Virginia Lawyers Weekly//September 11, 2023
Virginia Lawyers Weekly//September 11, 2023//
Where appellant was convicted of aggravated malicious wounding, there was sufficient evidence that the victim suffered a “permanent and significant physical impairment.”
Further, the trial court correctly ruled that appellant did not establish an affirmative defense of insanity.
Relevant law“Under Code § 18.2-51.2(A), any person who ‘maliciously shoots, stabs, cuts or wounds any other person … with the intent to maim, disfigure, disable or kill’ is guilty of aggravated malicious wounding ‘if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.’
“As used in the statute, a ‘“physical impairment’ is ‘any physical condition, anatomic loss, or cosmetic disfigurement.’
“‘To prove an injury is permanent, the Commonwealth need not present definitive testimony that a victim’s injuries will never improve, but instead can leave it to the common sense of the [fact finder] to determine if the injuries are permanent.’ …
“This Court has found that scarring may constitute a significant and permanent physical impairment.”
“In the brutal and unprovoked attack, Carrington suffered a concussion and other injuries on her head, face, neck, arms, and legs. She had nerve damage to a hand that took several months to heal.
“Carrington’s medical treatment included twenty-eight staples to close a wound on her head and sutures to her mouth. At the time of Wesley’s [appellant’s] trial, Carrington had a scar on her forehead, which she exhibited to the trial court, from the attack.
“She also stated that she had scars beyond her hairline that remained sensitive to the touch.
“Upon this evidence, a reasonable finder of fact could conclude beyond a reasonable doubt that Carrington sustained a permanent and significant injury to support Wesley’s conviction for aggravated malicious wounding.”
“‘In Virginia, unlike many jurisdictions, insanity is an affirmative defense that the defendant must establish to the satisfaction of the fact finder.’ …
“‘Virginia law recognizes two tests by which an accused can establish criminal insanity, the M’Naghten Rule and the irresistible impulse doctrine. …
“‘The irresistible impulse defense is available when the accused’s mind has become so impaired by disease that he is totally deprived of the mental power to control or restrain his act.’ …
“Wesley contends that he proved his irresistible impulse under this test as a matter of law[.]”
He argues that the trial court “‘received sufficient evidence of … Wesley’s mental disease to satisfy his burden of [proof] … to establish that he was insane at the time of the offense[,] [t]he Commonwealth provided no rebuttal evidence in response to … Wesley’s defense, and the credibility of … the defense witnesses was never called into question.’ We disagree.
“Notwithstanding the fact that the Commonwealth did not present any expert testimony of its own, the Commonwealth provided evidence of Wesley’s state of mind during and directly after the incident that illustrated he was not suffering from an irresistible impulse.
“A reasonable fact finder could have come to the conclusion that he possessed the ability to resist the impulse to attack Carrington, but instead chose to commit the crimes he did of his own volition. …
“‘Acting on an impulse involves no planning; it could occur at any place in the presence of anyone, and further, the lack of restraint inherent in an impulsive act is inconsistent with a contemporaneous concealment of the impulsive act.’”
Planning and preparation
“Here, the Commonwealth presented evidence of substantial planning and preparation by Wesley.
“He called in absent from work the morning of the attack. He drove to a nearby parking lot and left his keys in the ignition of his vehicle. He brought gloves with him, which he dropped after the attack.
“The first time Wesley passed his victim, he kept his head down so she would not see his face. Wesley wore a medical mask even though he was outside, which further obstructed the view of his face.
“He allowed Carrington to pass him, before following her to a more remote location—the fitness loop. And he waited for her to exit the loop before he ambushed her.
“Wesley also engaged in certain behavior after the attack that indicated an effort to conceal his crimes. … Wesley removed certain outer garments after the attack. When he encountered law enforcement, he sought to avoid them and then lied about why he was in the area.
“Further, as the Commonwealth points out, Wesley’s phone calls that he made from jail demonstrate his decision-making at the time of the incident. Wesley called himself ‘stupid’ for the way he got caught and lamented that he had been outside the police ‘perimeter’ and then was spotted when he returned. …
“[T]he fact finder ‘was free to reject [Wesley]’s evidence and find that he failed to prove his insanity defense.’ …
“A reasonable fact finder, based on the evidence presented by the Commonwealth of Wesley’s planning and concealment, could have rejected Wesley’s insanity defense.
“Because its fact finding was not plainly wrong or without evidence to support it, the trial court did not err in denying the motions to strike.”
Wesley v. Commonwealth, Record No. 1694-22-2, Aug. 22, 2023. CAV (unpublished opinion) (Fulton III) From the Circuit Court of Fairfax County. (Smith) Zachary J. Stafford for appellant. Jason A. Faw, Jason S. Miyares for appellee. VLW 023-7-333, 14 pp.