Virginia Code 18.2-51 prohibits malicious and unlawful wounding:
If any person 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, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
Section 18.2-51 includes a lot of languages that raises several issues that must be analyzed.
What does “malice” mean?
As recently as January 20, 2015, the Virginia Court of Appeals addressed “malice” in Willias v. Commonwealth, 64 Va. App. 240 (2015):
Malice is evidenced either when the accused acted with a sedate, deliberate mind, and formed design, or committed a purposeful and cruel act without any or without great provocation….Malice is implied by law from any deliberate, willful, and cruel act against another, however sudden. Furthermore, “malice may be inferred ‘from the deliberate use of a deadly weapon unless, from all the evidence,’ there is reasonable doubt as to whether malice existed.”
The court further considered the meaning of malice against “heat of passion”:
Heat of passion excludes malice when provocation reasonably produces fear that causes one to act on impulse without conscious reflection. ‘Heat of passion’ refers to ‘the furor brevis which renders a man deaf to the voice of reason.’ Further, “[t]he law requires the simultaneous occurrence of both reasonable provocation and passion.”
A good example of heat of passion was addressed in Miller v. Commonwealth, 5 Va. App. 22 (1987). There, a lack of malice based upon heat of passion could have been properly found when the defendant shot the victim after he became enraged that the victim cheated him in a drug deal:
Heat of passion may result when one is provoked to fear or rage or both. In order to determine whether the accused acted in the heat of passion, it is necessary to consider the nature and degree of provocation as well as the manner in which it was resisted. If all of the evidence demonstrates that the accused reflected or deliberated, that his passion cooled, or that there was reasonable time or opportunity for cooling, then the wounding is attributable to malice and not heat of passion.
To be clear, words alone, however insulting or contemptuous, are never sufficient provocation for one to seriously injury or kill another. See Caudill v. Commonwealth, 27 Va. App. 81 (1998).
How is malice proven?
Malice can be proven by circumstantial facts. For example, in Dominguez v. Pruett, 287 Va. 434 (2014), the court found the defendant to have had malice where (despite the victim only suffering temporary injury) he attacked the victim without provocation, when the victim was unsuspecting and defenseless, and the defendant struck him in a vulnerable area of his body – his head.
Surprisingly, in Burkeen, v. Commonwealth, 286 Va. 255 (2013) and other cases, malice has been found where a defendant stuck a victim with one single punch:
In the present case, the victim did nothing to provoke the attack, and he was hit with extreme force in a vulnerable area of his body while he was defenseless and not expecting such a blow. The blow resulted in serious and disfiguring injury. Burkeen bragged of his strength and training while taunting and cursing the victim after the first blow, indicating his intent to inflict such harm upon the victim. Additionally, Burkeen was poised to attack the victim further until Taylor intervened, at which time Taylor was attacked instead. In fact, Burkeen only discontinued his attack when he heard that the police had been called.
What does it mean to “wound” someone or to cause “bodily injury?”
Dawson v. Commonwealth, 63 Va. App. 429 (2014) provides a good analysis of wounding and bodily injury.
It defined “wound” as where a “victim’s skin was broken or cut.”
With regard to “bodily injury,” the Court defined it according to its “everyday, ordinary meaning.” It also provided several examples of bodily injury: 1) where victim suffered from soft-tissue injuries that required medical treatment and caused pain and stiffness, 2) where victims suffered bruises on her back, legs, and shoulders, and 3) where victim was chocked and could not breathe, causing her to faint, and experienced bruising the following day.
Of course, this list isn’t exhaustive.
What are the punishments for malicious and unlawful wounding?
Virginia Code Section 18.2-10 provides the punishments for felonies in Virginia:
(c) For Class 3 felonies, a term of imprisonment of not less than five years or more than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
(f) For Class 6 felonies, a term of imprisonment of not less than one year or more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12months and a fine of not more than $2,500, either or both.
When is self-defense a defense to malicious wounding?
Self-defense is an “affirmative defense.” That means that anyone accused has the burden of proof to introduce sufficient evidence to raise a reasonable doubt of guilt.
The court in Gilbert v. Commonwealth, 28 Va. App. 466 (1998) provides a good discussion of self-defense:
The law of self-defense is the law of necessity…. [A] defendant must reasonably fear death or serious bodily harm to himself at the hands of his victim. It is not essential to the right of self-defense that the danger should in fact exist. If it reasonably appears to a defendant that the danger exists, he has the right to defend against it to the same extent, and under the same rules, as would obtain in case the danger is real. A defendant may always act upon reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted. These ancient and well-established principles … emphasize the subjective nature of the defense, and why it is an affirmative one.
In Gilbert, the Virginia Court of Appeals reversed the defendant’s conviction based upon self-defense, when he killed the victim when, through no fault of his own, he was attacked late at night in a rural area, and the victim openly suggested killing him and the victim had a well known reputation for violence.
The court in Hughes v. Commonwealth, 39 Va. App. 448 (2002), on the other hand, rejected, a defendant’s claim of self-defense because his necessity of violence arouse through his own misconduct. Specifically, the defendant confronted the victim in a parking lot with the intention of engaging in a fight and stabbed him in the chest.
Malicious wounding is a very serious charge and requires a solid understanding of the law. The discussion above is meant to provide a basic understanding of the charge, but many other issues must be addressed if you are charged. For more information, contact Abrenio Law at 703.570.4180. To learn more about Owner James Abrenio, click here.