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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Clements and Kelsey
Argued at Salem, Virginia
Record No. 1688-02-3
JAMES RUSSELL PARRISH
COMMONWEALTH OF VIRGINIA
BY JUDGE D. ARTHUR KELSEY
OCTOBER 7, 2003
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Susan M. Johnson for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W.
Attorney General, on brief), for appellee.
On appeal, James Russell Parrish contends that the trial court
lacked sufficient evidence
to find him guilty beyond a reasonable doubt of unlawful
wounding under Code ? 18.2-51.
Finding that sufficient evidence supports his conviction, we
When examining a challenge to the sufficiency of the evidence on
appeal, "the evidence
and all reasonable inferences flowing therefrom must be viewed
in the light most favorable to the
prevailing party in the trial court." Commonwealth v.
Hudson, 265 Va. 505, 514, 578 S.E.2d
781, 786 (2003) (citations omitted). That principle requires us
to "discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence
favorable to the Commonwealth and all fair inferences that may
be drawn therefrom." Craddock
v. Commonwealth, 40 Va. App. 539, 542-43, 580 S.E.2d 454, 456
(2003) (citations omitted).
On May 5, 2001, Parrish, driving a Chevy Blazer, pulled out in
front of Blaine Campbell
Jr.’s Ford Explorer, causing him to take evasive action to avoid
a collision. Campbell responded
by giving Parrish the "middle finger." Parrish then
followed Campbell closely for about six or
seven miles until Campbell pulled into the parking lot of
Campbell’s Welding Shop in Augusta
County. Parrish parked his Blazer behind Campbell’s truck to
prevent him from leaving the
parking area. Parrish then got out of his vehicle, approached
Campbell, "jerked his T-shirt off,"
and began yelling "What’s Up" with his hands raised in
the air. According to Campbell, Parrish’s
eyes appeared as if "they were bulging out of their
Campbell’s father, Blaine Campbell, Sr., came out of the shop to
find out what was going
on. Campbell Sr. twice asked Parrish to turn down his radio, but
Parrish refused. Campbell Sr.
then turned away from Parrish to speak to someone in the shop.
At that moment, Parrish
"swung" at Campbell Sr. but missed. Parrish took a
second swing and struck Campbell Sr. in the
face, knocking him to the ground. Campbell Sr.’s head hit the
pavement, causing a half-inch
laceration on his scalp (requiring two staples to close the
wound), scratches on both sides of his
face, as well as bruising and swelling.
The grand jury indicted Parrish for malicious wounding. After a
bench trial, the trial
court found Parrish guilty of unlawful wounding under Code ?
18.2-51 —— a lesser-included
offense not requiring a showing of malice. The trial court found
that Parrish, who was "probably
8 inches taller and 50-60 pounds heavier and 20 years
younger" than Campbell Sr., should have
understood that the natural consequence of "a blow of the
fist" would be to "cause serious
permanent injury" to Campbell Sr. Parrish now appeals to
this Court, claiming that the evidence
fails to prove his guilt beyond a reasonable doubt.
When faced with a challenge to the sufficiency of the evidence,
"we ‘presume the
judgment of the trial court to be correct’ and reverse only if
the trial court’s decision is ‘plainly
wrong or without evidence to support it.’" Kelly v.
Commonwealth, 41 Va. App. 250, 257, 584
S.E.2d 444, 447 (2003) (en banc) (citations omitted); see
also McGee v. Commonwealth, 25
Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc).
When a jury decides the case, Code ? 8.01-680 requires that
"we review the jury’s
decision to see if reasonable jurors could have made the choices
that the jury did make. We let
the decision stand unless we conclude no rational juror could
have reached that decision." Pease
v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278
(2002) (en banc). The same
standard applies when a trial judge sits as the factfinder
because the "judgment of a trial court
sitting without a jury is entitled to the same weight as a jury
verdict." Cairns v. Commonwealth,
40 Va. App. 271, 293, 579 S.E.2d 340, 351 (2003) (citation
omitted); see also Shackleford v.
Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 906-07 (2001).
Put another way, a reviewing court does not "ask itself
whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S.
307, 318-19 (1979) (emphasis in original and citation omitted).
We must instead ask whether
"any rational trier of fact could have found the
essential elements of the crime beyond a
reasonable doubt." Kelly, 41 Va. App. at 257, 584 S.E.2d at
447 (quoting Jackson, 443 U.S. at
319 (emphasis in original)); see also Hoambrecker v.
Commonwealth, 13 Va. App. 511, 514, 412
S.E.2d 729, 731 (1992) (observing that the question on appeal is
whether "a rational trier of fact
could have found the essential elements" of the convicted
offense). "This familiar standard gives
full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts." Kelly,
41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443
U.S. at 319).
Governed by this standard of review, we next turn to the
elements of the offense charged
and assess the rationality of the factfinder’s decision in this
case. Virginia’s unlawful wounding
statute requires the defendant to have a "specific intent
to ‘maim, disfigure, disable, or kill’ the
victim of the attack." Commonwealth v. Vaughn, 263 Va. 31,
35, 557 S.E.2d 220, 222 (2002)
(quoting Code ? 18.2-51).
Often impossible to prove through direct evidence, intent
"may be shown by
circumstances." Vaughn, 263 Va. at 36, 557 S.E.2d at 223.
While a blow from a bare fist may
not ordinarily create a presumption of an "intent to
maim," Fletcher v. Commonwealth, 209 Va.
636, 640, 166 S.E.2d 269, 273 (1969), intent can nevertheless be
found when the attack involves
a sufficient degree of "violence and brutality," Boone
v. Commonwealth, 14 Va. App. 130, 133,
415 S.E.2d 250, 252 (1992) (quoting Fletcher, 209 Va. at 640-41,
166 S.E.2d at 273). Intent may
also be inferred from the attacker’s demeanor, the absence of
provocation, and "the respective
sizes of the appellant and the victim." Williams v.
Commonwealth, 13 Va. App. 393, 398, 412
S.E.2d 202, 205 (1991); see also Dawkins v. Commonwealth, 186
Va. 55, 62, 41 S.E.2d 500,
504 (1947). If enough such incriminating circumstances exist,
"intent can be found in an attack
with fists alone." Roger D. Groot, Criminal Offenses &
Defenses in Virginia 35 (4th ed. 1998).
Sufficient circumstances exist in this case to support the
rationality of the trial court’s
finding that Parrish acted with the requisite intent. Though
Parrish knocked Campbell down
with a single blow, he chose as his victim a much older, much
shorter, and much lighter man.
And by delivering the blow in sucker-punch fashion, Parrish
should have foreseen exactly what
happened: the older man fell to the ground and struck his head
against the pavement. The risk
of disfigurement or even a disability from a head injury was
foreseeable —— certainly enough
so to fall within the maxim that a criminal actor may be
presumed to intend "the natural and
probable consequences of his acts." Adams v. Commonwealth,
33 Va. App. 463, 471, 534
S.E.2d 347, 351 (2000) (quoting Campbell v. Commonwealth, 12 Va.
App. 476, 484, 405 S.E.2d
1, 4 (1991) (en banc)).
In addition, the blow itself must be viewed in the context of
the tumult that preceded it.
Parrish’s state of mind at the moment of the attack had
developed over time. It began when
Parrish sought to intimidate Campbell Jr. by following him
closely for six or seven miles. It
became more evident when Parrish blocked Campbell Jr.’s pickup
truck so he could not escape.
And it culminated in an enraged condition as Parrish exited his
vehicle and confronted both
Campbell Jr. and his father. These contextual circumstances
—— coupled with the notable age,
size, and weight disparities between Parrish and his victim
—— demonstrate the rationality of
the trial court’s finding that Parrish acted with the requisite
intent for unlawful wounding.
Sufficient evidence supports Parrish’s conviction for unlawful
wounding in violation of
Code ? 18.2-51. We thus affirm.
Code ? 17.1-413, this opinion is not designated for publication.
factfinder acted unreasonably, we consider it our duty not to "substitute
judgment for that of the trier of fact," Kelly, 41 Va. App.
at 257, 584 S.E.2d at 447 (citation
omitted), "even were our opinion to differ," Wactor v.
Commonwealth, 38 Va. App. 375, 380,
564 S.E.2d 160, 162 (2002) (citation omitted); see also Mohajer
v. Commonwealth, 40 Va. App.
312, 321, 579 S.E.2d 359, 364 (2003) (en banc); Pease, 39
Va. App. at 355, 573 S.E.2d at 278.
applies not only to the historical facts themselves, but the inferences
from those facts as well. "The inferences to be drawn from
proven facts, so long as they are
reasonable, are within the province of the trier of fact."
Hancock v. Commonwealth, 12
Va. App. 774, 782, 407 S.E.2d 301, 306 (1991).