Missing teeth ‘significant and permanent’ injuries

Where appellant punched the victim several times in the mouth, knocking out one tooth and damaging five more that had to be pulled, this was a “significant, permanent injury” within the meaning of the aggravated malicious wounding statute.

Appellant’s argument there was no permanent injury because the teeth could be replaced is not well-taken.

Background

Appellant Alston was at a party when he hit J.C., the victim, several times. J.C. was attempting to intervene in a fight among several women, including Alston’s girlfriend, A.S. In particular, J.C. attempted to pull A.S. off of another woman, prompting Alston’s attack.

“Alston’s blows knocked out one of J.C.’s teeth, and five other teeth were ‘mangled’ so that they had to be pulled the next morning. J.C. was in the hospital overnight. Two years after the assault, six of J.C.’s front teeth were still missing because he could not afford to replace them.”

Alston was tried on a malicious aggravated wounding charge. During closing argument, the prosecution argued that J.C.’s injuries were a significant, permanent injury because, even if J.C. had his teeth replaced, false teeth would have to be ‘drilled and stuck’ into his skull.

“The Commonwealth also argued that there was no evidence J.C. posed a threat to Alston or A.S. and noted that Alston punched J.C. a total of four times, with the last punch coming nearly a minute after the first.

“Alston responded that J.C.’s injuries were not permanent because fake teeth could have been implanted if J.C. had the resources for the surgery. Alston further argued that he acted in the heat of passion, that he did not intend to knock J.C.’s teeth out, and that he simply thought he had given J.C. a ‘busted lip.’

“The trial court found that ‘no reasonable person would have done [what Alston had] done’ and determined that Alston acted with the requisite malicious intent. The trial court also found that J.C. suffered a significant, permanent injury and thus convicted Alston of aggravated malicious wounding.”

In a separate trial, Alston was convicted of discharging a firearm from a vehicle after he left the party.

Aggravated wounding

Code § 18.2-51.2(A) provides, “If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.’ …

“Alston argues that when he punched J.C. at the party, he acted in the heat of passion, and therefore the evidence failed to prove he acted with malice. He also alleges that J.C.’s injuries were not a ‘permanent and significant physical impairment.’ …

“Alston argues that the trial court erred by finding he acted with malice because Alston acted upon a reasonable provocation. We disagree and hold that the evidence was sufficient to support the trial court’s finding.

“After Alston’s girlfriend pulled a woman to the ground and punched her repeatedly, J.C. tried to pull A.S. away. The evidence showed that he was attempting to restrain her arms so that she could not continue to hit the other woman.

“Although Alston concedes that J.C. did not harm his girlfriend, he still felt compelled to ‘act[] in [A.S.’s] defense’ by punching J.C. with enough force to knock out J.C.’s teeth. J.C. tried to walk away after the first punch, but Alston followed J.C. and continued to hit him throughout the apartment and on the breezeway.

“Alston punched J.C. so hard that Alston worried he broke the knuckles on his hand. J.C. lost six teeth because of the assault, and his injuries were so severe that he could only communicate with Officer Stultz that night by using a notepad to write down his responses. …

“There is no evidence that J.C. threatened A.S.’s safety. Alston’s response was not proportional to J.C.’s conduct. Thus, the trial court was justified in finding that a reasonable person would not have viewed this as a provocation for an assault against J.C. Inherent in that finding, the trial court found that Alston did not act under the heat of passion.”

As to the “permanent and significant physical impairment” portion of the statute, “Alston’s attack resulted in the loss of J.C.’s front teeth. He knocked out one tooth, and five more were so damaged that they had to be pulled.

“J.C. testified that it was hard to eat certain foods and stated that he was reluctant to smile because he was self-conscious about his missing teeth.

“It is immaterial that J.C. might be able to one day replace his teeth surgically with fake teeth. He forever lost six natural teeth, including his front teeth. This is a significant and permanent injury, and the trial court did not err.”

Firearm offense

“Alston concedes that he intentionally discharged a firearm from the back seat of a motor vehicle, but he contends that the evidence was insufficient to show that his actions caused another to have a reasonable apprehension of injury or death. …

“The evidence shows that Turman attended a party where multiple fights broke out and at least one person fired a gun, namely, Alston. After Turman decided to leave, he and his friend Nathan started to drive away. At that point, Alston and two of Alston’s friends jumped into the backseat of the car without Nathan’s permission. …

“During the drive, Alston and his friend fired the gun over ten times from the backseat of the car. Although Alston’s gunshots were not fired near traffic, they were loud, and Turman testified that he feared for his ‘safety and … well-being.”

“Indeed, Turman did not say anything to Alston about the gunfire because he was ‘scared shitless.’ Turman was so scared that he asked Nathan to drop him off at a Days Inn near his house so he could walk home.

“Alston’s actions in firing the gun under the circumstances presented here reasonably caused Turman to apprehend injury or death. …

“Thus, the trial court did not err in finding that Alston violated Code § 18.2-286.1.”

Affirmed.

Alston v. Commonwealth, Record No. 0545-22-3, May 23, 2023. CAV (published opinion) (Callins) From the Circuit Court of the City of Radford (Showalter Jr.) Robert L. Canard (Robert L. Canard, PLLC, on brief), for appellant. Jason D. Reed, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 023-7-180, 18 pp.

Editor’s note: A version of this digest that appeared in the June 5, 2023, issue misidentified the case as VLW No. 023-7-179.