Malicious wounding convictions supported

There was sufficient evidence to support appellant’s conviction for seven counts of malicious wounding arising from a boating incident.

Overview

Appellant’s “jon boat” ran out of gas in the middle of a river channel. As he was changing gas tanks, Creekmore, with six others on his 17-foot boat, was approaching appellant. Creekmore testified that he tried to keep his boat’s wake to a minimum. After Creekmore passed, he looked behind him and saw appellant’s boat rocking.

Appellant began following Creekmore’s boat. Creekmore headed toward a dock. Appellant followed Creekmore to the dock, cursing and accusing him of trying to swamp his boat. Appellant’s boat struck Creekmore’ boat twice, once in the stern and a second strike near the driver’s seat. Then he apologized and left the scene.

One of the children on Creekmore’s boat suffered a head injury. “The child complained that ‘his head hurt’ and he had a ‘goose egg on his head,’ but there were no signs of a concussion.”

Appellant was charged with, and convicted of, seven counts of attempted malicious wounding.

At trial, Messler, appellant’s girlfriend who was in his boat during the incident, “denied that she and appellant intended to follow the Creekmores’ boat initially, stating that they ‘had to go downriver anyway, because that’s where [they] put the boat down in at.’

“However, when the Creekmores’ boat turned around towards Rainbow Acres, she and appellant saw the Creekmores again and felt the need ‘to talk to them because [of their] dangerous boating.’

“Ms. Messler testified that, when appellant’s boat reached the dock at Rainbow Acres, the Creekmores’ boat ‘had stopped at the end of the dock, and we thought they were gonna [sic] continue. And [appellant] was trying to slow the boat down, and we caught into the side. There was nowhere to turn to avoid it.’ Ms. Messler did not recall appellant cursing at the Creekmores during the confrontation.

“The circuit court sentenced [appellant] to a total of thirty-five years and twelve months, with twenty-one years and six months suspended, and an active jail sentence of two years and six months with ten years of supervised probation.”

On appeal, appellant argues there was insufficient evidence to convict.

Analysis

“Appellant argues that there was insufficient evidence to establish that he had ‘the specific intent to maliciously wound anyone when his boat came into contact with the victims’ boat.’ According to appellant, the evidence demonstrates, at most, that he intended ‘to confront Mr. Creekmore about being swamped and wanted to cause a wake to hit against the Creekmores’ boat.’

“Appellant maintains that the collisions occurred due to his boat’s engine ‘stall[ing] out’ and that he did not have control of his boat at the time of the collisions. He emphasizes that the contact between the boats ‘was minimal’ and that the Creekmores’ boat incurred only cosmetic damage.

“While appellant admits that his actions were ‘reckless,’ he argues that recklessness ‘is not the specific intent required to convict [him] of seven counts of attempted maiming.’ …

“The trial court emphasized the beachmaster’s testimony regarding his observations of the incident. Specifically, the beachmaster observed appellant and Mr. Creekmore yelling at each other and appellant’s boat ‘slam[ming] into the larger boat, back[ing] off, and slam[ming] a second time.’

“ The trial court also emphasized the evidence indicating that the collisions were ‘large enough that [appellant’s boat] rode up [on Mr. Creekmore’s boat].’

“The trial court did not accept appellant’s account regarding the impact of the collisions. The trial court also did not accept the testimony of appellant’s girlfriend as credible and found that the evidence established that appellant was ‘angry and upset’ at the time of the incident and committed an ‘intentional and malicious act’ when he drove his boat twice into the Creekmores’ boat.

“‘[T]he credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters solely for the fact finder’s determination.’ … ‘In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.’ …

“Here, the trial court permissibly rejected the testimony of appellant and appellant’s girlfriend and based its findings regarding appellant’s intent on the totality of the evidence. Accordingly, the trial court did not err by convicting appellant of seven counts of attempted malicious wounding.”

Affirmed.

Fary v. Commonwealth, Record No. 1079-21-2, Aug. 23, 2022. CAV (Clemens) (Causey, dissenting) From the Circuit Court of King William County (Hoover). Devin G. Hensley for appellant. Timothy J. Huffstutter, Jason S. Miyares for appellee. VLW 022-7-344, 14 pp.