William Edward Mize v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
WILLIAM EDWARD MIZE
MEMORANDUM OPINION * BY
v. Record No. 1185-00-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
William Edward Mize was convicted of aggravated malicious
wounding and malicious wounding. He contends the evidence is
insufficient to establish malice or the intent to maim,
disfigure, disable, or kill. He also contends the evidence was
not sufficient to prove use of a firearm during the commission
of the malicious woundings because the evidence was not
sufficient to prove the underlying offenses. Finding no error,
we affirm.
The defendant shot his sister-in-law and her daughter with
a 16-gauge shotgun. He hit the fourteen-year-old daughter,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Amanda, in her face leaving her totally blind. He hit the
sister-in-law, Wanda, in the back of her neck with one pellet.
At trial, the defendant maintained the shotgun discharged
accidentally while he was cleaning it. "On appeal, 'we review
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492
S.E.2d 826, 831 (1997) (citation omitted). So viewed the
evidence supports the finding that the defendant fired the
weapon at the two victims maliciously and intentionally.
Malice may be inferred "from the deliberate use of a deadly
weapon." Perricllia v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d
679, 683 (1985). Similarly, use of a deadly weapon, coupled
with defendant's conduct and statements, may be sufficient to
prove specific intent to kill. Hargrave v. Commonwealth, 214
Va. 436, 437, 201 S.E.2d 597, 598 (1974). Voluntarily
brandishing a firearm and firing a weapon near victims supported
the inference of intent to kill. Bell v. Commonwealth, 11 Va.
App. 530, 533-34, 399 S.E.2d 450, 452 (1991). A defendant's
intent may be inferred from the facts and circumstances of a
particular case. Hernandez v. Commonwealth, 15 Va. App. 626,
631, 426 S.E.2d 137, 140 (1993).
The defendant lived next door to his brother Johnny. The
two began drinking beer around noon. At some point, they argued
after the defendant complained that Johnny's stepdaughter was
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dressing too suggestively for a fourteen-year-old girl. The
drinking continued into the afternoon. After a friend, Timothy
Dunford, arrived, the defendant told him, "I hate that little
bitch."
Johnny and Dunford left to get some more beer, and the
defendant retrieved his shotgun from his bedroom where he kept
it. He usually kept the gun unloaded and stored the ammunition
separately. The defendant returned outside with his shotgun,
and the gun discharged. Wanda looked up to see the defendant
standing right outside his front door holding the gun against
his shoulder in a firing position, pointing it at her and her
daughter. She then realized the shot had hit Amanda in the
face. Her son, David, also saw the defendant holding the gun in
a firing position pointed at his mother and sister. The
defendant dropped the shotgun and fled into the woods. He did
not turn himself in to the police until the next day.
The defendant gave different accounts of what happened. At
first, he claimed he took the gun to the front porch to clean
it. While leaning against the picnic table with the gun on his
lap, it fired accidentally. When the police challenged that
story because of the witness reports and the physical
impossibility of hitting the victims from that firing position,
the defendant suggested he might have had the gun raised higher
as he was blowing it clean.
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He next stated he realized Amanda and another girl were on
the porch, he aimed at the porch, and he fired. He explicitly
stated his first story was not true, the shooting was not an
accident, and he did raise the gun and shoot in the direction of
Amanda. At trial, the defendant again claimed the shooting was
an accident, he explained his conflicting accounts, and
extenuated the incriminating statements.
Whether a shooting is intentional or accidental is "a
matter peculiarly within the province of [the fact finder] to
determine." Compton v. Commonwealth, 219 Va. 716, 731, 250
S.E.2d 749, 758 (1979). The fact finder "was entitled to weigh
the defendant's contradictory statements." Toler v.
Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210, 213 (1949). It
is also entitled to infer the defendant was concealing his guilt
by giving differing accounts. Black v. Commonwealth, 222 Va.
838, 842, 284 S.E.2d 608, 610 (1981); Marable v. Commonwealth,
27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).
Based on these facts, coupled with the defendant's flight,
Clagett v. Commonwealth, 252 Va. 79, 93, 472 S.E.2d 263, 271
(1996), cert. denied, 579 U.S. 1122 (1997), the fact finder
could reasonably find the defendant maliciously shot the victims
with the intent to main, disfigure, disable, or kill. Because
the evidence supports the finding of guilt of the primary
offenses, aggravated malicious wounding and malicious wounding,
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it permits a finding of guilt of the related firearm possession
offenses. Accordingly, we affirm his convictions.
Affirmed.
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