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SCV: Malicious wounding intent shown by violent act itself

A defendant’s intent to maim, disfigure, disable, or kill could be inferred solely from the act of pistol-whipping his victim before stealing the victim’s money.


On March 4, 2014, Otis White Jr. went to visit Appellee Marquez Perkins’s mother, who he’d known for 35 years. At the time of the visit, he had a little over $5,000 cash in his pants pocket that he’d recently received as a social security back payment. He had the cash folded like a wallet, with the largest bills on the outside. He also had his actual wallet, which contained a debit card for cashing his monthly benefits.

At Perkins’s mother’s house, Perkins and a minor, J.W., were there. After talking with Perkins, White gave him $20 cash for a purchase. J.W. saw the rest of themoney in White’s pocket and then left the room with Perkins.

Shortly thereafter, Perkins’s mother and White left to walk to a convenience store, and White moved his money into his jacket pocket. While they were walking, J.W. and Perkins came up behind them. Perkins was carrying a pistol, but White was not afraid because he was walking with Perkins’s mother. Suddenly, J.W. hit White on the right side of his face, and at the same time, Perkins hit him with the pistol on the back of his head. White lost consciousness. When he awoke, he was alone, it was dark, and his money and wallet were gone.

At trial, the Commonwealth entered into evidence several Facebook pictures posted the day after the robbery. They portrayed J.W. and Perkins posing with a spread of money in similar denominations to those stolen from White during the robbery and Perkins posing individually with money. In one of the photos, White identified Perkins as the man “that hit me with the gun and robbed me.” J.W. confirmed in a statement to police that he and Perkins were portrayed in the pictures and that the money came from the robbery of White.

Following a bench trial, the trial court found the evidence sufficient to convict Perkins of malicious wounding, based on White’s testimony and the medical records submitted. The trial court also found the evidence sufficient to convict Perkins of robbery, conspiracy to commit a felony, use of a firearm during the commission of a robbery, and use of a firearm during the commission of a malicious wounding.

Perkins appealed to the Court of Appeals of Virginia, which reversed the malicious wounding convictions. The court of appeals held that the trial court could not infer Perkins’s malice or intent to cause permanent disability because J.W. also struck White when he was rendered unconscious. On the Commonwealth’s appeal, this court considers the sufficiency of the evidence for Perkins’s convictions of malicious wounding and use of a firearm during the commission of a malicious wounding.

Evidence of intent

The court of appeals wrongly disregarded the trial court’s factual finding that the defendant acted with the requisite intent in striking White and rendering him unconscious during the robbery.

On appeal, Perkins has argued only that the evidence was insufficient to infer intent to maliciously wound, conceding that evidence supports the actus reus of the crime. But intent can, and often must, be inferred from the act itself. Whether a reliable correlation between an act and a corresponding intent exists is purely a question of fact.

Here, as factfinder, the trial court made an inference about Perkins’s intent from his acts. Unprovoked, Perkins struck White in a vulnerable area with a firearm when White was defenseless with his back turned. White was knocked to the ground and rendered unconscious. After the incident, his right eye was swollen shut with blurry vision and a  laceration on the eye lid, his lips were also swollen, and he had a another laceration near his ear. In addition, he complained of pain in his face, eyes, teeth, and the right side of his head.

Given the circumstances of Perkins’s attack on White, the trial court’s inference that Perkins acted with a malicious intent to maim, disfigure, disable, or kill cannot be considered arbitrary or unreasonable. Under the applicable standard of review, a factfinder may draw reasonable inferences from basic facts to ultimate facts, and those inferences cannot be upended on appeal unless we deem them so attenuated that they push into the realm of non sequitur.

Therefore, the court of appeals erred in holding that no rational factfinder could infer that Perkins attacked White with a malicious intent to maim, disfigure, disable, or kill him. Violently striking an unsuspecting, defenseless victim, without provocation, in the back of the head with a firearm — with or without the combined violence of another acting in concert of action — supports the reasonable inference that the attacker had the intent to maliciously wound the victim in cases where, as here, the attack actually injured the victim.

Reversed as to malicious wounding convictions; final judgment entered reinstating those convictions.

Commonwealth v. Perkins, Record No. 170437, Apr. 19, 2018. SCV (per curiam), from CAV. VLW No. 018-6-031, 10 pp.

VLW 018-6-031