Commonwealth v. Perkins (ORDER)

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court Building in the

City of Richmond on Thursday the 19th day of April, 2018.

Present: All the Justices

Commonwealth of Virginia, Appellant,

against Record No. 170437

Court of Appeals No. 1040-15-1

Marquez Rah-Shaun Perkins, Appellee.

Upon an appeal from a judgment

rendered by the Court of Appeals of

Virginia.

The trial court convicted Marquez Rah-Shaun Perkins of robbery, conspiracy to commit a

felony, use of a firearm during the commission of a robbery, malicious wounding, and use of a

firearm during the commission of a malicious wounding. 1 In the Court of Appeals, Perkins

unsuccessfully challenged his convictions for robbery, conspiracy to commit a felony, and use of

a firearm during the commission of a robbery, but he successfully challenged the sufficiency of

the evidence for his convictions for malicious wounding and use of a firearm during the

commission of a malicious wounding, which the Court of Appeals reversed.

The Commonwealth appeals, arguing that the Court of Appeals erred in reversing the two

convictions related to malicious wounding because a rational factfinder could infer from the

evidence that Perkins attacked the victim with the requisite intent to maliciously wound him

during the robbery. We agree with the Commonwealth and reverse.

I.

“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth,

the prevailing party in the trial court.” Vasquez v. Commonwealth, 291 Va. 232, 236, 781 S.E.2d

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The trial court also convicted Perkins of possession of a firearm by a convicted felon

and credit card theft but vacated these convictions sua sponte prior to sentencing. The

Commonwealth did not appeal the vacation of these convictions.

920, 922 (citation omitted), cert. denied, ___ U.S. ___, 137 S. Ct. 568 (2016). “Viewing the

record through this evidentiary prism requires us to ‘discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to

the Commonwealth and all fair inferences to be drawn therefrom.’” Id. (quoting Bowman v.

Commonwealth, 290 Va. 492, 494, 777 S.E.2d 851, 853 (2015)).

So viewed, the evidence at trial showed that in the afternoon on March 4, 2014, Otis

White, Jr. went to visit Perkins’s mother at her apartment. White had known her for 35 years,

but he had only known Perkins 2 for 3 to 4 months. At the time of his visit, White had “a little

over five thousand dollars” in his pants pocket that he had received as “back payment from social

security disability” and a “wallet with [his] ID, Social Security Card,” and a debit card that he

used to cash his monthly benefits. J.A. at 8-9, 33. Perkins’s mother, Perkins, Justin Williams,

and “another young lady” were at the home when White arrived. Id. at 9-11. Perkins’s mother

was cooking, and Perkins, Williams, and the young lady were in a back room.

After speaking briefly with Perkins’s mother, White went to the back room and talked to

Perkins. They discussed Perkins’s dog, and Perkins asked White for $20 to buy a dog bowl.

White agreed, and he “tried to reach in [his] pocket just to pull a twenty out because [he] didn’t

want everybody to see how much money [he] had.” Id. at 12. The money in his pocket was

“folded like a wallet” with “hundreds on the outside and fifties and twenties on the inside,” and

when he “was pulling the twenty out, some of it came over top of [his] pocket.” Id. at 12-13.

Williams saw the money come out of White’s pocket and then left the room for “five to ten

minutes.” Id. at 13. When Williams returned, he called Perkins out of the room, and they both

went to the living room. About five minutes later, White left the back room to talk to Perkins’s

mother again, and he saw Perkins and Williams talking in the living room. When he passed

them, “they stopped talking until [he] got past them” and then “started back talking again.” Id. at

13-14.

Shortly thereafter, Perkins’s mother and White left to buy something at the nearby

convenience store. Before leaving, White moved his money into his jacket pocket. “It was

getting dusk,” and there was still some light outside. Id. at 16. At the edge of the apartment

2

White also identified Perkins by the names “Muney,” J.A. at 7, “Mooney,”

Commonwealth’s Ex. 1a, or “Moonie,” id. Ex. 4.

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complex’s parking lot, White “felt somebody walking behind [him],” and he turned around. Id.

at 14. He saw Perkins “holding a pistol up in the air like he was about to hit [White],” and White

smiled at Perkins who smiled back. Id. White did not think Perkins would do anything to him

because he was walking with Perkins’s mother. “Within five to ten seconds” after White turned

back around and started walking again, Williams “hit [him] from the right on the side of [his]

face.” Id. at 15. “At the same time” that Williams hit White, White “got hit in the back of the

head” with what he believed to be the pistol that he had just seen Perkins carrying. Id. White

testified that Perkins “was on the left side” with Williams “on the right side” and that the hit to

the back of his head “came from the direction” of where Perkins was standing. Id. White did

not recall how many more times he was hit because he lost consciousness. When White woke

up, it was dark outside, and he discovered that his money and wallet were gone. Perkins’s

mother, Perkins, and Williams also were gone. White was in pain. His eye had swollen shut, his

ear was bleeding, and his lips were swollen. He walked to the convenience store and asked the

cashier to call an ambulance.

The ambulance came and took White to the hospital, and a report from the emergency

room documented his injuries. White’s “right eye [was] swollen shut” with “slightly blurry”

vision and a “small laceration on [the] eye lid,” his “upper and bottom lip[s] [were] swollen”

with “bleeding controlled,” and he had a “small laceration by [his] right ear lobe” with bleeding

controlled. Def.’s Ex. 1, at 3 (Jan. 29, 2015). White reported being “ass[a]ulted with [a] fist”

and “hit in the occipital portion of his head with an unknown object.” Id. at 2-3. He complained

of “facial pain, eye pain, [a] tooth feeling loose and not fitting together normally for him,” and

“pain on [the] right side of [his] head.” Id.

The Commonwealth entered into evidence several pictures posted on a public Facebook

profile the day after the robbery. The pictures portrayed Williams and Perkins posing with a

spread of money in similar denominations to those stolen from White during the robbery and

Perkins posing individually with money. In one of the photos, White identified Perkins as the

man “that hit me with the gun and robbed me” and Williams as “the other guy that hit me and

help[ed] Mooney rob me.” Commonwealth’s Ex. 1a (altering capitalization). Williams,

Perkins’s 15-year-old co-conspirator, also confirmed in a statement to police that he and Perkins

were portrayed in the pictures and that the money came from the robbery of White. Williams

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also confirmed that he had seen Perkins with a firearm, but he did not specify exactly when he

had seen Perkins with a firearm.

Following a bench trial, the trial court stated that it found White’s testimony “extremely

compelling and credible,” J.A. at 52, and that it found the evidence sufficient to convict Perkins

of malicious wounding based on White’s testimony and the medical records submitted. The trial

court also found the evidence sufficient to convict Perkins of robbery, conspiracy to commit a

felony, use of a firearm during the commission of a robbery, and use of a firearm during the

commission of a malicious wounding. The trial court sentenced Perkins to a total of 48 years of

incarceration with 31 years suspended.

Perkins appealed to the Court of Appeals, which initially denied his petition in a one-

judge, per curiam order, but a three-judge panel later granted his appeal. In an unpublished

opinion, the Court of Appeals affirmed Perkins’s convictions for robbery, conspiracy to commit

a felony, and use of a firearm during the commission of a robbery but reversed his convictions

for malicious wounding and use of a firearm during the commission of a malicious wounding.

The Court of Appeals found that the trial court could not “infer[] an intent to cause permanent

disability” and could not find “an inference of malice on the part of [Perkins] . . . from the extent

of White’s injuries” because Williams also struck White “when he was rendered unconscious.”

Perkins v. Commonwealth, Record No. 1040-15-1, 2017 Va. App. LEXIS 10, at *14 (Jan. 17,

2017). The Commonwealth appealed this decision, and we granted the appeal limited to the

question of the sufficiency of the evidence for Perkins’s convictions of malicious wounding and

use of a firearm during the commission of a malicious wounding.

II.

The Commonwealth challenges the decision of the Court of Appeals on the ground that

“the Court of Appeals wrongly disregarded the trier of fact’s factual finding that the defendant

had acted with the requisite intent in striking the victim and rendering him unconscious during

the robbery.” Appellant’s Br. at 3 (altering capitalization).

A.

When reviewing the sufficiency of the evidence, “[t]he judgment of the trial court is

presumed correct and will not be disturbed unless it is ‘plainly wrong or without evidence to

support it.’” Pijor v. Commonwealth, 294 Va. 502, 512, 808 S.E.2d 408, 413 (2017) (quoting

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Code § 8.01-680). In light of this presumption, this Court does not “ask itself whether it believes

that the evidence at the trial established guilt beyond a reasonable doubt.” Williams v.

Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (emphasis in original) (quoting

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “‘Rather, the relevant question is,’ upon

review of the evidence in the light most favorable to the prosecution, ‘whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Pijor,

294 Va. at 512, 808 S.E.2d at 413 (emphasis in original) (citation omitted). Thus, “it is not for

this [C]ourt to say that the evidence does or does not establish his guilt beyond a reasonable

doubt because as an original proposition it might have reached a different conclusion.” Cobb v.

Commonwealth, 152 Va. 941, 953, 146 S.E. 270, 274 (1929).

The judgment of the trial court, sitting without a jury, is “entitled to the same weight as a

jury verdict.” Cole v. Commonwealth, 294 Va. 342, 361, 806 S.E.2d 387, 397-98 (2017)

(citation omitted). In a bench trial, a “trial judge’s major role is the determination of fact, and

with experience in fulfilling that role comes expertise.” Anderson v. Bessemer City, 470 U.S.

564, 574 (1985). It has long been deemed “an abuse of the appellate powers . . . to set aside a

verdict and judgment, because [an appellate court], from the evidence as written down, would

not have concurred in the verdict.” Hill v. Commonwealth, 43 Va. (2 Gratt.) 594, 602 (1845).

Virginia courts “have said on many occasions, ‘If there is evidence to support the convictions,

the reviewing court is not permitted to substitute its own judgment, even if its opinion might

differ from the conclusions reached by the finder of fact at the trial.’” Courtney v.

Commonwealth, 281 Va. 363, 368, 706 S.E.2d 344, 347 (2011) (alteration and citation omitted).

“The credibility of the witnesses and the weight accorded the evidence are matters solely

for the fact finder who has the opportunity to see and hear that evidence as it is presented.”

Elliott v. Commonwealth, 277 Va. 457, 462, 675 S.E.2d 178, 181 (2009) (emphasis added). This

Court must “accept the trial court’s determination of the credibility of witness testimony unless,

‘as a matter of law, the testimony is inherently incredible.’” Nobrega v. Commonwealth, 271 Va.

508, 518, 628 S.E.2d 922, 927 (2006) (citation omitted). “To be ‘incredible,’ testimony ‘must be

either so manifestly false that reasonable men ought not to believe it, or it must be shown to be

false by objects or things as to the existence and meaning of which reasonable men should not

differ.’” Juniper v. Commonwealth, 271 Va. 362, 415, 626 S.E.2d 383, 417 (2006) (citation

omitted).

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B.

“To be convicted of malicious wounding, the Commonwealth must prove that the

defendant maliciously stabbed, cut, or wounded ‘any person or by any means cause[d] him

bodily injury, with the intent to maim, disfigure, disable, or kill.’” Burkeen v. Commonwealth,

286 Va. 255, 259, 749 S.E.2d 172, 174 (2013) (emphasis added) (quoting Code § 18.2-51). The

indictment in this case pleaded only bodily injury as the actus reus of the malicious wounding.

See J.A. at 4. Bodily injury can be “any bodily hurt whatsoever” caused by any means. Bryant

v. Commonwealth, 189 Va. 310, 316, 53 S.E.2d 54, 57 (1949) (emphasis in original) (quoting

John B. Minor, Exposition of the Law of Crimes and Punishments 67 (1894)) (interpreting

predecessor statute). Thus, “[t]o prove a bodily injury, the victim need not experience any

observable wounds, cuts, or breaking of the skin” because the term bodily injury includes

internal injuries. Ricks v. Commonwealth, 290 Va. 470, 478, 778 S.E.2d 332, 335 (2015)

(quoting English v. Commonwealth, 58 Va. App. 711, 719, 715 S.E.2d 391, 395 (2011)).

The mens rea of the crime is an “intent to maim, disfigure, disable or kill,” which may be

pleaded conjunctively, but the Commonwealth “need prove only one intent to convict,” 7 Ronald

J. Bacigal, Virginia Practice Series: Criminal Offenses and Defenses 47-48 (2017-2018 ed.); see

also Angel v. Commonwealth, 4 Va. (2 Va. Cas.) 231, 231-32 (1820) (upholding a conviction for

mayhem when the jury found only an “intention to maim, disfigure and disable, but not [an]

intention to kill” even though each of those intentions were pleaded in the indictment); Minor,

supra, at 67 (“The indictment should allege the intent [to maim, disfigure, disable, or kill] in the

conjunctive, but it is enough to prove either of the purposes.” (emphases omitted)). 3 Whether the

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The distinctions between maiming, disfiguring, disabling, and killing further support the

principle that the Commonwealth need prove only one intent under the statute. Maiming and

disfiguring are different concepts. At common law, maiming was defined as “violently

depriving another of the use of such of his members as may render him the less able, in fighting,

either to defend himself or to annoy his adversary.” 4 William Blackstone, Commentaries *205.

Blackstone gives several examples of maims, such as “cutting off or disabling or weakening a

man’s hand or finger, or striking out his eye or foretooth,” but “cutting off his ear or nose, or the

like, are not held to be [maims] at common law, because they do not weaken but only disfigure

him.” Id.; see also 1 William Hawkins & John Curwood, A Treatise of the Pleas of the Crown

107 (8th ed. 1824). After a member of Parliament was attacked on the street by individuals who

“slit his nose in revenge for obnoxious words uttered by him in Parliament,” an early English

statute (the “Coventry Act”) expanded the common-law offense of mayhem to include

disfiguring a victim for the reason that “cutting off [an] ear or nose did not constitute

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crime is committed maliciously or merely unlawfully determines the gradation of intent

necessary to convict someone of either a class 3 felony or a class 6 felony, respectively. See

Code § 18.2-51. The indictment in this case pleads that Perkins acted “feloniously and

maliciously.” J.A. at 4. “Malice inheres in the doing of a wrongful act intentionally, or without

just cause or excuse, or as a result of ill will.” Burkeen, 286 Va. at 259, 749 S.E.2d at 174; see

also 7 Bacigal, supra, at 49 (“In general, this means that an intending, unprovoked accused who

wounds or injures has acted maliciously . . . .”).

“To be guilty of malicious wounding, a person must also intend to permanently, not

merely temporarily, harm another person.” Burkeen, 286 Va. at 259, 749 S.E.2d at 174

(alterations and citation omitted). “That is not to say,” however, “that a permanent condition

must be produced, but the intent to produce it must exist.” 7 Bacigal, supra, at 48. “Intent is the

purpose formed in a person’s mind which may, and often must, be inferred from the facts and

circumstances in a particular case.” Burton v. Commonwealth, 281 Va. 622, 626-27, 708 S.E.2d

892, 894 (2011) (emphasis added) (citation omitted). “The state of mind of an alleged offender

may be shown by his acts and conduct,” id. at 627, 708 S.E.2d at 894, and “[i]t is permissible for

the fact finder to infer that every person intends the natural, probable consequences of his or her

actions,” Ellis v. Commonwealth, 281 Va. 499, 507, 706 S.E.2d 849, 853 (2011). Thus, “[i]t is

proper for a court to consider not only the method by which a victim is wounded, but also the

circumstances under which that injury was inflicted in determining whether there is sufficient

evidence to prove an intent to maim, disfigure, disable or kill.” Burkeen, 286 Va. at 260-61, 749

S.E.2d at 175.

mayhem . . . because it did not result in permanent disablement.” Rollin M. Perkins & Ronald N.

Boyce, Criminal Law 238-40 (3d ed. 1982) (noting that “‘[m]aim’ is the modern equivalent of

the old word ‘mayhem,’” and further clarifying that the Coventry Act “did not displace the

English common law of mayhem (malicious maiming) but . . . for the first time extended the

crime to include disfigurement (if intentional)” (footnotes omitted)). The traditional definitions

of maim, disfigure, and disable illustrate the differences between them. See, e.g., Samuel

Johnson, A Dictionary of the English Language (3d rev. ed. 1768) (defining maim as the

“[p]rivation of some essential part” or “lameness, produced by a wound or amputation”;

disfigure as “chang[ing] any thing to a worse form; to deform; to mangle”; and disable as

“depriv[ing] of natural force,” “usefulness or efficacy” or “[t]o impair; to diminish[;] . . . [t]o

make [i]nactive” (altering archaic spelling)).

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C.

On appeal, Perkins argues only that the evidence was insufficient for the trial court to

infer the requisite intent or mens rea of malicious wounding. He makes no argument on appeal

concerning the actus reus of the crime — whether Perkins caused bodily injury to White by any

means. Perkins’s sufficiency argument on appeal, to the extent that it addresses the specific

circumstances of this case, consists of a single paragraph:

In the case at bar, Perkins contends that the evidence failed to

prove he acted with the requisite intent to be found guilty of

malicious wounding. Perkins further contends that the evidence is

insufficient to find him guilty of using a firearm in the commission

of that offense. The evidence was insufficient to prove beyond a

reasonable doubt that Perkins committed malicious wounding.

The trial court found credible White’s testimony that Perkins

struck White in the head with a gun. Although the force of this

blow was sufficient to injure White, one cannot say that this record

contains sufficient evidence from which the trial court could have

inferred an intent to cause permanent disability. Because White

was also struck by Williams and fell to the ground when he was

rendered unconscious, an inference of malice on the part of Perkins

may not be drawn from the extent of White’s injuries.

Appellee’s Br. at 10-11. Perkins’s counsel conceded on brief and at oral argument that the trial

court found the evidence credible to support the finding that Perkins had struck White with a

firearm and injured him. See id. at 11; Oral Argument Audio at 10:13 to 10:29 (“What we have

is evidence from behind, the blow from the back of the head, presumably with the gun that

knocks out the victim. There is no other evidence that my client did anything other than inflict

this blow from behind.”). Therefore, the only issue on appeal is the sufficiency of the evidence

as to the trial court’s finding of malicious intent to maim, disfigure, disable, or kill.

Intent can, and often must, be inferred from the act itself. “The color of the act

determines the complexion of the intent only in those situations where common experience has

found a reliable correlation between a particular act and a corresponding intent.” Banovitch v.

Commonwealth, 196 Va. 210, 217, 83 S.E.2d 369, 373 (1954). In the judgment of a rational

factfinder, whether that “reliable correlation,” id., exists is purely a question of fact. In Burkeen,

for example, we found that a rational factfinder could infer the intent to maliciously wound from

a single blow to the face with a fist because “the victim did nothing to provoke the attack, and he

was hit with extreme force in a vulnerable area of his body while he was defenseless and not

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expecting such a blow.” 286 Va. at 261, 749 S.E.2d at 175; 4 see also Dominguez v. Pruett, 287

Va. 434, 444-45, 756 S.E.2d 911, 916-17 (2014).

Here, sitting as factfinder, the trial court made a similar inference about Perkins’s intent.

Unprovoked, Perkins struck White in a vulnerable area (the occipital region of his skull on the

back of his head) with a firearm. Perkins delivered the blow while White was defenseless with

his back turned to Perkins. White was knocked to the ground and rendered unconscious. His

“right eye [was] swollen shut” with “slightly blurry” vision and a “small laceration on [the] eye

lid,” his “upper and bottom lip[s] [were] swollen,” and he had a “small laceration by [his] right

ear lobe.” Def.’s Ex. 1, at 3 (Jan. 29, 2015). He also complained of “facial pain, eye pain, [a]

tooth feeling loose and not fitting together normally for him,” and “pain on [the] right side of

[his] head.” Id. at 2-3.

What was true in Burkeen is true here. Given the circumstances of Perkins’s attack on

White, the trial court’s inference that Perkins acted with a malicious intent to maim, disfigure,

disable, or kill cannot be considered arbitrary or unreasonable. 5 Under our standard of review, a

4

While we also relied on Burkeen’s taunting and cursing of the victim after the blow to

infer intent, see Burkeen, 286 Va. at 261, 749 S.E.2d at 175 — circumstances that do not exist in

this case — we never suggested that those unique circumstances were a prerequisite for a

rational factfinder to infer a malicious intent to maim, disfigure, disable, or kill.

5

The Court of Appeals found that the trial court could not infer malice because White

“was also struck by Williams and fell to the ground when he was rendered unconscious.”

Perkins, 2017 Va. App. LEXIS 10, at *14. We fail to see how this observation, if true,

exonerates Perkins. Intending to rob White, Perkins and Williams were engaged in a concert of

action. See, e.g., Trial Tr. at 63 (stating that Williams “continually” told the detective that

Perkins “set[] up the robbery,” which is “where the money came from,” and that he “got a

hundred dollars for his role” in the crime); Commonwealth’s Ex. 1a (depicting Williams and

Perkins posing with a spread of money in similar denominations to those stolen from White, in

which White identified Perkins as the man “that hit me with the gun and robbed me” and

Williams as “the other guy that hit me and help[ed] Mooney rob me” (altering capitalization)).

Given these facts, it does not matter whose blow caused which specific injury or, for that matter,

which blows, singularly or collectively, caused White to lose consciousness. See Thomas v.

Commonwealth, 279 Va. 131, 156-57, 688 S.E.2d 220, 234 (2010) (recognizing that lack of

intent is not a defense to a conviction as a principal in the second degree “when there was

concert of action and the resulting crime, whether such crime was originally contemplated or not,

is a natural and probable consequence of the intended wrongful act” (citation omitted)); 7

Bacigal, supra, at 513 (“[T]he concert of action principle is that one who has participated in

bringing about a crime is criminally liable for unintended but incidental and probable

consequences resulting from that crime.”); John L. Costello, Virginia Criminal Law and

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“factfinder may ‘draw reasonable inferences from basic facts to ultimate facts,’” and those

inferences cannot be upended on appeal unless we deem them “so attenuated that they ‘push

“into the realm of non sequitur.”’” Bowman, 290 Va. at 500, 777 S.E.2d at 857 (citations

omitted). The trial court’s inference in this case falls securely within the “bell-shaped curve of

reasonability.” Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493, 499 (2016) (citation

omitted).

III.

In sum, the Court of Appeals erred in holding that no rational factfinder could infer that

Perkins attacked White with a malicious intent to maim, disfigure, disable, or kill him. Violently

striking an unsuspecting, defenseless victim, without provocation, in the back of the head with a

firearm — with or without the combined violence of another acting in concert of action —

supports the reasonable inference that the attacker had the intent to maliciously wound the victim

in cases where, as here, the attack actually injured the victim.

We thus reverse and vacate, in part, the judgment of the Court of Appeals with respect to

Perkins’s convictions for malicious wounding and use of a firearm during the commission of a

malicious wounding, and we correspondingly enter final judgment reinstating those two

convictions.

This order shall be published in the Virginia Reports and certified to the Court of Appeals

of Virginia and the Circuit Court of the City of Newport News.

A Copy,

Teste:

Patricia L. Harrington, Clerk

Procedure § 17.2[4], at 270 (4th ed. 2008) (“One who engages in concerted action becomes

criminally responsible for the immediate act for which he has ‘contracted’ and for all other

crimes which are ‘incidental, probable consequences’ of the basic act.” (citation omitted)).

10