Bus video sufficient to prove malice

A bus security video showing appellant twice striking the victim with a bottle was sufficient to establish the necessary malice for a malicious wounding conviction.

Prior contact?

Appellant “Acheampong … testified that in 2015, he had come into contact with Ali who was working at a 7-Eleven in Virginia Beach. [‘Ali testified, however, that he had never worked at a 7-Eleven in Virginia Beach.’]

“Acheampong testified that before buying cigarettes, he had removed the cigarettes’ wrapper but then decided not to purchase them due to the cost. Acheampong further testified that Ali called the police and that Acheampong was accused of assaulting the officers when they arrived at the scene.

“Acheampong also accused Ali of testifying against him at the ensuing trial where he was convicted of public disturbance and then spent two years in prison.

“Finally, Acheampong testified that when he saw Ali on the bus, ‘everything came out because he lied on me,’ but Acheampong insisted that he was not ‘crazy’ and did not ‘go around hitting people with a bottle.’

“At the close of all the evidence, Acheampong renewed his motion to strike, contending that the evidence established that his demeanor was ‘agitated’ and ‘excited.’

“Acheampong stated that his actions were not reflecting a ‘cruel decision to attack a stranger,’ but because he thought Ali was the reason for his previous incarceration. Finally, Acheampong argued that unlawful wounding would be more appropriate in the case than malicious wounding.

“The trial court denied Acheampong’s motion again, stating that this was a case of ‘transferred malice’ based on a misidentification of Ali. The trial court concluded that this mistake did not reduce the charge ‘from malicious wounding to unlawful wounding.’”

Acheampong appealed.

Enraged mind defense

“Acheampong does not dispute that he struck Ali or the extent of Ali’s injuries. Rather, Acheampong argues that the evidence was not sufficient to support a finding of malice because ‘his conduct was the product of an enraged mind and not the product of a sedate, deliberate mind acting upon a predesigned plan or thought.’

“However, the evidence, viewed in the light most favorable to the Commonwealth, demonstrates that Acheampong approached and struck Ali with a glass bottle from behind. Acheampong’s reaction to seeing Ali was not immediate, as he waited several minutes after Ali boarded the bus to attack him.

“Significantly, Acheampong struck Ali two separate times and paused between the attacks. Acheampong argues that because there was no cooling down period between the blows, the trial court could not have found deliberation.

“However, by Acheampong’s own words, he intentionally paused after striking Ali the first time, purportedly to give Ali time to defend himself. When Ali did not fight back, Acheampong purposefully and intentionally hit him again.

“We, therefore, find that the evidence in this case was competent, credible, and sufficient to support the trial court’s finding that Acheampong acted maliciously in striking Ali twice in the head with a wine bottle.

“Thus, the trial court did not err, and the conviction stands.”

Affirmed.

Acheampong v. Commonwealth, Record No. 1166-21-2, June 21, 2022. CAV (Athey) From the Circuit Court of the City of Norfolk (Martin). J. Barry McCracken for appellant. Jason D. Reed, Jason S. Miyares for appellee. VLW 022-7-211, 8 pp. Unpublished opinion.