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HARRIS v. COMMONWEALTH




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HARRIS

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Hodges

Argued at Chesapeake, Virginia

Record No. 2083-02-1

TEMEAKA M. HARRIS

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE WILLIAM H. HODGES

DECEMBER 9, 2003

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Randolph T. West, Judge

Theophlise L. Twitty (Jones & Twitty, on brief), for
appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

Temeaka Harris (appellant) contends the evidence was
insufficient to support her conviction

of maiming. Specifically, appellant argues that the evidence
failed to prove she possessed and

used a weapon and failed to prove the victim saw appellant stab
or cut her. We disagree, and

affirm the conviction.

"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

proved that appellant’s companion, Katina Woodson, approached
Venus King in a nightclub,

made comments to King and repeatedly thrust "a plastic
rose" in King’s face. Appellant

approached King’s companion, Tina Harmon, and "hit"
Harmon in the face "with [a] beer

bottle." Security personnel immediately removed appellant
and Woodson from the club. King

and Harmon decided to report the attack to the police. A short
time after appellant and Woodson

had been ejected the club closed. King and Harmon proceeded to
King’s vehicle in the parking

lot.

In the parking lot, appellant, Woodson and a third, unidentified
female "came rushing up

to" Harmon and King. Harmon pushed King out of the way, so
King could start her vehicle, and

confronted the three onrushing attackers. Appellant, Woodson and
their unidentified companion

"started tussling [with Harmon] and all of a sudden a guy
came from nowhere and just hit Tina

Harmon." Appellant, Woodson and the third female then
attacked King. King testified that,

among her many injuries, she sustained a deep cut on her breast
with "something really sharp."

The wound "cut a main artery" requiring seventeen
stitches "inside and outside" to close the

wound. King identified appellant as the person who cut her. She
explained that appellant "was

the only one directly in front of [her]." Woodson "was
to [King’s] right" and appellant "was

right in front of" King when King felt a "sharp
pain" just "before [she] hit the ground." King

then fell to the ground and assumed a fetal position as her
attackers continued to kick and hit her.

The police arrived, and the attackers entered a vehicle. As an
officer approached the

vehicle containing appellant, Woodson and the others, appellant
shouted at King, "‘That’s what

you get for taking up for Bonnie.’" King explained that
Bonnie was "one of [appellant’s and

Woodson’s] former girlfriends" who is now friendly with
King. King unequivocally denied

attacking appellant and her friends at any time.

Harmon corroborated King’s account of the events inside the
club. Harmon also

described how four females "bum-rushed" and attacked
her and King in the parking lot. Harmon

also denied being the aggressor in the incidents.

Officer Cook arrived at the scene and confronted appellant and
her companions. Cook

recalled appellant "hollering at Ms. King." He also
described a small abrasion on the inside of

appellant’s "right pinkie finger." In a statement to
Cook, appellant admitted "she was in a fight

with" King.

Appellant testified that Harmon initiated an attack on Woodson
in the parking lot, while

King attacked appellant with a bottle. According to appellant,
King hit her with the bottle after

which they "fell to the ground." Appellant testified
that she "was defending [her]self."

Katina Woodson testified that Harmon and King attacked her and
appellant. Woodson

said she fought with Harmon while appellant fought with King.
Woodson recalled appellant’s

hand being cut and bleeding.

Code ? 18.2-51 provides: "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."

"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence,

provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of

guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983). However, the

Commonwealth is required to exclude only such reasonable
"hypothesis . . . that . . . ‘flow[s]

from the evidence itself, and not from the imagination of
defendant’s counsel.’" Tyler v.

Commonwealth, 254 Va. 162, 166, 487 S.E.2d 221, 223 (1997)
(citation omitted). The fact

finder is permitted to draw reasonable and justified inferences
from proven facts, including the

inference "that a person intends the immediate, direct, and
necessary consequences of his

voluntary acts." Moody v. Commonwealth, 28 Va. App. 702,
706-07, 508 S.E.2d 354, 356

(1998). "‘[W]hether the required intent exists is
generally a question for the trier of fact.’"

Crawley v. Commonwealth, 25 Va. App. 768, 773, 492 S.E.2d 503,
505 (1997) (citation

omitted).

"‘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.’" Luck v. Commonwealth, 32 Va. App. 827,
833, 531 S.E.2d 41, 44 (2000)

(citation omitted). "‘Malice inheres in the doing of a
wrongful act intentionally, or without just

cause or excuse, or as a result of ill will[,]’" Long v.
Commonwealth, 8 Va. App. 194, 198, 379

S.E.2d 473, 475 (1989) (citation omitted), and "may be
inferred ‘from the deliberate use of a

deadly weapon,’" Doss v. Commonwealth, 23 Va. App. 679,
686, 479 S.E.2d 92, 96 (1996)

(citation omitted). Similarly, use of a deadly weapon may
support an inference of intent to

maim, disfigure or kill, when attended by circumstances
otherwise suggestive of such intent.

Vaughn v. Commonwealth, 34 Va. App. 263, 268, 540 S.E.2d 516,
518 (2001).

In this case, the trier of fact did not accept the testimony of
the appellant and her

witnesses that King and Harmon were the aggressors and attacked
them. "The credibility of the

witnesses and the weight accorded the evidence are matters
solely for the fact finder who has the

opportunity to see and hear that evidence as it is
presented." Sandoval v. Commonwealth, 20

Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The trier of fact
is not required to believe all

aspects of a witness’ statement or testimony. Rather, it may
reject that which it finds

implausible, and accept other parts that it finds believable.
Durham v. Commonwealth, 214 Va.

166, 169, 198 S.E.2d 603, 606 (1973). Furthermore, a defendant’s
exculpatory account may be

treated, by inference, as an attempt to conceal guilt. See
Marable v. Commonwealth, 27

Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).

The fact finder relied on circumstantial evidence to find
appellant guilty of maiming.

That evidence included appellant’s admission that she fought
with King while her friend,

Woodson, fought with Harmon, appellant’s comment to King
explaining why she attacked King,

King’s testimony that appellant was in front of her when she
felt a sharp pain, Woodson’s

testimony that she fought with Harmon while appellant fought
with King in the parking lot, and

Woodson’s observation of blood on appellant’s hand. The
Commonwealth’s evidence was

competent, was not inherently incredible and was sufficient to
prove beyond a reasonable doubt

that appellant was guilty of maiming. Accordingly, we affirm.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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