MICHAEL MELVIN FARY v. COMMONWEALTH OF VIRGINIA
Record No. 1079-21-2
COURT OF APPEALS OF VIRGINIA
APRIL 18, 2023
UPON A REHEARING EN BANC
OPINION BY JUDGE ROBERT J. HUMPHREYS
PUBLISHED. Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White. Argued at Richmond, Virginia. FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY, Thomas B. Hoover, Judge.
Devin G. Hensley (Martin, Ingles & Hensley Ltd., on brief), for appellant.
Timothy J. Huffstutter, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief),
After a bench trial, the Circuit Court of King William County convicted Michael Melvin Fary of seven counts of attempted malicious wounding, in violation of
BACKGROUND
On July 18, 2020, Douglas Creekmore (“Creekmore“), his wife, Lindsay Creekmore, and their one-year-old daughter were boating with friends on the Mattaponi River. Along for the boat ride were Gretchen Frayser and her three minor children. In total, seven people occupied the Creekmores’ seventeen-foot fiberglass “Sunbird” bowrider boat. Creekmore was driving the Sunbird downriver when Ms. Creekmore, who was sitting in the seat forward of the driver’s seat, alerted him that there was a boat not far ahead of them. The boat ahead of them was a sixteen-foot aluminum “jon boat,” olive in color. Creekmore testified that instead of slowing quickly, which would cause a “huge wake towards the other . . . boat,” he “stayed on the plane and went up to the right of the boat to try to keep as less wake as possible.” He was traveling about twenty-two to twenty-four miles per hour as he moved around the jon boat. After passing the jon boat, Creekmore looked back to see if everything was okay; he saw the jon boat had turned and rocked but no one had fallen out.
In the jon boat were Fary and his girlfriend, Carrol Messler. They were returning from delivering fishing supplies to Fary’s son when they ran out of gas. They were sitting in the middle of a narrow channel in the bend of the river while Fary switched the gas hose from the empty tank to a full tank. Fary became “pissed off” about the way the Sunbird vessel passed him at a close distance and “almost swamped” his boat. From a distance, Frayser could see that Fary appeared to be very upset and yelling right after the Sunbird passed his jon boat.
A couple of minutes after the Sunbird passed the jon boat, one of the minor children told Creekmore that Fary was following them. Creekmore looked back and saw Fary following about a quarter mile behind them. Creekmore continued on for fifteen to twenty-five minutes; Fary continued behind him. Creekmore continued downriver and passed Rainbow Acres Campground, thinking Fary might turn off there, but he did not. At this point Creekmore believed Fary must be “really angry.” Creekmore traveled about a half mile past Rainbow Acres, then decided to turn his boat around and head back to Rainbow Acres, thinking that if Fary was planning to confront him, he should be around other people as a safety measure. When Creekmore turned around, Fary turned around and followed him to Rainbow Acres.
At Rainbow Acres, Creekmore pulled up to the end of a fuel dock. Fary motored the jon boat close to the Sunbird. When Fary’s motor was in neutral and about fifteen feet away from the Sunbird, Fary started yelling and cursing; he said, “You fucking wanna swamp me?” Creekmore apologized. Fary’s demeanor was “hostile“; he stood up and called Creekmore a “motherfucker.” Fary sat down, put his boat in gear, and slammed into the Sunbird at a 90-degree angle, in such a way that the jon boat came “up on top of [the Sunbird]” at the gunwale (the top portion of the hull) towards the stern, starboard side of the vessel. The children were screaming and crying. Three of the children were sitting on the rear seat forward of the transom, and one of them was hit on the side of the head by the jon boat as it rode up on the Sunbird.1 The pitch of the jon boat as it was on the Sunbird was so steep that it made the jon boat slide back down into the water. Ms. Creekmore, who was seated near the bow of the boat, rushed to the back to check on the children. By this time, Fary was standing again and both men were cursing at each other.
Then, Fary sat back down, restarted his engine, and rammed into the Sunbird a second time. This time the jon boat came up on the Sunbird on the starboard side by the driver’s seat and rose up to hit part of the hardware holding the canopy over the boat.
Howard Emory, an employee at Rainbow Acres, observed the incident and wrote down the jon boat’s registration number and provided it to his supervisor. Mr. Emory testified at trial that initially he could not see the boats from his position on the dock because of the low tide, but he said the jon boat slammed into the larger boat that came in for gas, and then “[b]acked off[] and slammed into it a second time.” He later said, “I never saw the little boat until he actually rammed the big boat. And the big boat was coming in on the righthand side of the pier, then the little boat jammed and then backed off, and he—this one came in and hit it again. So that’s when I had the rope on the security boat.”
As the Creekmores departed Rainbow Acres, Ms. Creekmore called the non-emergency police number to report the incident. Officer Daniel Rabago of Virginia Department of Wildlife Resources met the Creekmores at the Walkerton Boat Ramp, where he took pictures of the Sunbird and verbal statements from the Creekmores and Frayser. Officer Rabago then went to Fary’s home, where he spoke with Fary and took pictures of the jon boat.
At trial, Officer Cameron Dobyns, a member of the boat incident reconstruction team at the Department of Wildlife Resources, testified to the reconstruction report he prepared after inspecting the Sunbird and the jon boat. During his detailed examination of both vessels, he noted recent damage, fresh scuff marks and scratches, and paint transfer from one boat to another. Based on his observations, he opined that the jon boat hit the Sunbird at a 90-degree horizontal angle, towards the stern on the starboard side, noting aluminum and olive drab paint transfer at a fresh gouge in the fiberglass of the Sunbird at the gunwale. Further forward on the starboard side, Officer Dobyns opined that the jon boat hit the Sunbird at a 150-degree horizontal angle and went up onto the starboard side of the Sunbird, hitting the gunwale, the hardware extending above the gunwale to hold the canopy,2 and the top of the windshield frame by the driver’s seat before reentering the water. He found olive drab paint on each of these parts of the Sunbird. The damage to the Sunbird was cosmetic, and it remained operable after the incident.
Fary presented his own evidence. First, Messler testified that the jon boat ran into the Sunbird only once and it was because the Sunbird stopped abruptly in front of them near the dock at Rainbow Acres. She also testified that Fary was not angry and he was not cursing, but the people in the Sunbird were cursing at them. Fary testified that when he approached the Sunbird at the Rainbow Acres dock, he planned to throw a wake, “to wake him the way he did me.” He said that he tried to hit a pole to stop his boat but the wake pushed him into the Sunbird and that he hit the boat on accident. He also testified that his boat ran into the Sunbird only once. In closing argument, defense counsel argued that Fary regrets what happened, but he had no intent to maim, maliciously hurt, or kill any of the people on the boat.
The circuit court found that the physical evidence did not support Fary’s version of the incident that he only hit the Sunbird one time and that was by accident, bumping off of a pole near the dock. The circuit court found Fary guilty on “all seven counts of attempted malicious wounding when you look [at] all the facts in the case.”
ANALYSIS
Fary’s single assignment of error is that the circuit court erred by convicting him of seven counts of attempted malicious wounding because the evidence was insufficient to prove that he had the specific intent to maliciously wound anyone when his boat contacted the victims’ boat.
“Under the governing standard, ‘we review factfinding with the highest degree of
“This deferential principle applies not only to ‘matters of witness credibility’ but also to the factfinder’s ‘interpretation of all of the evidence . . . ’ presented at trial.” Id. at ___ (quoting Meade v. Commonwealth, 74 Va. App. 796, 806 (2022)). The fact finder views all of the evidence “to determine what it believes happened; we, on appellate review, view . . . evidence not to determine what we think happened, but for the limited purpose of determining whether any rational factfinder could have viewed it as the [factfinder] did.” Id. at ___ (second alteration in original) (quoting Meade, 74 Va. App. at 806). “[A]n appellate court ‘does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Fletcher v. Commonwealth, 72 Va. App. 493, 501 (2020) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “[I]t is not for this [C]ourt to say that the evidence does or does not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition it might have reached a different conclusion.” Barney, ___ Va. at ___ (second and third alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)). “It has long been deemed an abuse of the appellate powers to set aside a verdict and judgment, because an appellate court, from the evidence as written down, would not have concurred in the verdict.” Id. at ___ (quoting Perkins, 295 Va. at 327). “When conducting a sufficiency review on appeal, we do not ‘distinguish between direct and circumstantial evidence’ because the factfinder ‘is entitled to consider all of the evidence, without distinction, in reaching its determination.’” Id. at ___ (quoting Commonwealth v. Moseley, 293 Va. 455, 463 (2017)). “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.” Fletcher, 72 Va. App. at 501 (quoting Wood v. Commonwealth, 57 Va. App. 286, 292 (2010)).
“Intent is the purpose formed in a person’s mind and may, like any other fact, be shown by circumstances, including the ‘words or conduct’ of the alleged offender.” Secret, 296 Va. at 228-29 (citations omitted). Indeed, intent “most often is[] proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts.” Id. at 229 (quoting Viney v. Commonwealth, 269 Va. 296, 301 (2005)). “Moreover, in criminal attempt cases, ‘the fact finder is often allowed broad latitude in determining the specific intent of the actor.’” Siquina v. Commonwealth, 28 Va. App. 694, 700 (1998) (quoting Fortune v. Commonwealth, 14 Va. App. 225, 229 (1992)). Of course, “[s]urmise and speculation as to the existence of the intent are not sufficient” to support a conviction. Dixon v. Commonwealth, 197 Va. 380, 382 (1955). The determination of a defendant’s intent “presents a factual question which lies peculiarly within the province of the [trier of fact].” Hughes v. Commonwealth, 18 Va. App. 510, 519 (1994) (en banc) (quoting Ingram v. Commonwealth, 192 Va. 794, 802 (1951)).
On appeal, Fary reasserts his trial testimony that he only intended to throw a wake on the Creekmores’ boat and that he accidentally ran into their boat when he slowed down and the wake pushed his boat into the Creekmores’ boat. Fary acknowledges that he “acted recklessly” when he approached the Creekmores’ boat but argues that his recklessness did not amount to the specific intent required for the attempted malicious wounding convictions. We disagree that the evidence was only sufficient to prove his recklessness.
Contrary to the position of the dissent,
the issue upon appellate review in a case like this is not whether there is some evidence to support [the] defendant’s hypotheses. Rather, the issue is whether a reasonable fact finder, upon consideration of all the evidence, could have rejected defendant’s theories and found him guilty of the charged offense beyond a reasonable doubt.
Coles v. Commonwealth, 270 Va. 585, 589 (2005). “Properly understood, the reasonable-hypothesis principle is not a discrete rule unto itself.” Vasquez v. Commonwealth, 291 Va. 232, 249 (2016). “The statement that circumstantial evidence must exclude every reasonable theory of innocence is simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.” Id. at 249-50 (quoting Hudson, 265 Va. at 513). “[N]o matter how this burden is framed, the factfinder ultimately remains responsible for weighing the evidence.” Moseley, 293 Va. at 464. “In that capacity, the factfinder determines which reasonable inferences should be drawn from the evidence, and whether to reject as unreasonable the hypotheses of innocence advanced by a defendant.” Id. “Whether an alternate hypothesis of innocence is reasonable is a question of fact and, therefore, is binding on appeal unless plainly wrong.” Lucas v. Commonwealth, 75 Va. App. 334, 348 (2022) (quoting Emerson v. Commonwealth, 43 Va. App. 263, 277 (2004)). “If there is evidentiary support for the conviction, the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.” Id. at 342 (quoting McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020)). “These principles apply with equal force to bench trials no differently than to jury trials.” Moseley, 293 Va. at 463 (quoting Vasquez, 291 Va. at 249).
Fary relies upon Haywood v. Commonwealth, 20 Va. App. 562 (1995), to support his position that the Commonwealth did not sufficiently prove specific intent. The question before this Court was whether Haywood, who was charged with two counts of attempted capital murder, formed the specific intent to use his vehicle as a weapon for the purpose of murdering two police officers. Id. at 566. Haywood damaged a man’s vehicle with a bat and fled the crime scene in his truck. Id. at 564. As Haywood sped down the road to escape, two police officers placed their vehicles at different points in the road to deter his flight. Id. at 564-65. Both officers moved their vehicles to avoid impact. Id. This Court reversed Haywood’s convictions because the Commonwealth’s “circumstantial evidence did not exclude a reasonable hypothesis of innocence.” Id. at 568.
We are unconvinced by Fary’s reliance on Haywood because not only are the facts of Haywood easily distinguishable from the
The analytical flaw in Haywood is this Court’s reasoning that,
while the evidence may support [a] hypothesis that Haywood acted with malice and intended to run over or through anyone or anything that got in his way, the Commonwealth’s evidence failed to exclude another reasonable hypothesis of Haywood’s acts which, if true, would exonerate him of the charges of attempted capital murder of the police officers.
Id. at 567 (emphasis added). This Court reversed Haywood’s convictions on the basis that Haywood’s hypothesis of innocence was reasonable. Id. at 568. This reasoning does not square with foundational principles of appellate review that the fact finder’s “judgment is presumed correct and will not be disturbed unless it is ‘plainly wrong or without evidence to support it.’” Moseley, 293 Va. at 463 (quoting
Similarly, in Crawley v. Commonwealth, 25 Va. App. 768 (1997), this Court reversed Crawley’s conviction of attempted malicious wounding because the evidence raised only a suspicion that Crawley had the requisite specific intent. Id. at 774-75. Crawley pulled out a gun and shot three times striking the victim while a woman was standing next to the victim. Id. at 771. The circuit court convicted Crawley of attempted malicious wounding of the woman standing next to the victim. Id. at 770. Despite the proximity of the victim and the woman at the time of the shooting, there was no supporting evidence that Crawley had the specific intent to maliciously wound the woman. Id. at 775.
As in Haywood, this Court in Crawley reached the right result in concluding that the evidence was insufficient to prove that he had the specific intent to kill the woman. However, in what amounts to erroneous dicta: the Court further reasoned that the evidence “failed to exclude as a reasonable hypothesis the possibility” that Crawley only intended to shoot her companion.
Crawley, 25 Va. App. at 775. As in Haywood, our judgment was ultimately correct because the record simply was devoid of any evidence of Crawley’s specific intent to harm the woman rather than the man he clearly intended to shoot, and the transferred intent doctrine is inapplicable to an attempted crime. Id. at 773-74.
Our Supreme Court’s recent decision in Barney supports our judgment regarding Haywood and Crawley, and we take this opportunity to clarify and correct the analyses of Haywood and Crawley by overruling them to the extent that they might be read as allowing an appellate court to substitute its view of a defendant’s hypothesis of innocence that has been reasonably rejected by the fact finder at trial.
As the Supreme Court has admonished and we here emphasize, it is the fact finder, not this Court, that determines whether a defendant’s hypothesis is reasonable. Hudson, 265 Va. at 514 (“[T]he Court of Appeals’ analysis did not give proper deference to the province of the jury to consider the testimony and the credibility of the witnesses to determine reasonable inferences from such evidence, and reject as unreasonable the hypotheses offered by Hudson.“). Giving due deference to the trier of fact, this Court may only review a
Barney, ___ Va. at ___.
In Holley v. Commonwealth, 44 Va. App. 228 (2004), this Court addressed the same issue before us today, whether the evidence was sufficient to prove that Holley acted with specific intent to maim, disfigure, disable, or kill to support his conviction of attempted malicious wounding. Id. at 229-30. This Court affirmed Holley’s conviction of attempted malicious wounding of a police officer, citing as evidence of Holley’s specific intent: the officer had stepped out of his patrol car and drawn his weapon, Holley looked in his direction, accelerated his van from a stopped position and drove right at the officer, without making any effort to veer or avoid striking the officer, who dove out of the way. Id. at 237. The Court distinguished the facts of this case from Haywood:
Specifically, in Haywood, the defendant never halted his truck, but instead continued driving at a high rate of speed despite the presence of the police cars that had been placed in his path [as he was driving to escape]. The evidence did not show that Haywood knew that an officer was in the car and that Haywood specifically intended to maim, disable, disfigure or kill an officer.
Id. at 236 (citing Haywood, 20 Va. App. at 564-65).
Another case pertinent to our analysis here is Stevens v. Commonwealth, 38 Va. App. 528 (2002). “In Stevens, this Court affirmed a conviction for the attempted capital murder of a law enforcement officer where the defendant ‘came to a stop’ approximately ten feet away from a stopped police [officer on a motorcycle], ‘and, looking right at [the police officer], rapidly accelerated directly toward him.’” Holley, 44 Va. App. at 236 (second alteration in original) (quoting Stevens, 38 Va. App. at 537). “Because Stevens ‘deliberately turned his car in [the officer’s] direction and drove toward him,’ we concluded that the evidence was sufficient to prove that Stevens ‘had the requisite specific intent to use his vehicle as a weapon for the unequivocal purpose of murdering Officer Hines.’” Id. (alteration in original) (quoting Stevens, 38 Va. App. at 537).
In the present case, Fary became angry when the Creekmores’ boat passed his boat in a way that rocked his boat. He then followed the Creekmores’ boat for fifteen minutes, even after the Creekmores made a U-turn to head to Rainbow Acres. The seven passengers aboard the Creekmores’ boat were in Fary’s plain view. After the Creekmores docked their boat, Fary approached at a slowed speed. He stood up and yelled and cursed at Creekmore. He sat back down, put his motor in gear, and rammed the Sunbird with enough force that it rode up on the
“Factfinders have the decisional power ‘to draw reasonable inferences from basic facts to ultimate facts,’ Musacchio v. United States, 577 U.S. 237, 243 (2016) (citation omitted), and ‘those inferences cannot be upended on appeal unless’ they are ‘so attenuated that they “push ‘into the realm of non sequitur,’“’” Perkins, 295 Va. at 332 (citations omitted).” Barney, ___ Va. at ___. A rational fact finder could conclude that Fary rammed into the Creekmores’ boat using his boat as a weapon, see Essex v. Commonwealth, 228 Va. 273, 281 (1984) (“A motor vehicle wrongfully used, can be a weapon as deadly as a gun or a knife.“), and that he twice aimed that weapon at the seven passengers who were vulnerable to Fary’s oncoming boat and the inherent perils of direct injury and/or falling in the water with the risk of drowning.5 Thus, there was sufficient evidence from which a fact finder could conclude that Fary harbored the specific intent to maliciously maim, disable, wound, or kill the seven passengers. The circuit court’s conclusion was not plainly wrong or without evidence to support it.
For the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.
Ortiz, J., concurring.
Although I agree with the majority that the standard of review compels an affirmance, I do not find it necessary for this Court to “clarify and correct” our precedent on the reasonable-hypothesis-of-innocence principle. As the dissent points out, the principle has long been an important part of our criminal jurisprudence, cited repeatedly by both this Court and our Supreme Court. We have no reason presented by the facts of this case to overturn or limit it. When reviewing the sufficiency of the evidence on appeal, we neither rubber-stamp a trial court’s rejection of the defendant’s reasonable hypothesis of innocence nor reweigh the evidence and reach our own conclusion. Rather, we examine “whether a rational factfinder could have found that the incriminating evidence renders the hypothesis of innocence unreasonable.” Vasquez v. Commonwealth, 291 Va. 232, 250 (2016). Here, the trial court was not plainly wrong in rejecting Fary’s hypothesis of innocence, because there was at least some evidence inconsistent with the hypothesis.
The dissent summarizes our caselaw on the reasonable-hypothesis-of-innocence principle and correctly points out that the principle “is not a discrete rule unto itself,” but “simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.” Id. at 249-50. The reasonable-hypothesis-of-innocence principle is that burden of proof applied to circumstantial cases. “When the evidence is wholly circumstantial . . . all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.” Inge v. Commonwealth, 217 Va. 360, 366 (1976). While the majority correctly points out that the factfinder “determines whether a defendant’s hypothesis
This Court’s decisions in Haywood v. Commonwealth, 20 Va. App. 562 (1995), and Crawley v. Commonwealth, 25 Va. App. 768 (1997), were consistent with these principles. In Haywood, we reversed Haywood’s convictions of attempted capital murder because of a reasonable hypothesis that in driving at a high speed and almost colliding with two police vehicles, Haywood’s intent was to flee from apprehension, rather than to murder the police officers. Id. at 567-68. The reasoning was correct because the Commonwealth presented no evidence that was inconsistent with Haywood’s hypothesis of innocence. The fact that he was driving fast and refused to slow down was consistent with the explanation that he was attempting to avoid apprehension.
The majority opines that rather than basing our decision on Haywood’s hypothesis of innocence, we should have simply found that the Commonwealth failed to prove Haywood’s intent to kill the officers. However, had we not considered Haywood’s reasonable hypothesis of innocence, we would have easily upheld the trial court’s decision, given our highly deferential standard of review. Haywood was driving at 55 miles per hour toward a police car with activated siren and red lights, and he refused to slow down. Id. at 565. The trial court “inferred from Haywood’s acts that he intended to kill the police officers,” id. at 567, and we could hardly have found the conclusion plainly wrong because, as the majority notes, “[i]t is permissible for the fact finder to infer that every person intends the natural, probable consequences of his or her actions,” Secret v. Commonwealth, 296 Va. 204, 229 (2018). The trial court’s reversible error in Haywood was not inferring Haywood’s intent from his action, but arbitrarily rejecting his reasonable hypothesis of innocence without any evidence.
Similarly, we correctly applied the reasonable-hypothesis-of-innocence principle in Crawley. Crawley shot the victim, Acree, in the hip and narrowly missed another individual, Newman, who was “standing right beside” Acree. Crawley, 25 Va. App. at 771. In addition to maliciously wounding Acree, Crawley was also convicted of attempting to maliciously wound Newman. Id. at 770-71. On appeal, we reversed Crawley’s attempted malicious wounding conviction, because the circumstantial evidence failed to exclude the reasonable hypothesis that Crawley only intended to shoot Acree. Id. Again, our reasoning was correct because the Commonwealth presented no evidence inconsistent with Crawley’s hypothesis of innocence.
The majority suggests that rather than considering Crawley’s reasonable hypothesis of innocence in that case, we should have simply concluded that the record “was devoid of any evidence of Crawley’s specific intent to harm” Newman. But had we not considered Crawley’s hypothesis of innocence, we could have affirmed the conviction because—given our deferential standard of review on appeal—the mere fact that Crawley shot in Newman’s direction and only narrowly missed her would likely be sufficient to support the trial court’s inference that Crawley intended the “natural, probable consequences” of his action. Secret, 296 Va. at 229.
Therefore, I disagree with the majority that our reasonings in Haywood and Crawley were erroneous or dicta. More importantly, the facts of the instant case do not require us to revisit Haywood and Crawley. See Commonwealth v. Swann, 290 Va. 194, 196 (2015) (“The doctrine of judicial restraint dictates that we decide cases on the best and narrowest grounds available.“). Unlike Haywood and Crawley, here, the trial court’s rejection of Fary’s hypothesis of innocence was not arbitrary, as it was based on evidence inconsistent with the hypothesis.
Grounded in expert and eyewitness testimony, the trial court found that Fary’s jon boat hit the Sunbird twice. The trial court explicitly noted that it was not “just a bump to get [Creekmore’s] attention“; Fary “hit
Because the trial court’s finding was not plainly wrong or without evidence to support it, I concur in the majority’s affirmance of Fary’s convictions. I would not revisit our precedent on the principle of reasonable hypothesis of innocence but would simply find that the trial court’s rejection of that hypothesis was based on sufficient evidence.
Causey, J., with whom Friedman, Chaney, Raphael, Lorish and Callins, JJ., join, dissenting.
The trial court found Michael Melvin Fary guilty of seven counts of attempted malicious wounding for twice propelling his jon boat into the Creekmores’ larger boat—one conviction each for the seven people aboard. The result of this incident for the Creekmores included cosmetic scratches to the exterior of their boat and one passenger with a “slight injury.” The result for Fary was a sentence of five years of incarceration on each of the seven convictions, with a total active sentence of two years and suspended time of 33 years. Because the Commonwealth failed to establish the requisite mens rea for attempted malicious wounding and exclude the reasonable hypothesis of innocence that flowed from the evidence—that Fary merely intended to scare Mr. Creekmore and damage his boat—the majority errs in affirming Fary’s convictions. The majority compounds its error by undercutting two of this Court’s prior cases that have applied the reasonable-hypothesis-of-innocence principle. Because the majority’s analysis and conclusion are deeply flawed, we respectfully dissent.
First, we consider the long history of the reasonable-hypothesis-of-innocence principle in Virginia, how it is akin to ensuring all elements of the offense are proven, and why the majority’s analysis is wrong to suggest that this principle is somehow no longer part of Virginia law. Second, we discuss how the majority is wrong to undermine two of our precedents that correctly applied these principles. Third, applying that principle here, the evidence shows that the Commonwealth failed to prove that Fary had the requisite specific intent to maim, disfigure, disable, or kill, and not merely the intent to scare the Creekmores and damage their boat.6
Finally, even without relying on the reasonable-hypothesis-of-innocence principle, we would hold that the evidence is insufficient to establish the necessary intent.
A. The reasonable-hypothesis-of-innocence inquiry reflects settled law.
The reasonable-hypothesis-of-innocence principle is integral to our jurisprudence.
The Supreme Court’s decision in Vasquez v. Commonwealth, 291 Va. 232 (2016), cited by the majority, did not eliminate the reasonable-hypothesis-of-innocence principle. To be sure, the Court there explained that the “principle is not a discrete rule unto itself,” but “‘simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.’” Id. at 249-50 (quoting Commonwealth v. Hudson, 265 Va. 505, 513 (2003)). But Vasquez did not expunge the doctrine from our law. To the contrary, the Court said that the principle “echoes ‘the standard applicable to every criminal case.’” Id. at 250 (quoting Cook v. Commonwealth, 226 Va. 427, 433 (1983)).
Vasquez then repeated what remains black-letter law: “a factfinder cannot ‘arbitrarily’ choose, as between two equally plausible interpretations of a fact, one that incriminates the defendant.” Id. (quoting Dixon v. Commonwealth, 162 Va. 798, 803 (1934)). The Court put that point, again, in reasonable-hypothesis terms: “When examining an alternate hypothesis of innocence, the question is not whether ‘some evidence’ supports the hypothesis, but whether a rational factfinder could have found that the incriminating evidence renders the hypothesis of innocence unreasonable.” Id. (quoting Hudson, 265 Va. at 513). In other words, when the evidence supports two reasonable conclusions, only one of which leads to a finding of guilt, the factfinder cannot arbitrarily pick the one that leads to guilt.
The reasonable-hypothesis-of-innocence principle has remained very much alive in the Supreme Court‘s jurisprudence since Vasquez. That Court has repeatedly cited it.7 And so have we.8 As we put it in Kelley v. Commonwealth, 69 Va. App. 617 (2019), “[t]he ‘reasonable hypothesis of innocence’ concept is . . . well defined.” Id. at 629. The principle has particular salience when the Commonwealth‘s evidence of guilt is founded on circumstantial evidence. In such cases, the Commonwealth must “put on enough circumstantial evidence such that a reasonable [fact finder] could have rejected [the] defendant‘s [hypothesis] of innocence.” Park
v. Commonwealth, 74 Va. App. 635, 654 (2022) (alterations in original) (quoting Davis v. Commonwealth, 65 Va. App. 485, 502 (2015)). For example, in reversing the defendant‘s robbery conviction in Jennings, we held that “the evidence did not ‘exclude every reasonable hypothesis of innocence‘” because the DNA found on the robber‘s clothes—the only evidence tying the defendant to the crime—came from multiple persons, including the defendant. 67 Va. App. at 628 (quoting Thorne, 66 Va. App. at 254).
In this way, arguments that the evidence has not excluded a reasonable hypothesis of innocence and does not meet all the elements of the crime are just different ways of arguing that the Commonwealth has not proved all the elements of a crime beyond a reasonable doubt. In cases when this Court or the Supreme Court has held that evidence was insufficient to meet an element of a crime, it has necessarily implied that an innocent explanation exists for the facts before it, and thus, that the trial court‘s finding of guilt was unreasonable. See, e.g., Yerling v. Commonwealth, 71 Va. App. 527, 535-36 (2020) (reversing the defendant‘s conviction for possession of a controlled substance when there was “insufficient evidence to demonstrate that [the defendant] was aware of either the presence or nature of the [controlled substance] found,” implying instead that it was more reasonable that the defendant was not aware of the presence of the controlled substance); Maxwell v. Commonwealth, 275 Va. 437, 444 (2008) (same).
Often, both the reasonable-hypothesis-of-innocence inquiry and satisfaction-of-all-elements-of-the-offense inquiry require us to determine whether, viewing the evidence in the light most favorable to the Commonwealth, the trial court found that the evidence established, beyond a reasonable doubt, that the defendant engaged in conduct that met all the elements of the criminal offense charged. If we determine that the trial court was unreasonable in so deciding, we necessarily decide that the defendant engaged in conduct that did not meet the elements of the offense—conduct that is innocent of the offense charged.
The standard of review for each inquiry insulates a conviction from appellate review only to the extent that the conviction was reasonable. We are not bound to a verdict that is “plainly wrong or without evidence to support it.” Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc). The deference that we give to the factfinder is generally limited to its judgment of credibility—we cannot decide that certain evidence is more reliable than other evidence. We can decide, however, whether the trial court was reasonable in determining that the evidence, viewed in the light most favorable to the Commonwealth, established all the elements of a crime beyond a reasonable doubt. This is so because the Commonwealth bears the burden of proving each element of a crime beyond a reasonable doubt, and a trial court‘s conviction of a defendant that falls short of this standard is reversible error. See Kenner v. Commonwealth, 71 Va. App. 279, 295 (2019) (“It is axiomatic that the Commonwealth is required to prove every element of a charged offense beyond a reasonable doubt.“), aff‘d, 299 Va. 414 (2021); Baldwin v. Commonwealth, 274 Va. 276, 280 (2007) (concluding that the circuit court erred in convicting the defendant for attempted murder because “the evidence does not support the conclusion that [the defendant] had the intent to kill“).
B. Haywood and Crawley depended on the reasonable-hypothesis-of-innocence principle.
The majority is wrong to undermine two of our precedents that correctly applied the reasonable-hypothesis-of-innocence principle. In Haywood v. Commonwealth, 20 Va. App. 562 (1995), we held that the Commonwealth failed to prove that the defendant intended to kill the police officers who parked their vehicles in the path of his fleeing car. Id. at 567. Because the “convictions were based solely on circumstantial evidence,” we said that “all necessary circumstances proved must be consistent with guilt and inconsistent with innocence.” Id. And while the facts supported the hypothesis that Haywood intended to hit the officers, “the Commonwealth‘s evidence failed to exclude another reasonable hypothesis“—that Haywood
“merely attempted to
While not overruling the outcome in that case, the majority insists that Haywood‘s articulation of the reasonable-hypothesis-of-innocence principle is somehow “inconsistent with settled law.” The majority cites no authority for that ipse dixit and ignores that our Supreme Court has favorably cited Haywood‘s rationale. See Baldwin, 274 Va. at 280, 282.
The majority engages in a similarly unpersuasive effort to obliterate our stated reliance on the reasonable-hypothesis-of-innocence rationale in Crawley v. Commonwealth, 25 Va. App. 768 (1997). Crawley shot his pistol at two people, hitting Acree and narrowly missing Newman, who was standing right next to Acree. Crawley testified that he intended to shoot Acree, not Newman. we reversed Crawley‘s conviction for attempted malicious wounding of Newman because the Commonwealth failed to prove that he intended to shoot her, rather than Acree. Id. at 774. “Despite Newman‘s close proximity to Acree at the time of the shooting, the totality of the circumstantial evidence regarding appellant‘s intent failed to exclude as a reasonable hypothesis the possibility that his sole purpose when he fired his gun was to shoot Acree.” Id. at 775.
Here again, the majority purports to preserve the result in Crawley while gutting its use of the reasonable-hypothesis-of-innocence principle as “erroneous dicta.” But as with Haywood, the reasonable-hypothesis-of-innocence rationale was not dicta—it was the “ratio decidendi—the essential rationale in the case that determines the judgment.” Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73-74 (2003). And the majority cites no authority for its novel claim that
Crawley and Haywood were wrong to rely on a bedrock principle that we and the Supreme Court have repeatedly invoked.
It is true that our Court has the power when sitting en banc to overrule prior precedent, but the majority will have to do more than kneecap the rationale of Haywood and Crawley to extirpate the reasonable-hypothesis-of-innocence principle from our jurisprudence. It would have to disavow the black-letter law applied in numerous cases since Vasquez. See supra note 8. And it would have to overrule numerous other cases besides Haywood and Crawley that reversed convictions because the Commonwealth‘s evidence failed to negate a reasonable hypothesis of innocence.9
C. The evidence here failed to negate a reasonable hypothesis of innocence.
Fary‘s convictions for attempted malicious wounding should be reversed because the Commonwealth‘s evidence failed to exclude a reasonable hypothesis of innocence that flowed from the evidence: after Fary became enraged about the wake from the Creekmores’ boat, Fary sought retribution by trying to frighten Mr. Creekmore and damage his boat. But that intent falls short of the mens rea for attempted malicious wounding—that Fary intended, not just to harm all seven people on board, but “to maim, disfigure, disable, or kill” every one of them.
Mr. Fary‘s (appellant) boat (above)
Mr. Creekmore‘s (victim) boat (above)
D. Even apart from the “reasonable hypothesis of innocence,” no reasonable factfinder could have concluded Fary had the requisite intent.
Accepting, arguendo, the majority‘s doing away with the reasonable-hypothesis-of-innocence principle, we would still hold that the trial court‘s judgment was without evidence to support it.
To evaluate circumstantial evidence of intent in prior malicious wounding cases, our Supreme Court has looked for “circumstances of violence and brutality.” Burkeen v. Commonwealth, 286 Va. 255, 259 (2013) (quoting Fletcher v. Commonwealth, 209 Va. 636, 640 (1969)). A factfinder must “consider not only the method by which a victim is wounded, but also the circumstances under which that injury was inflicted in determining whether there is sufficient evidence to prove intent to permanently maim, disfigure or disable a victim.” Dominguez v. Pruett, 287 Va. 434, 444 (2014). These circumstances have included whether the victim provoked the attack, the amount of force used, whether the hit was to a vulnerable area of the victim‘s body, any size disparity between the parties involved, the extent of the injury sustained, the language and taunts of the assailant, and whether the attacker would have continued the violence absent intervention by some third party. See Burkeen, 286 Va. at 261; Shackelford v. Commonwealth, 183 Va. 423 (1945); Dawkins v. Commonwealth, 186 Va. 55 (1947).11
To be sure, Fary‘s conduct was unlawful. As the trial court observed, it was at least “reckless.” But no evidence in the record elevates Fary‘s mens rea from recklessness to “intent
attempted malicious wounding for charging their targets but failing to strike them only because the targets jumped out of the way. In contrast, here, Fary charged and struck his target successfully, causing only minimal damage, both to the boat and the people on it.
The majority errs in suggesting that the victim‘s vulnerability alone, and the danger that could have resulted, are decisive on the question of intent. For instance, in Baldwin—a case the majority overlooks—the Supreme Court found the evidence insufficient to support attempted murder when a defendant nearly drove over the feet of the motorcycle officer who stopped him. See 274 Va. at 282 (reversing conviction because “this evidence does not support the conclusion that Baldwin possessed the requisite specific intent to kill“). Indeed, the Court found that case analogous to Haywood, one of the authorities the majority attempts to discredit here, concluding the facts “only supported the conclusion that the defendant was attempting to escape.” Id.
to maim, disfigure, disable, or kill.” Thus, we would reverse and vacate Fary‘s seven convictions for attempted malicious wounding.13
VIRGINIA: In the Court of Appeals of Virginia
Record No. 1079-21-2; Circuit Court Nos. CR20-60(00) through CR20-60(06) and CR20-60(12)
Tuesday the 20th day of September, 2022.
Michael Melvin Fary, Appellant, against Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On September 6, 2022 came the appellant, by counsel, and filed a petition requesting that the Court set aside the judgment rendered herein on August 23, 2022, and grant a rehearing en banc on the issue raised in the petition.
On consideration whereof and pursuant to
The parties shall file briefs in compliance with the schedule set forth in
A Copy,
Teste:
A. John Vollino, Clerk
By: original order signed by a deputy clerk of the Court of Appeals of Virginia at the direction of the Court
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Record No. 1079-21-2
AUGUST 23, 2022
MICHAEL MELVIN FARY v. COMMONWEALTH OF VIRGINIA; MEMORANDUM OPINION BY JUDGE JEAN HARRISON CLEMENTS; Thomas B. Hoover, Judge
Present: Judges Humphreys, Causey and Senior Judge Clements
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
Devin G. Hensley (Martin, Ingles & Hensley Ltd., on brief), for appellant.
Timothy J. Huffstutter, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a bench trial, the Circuit Court of King William County convicted appellant of seven counts of attempted malicious wounding, in violation of
BACKGROUND
“Because the Commonwealth was the prevailing party below, we ‘view the record in the light most favorable to the Commonwealth[,]’ granting it any inferences that flow from that view.”*
Massie v. Commonwealth, 74 Va. App. 309, 315 (2022) (quoting Delp v. Commonwealth, 72 Va. App. 227, 230 (2020)).
On July 18, 2020, appellant and his girlfriend were riding on appellant‘s “jon boat” along the Mattaponi River to deliver fishing supplies to appellant‘s son. After approximately twenty minutes on the water, appellant‘s boat ran out of gas, causing it to stop “in the middle of the channel.” The channel was “not that wide right there” and “pretty shallow on both sides” which made stopping in the middle of the channel a “safety issue,” according to the conservation officer who responded to the incident in question. As appellant was switching the gas tanks on his boat, another boat approached, a seventeen-foot “seabird,” carrying Douglas Creekmore, Lindsay Creekmore, (his wife), their one-and-a-half-year-old daughter, as well as their friend Gretchen Frayser and her three minor children. According to Mr. Creekmore‘s testimony, the Creekmores’ boat “went up to the right of [appellant‘s] boat to try to keep as less wake as possible.” As the Creekmores’ boat passed appellant‘s boat, Mr. Creekmore watched “[appellant‘s] boat rock,” and he continued driving the boat onward, thinking “everything [was] fine.”
Moments later, Mr. Creekmore looked back and saw appellant‘s boat following him as they made their way downriver. Mr. Creekmore then turned his boat around and headed towards a dock at Rainbow Acres, hoping that appellant at that point “would quit following [them].” Appellant‘s boat proceeded to turn around as well and continued following the Creekmores’ boat to the dock. According to Mr. Creekmore‘s testimony, upon arriving at the dock, appellant “came up behind us and said, “You fucking wanna [sic] swamp me?” Mr. Creekmore testified that appellant continued cursing at him and proceeded to drive his boat directly into the back stern of the Creekmores’ boat. According to Mr. Creekmore, as everyone in the Creekmores’ boat was “screaming,” appellant drove his boat again into the Creekmores’ boat, this time “near where the driver‘s seat is.” The beachmaster at Rainbow Acres, who was present at the time, also testified that he observed
appellant‘s boat “slam into” the Creekmores’ boat, “back off, and slam into it a second time.” The beachmaster testified that the “yelling match” continued. According to Mr. Creekmore, after he turned around once again and looked at appellant, appellant “[threw] up his hands,” apologized, and went back upriver.
At that point, Mr. Creekmore noticed that appellant‘s boat had “nudged” the head of Ms. Frayser‘s youngest son, six years old at the time, who was sitting in the backseat of the boat. According to Ms. Frayser, appellant‘s boat made contact with the child‘s head during the first collision. The child complained that “his head hurt” and he had a “goose egg on his head,” but there were no signs of a concussion. The conservation officer also examined the child and found no open wound or bleeding. The officer did note, however, a knot above the child‘s right ear. The Creekmores’ boat remained operational, and the damages were “cosmetic,” amounting to approximately $500 in repairs.
The responding conservation officer obtained appellant‘s boat registration number and visited appellant‘s residence on record. Upon arrival, the officer spoke with appellant who indicated “that he knew why [the officer] was there.” During the meeting, appellant informed the officer that while his boat “was adrift in the channel . . . [another] boat came around the bend at a high rate of speed. . . . [H]e was worried that it was going to wash his boat or swamp his vessel. He stated at that point he initiated his till steer engine and began to follow the boat downriver.” According to the officer, appellant was “pissed off.” Appellant informed the officer that he “bumped the boat” after following it to the dock at Rainbow Acres, and “got into a verbal confrontation” with the passengers of the boat. Appellant did not inform the officer that he collided with the Creekmores’ boat a second time.
At the conclusion of the Commonwealth‘s evidence, appellant moved to strike the Commonwealth‘s case pertaining to the attempted malicious wounding charges, arguing that there
was no evidence demonstrating appellant had the requisite “intent to cause grievous or bodily injury or maiming.” The trial court overruled the motion to strike, finding that the Commonwealth had presented sufficient evidence to move forward with the charges.
Appellant then presented testimony of his girlfriend, Carol Messler, who was with appellant on his boat during the incident. Ms. Messler testified that while appellant‘s boat was stopped in the middle of the channel, the Creekmores’ boat came “very, very close, and they didn‘t slow down. [She] waved [her] arms. They had to have been within 8 feet, 10 feet of [appellant‘s boat], enough that it rocked the boat pretty good. . . . [T]hey just kept right on going.” According to Ms. Messler, appellant was “upset,” but not angry.
Ms. Messler denied that she and appellant intended to follow the Creekmores’ boat initially, stating that they “had to go downriver anyway, because that‘s where [they] put the boat down in at.” However, when the Creekmores’ boat turned around towards Rainbow Acres, she and appellant saw the Creekmores again and felt the need “to talk to them because [of their] dangerous boating.” Ms. Messler testified that, when appellant‘s boat reached the dock at Rainbow Acres, the Creekmores’ boat “had stopped at the end of the dock, and we thought they were gonna [sic] continue. And [appellant] was trying to slow the boat down, and we caught into the side. There was nowhere to turn to avoid it.” Ms. Messler did not recall appellant cursing at the Creekmores during the confrontation.
Appellant testified that after the Creekmores’ boat passed his boat within eight to ten feet, he “continued on behind them, but they were . . . a good ways in front of [him].” When he saw that they had turned around en route to Rainbow Acres, appellant reversed course as well so he could “talk to them.” According to appellant, as his boat approached the dock, he intended to “swing around behind them . . . to wake him the way he did me.” Appellant acknowledged that he
previously saw young children in the Creekmores’ boat without life preservers and confirmed his understanding that waking the Creekmores’ boat could have caused the children to fall off the boat.
According to appellant, when he arrived at the dock, he attempted to “let off the gas, and the wake behind me was shoving me that way, and I couldn‘t stop.” Appellant testified that his boat then “hit the pole to try to . . . stop from hitting the boat.” When his boat made contact with and “rode up on” the other boat, appellant attempted to “throw it in reverse,” but “the motor had locked down [and] . . . revved up out the water.” At that point, according to appellant, one of the girls in the Creekmores’ boat was able to push the boats away from each other. Appellant testified that he then “reached back to try to . . . put the motor back, [and] it went all the way back forward and [his boat] rode up on them again.” Appellant stated that he and Mr. Creekmore continued “yelling back and forth at each other.” Eventually, according to appellant, they apologized to each other and appellant regained control of the motor and drove his boat back upriver.
After hearing the arguments of the parties, the trial court convicted appellant of all seven counts of attempted malicious wounding and one count of reckless operation of a boat.1 This appeal followed.
ANALYSIS
Appellant argues that there was insufficient evidence to establish that he had “the specific intent to maliciously wound anyone when his boat came into contact with the victims’ boat.” According to appellant, the evidence demonstrates, at most, that he intended “to confront Mr. Creekmore about being swamped and wanted to cause a wake to hit against the Creekmores’ boat.” Appellant maintains that the collisions occurred due to his boat‘s engine “stall[ing] out” and that he did not have control of his boat at the time of the collisions. He emphasizes that the contact
between the boats “was minimal” and that the Creekmores’ boat incurred only cosmetic damage. While appellant admits that his actions were “reckless,” he argues that recklessness “is not the specific intent required to convict [him] of seven counts of attempted maiming.”
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.‘” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.‘” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‘” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.‘” McGowan, 72 Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
It is a crime to “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[.]”
cause bodily injury with the intent to maim, disfigure, disable or kill[.]‘” Id. at 507 (quoting
“The presence of malice ‘is a question of fact to be determined by [the trier of fact].‘” Id. (quoting Long v. Commonwealth, 8 Va. App. 194, 198 (1989)). “Malice is evidenced either when the accused acted with a sedate, deliberate mind, and formed design, or committed any purposeful and cruel act without any or without great provocation.” Id. (quoting Branch v. Commonwealth, 14 Va. App. 836, 841 (1992)). “Malice may be inferred from the ‘deliberate use of a deadly weapon[.]‘” Id. (quoting Strickler v. Commonwealth, 241 Va. 482, 495 (1991)).
The trial court emphasized the beachmaster‘s testimony regarding his observations of the incident. Specifically, the beachmaster observed appellant and Mr. Creekmore yelling at each other and appellant‘s boat “slam[ming] into the larger boat, back[ing] off, and slam[ming] a second time.” The trial court also emphasized the evidence indicating that the collisions were “large enough that [appellant‘s boat] rode up [on Mr. Creekmore‘s boat].” The trial court did not accept appellant‘s account regarding the impact of the collisions. The trial court also did not accept the testimony of appellant‘s girlfriend as credible and found that the evidence established that appellant was “angry and upset” at the time of the incident and committed an “intentional and malicious act” when he drove his boat twice into the Creekmores’ boat.
“[T]he credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters solely for the fact finder‘s determination.” Fletcher, 72 Va. App. at 502 (quoting Crawley v. Commonwealth, 29 Va. App. 372, 375 (1999)). “In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.” Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011) (quoting Marable v. Commonwealth, 27 Va. App. 505, 509-10 (1998)); see also Hall v. Commonwealth, 69 Va. App. 437, 449-50 (2018). “When
‘credibility issues have been resolved by the [fact finder] in favor of the Commonwealth, those findings will not be disturbed on appeal unless plainly wrong.‘” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Corvin v. Commonwealth, 13 Va. App. 296, 299 (1991)). The appellate court “faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)).
Here, the trial court permissibly rejected the testimony of appellant and appellant‘s girlfriend and based its findings regarding appellant‘s intent on the totality of the evidence. Accordingly, the trial court did not err by convicting appellant of seven counts of attempted malicious wounding.
CONCLUSION
For the foregoing reasons, the circuit court‘s judgment is affirmed.
Affirmed.
Causey, J., dissenting.
Appellant did not have the mens rea required for seven counts of attempted malicious wounding, in violation of
When considering a challenge to the sufficiency of the evidence supporting a conviction, an appellate court reviews the facts “in the light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). After reviewing the evidence in the light most favorable to the Commonwealth, the court must ask whether “any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt.” Maldonado v. Commonwealth, 70 Va. App. 554, 562 (2019). Here, even viewing the evidence in this light, the Commonwealth has not proved that the appellant had the specific intent to maliciously wound the passengers on the Creekmores’ boat. Thus, it has failed to prove an essential element of the offense beyond a reasonable doubt.
The malicious wounding statute states that it is a crime to “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[.]”
“The intent required to be proven in an attempted crime is the specific intent in the person‘s mind to commit the particular crime for which the attempt is charged.” Wynn v. Commonwealth, 5 Va. App. 283, 292 (1987) (emphasis added); see Merritt v. Commonwealth,
164 Va. 653, 660 (1935) (“[W]hile a person may be guilty of murder though there was no actual intent to kill, he cannot be guilty of an attempt to commit murder unless he has a specific intent to kill.“). Moreover, the substantive offense, here, malicious wounding, requires “that the accused ha[ve] the specific intent to ‘maim, disfigure, disable or kill’ the victim of the attack.”2 Commonwealth v. Vaughn, 263 Va. 31, 35 (2002) (emphasis added). Therefore, the mens rea required for an attempted malicious wounding offense is the specific intent to “‘maim, disfigure, disable or kill’ the victim of the attack.” Id. Recklessness is not sufficient to meet the requisite mens rea for crimes of attempt. See Haywood v. Commonwealth, 20 Va. App. 562, 566 (1995) (highlighting the distinction between reckless actions and crimes of specific intent in reversing the appellant‘s conviction for attempted capital murder of a police officer).
“Th[e] specific intent at the time the act is done is essential. To do an act from general malevolence is not an attempt to commit a crime, because there is no specific intent, though the act according to its consequences may amount to a substantive crime.” Thacker v. Commonwealth, 134 Va. 767, 770 (1922) (emphasis added). Regarding crimes of attempt, the Court in Haywood explained that “[w]hen we say that a man attempted to do a given wrong, we mean that he intended to do it specifically; and proceeded a certain way in the doing. The intent in the mind covers the thing in full; the act covers it only in part.” 20 Va. App. at 566. “The test of the offense of maliciously or unlawfully causing bodily injury is the intent with which the result is accomplished rather than the nature of the means, where the means are specified and established.” Dawkins v. Commonwealth, 186 Va. 55, 63 (1947) (emphasis added). “Thus, the
failure to prove an intent to wound is fatal in a trial for attempted malicious wounding.” 1 Va. Crim. Law & Proc. § 18.4 (2022) (emphasis added).
For example, in Small v. Commonwealth, No. 1511-08-3, 2009 WL 4791805, at *6 (Va. Ct. App. Dec. 15, 2009), the Court held that there was no specific intent to maliciously wound when the defendant bent the victim‘s fingers back, scratched her, and stepped on her foot, but only intended to do no more than scare the victim. In contrast, in Slusher v. Commonwealth, 196 Va. 440, 446 (1954), the Court held that there was specific intent to maliciously wound when the defendant verbally and continuously threatened to kill the victim while holding him at knifepoint, and his action was unprovoked and without excuse. As these cases show, while “a person is presumed to intend the immediate, direct, and necessary consequences of his voluntary act,” the court must also examine the appellant‘s specific intent at the time of the incident, not simply the possible consequences of the appellant‘s actions. Nobles v. Commonwealth, 218 Va. 548, 551 (1977); see Merritt, 164 Va. at 661; compare Moody v. Commonwealth, 28 Va. App. 702, 707 (1998) (holding the appellant had specific intent when he deliberately chose to accelerate into the pedestrian, never decelerating, or swerving to avoid the pedestrian), with Haywood, 20 Va. App. at 568 (holding it would be unreasonable to infer that the direct consequence of appellant running through two roadblocks while being pursued by the police would have been injury or death).
Additionally, to support a finding of malicious wounding, “a person must intend to permanently, not merely temporarily, harm another person.” Burkeen v. Commonwealth, 286 Va. 255, 259 (2013). Moreover, “[a]n intent to maim or disfigure cannot be presumed from an act which does not naturally bespeak such intent.” Banovitch v. Commonwealth, 196 Va. 210, 217 (1954).
The majority notes that the trial court correctly found that the appellant acted with the requisite intent, referencing the trial court‘s findings “that appellant was ‘angry and upset’ at the time of the incident” and that appellant “committed an ‘intentional and malicious act’ when he drove his boat twice into the Creekmores’ boat.” However, these facts, in conjunction with the other facts favoring the Commonwealth, are not enough to prove that, in angrily and intentionally driving his boat into the Creekmores’ boat, appellant had the specific intent to maim, disfigure, disable, kill, or otherwise permanently harm any of the occupants of the Creekmores’ boat. The Creekmores conceded that there was only minor damage to their boat (see below) and that appellant‘s boat was “creeping forward” in neutral but was not in gear at the time of contact.
Additionally, the Creekmores conceded that appellant “backed his motor off” when approaching their boat. Mr. Creekmore also noted that they did not observe appellant take any
action to propel his jon boat into Mr. Creekmore‘s boat. Also, significantly, as the Commonwealth‘s exhibits show, appellant was driving a jon boat with a 30-horsepower motor which is smaller in size than the Creekmores’ boat with a 115-horsepower motor.
Mr. Creekmore‘s (victim) boat (above)
Mr. Fary‘s (appellant) boat (above)
The disparity in the size of the boats shows that, because it is unlikely that appellant could have seriously injured a person on the Creekmores’ boat, appellant likely thought his boat would not injure anyone, and thus appellant likely did not have the specific intent to commit malicious wounding. The trial court also never found, nor do the facts indicate, that appellant had the intent of using his boat to hit anything other than the Creekmores’ boat. This case is more like Small than Slusher, discussed above.
Appellant “confirmed his understanding that waking the Creekmores’ boat could have caused the children to fall off the boat.” Children falling off the boat, into the water, however, is not the type of injury contemplated by the malicious wounding statute.3 The facts also do not show that appellant specifically intended for children to fall off the boat and drown. Additionally, though a child aboard the Creekmores’ boat had a goose-egg on his/her head after the altercation, this injury is not enough to prove any specific intent to maim, disfigure, disable or kill. In fact, the minor nature of the injury is evidence that appellant did not intend for his actions to permanently harm anyone. See Campbell v. Commonwealth, 12 Va. App. 476, 483 (1991) (en banc) (“The nature and extent of the bodily injury and the means by which accomplished may reflect [the] intent [to maim, disfigure, disable or kill] but are not exclusive factors.“).
Appellant concedes that his actions were reckless. As the Court in Haywood explained, however, the question in this case is not whether the appellant‘s actions might have resulted in a malicious wounding, but whether the appellant, when driving his boat, formed the specific intent to use his boat to maim, disfigure, disable, or kill any of the occupants of the Creekmores’ boat.
Based on the facts here, no rational trier of fact could conclude that the appellant wished to maliciously wound anyone on the Creekmores’ boat. At the least, appellant acted recklessly, and if he acted intentionally, his actions only demonstrate an intent for the boats to collide with each other. Because the evidence does not show specific intent to maim, disfigure, disable, kill, or otherwise permanently harm the people on the Creekmores’ boat, the evidence is insufficient to uphold the seven attempted malicious wounding convictions. I would reverse and vacate the appellant‘s convictions.
For the reasons stated above, I respectfully dissent.