Jerry Lynn Gibson v. Commonwealth of Virginia ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia
JERRY LYNN GIBSON
MEMORANDUM OPINION * BY
v. Record No. 2783-96-3 JUDGE JOSEPH E. BAKER
DECEMBER 16, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
Robert Bryan Haskins (Turner, Haskins &
Whitfield, on brief), for appellant.
Ruth Ann Morken, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Jerry Lynn Gibson (appellant) appeals from his bench trial
conviction by the Pittsylvania County Circuit Court (trial court)
for unlawful wounding in violation of Code § 18.2-51. 1 He
contends that the evidence was insufficient to prove he acted
with intent to maim, disfigure, disable or kill Aylor C. Newby
(the victim). We disagree and affirm the judgment of the trial
court.
As the parties are conversant with the record, we recite
only the facts necessary to an understanding of this opinion.
Upon familiar principles, we state the evidence in the light most
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Appellant was tried for malicious wounding, but the court
found him guilty of the lesser-included offense of unlawful
wounding.
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
About 11:00 p.m. on November 28, 1995, the victim was asleep
on the couch in his mobile home. When the victim answered a
knock at the door, appellant "hit [him] up side of the head and
said, come on, you want a piece of me you can get it now." They
started fighting. The victim testified that he was "swinging
too," because he "thought [he] had the right to defend
[himself]." The noise of the confrontation awoke the victim's
wife (Wendy). As she looked out the front door, she saw the
victim being struck by appellant and observed two more men
walking toward the victim. She yelled to the victim to watch out
for the approaching men. A third man, carrying a steel pipe,
2
approached from behind a trailer. When the victim looked up,
appellant struck him in the mouth with such force that it knocked
out a tooth, which became embedded in his lip. 3 Almost
simultaneously, the man with the steel pipe struck the victim
across the back with it, knocking the victim "paralyzed" to the
concrete. When Wendy threatened to call the police, appellant
and the three men ran off together, laughing and yelling, "I got
you, I got you."
2
These three men had their heads covered.
3
Two other teeth had to be removed because they were "messed
up," and a third fell out on its own.
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The victim initially was unable to get up but was eventually
able to move with the help of his wife, who drove him to the
hospital. 4 Wendy observed a welt "all the way down . . . his
back," a missing tooth, a tooth "sitting up into his lip," and
numerous bruises and cuts. The victim eventually lost four teeth
as a result of the beating and had a sore back for three days.
Viewing the evidence in the light most favorable to the
Commonwealth, as we must, the evidence discloses that appellant
was the aggressor and was accompanied by three other men, one of
whom struck the victim in the back with a steel pipe, raising a
large welt and bruise thereon. Moreover, the pipe blow was so
severe that it caused the victim to fall and be temporarily
"paralyzed." In addition, as the victim was distracted by the
approaching men, appellant struck the victim in the face with
such force as to cause one tooth to become dislodged and embedded
in the victim's lip, and resulting in the eventual loss of a
total of four teeth.
Appellant argues that to support an unlawful wounding
conviction, the evidence must show he intended to maim,
disfigure, disable or kill the victim, and he contends that the
evidence fails to meet that requirement.
The finder of fact may infer that a person intends the
natural and probable consequences of his acts. See Campbell v.
Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991)
4
X-rays of the victim's back proved negative for fractures.
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(en banc). Here, the evidence is sufficient not only to show
that appellant's attack was unlawful within the context of Code
§ 18.2-51, but also to permit the reasonable inference that
appellant and three other men went with covered heads to the
victim's house late at night with the intent to inflict bodily
harm on the victim, and relished in their success as they
departed, laughingly yelling that their purpose had been attained
and gloating that they had "got [him]." Because appellant acted
in concert with the man who wielded the pipe, in addition to
delivering forceful blows by his own fist, appellant is liable
for that action. See, e.g., Pugliese v. Commonwealth, 16 Va.
App. 82, 93, 428 S.E.2d 16, 24 (1993).
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
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