's finding that he did not act with malice excludes
    the possibility that he acted with the requisite intent.    We
    disagree.   "[A]n assault with a bare fist may be attended with
    such circumstances of violence and brutality that an intent to
    [maim, disfigure, disable, or] kill may be presumed."     Fletcher
    v. Commonwealth, 
    209 Va. 636
    , 640, 
    166 S.E.2d 269
    , 272 (1969).
    The record supports the finding that Roebuck intended to
    attack Danner with such violence and brutality.    He searched for
    Danner three times, once while wielding a baseball bat.    He
    encouraged Winer's son to accompany him to watch the "big
    fight," and he bragged that if he had had a brick, it would have
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    been the "grand finale."    His conviction of unlawful wounding, a
    lesser-included offense, does not alter the violence and
    brutality of the attack.    Roebuck knocked Danner unconscious.
    Danner's injuries included a bloody lip, a black eye, lost
    teeth, and a broken cheekbone.    He testified that he continues
    to suffer from seizures, dizziness, and numbness on the left
    side of his face.   The severity and number of blows demonstrate
    Roebuck's intent "to maim, disfigure, disable, or kill" his
    victim.   Code § 18.2-51.
    Roebuck also contends that the evidence was insufficient to
    prove a wounding.   See Code § 18.2-51.    Under familiar
    principles, we will address only those issues raised at trial.
    See Rule 5A:18; Neal v. Commonwealth, 
    15 Va. App. 416
    , 422, 
    425 S.E.2d 521
    , 525 (1992).     At trial, defense counsel moved to
    strike the evidence at the conclusion of the Commonwealth's
    case-in-chief, stating, "there's insufficient evidence to show
    . . . malice on the part of the defendant."    Because the trial
    court found Roebuck guilty of unlawful wounding, a
    lesser-included offense, this objection is moot.    At the close
    of the trial, defense counsel renewed his motion to strike,
    stating "the evidence is [in]sufficient . . . to show that these
    injuries were sufficient to show felonious intent . . . ."       At
    no point did defense counsel object to the insufficiency of the
    evidence based upon whether it proved a wounding as defined
    within Code § 18.2-51.
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    The judgment of the trial court is affirmed.
    Affirmed.
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