Michael Terry Swick v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Clements
Argued at Alexandria, Virginia
MICHAEL TERRY SWICK, S/K/A
MICHAEL TERRY SWICK, JR.
MEMORANDUM OPINION * BY
v. Record No. 1282-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 24, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Russell I. Townsend, Jr., Judge Designate
J. Bruce Strickland (Phillip Sasser, Jr.;
Murphy & Strickland; Jarrell, Hicks &
Sasser, P.C., on brief), for appellant.
Amy Hay Schwab, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Michael Terry Swick (appellant) was convicted in a jury
trial of aggravated malicious wounding, in violation of
Code § 18.2-51.2. Appellant contends that (1) the trial court
erred in limiting cross-examination of his alleged accomplice
and (2) the evidence was insufficient to prove the victim's
injury was permanent and significant. For the following
reasons, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
"'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. The jury's verdict will not be disturbed unless
plainly wrong or without evidence to support it.'" Hucks v.
Commonwealth, 33 Va. App. 168, 177, 531 S.E.2d 658, 662 (2000)
(quoting Clark v. Commonwealth, 30 Va. App. 406, 409-10, 517
S.E.2d 260, 261 (1999)).
So viewed, the evidence established that on November 26,
1999 Tobias Holovoka was beaten and robbed outside a bar in
Stafford County. Before he entered the bar, Holovoka saw people
whom he did not recognize standing in the parking lot. Later in
the evening, Holovoka left the bar to check on his wife and he
was attacked by two men. "I was walking down the sidewalk,
pretty much just blacked out right there . . . . I believe I
had lost consciousness for a while . . . . I had suffered a
blow to the back of my head and I assumed that, . . ., I was
just knocked out right then and there." He heard two different
male voices. One said "let him go, let's get out of here, or
just let's get out of here . . . ." Holovoka was "bleeding from
[his] head and from [his] face, and . . . had, . . ., countless
. . . bruises all up and down [his] back . . . [he] could feel
them. For a long time."
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Holovoka was taken to the hospital and treated for a
non-depressed skull fracture, a tripod fracture of his facial
bones and a scapula fracture. He remained in the hospital for
three days. At trial, two years and two months after the
attack, Holovoka testified that he still had constant numbness
in his face and several scars under his hairline. He stated
that at the time of the attack he had approximately one hundred
and forty dollars in his wallet.
James McCroskey, appellant's co-defendant, 1 testified that
he and appellant agreed to break into cars and "see what [they]
could find." They took several items, including a roofing
hammer and a twelve pack of beer, from cars that were parked in
front of the bar. McCroskey described the attack on Holovoka as
follows:
I had took [sic] a twelve pack of beer
around the corner of the buildings and . . .
[Holovoka] . . . came up and approached me
. . . . He . . . told me he saw us breaking
into the cars, confronted me. Me and him
got into a confrontation. [Appellant] came
up behind him, said, 'You're messing with my
boy,' and hit him in the head with the
hammer.
Appellant then took Holovoka's money from his wallet.
Shortly after the attack on Holovoka, appellant and
McCroskey went to Geri Norrell's trailer. Norell testified that
1
McCroskey, prior to this trial, pled guilty as a principal
in the second degree to the malicious wounding and robbery of
Holovoka.
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appellant told her that "he beat the s**t out of somebody and he
got some money."
The Commonwealth filed a motion in limine requesting the
trial court to exclude evidence of alleged uncharged, criminal
activities of McCroskey. Counsel for appellant proffered the
following:
My client found out that his co-defendant
had taken . . . weapons from [Mario Puga]
and he informed [Puga], in return, or had
[McCroskey] return those weapons to [Puga].
[Puga] will testify to that, . . ., and that
he thanked [appellant] for doing so and
admonished [McCroskey] and that, . . .,
shows bias, a series of events and the fact
that . . . . [Appellant] turned [McCroskey]
in [to Puga] . . ., about those weapons.
Now, there was no police involvement at that
time, because he'll testify that he wanted
to avoid that. . . . He actually has a
reason to try . . . to get even with
[appellant] in just the weapons alone. . . .
The incident described by counsel for appellant allegedly
occurred two and a half hours before appellant and McCroskey
agreed to take items from the cars and the attack on Holovoka.
The trial court granted the motion stating "[t]he Court finds
that the evidence of Mr. McCroskey's alleged involvement in
uncharged burglary of firearms is not a proper subject for
impeachment in the trial against [appellant]. . . . [T]he two
incidents are not related, are not connected, they involve
different parties, and that [they are] not proper evidence that
can be used to impeach on the grounds of bias."
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A jury convicted appellant of aggravated malicious
wounding.
II. MOTION IN LIMINE
Appellant first contends the trial court erred in limiting
his cross-examination of McCroskey about the theft of guns from
Mario Puga earlier on the night of the attack. Appellant argues
that, because he told Puga that McCroskey took the items,
McCroskey had a motive to fabricate his testimony.
It is well settled in Virginia that a
litigant's right to impeach the credibility
of adverse witnesses by showing their
participation in criminal conduct has been
confined to questions about a conviction for
a felony, perjury, and a misdemeanor
involving moral turpitude. This limitation
upon a defendant's impeachment rights is a
reasonably necessary measure to restrict the
scope of a criminal trial. . . . [A]dmission
of unadjudicated crimes for purposes of
general impeachment of a witness would "lead
to confusion in directing the jury's
attention to collateral matters and away
from the issues in the case."
Ramdass v. Commonwealth, 246 Va. 413, 423, 437 S.E.2d 466, 472
(1993) (quoting Clark v. Commonwealth, 202 Va. 787, 790, 120
S.E.2d 270, 273 (1961).
In the instant case, McCroskey's conduct was clearly
collateral and had no relevance to a possible motive for
McCroskey to fabricate his testimony. McCroskey was never
charged with any offense relating to the earlier taking and
return of Puga's guns. Shortly after the incident, appellant
and McCroskey agreed to commit further unlawful acts and
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remained with each other before, during and after the attack.
The proffered evidence fails to meet any threshold of relevance
or connection to any bias or motive to fabricate.
Additionally, at trial, McCroskey was fully cross-examined
about any possible bias. His admissions included the following:
1) he was intoxicated the night of the attack; 2) he was also
known as "Loco McCroskey;" 3) he gave several inconsistent
statements about the events on the night of the attack;
4) between the time of his preliminary hearing and his
indictment, the Commonwealth amended his charge from aggravated
malicious wounding to malicious wounding; 5) after he agreed to
testify against appellant, his bond status was changed from "no
bond" to "$10,000 personal recognizance;" 6) a later failure to
appear warrant was "dropped" on the same date he entered a
guilty plea to robbery and malicious wounding specifically as a
principal in the second degree; and 7) his sentencing on the
instant charges was continued until after he testified in
appellant's trial. Under these facts, the trial court did not
err.
III. SUFFICIENCY OF THE EVIDENCE
Appellant next contends that the evidence failed to prove
Holovoka's injuries were sufficiently severe and caused
permanent and significant damage as required by Code
§ 18.2-51.2. We disagree.
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Code § 18.2-51.2 provides in pertinent part: "If any
person maliciously . . . wounds any other person, or by any
means causes bodily injury, with the intent to main, 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."
Appellant argues that facial scarring and numbness are not
"significant" and no medical evidence established Holovoka
suffered any permanent restrictions on his activities, permanent
impairment or any cosmetic disfigurement. This argument is
without merit. Holovoka testified that he continues to have
constant "numbness in the left side of [his] face" and scars on
his head. The emergency room physician testified that he
suffered fractures of his facial bones and shoulder blade.
A scar on a victim's face is sufficient to satisfy the
significant and permanent requirement of the statute. See
Commonwealth v. Donkor, 256 Va. 443, 507 S.E.2d 75 (1998) (four
to six inch long facial cut); and Newton v. Commonwealth, 21
Va. App. 86, 462 S.E.2d 117 (1995) (several facial cuts
resulting in scars).
There is no requirement that permanency be established
solely by medical evidence. Two years and two months after the
attack, Holovoka still had scars on his head and a constant
numbness in his face. The nature and extent of Holovoka's
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injuries were undisputed. Credible evidence supports the jury's
finding that Holovoka's injuries were both severe and permanent.
For the foregoing reasons, we affirm appellant's
conviction.
Affirmed.
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