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Present: Judges Benton, Humphreys and Senior Judge Hodges

Argued by teleconference

Record No. 1972-02-1







NOVEMBER 12, 2003


D. Arthur Kelsey, Judge

Timothy E. Miller, Public Defender (Office of the Public

Defender, on brief), for appellant.

Jennifer R. Franklin, Assistant Attorney General

(Jerry W. Kilgore, Attorney General, on brief), for


Darren Guy Peck appeals his conviction, after a bench trial, for
attempted malicious

wounding. Peck contends the trial court erred in finding the
evidence sufficient to support his

conviction. For the reasons that follow, we affirm the judgment
of the trial court.

When examining a defendant’s challenge to the sufficiency of
the evidence on appeal,

"we must view the evidence and all reasonable inferences
fairly deducible therefrom in the light

most favorable to the Commonwealth." Ward v. Commonwealth,
264 Va. 648, 654, 570 S.E.2d

827, 831 (2002). This principle requires us to "‘discard
the evidence of the accused’" which

conflicts, either directly or inferentially, with the
Commonwealth’s evidence. Wactor v.

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)
(quoting Watkins v.

Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)).
We will affirm the trial

court’s judgment "unless it appears from the evidence
that the judgment is plainly wrong or

without evidence to support it." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d

534, 537 (1975).

"‘An attempt to commit a crime is composed of two
elements: (1)

The intent to commit it; and (2) a direct, ineffectual act done

towards its commission.’" Haywood v. Commonwealth, 20

Va. App. 562, 565, 458 S.E.2d 606, 607-08 (1995) (quoting

Merritt v. Commonwealth, 164 Va. 653, 657, 180 S.E. 395,

(1935)). In order to convict an accused of attempted malicious

wounding, the Commonwealth must prove that the accused: (1)

intended to "maliciously shoot, stab, cut or wound any
person or

by any means cause bodily injury with the intent to maim,

disfigure, disable or kill"; and (2) committed a direct but

ineffectual act toward this purpose. See Code ? 18.2-51.

Crawley v. Commonwealth, 25 Va. App. 768, 772, 492 S.E.2d
503, 505 (1997). Peck argues the

Commonwealth failed to produce sufficient evidence to prove the
requisite intent and overt act.

We disagree.

"Intent is the purpose formed in a person’s mind and may
be, and frequently is, shown by

circumstances." Barrett v. Commonwealth, 210 Va.
153, 156, 169 S.E.2d 449, 451 (1969). "[A]

person is presumed to intend the immediate, direct, and
necessary consequences of his voluntary

act." Nobles v. Commonwealth, 218 Va. 548, 551, 238
S.E.2d 808, 810 (1977).

"‘Malice inheres in the doing of a wrongful act
intentionally, or

without just cause or excuse, or as a result of ill will.’"
Long v.

Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 475 (1989)

(citation omitted). "Malice is evidenced either when the

acted with a sedate, deliberate mind, and formed design, or

committed any purposeful and cruel act without any or without

great provocation." Branch v. Commonwealth, 14 Va. App.

841, 419 S.E.2d 422, 426 (1992) (citation omitted). Volitional

acts, purposefully or willfully committed, are consistent with a

finding of malice and inconsistent with inadvertence. See Porter

Commonwealth, 17 Va. App. 58, 61, 435 S.E.2d 148, 149 (1993).

The presence of malice is a question of fact to be determined by

the fact finder. See Long, 8 Va. App. at 198, 379 S.E.2d at 476.

Luck v. Commonwealth, 32 Va. App. 827, 833, 531 S.E.2d 41, 44
(2000). "In Virginia malice

may be inferred from the deliberate use of a deadly weapon in
the absence of proof to the

contrary." Pannill v. Commonwealth, 185 Va. 244, 253, 38
S.E.2d 457, 462 (1946). "‘A deadly

weapon is one which is likely to produce death or great bodily
injury from the manner in which it

is used, and whether a weapon is to be regarded as deadly often
depends more on the manner in

which it has been used than on its intrinsic character.’"
Id. at 254, 38 S.E.2d at 462 (quoting 40

C.J.S., Homicide, sec. 25).

Evidence adduced at trial proved that on February 12, 2002, Peck
engaged in an

altercation with a fellow employee, Jeffrey A. Crawford, while
on a job-site. During the

altercation, Peck began "cursing and swearing" at
Crawford, then "lunged off" of the ladder he

was standing on toward Crawford. When Peck lunged off of the
ladder, he was holding a

"six-inch dry wall knife" in his hand, a tool which
Peck agreed "would cause a cut." Peck

lunged toward Crawford, swinging the knife at him. Peck
"put [the knife] very close to

[Crawford] and threatened to cut [his] throat."
Specifically, Peck made a "back and forth motion

and then a jabbing forward motion" with the knife, bringing
it within "five or six inches" of

Crawford’s neck area. Peck then stopped, still holding the
"knife right there in [Crawford’s]

face." A few seconds later, Crawford stepped backward and
grabbed another dry wall knife "in

self-defense." At that time, "they both kind of
separated" and Peck’s supervisor, Rob LeBlond,

"got [his] arm" in the "middle" of the two
men to "get it split up."

Based on this evidence, we find that the trial court was not
plainly wrong in inferring

from all the facts and circumstances that Peck acted with
deliberation and purpose, and intended

to maim or disfigure Crawford by lunging toward him while
swinging a dry wall knife near his

throat area. Nor did the trial court err in deciding that Peck
intended the natural and probable

consequences of these actions.

Peck correctly argues that, in order to prove an attempt to
commit an offense, the

Commonwealth must also adduce evidence of a "direct but
ineffectual act" taken toward the

commission of that offense. See Crawley, 25 Va. App. at 772, 492
S.E.2d at 505.

An overt act is required to prove an attempted offense because

without it, there is too much uncertainty as to the accused’s

intent. However, if "the design of a person to commit a
crime is

clearly shown, slight acts done in furtherance of this design

constitute an attempt."

Tharrington v. Commonwealth, 2 Va. App. 491, 494, 346 S.E.2d
337, 339 (1986) (quoting State

v. Bell, 316 S.E.2d 611, 616 (N. C. 1984)) (other citations

In the case at bar, the evidence produced by the Commonwealth
was clearly sufficient to

establish a basis from which the trial court could infer that
Peck’s conduct demonstrated his

intent to wound Crawford and that his conduct went beyond mere
preparation to carry out his

intention. The mere fact that Peck stopped short of cutting
Crawford does not negate the

significance of the evidence of his intent, nor his conduct in
furtherance of the crime. Indeed,

Crawford testified that it was not until he picked up another
knife, "in self-defense," and

LeBlond intervened, that the altercation came to an end. See
Bottoms v. Commonwealth, 22

Va. App. 378, 383, 470 S.E.2d 153, 156 (1996) ("Although an
overt act must go beyond mere

preparation, ‘it need not be the last proximate act to the
consummation of the crime in

contemplation, but it is sufficient if it be an act apparently
adapted to produce the result

intended.’" (quoting Granberry v. Commonwealth, 184 Va.
674, 678, 36 S.E.2d 547, 548


For the foregoing reasons, we affirm the judgment of the trial



Benton, J., dissenting.

"‘An attempt to commit a crime is composed of two
elements: (1) The intent to commit

it; and (2) a direct, ineffectual act done towards its
commission.’" Haywood v. Commonwealth,

20 Va. App. 562, 565, 458 S.E.2d 606, 607-08 (1995) (quoting
Merritt v. Commonwealth, 164

Va. 653, 657, 180 S.E. 395, 397 (1935)). Thus, "to convict
an accused of attempted malicious

wounding, the Commonwealth must prove that the accused (1)
intended to ‘maliciously shoot,

stab, cut or wound any person or by any means cause bodily
injury with the intent to maim,

disfigure, disable or kill’ [Code ? 18.2-51]; and (2)
committed a direct but ineffectual act toward

this purpose." Crawley v. Commonwealth, 25 Va. App. 768,
772, 492 S.E.2d 503, 505 (1997).

In discussing the law of attempts, the Supreme Court has noted
the following:

"The act must be done with the specific intent to commit a

particular crime. This specific intent at the time the act is
done is

essential. To do an act from general malevolence is not an

to commit a crime, because there is no specific intent, though

act according to its consequences may amount to a substantive

crime. To do an act with intent to commit one crime cannot be an

attempt to commit another crime though it might result in such

other crime. To set fire to a house and burn a human being who

in it, but not to the offender’s knowledge, would be murder,

the intent was to burn the house only; but to attempt to set
fire to

the house under such circumstances would be an attempt to

commit arson only and not an attempt to murder. A man actuated

by general malevolence may commit murder though there is no

actual intention to kill; to be guilty of an attempt to murder

must be a specific intent to kill."

Thacker v. Commonwealth, 134 Va. 767, 770-71, 114 S.E. 504, 506
(1922) (citation omitted).

"It is the law in this jurisdiction that where a statute
makes an offense consist of an act

combined with a particular intent, such intent is
as necessary to be proved as the act itself, and it

is necessary for the intent to be established as a matter of
fact before a conviction can be had."

Dixon v. Commonwealth, 197 Va. 380, 382, 89 S.E.2d 344, 345
(1955). Indeed, to support a

conviction in this case, the evidence must prove specific intent
beyond a reasonable doubt. In re

Winship, 397 U.S. 358, 364 (1970). "Surmise and speculation
as to the existence of the intent

are not sufficient, and ‘no intent in law or mere legal
presumption, differing from the intent in

fact, can be allowed to supply the place of the [requisite
specific intent].’" Dixon, 197 Va. at

382, 89 S.E.2d at 345 (citation omitted); McKeon v.
Commonwealth, 211 Va. 24, 26, 175 S.E.2d

282, 284 (1970).

The evidence is undisputed that during a labor dispute Daren Guy
Peck and Jeffrey

Crawford argued about the timeliness and quality of Peck’s
work on the walls of a new house.

The owner of the construction company described the relevant
events as follows:

Q: And what happened then.

A: You know, I could see that they — you know, we weren’t

getting a whole lot with all the arguing, so [Crawford], who

up the service department, asked [Peck] to leave. At that point

[Peck] came off the ladder and approached [Crawford] with the

wall knife.

Q: Do you recall him saying anything when he came off the


A: . . . I think [Crawford] put it as, well, maybe you ought to

leave then. And [Peck] came off the ladder and said, "Well,

maybe I just ought to come down here and cut your throat."

at that point he approached [Crawford], came at him pretty hard,

and had the — you know, was waving the knife in front of him at

that point.

Q: Show the Court how he was holding the knife.

A: He just came off the ladder like he was coming straight at

Q: You’re indicating your arm straight ahead?

A: Yes, ma’am.

Q: And what was he doing with the knife?

A: Just he was — kind of movement like this.

Q: You’re indicating a forward and back motion?

A: Uh-huh.

Q: Did you see where the — you know, what was in his hand,


A: It was either a five or six-inch, we call them dry wall

They’re putty knives, whatever. They’re used for touching up

walls and doing dry wall, plaster-type work.

Q: And did you see where the putty knife or dry wall knife was

actually in relationship to . . . Crawford?

A: Yeah. Before I got involved they were getting pretty close to

each other. They were kind of about face to face. . . . [It] was

towards his neck, about six inches to a foot away, I’d say,

Q: What did . . . Crawford do?

A: At that point, [Crawford] stepped backwards and there was a

center island in the kitchen and we were all working on the

and there happened to be a couple of tools on the kitchen

[Crawford] grabbed one of those and then it was just kind of a

standoff and that’s when I was able to kind of split things up

ask [Peck] to leave.

Q: What do you mean, you split things up? What specifically did

you do?

A: Well, at first I was in the situation where I didn’t really
want to

get between [Peck] and the knife and so [Crawford] stepped back.

He grabbed a tool, they both kind of separated and then I had to

kind of jump in the middle and get it split up at that point.

* * * * * * *

Q: You said at some point they were face to face. How close were

they when you say they were face to face?

A: The closest it got was when [Peck] came right up to him, then

stopped, with the knife. I’d say six inches to a foot apart at


Q: When you say that [Peck] came right up to him and stopped

with the knife, he went like that and then stopped?

A: Yes, sir.

Q: How long were they in that position before [Crawford] went

back and grabbed the little putty knife?

A: It might have been maybe ten or fifteen seconds, because they

just, kind of a standoff, then [Crawford] had the other knife

they’d — okay.

Q: But during that ten or five seconds would you say it was

off, would you say —

A: I don’t think they were saying a whole lot at that stage of


Q: And in that ten or fifteen seconds [Peck] didn’t take any

at him?

A: No, he just sat there with that knife right there in his face


This evidence proved Peck, himself, stopped his advance toward
Crawford and, while

cursing, stood before Crawford with his putty knife. He made no
attempt to act beyond that

threat. No evidence proved "an extraneous circumstance
independent of the will of

[Peck] . . . prevented [him] from carrying out" his threat.
Howard v. Commonwealth, 207 Va.

222, 228, 148 S.E.2d 800, 804 (1966). The two men were looking
at each other in a "standoff"

before Crawford stepped to the table and retrieved his putty
knife. No evidence proved Peck

moved toward Crawford when he stepped to the table to get his
putty knife. Indeed, when the

owner stepped between them, Peck was not advancing toward
Crawford. Peck left the house at

the owner’s suggestion without further ado.

I would hold that Peck’s volitional act of stopping within six
to twelve inches of

Crawford without any further movement toward Crawford negates
the alleged intent to

maliciously wound Crawford. The inference of an intent to wound
is negated by the evidence

that Peck ceased his approach to Crawford and remained in a
"stand off" with Crawford for ten

to fifteen seconds without initiating any further contact and
without the intervention of some

outside force.

Although the evidence does not support a finding of attempt to
maliciously wound, Peck

was not blameless. Rather, the evidence shows that Peck’s
actions constituted an assault against

Crawford because his comments and lunge toward Crawford with a
putty knife placed Crawford

in reasonable apprehension of bodily harm. In Virginia, a
criminal assault has long been defined

as either (1) an attempt to touch another person in an
unprivileged way, see Harper v.

Commonwealth, 196 Va. 723, 725-26, 85 S.E.2d 249, 251 (1955), or
(2) an intentional placing of

another in apprehension of receiving an immediate unprivileged
touching, see Burgess v.

Commonwealth, 136 Va. 697, 707-08, 118 S.E. 273, 276 (1923).
"[B]oth will involve some

physical act which proffers imminent unwanted force." John
L. Costello, Virginia Criminal Law

and Procedure ? 4.2, at 70-71 (2d ed. 1995) (emphasis omitted).
Indeed, the Supreme Court

recently reaffirmed that Virginia

adhere[s] to the common law definition of assault, . . .

an attempt with force and violence, to do some bodily hurt to

another, whether from wantonness or malice, by means calculated

to produce the end if carried into execution; it is any act

accompanied with circumstances denoting an intention, coupled

with a present ability, to use actual violence against another


Zimmerman v. Commonwealth, 266 Va. 384, 387, 585 S.E.2d 538, 539
(2003). Peck’s lunge

toward Crawford with the putty knife followed by a "stand
off" before Crawford, was sufficient

to show Peck intended to put Crawford in fear of bodily harm
with the threat to use the putty

knife. That conduct is by definition an assault. See id.

For these reasons, I would reverse the conviction for attempted
malicious wounding and

remand for proceedings on an offense no greater than assault.



[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication. Further,

because this opinion has no precedential value, we recite only
those facts essential to our