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JANUARY 30, 2001
Record No. 2694-99-2
Present: Judges Willis, Annunziata and Senior
Argued at Richmond, Virginia
RONNIE ANTJUAN VAUGHN
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
OPINION BY JUDGE JERE M. H. WILLIS, JR.
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender; Office of the Public
Defender, on brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.
Ronnie Antjuan Vaughn was convicted of unlawful
wounding in violation of Code ? 18.2-51. On appeal, Vaughn
argues that the trial court erred in refusing to instruct the
jury on the lesser-included offense of assault and battery.
Finding the evidence sufficient to support the granting of the
lesser-included offense instruction, we reverse.
On appeal, when we consider a trial court’s
refusal to give a proffered instruction, "the appropriate
standard of review requires that we view the evidence with
respect to the refused instruction in the light most favorable to
[the proponent of the instruction, in this case, Vaughn]." Boone
v. Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251
(1992) (citations omitted).
So viewed, the evidence discloses that the
victim, Samuel Robinson, was married to Vaughn’s aunt, Tyra
Vaughn Robinson (Tyra), with whom he lived at Vaughn’s
grandmother’s house. Vaughn lived across the street. On April 12,
1997, Vaughn told Robinson that he had seen a man named
"Mark" visiting Tyra at the grandmother’s house while
Robinson was at work. Robinson became concerned because Tyra had
an old boyfriend named Mark.
Robinson called Tyra and told her to come home
because he wanted to talk to her. While Robinson was talking to
Tyra on the telephone, Vaughn came from across the street. Vaughn
was upset that Robinson had discussed the matter with Tyra, and
the two men began arguing.
Vaughn and Robinson walked across the street to
Vaughn’s house. Robinson testified that on the way across the
street, Vaughn said "he’d get his four five and could take
care of [Robinson]." Robinson understood that Vaughn was
referring to a .45 caliber handgun and this angered Robinson
further. The men continued to yell at each other as Vaughn stood
on the front porch of his residence, approximately five feet away
from Robinson, who remained on the sidewalk. Robinson
subsequently returned to the other side of the street, but the
men continued to argue and exchange profanities.
Robinson and Vaughn were still arguing when
Tyra returned home. Robinson stopped yelling at Vaughn. He and
Tyra walked down the street where they reconciled their mutual
concerns. Tyra testified that Robinson had calmed down by the
time they returned to Vaughn’s grandmother’s house.
Tyra testified that as she and Robinson
approached the grandmother’s house, she saw Vaughn coming from
across the street and noticed that he had a gun. She called out,
"Ronnie, no," but Vaughn ignored her and said to
Robinson, "what the f— you say now, what you say
now." Vaughn then began firing the gun at Robinson’s feet.
Robinson was struck in the ankle with a bullet and fled. Vaughn
followed for a short distance and fired at least one more shot,
striking Robinson in the back. Vaughn then returned to his house.
Robinson was unarmed during the confrontation
with Vaughn. He denied threatening or striking Vaughn.
Vaughn testified to a different version of the
events. He testified that Robinson threatened to beat and kill
him. He said that he called a friend to take him away from the
scene, but the friend explained, upon arrival, that his car was
full. Instead of giving Vaughn a ride, the friend gave him a
handgun. Vaughn stated that shortly after his friend left,
Robinson charged him. He testified that he fired at the ground in
order to stop Robinson because of the disparity in their sizes
and the "lethal" nature of Robinson’s hands. Vaughn
stated that he ultimately fired at waist level, but he denied
intending to shoot Robinson.
The trial court instructed the jury on
malicious wounding and on the lesser-included offense of unlawful
wounding. It refused Vaughn’s request for an instruction on the
lesser-included offense of assault and battery. Vaughn was
convicted of unlawful wounding.
Assault and battery is a lesser-included
offense of malicious wounding. See Brown v.
Commonwealth, 222 Va. 111, 116, 279 S.E.2d 142, 145 (1981).
"’If any credible evidence in the record supports a
proffered instruction on a lesser included offense, failure to
give the instruction is reversible error.’ ‘Such an instruction,
however, must be supported by more than a mere scintilla of
evidence.’" Brandau v. Commonwealth, 16 Va. App. 408,
411, 430 S.E.2d 563, 564 (1993) (quoting Boone, 14 Va.
App. at 132, 415 S.E.2d at 251). "[T]he weight of the
credible evidence that will amount to more than a mere scintilla
of evidence is a matter to be resolved on a case-by-case
basis." Id. at 412, 430 S.E.2d at 565.
A required element of both malicious and
unlawful wounding is the "intent to maim, disfigure,
disable, or kill" the victim. Code ? 18.2-51. "An
assault is any attempt or offer, with force or violence, to do
some bodily hurt to another, whether from wantonness or malice,
by means calculated to produce the end if carried into
execution." 2A Michie’s Jurisprudence, Assault and
Battery ? 2 (1992); see Johnson v.
Commonwealth, 13 Va. App. 515, 517, 412 S.E.2d 731, 732
(1992). "Battery is the actual infliction of corporal hurt
on another . . . willfully or in anger
. . . ." Jones v. Commonwealth, 184
Va. 679, 682, 36 S.E.2d 571, 572 (1946). One cannot be convicted
of assault and battery "without an intention to do bodily
harm," but an intent "to maim, disfigure, disable, or
kill" is unnecessary to the offense. See Boone,
14 Va. App. at 133, 415 S.E.2d at 252 (citation omitted).
Vaughn testified that although he fired the
gun, he did not intend to shoot Robinson. He argued that he
merely shot at the ground in order to stop Robinson from hurting
him. From his testimony, the jury could have found that Vaughn
acted only with the intent to do Robinson bodily harm to deter
his attack, and not with the specific intent "to maim,
disfigure, disable, or kill" him.
The Commonwealth argues that the deliberate use
of a deadly weapon imports an inference of an "intent to
maim, disfigure, disable, or kill." However, while such
evidence will support, it does not compel, such an inference. The
bare use of a deadly weapon, without attendant circumstances
suggesting an "intent to maim, disfigure, disable, or
kill," is insufficient to prove that intent as a matter of
Thus, evidence was before the jury that, if
believed, supported an instruction on the lesser-included offense
of assault and battery. The jury should have been instructed that
unless Vaughn intended "to maim, disfigure, disable, or
kill" Robinson, he could be found guilty only of the
lesser-included offense of assault and battery.
Accordingly, we hold that the trial court erred
in refusing to instruct the jury on the lesser-included offense
of assault and battery. We reverse the judgment of the trial
court and remand the case for further proceedings, if the
Commonwealth be so advised.
Reversed and remanded.
Coleman, J., dissenting.
The evidence, viewed in the light most
favorable to the defendant Vaughn, proves that he shot Robinson
twice with a deadly weapon, once in the ankle and once in the
back. On those facts, a reasonable fact finder cannot conclude,
in my opinion, that if Vaughn intentionally shot Robinson, which
is required to justify giving an assault and battery instruction,
that Vaughn only intended "an unlawful touching" or
simple assault and battery and did not intend either to maim or
disable his victim. For that reason, I respectfully dissent from
the majority opinion.
Unquestionably, assault and battery is a
lesser-included offense of malicious wounding. See Brown
v. Commonwealth, 222 Va. 111, 116, 279 S.E.2d 142, 145
(1981). However, a court is not required to instruct a jury on
every lesser-included offense. See, e.g., Buchanan
v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757, 769
(1989); Brandau v. Commonwealth, 16 Va. App. 408, 413, 430
S.E.2d 563, 565-66 (1993). In order to require a lesser-included
offense instruction, "more than a mere scintilla of
evidence" must support giving the lesser-included offense
instruction. See Brandau, 16 Va. App. at 411, 430
S.E.2d at 564.
Viewed in the light most favorable to the
defendant, the evidence as to how the shooting occurred supports
two possible views and legal theories, either of which is
insufficient, in my opinion, to justify granting the proffered
assault and battery jury instruction. First, one view of the
evidence is that Vaughn intentionally fired the gun in Robinson’s
direction but that he accidentally shot Robinson intending
only to scare him. Vaughn testified to this version and asked us
to accept that view of the case. A second theory is that he intentionally
shot Robinson. Although Vaughn does not ask us to accept this
account, it is fundamental to his argument that the court should
have instructed on assault and battery. Under the first theory,
that the shooting was accidental and intended only to scare
Robinson, an assault and battery instruction would not be
justified, in my opinion, because the requisite specific intent
to commit a battery is necessarily absent if the shooting was
accidental. Under the second theory, an assault and battery
instruction would not be justified because intentionally shooting
or wounding another with a firearm would, in my opinion, only
justify malicious and unlawful wounding instructions.
Accordingly, under either of the two possible theories, the
evidence fails to support granting an instruction on simple
assault and battery. Thus, I would affirm the trial court’s
ruling and the unlawful wounding conviction.
Here, according to Vaughn’s theory, the
evidence proved that he fired several shots into the ground in
the direction of Robinson’s feet and fired a single shot in
Robinson’s general direction as Robinson was moving away,
intending only to scare Robinson and not intending to shoot or
wound him. Nevertheless, one shot struck Robinson in the ankle
and the last shot struck him in the back. Vaughn testified that,
before firing the shot that struck Robinson in the back, he
raised the gun to waist level. Vaughn also testified that he knew
that Robinson was not armed.
On the foregoing facts, the primary theory
advanced by Vaughn is that he accidentally shot and wounded
Robinson. Proof that the shooting was accidental establishes only
that Vaughn committed a simple assault; such evidence does not
prove that Vaughn committed a battery because no intentional
touching, wounding, or shooting of the victim occurred. "One
cannot be convicted of assault and battery ‘without an intention
to do bodily harm — either an actual intention or an intention
imputed by law . . . .’" Boone v.
Commonwealth, 14 Va. App. 130, 133, 415 S.E.2d 250, 251
(1992). "A battery is an unlawful touching of
another. . . . Whether a touching is a battery
depends on the intent of the actor, not on the force
applied." Adams v. Commonwealth, 33 Va. App.
463, 468-69, 534 S.E.2d 347, 350 (2000) (citation omitted).
"’[T]he slightest touching of another . . . if
done in a rude, insolent, or angry manner, constitutes a battery
for which the law affords redress.’" Id. at
469, 534 S.E.2d at 350 (citation omitted). Accordingly, where
Vaughn claims he only intended to scare Robinson and did not
intend to shoot or wound him, Vaughn would not be entitled, in my
opinion, to have the jury instructed on assault and battery. See
Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193,
198 (1987) (holding that shooting at a person intending only to
scare the person where no touching or wounding occurs supports
instructing the jury on simple assault).
A second theory supported by the evidence is
that Vaughn intentionally shot Robinson, once in the ankle
and once in the back. Vaughn argues that he was entitled to a
lesser-included assault and battery instruction because a fact
finder could reasonably conclude that when he twice shot
Robinson, he "acted only with the intent to do Robinson
bodily harm to deter his attack, and not with the specific intent
‘to maim, disfigure, disable, or kill.’" The majority
accepts this rationale as its ratione decidendi and
relies upon our holding in Boone, 14 Va. App. at 133, 415
S.E.2d at 252, to support its conclusion. I disagree that a fact
finder could reasonably conclude that a person who intentionally
shot another person could have the intent to commit only a simple
assault and battery.
In Boone, we reversed and remanded a
malicious wounding conviction for failure to give a
lesser-included assault and battery instruction where Boone
admitted he beat the victim with "a two by four" board
but testified he "didn’t mean to hurt" the victim, he
just "panicked" when the victim "came onto"
him with homosexual advances. In explaining why an assault and
battery instruction was required in Boone we said,
"[o]ne cannot be convicted of assault and battery ‘without
an intention to do bodily harm — either an actual intention or
an intention imputed by law,’ but an intent to maim, disfigure
or kill is unnecessary to the offense." 14 Va. App. at
133, 415 S.E.2d at 251 (emphasis added). Striking a person with a
board, depending upon the circumstances, may be either simple
assault and battery or may be unlawful or malicious wounding
depending upon the perpetrator’s intent. In Boone the
evidence would have permitted the fact finder to conclude that
Boone delivered the blows with an intent to do bodily harm but
not necessarily with the intent to maim, disable, disfigure, or
kill and, thus, the evidence required that the jury be instructed
on misdemeanor assault and battery.
Boone, however, is distinguishable from
the instant case. Where, as here, a person intentionally shoots
an individual twice with a deadly weapon, the evidence proves, at
a minimum, that the person intended to disable or inflict serious
bodily injury upon the person. Intentionally shooting a person,
other than in self-defense, does, in my opinion, necessarily
prove an intent to maim or disable the victim. The facts and our
holding in Brandau, 16 Va. App. 408, 430 S.E.2d 563,
are analogous to the circumstances of the instant case and should
control the result here.
In Brandau, we held that the trial court
did not err by refusing to give a lesser-included assault and
battery instruction in an attempted murder prosecution. Brandau
testified that he was merely trying to scare the person at his
door, who he did not know to be a police officer, when he
intentionally emptied his gun through the door at a height
positioned to strike a person standing outside his door. The
shots wounded the police officer standing behind the door.
Brandau argued that he was entitled to an assault and battery
instruction, because if the jury believed his testimony that he
intended only to scare the person, it could have found that he
did not intend to kill the officer. In upholding the denial of an
assault and battery instruction, we held that the only conclusion
that reasonably could be reached, on those facts and
circumstances, was that by intentionally shooting at the person
several times, Brandau intended to kill the officer. We said that
"no more than a mere scintilla of evidence" supported
Brandau’s contention that he only intended to scare the person at
his door. Id. at 412-15, 430 S.E.2d at 565-67.
Similarly, in the instant case, proof that
Vaughn intentionally shot Robinson in the ankle and in the back
supports only the conclusion that he intended to maim or
disable Robinson or inflict serious bodily injury to him.
Shooting a person twice with a deadly weapon, with one of the
shots being in the back, does not warrant giving a misdemeanor
assault and battery instruction. In my opinion, the evidence
could not reasonably support a conclusion that Vaughn only
intended to do "bodily injury, however slight" to
For these reasons, I would affirm the unlawful
 Judge Coleman participated in the
hearing and decision of this case prior to the effective date of
his retirement on December 31, 2000 and thereafter by his
designation as a senior judge pursuant to Code ? 17.1-401.
 Robinson is six feet, one inch tall and weighs three
hundred pounds. Vaughn is five feet, three inches tall and weighs
one hundred sixty pounds.