Earl C. Maye, Jr. v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Olitsky*
Argued at Richmond, Virginia
EARL C. MAYE, JR.
MEMORANDUM OPINION ** BY
v. Record No. 2311-98-2 JUDGE ROBERT J. HUMPHREYS
AUGUST 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Douglas M. Atkins (Bourdow & Bowen, P.C., on
brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General;
Jeffrey S. Shapiro, Assistant Attorney
General, on brief), for appellee.
Earl C. Maye, Jr. appeals his conviction for malicious
wounding. He argues that the trial court erred when it refused
to grant his proposed jury instruction regarding the elements of
malicious wounding and unlawful wounding, which incorporated the
elements of assault and battery as a lesser-included offense.
We agree and for the reasons that follow, we reverse the
judgment of the trial court.
*
Retired Judge Norman Olitsky took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying § 17-116.01.
**
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to the
disposition of this appeal.
At approximately 2:00 a.m., on February 22, 1997, Maye and
Arthur Ingram were talking on Ingram's front porch about Maye's
belief that Ingram "wanted to do something to him." According to
Ingram, Maye punched him in the face then turned to two companions
and asked if they were "just going to stand there." All three men
began beating, kicking and punching Ingram. During the fight,
Ingram was stabbed in the chest and, according to Ingram, Maye
said "[Y]ou're stabbed now . . . ."
According to the Commonwealth's evidence, Maye and his
companions continued to strike Ingram as he walked down the street
holding his chest. Eventually, Ingram passed out in front of his
house. Ingram testified that Maye was the person who pulled out
the knife and stabbed him. Further, Ingram denied that he or the
other two assailants had weapons.
Ingram was taken to the hospital where he underwent surgery.
He suffered three separate stab wounds to the chest, one of which
penetrated his heart. As of the date of the trial, Ingram still
suffered from chest pains because of the stabbing and displayed
visible scars from the wounds and the surgery.
Ingram's sister testified that she came out of the house
during the incident and saw Maye and two other men standing near
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Ingram. She saw Maye kicking Ingram and heard Maye say, "You're
cut Arthur." She begged Maye to stop and he and the others left.
On February 24, 1997, Detective Thomas Young talked to Ingram
in the hospital while Ingram was still heavily sedated. Young
testified that Ingram would "float in and out." Ingram told Young
that Maye and two others attacked him. At that time, Ingram told
Young that he did not see a knife.
Maye testified that on the night of the incident, he, Brian
Redwine, Travis Moss, and another person were walking up the
street and Ingram called to them from his porch and started to
argue. Maye also testified that earlier that night he gave a
knife to Redwine. Maye admitted that while he started a fight
with Ingram and struck and kicked him several times, he did not
encourage anyone else to participate. Maye said he pushed
Redwine away and told him to get out of the fight and when he
turned back around, Ingram was on the ground with blood on his
shirt. Maye testified that he did not stab Ingram and that
while he started the fight, he "did not want Ingram to get hurt,
not like that bad."
II. ANALYSIS
A trial court is "bound by the principle that the accused
is entitled, on request, to have the jury instructed on a lesser
included offense that is supported by more than a 'scintilla of
evidence' in the record." Bunn v. Commonwealth, 21 Va. App.
593, 599, 466 S.E.2d 744, 746 (1996) (citation omitted).
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However, as stated above, the trial court refused Maye's
proffered instruction which included the lesser-included offense
of assault and battery.
The Commonwealth contends a jury instruction on assault and
battery is inappropriate because the evidence in this case
establishes that Maye actually stabbed Ingram or, at the very
least, was criminally liable for his stabbing as a principal in
the second degree. It argues that if Maye's version of the
events was accepted by the jury, they would have to find Maye
not guilty. We disagree.
When considering whether a trial court erred in refusing to
give a proffered instruction, "we view the evidence with respect
to the refused instruction in the light most favorable to the
defendant." Boone v. Commonwealth, 14 Va. App. 130, 131, 415
S.E.2d 250, 251 (1992). So viewed, we note that Maye admitted
that he assaulted Ingram, but denied that he wanted to hurt him
seriously, and denied stabbing him. Maye also denied any
concert of action with anyone else involved in the incident.
Thus, Maye's evidence, if believed by the jury, tended to prove
that he did not participate as a principal in either the first
or the second degree in the crimes of either malicious or
unlawful wounding and could have established his guilt of
assault and battery.
It is not our role, nor that of the trial court, to assess
the credibility of Maye's evidence. That is the task of the
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fact finder, which must be done in the context of instructions
concerning the law applicable to any reasonable construction of
the facts advanced by the parties in the case. However, here,
the fact finder was not able to adequately perform this task
because the requested instruction, which was clearly supported
by more than a "scintilla of evidence," was refused by the trial
court.
The Commonwealth also suggests that any error in the
failure to instruct on assault and battery as a lesser-included
offense was harmless as a matter of law. It bases this argument
on its theory that in convicting Maye of malicious wounding, the
jury necessarily rejected the lesser-included offense of
unlawful wounding on which it had been instructed. Again, we
disagree.
Although the jury was instructed on the lesser-included
offense of unlawful wounding, it was not instructed on the
lesser-included offense of assault and battery.
An element necessary to both malicious and
unlawful wounding is the "intent to maim,
disfigure, disable or kill" the victim.
Assault and battery, however, requires
[only] proof of "an overt act or an attempt
. . . with force and violence, to do
physical injury to the person of another,
. . . "whether from malice or from
wantonness," . . . .
Id. at 132, 415 S.E.2d at 251 (citations omitted) (emphasis in
original).
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Our holding in Boone is directly applicable to this case
and the proper instruction of a jury with respect to these two
offenses:
The jury was instructed that the
Commonwealth had the burden of proving
beyond a reasonable doubt that defendant
wounded [the victim] with the "intent to
maim, disfigure, disable or kill" him. They
were not instructed, however, that defendant
could be convicted of a lesser offense in
the absence of this intent. The jury was
thus "given the impermissible choice of
drawing the conclusion" either that
defendant intended to maim, disfigure,
disable, or kill [the victim], with or
without malice, and was thus guilty of
either malicious or unlawful wounding, or
that he did not possess this intent "and was
not guilty of any offense." [Accordingly,]
[t]he jury was denied the opportunity to
assess the evidence as it related to assault
and battery, an offense that may be
accompanied by malice, but does not require
the intent to maim, disfigure or kill.
Id. at 133-34, 415 S.E.2d at 252 (citations omitted).
As in Boone, the jury could have concluded that Maye lacked
the specific intent to "maim, disfigure, disable or kill" and
acted only with the intent to do bodily harm to Ingram, whether
with or without malice. Thus, "[c]redible evidence was before
the jury that, if believed, supported an instruction on assault
and battery, and '[i]t is immaterial that the jury might have
rejected the lesser-included offense.'" Id. "[W]here it is
impossible to determine from the verdict whether the jury would
have necessarily rejected a lesser-included offense on which it
was not instructed, error in refusing to instruct on that
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offense is not harmless." Turner v. Commonwealth, 23 Va. App.
270, 276, 476 S.E.2d 504, 507 (1996), aff'd, 255 Va. 1, 492
S.E.2d 447 (1997).
We find that it was error for the trial court to refuse a
proper instruction on assault and battery as a lesser-included
offense and that such error was not harmless. Accordingly, we
reverse the judgment of the trial court and remand this case for
a new trial if the Commonwealth be so advised.
Reversed and remanded.
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