Thrower v. Commonwealth

1

MAURICE WENDELL THROWER, SR. v. COMMONWEALTH OF VIRGINIA

No. 1737-22-2

Court of Appeals of Virginia

January 30, 2024

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson Judge

Todd M. Ritter (Hill & Rainey, on brief), for appellant.

Jason D. Reed, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Judges AtLee, Ortiz and Lorish Argued at Richmond Virginia.

MEMORANDUM OPINION ^[*]

RICHARD Y. ATLEE, JR. JUDGE.

Appellant Maurice W. Thrower, Sr. appeals his convictions for attempted malicious wounding in violation of Code §§ 18.2-26, -51, and attempted robbery in violation of Code §§ 18.2-26, -58(B)(3). Thrower challenges the sufficiency of the evidence for both convictions, arguing that the evidence was insufficient to establish both the specific intent to maim, disfigure, disable, or kill the victim and the intent to steal. For the following reasons, we disagree and affirm.

I. Background

On October 6, 2021, Thrower was panhandling outside a Chipotle restaurant. He was holding a sign reading "homeless, please help. We all need help in this time of need. Anything will help. God Bless you, thank you my friend." Jefferson Guzman encountered Thrower when Guzman arrived at the restaurant to purchase a meal. Thrower asked Guzman for money. Guzman declined and entered the restaurant. Finding the line too long, Guzman exited the restaurant without buying anything. As he exited, he had two twenty-dollar bills in his hand. Thrower repeated his request for money, which Guzman again declined. Thrower followed Guzman, shouting, and he accused Guzman of spitting on him. When Guzman turned around, he saw Thrower moving towards him and drawing a sheathed knife from a backpack. Once within striking distance, Thrower tried to stab Guzman in the stomach with the unsheathed knife; Guzman avoided injury only by leaping back away from Thrower's thrust. At trial, Guzman testified that he "felt that [his] life was gonna end that day." After leaping back, Guzman ran backwards, further away from Thrower, and he took out his phone to call the police. When Thrower saw that, he fled.

Michael Dehoff, a land surveyor working in an adjacent parking lot, witnessed the incident. Dehoff heard Thrower shouting expletives at Guzman and saw Thrower retrieve the knife from his backpack and lunge toward Guzman, wielding it from within three feet.

Chesterfield Police Officer Craig Robertson went to the scene in response to Guzman's 911 call and spoke with Guzman. He then proceeded to a nearby Kroger store where Officer Hung Do had located Thrower. When Officer Do approached, Thrower put down his backpack, lifted his shirt, and raised his hands. Officer Do then recovered a knife with a six- or seven-inch blade and the panhandling sign from Thrower, which Officer Robertson took as evidence.

Following a bench trial, the trial court convicted Thrower of both attempted malicious wounding and attempted robbery. It sentenced him to a total of 15 years, with 8 years and 6 months suspended. Thrower now appeals his convictions.

II. Analysis

A. Standard of Review

"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.'" Turner v. Commonwealth, 75 Va.App. 491, 503 (2022) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). "If there is evidentiary support for the conviction, '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.'" Turner, 75 Va.App. at 503 (quoting Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018)).

B. The trial court did not err in convicting Thrower of attempted malicious wounding.

Thrower challenges his conviction for attempted malicious wounding. The malicious wounding statute provides that it is a crime to "maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill." Code § 18.2-51. "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." Fletcher v. Commonwealth, 72 Va.App. 493, 506 (2020) (quoting Haywood v. Commonwealth, 20 Va.App. 562, 565 (1995)). Thrower contends that the evidence was insufficient to prove that he intended to maim, disfigure, disable, or kill Guzman. We disagree.

"Determining intent is 'generally a question for the trier of fact.'" Id. (quoting Haywood, 20 Va.App. at 566). "The intent required to be proven in an attempted crime is the specific intent in the person's mind to commit the particular crime for which the attempt is charged." Id. (quoting Wynn v. Commonwealth, 5 Va.App. 283, 292 (1987)). This Court has held that "[t]o be guilty [of attempted malicious wounding], a person must intend to permanently, not merely temporarily, harm another person." Johnson v. Commonwealth, 53 Va.App. 79, 101 (2008). Thrower contends that the Commonwealth failed to prove that he intended to "maim or kill, as opposed to merely frighten, Guzman."

Citing Banovitch v. Commonwealth, 196 Va. 210, 217 (1954), Thrower contends that "an intent to maim or disfigure cannot be presumed from an act which does not naturally bespeak such intent." But Banovitch involved an unlicensed physician treating a woman's cancer with ineffectual topical salves of his own invention. Id. at 212-13. The Supreme Court was unpersuaded that applying topical salves could "naturally bespeak" an intent to maim. Id. at 217-18. But the Court also noted that "when a person without any provocation strikes another with a deadly weapon . . . and thereby maims or disfigures him, he is presumed to have intended to maim or disfigure because that was the natural and probable consequence of his act." Id. at 216; cf. Fletcher, 72 Va.App. at 506 ("[T]he fact finder may infer that a person intends the immediate, direct, and necessary consequences of his voluntary acts." (alteration in original) (quoting Moody v. Commonwealth, 28 Va.App. 702, 706-07 (1998))).

A "deadly weapon" is one "likely to produce death or great bodily injury from the manner in which it is used[.]" Fletcher, 72 Va.App. at 507 (alteration in original) (quoting Pannill v. Commonwealth, 185 Va. 244, 254 (1946)). Here, Thrower used a knife that had a six- or seven-inch blade. He thrust that knife at Guzman's stomach in such a manner that it caused Guzman to believe his life was going to end. Thrower did not injure Guzman only because Guzman jumped out of the way. The natural and probable consequence of thrusting a knife of that size into the stomach of a person is severe injury or even death. Thus, a factfinder was permitted to infer that Thrower intended the natural and probable consequences of his act.

Thrower argues that if he genuinely intended to maim or kill Guzman, "one would expect to see repeated and wildly aggressive attacks from him." He points out that he "made only a single gesture with the knife towards Guzman." But this argument ignores the fact that Guzman pulled out his phone to call the police. Abandoning the attack when Guzman called the police is not inconsistent with an intent to maim or kill Guzman. See Jones v. Commonwealth, 70 Va.App. 307, 327 (2019) ("[L]ighting a match with intent to set fire to a haystack has been held to amount to a criminal attempt to burn it, although the defendant blew out the match on seeing that he was observed." (quoting Oliver Wendell Holmes, Jr., The Common Law 67 (1881))).

It is the factfinder's role to consider the evidence and decide what it believed happened, and we must defer to that judgment if "any rational factfinder could have viewed it as the trial court did." Meade v. Commonwealth, 74 Va.App. 796, 806 (2022). We find that a rational factfinder could have viewed matters as the trial court did, and thus we affirm Thrower's conviction for attempted malicious wounding.

C. The trial court did not err in convicting Thrower of attempted robbery.

Thrower contends that the evidence is insufficient to sustain his conviction for attempted robbery because there is no evidence that he demanded money or tried to grab for the bills in Guzman's hand. We disagree.

"[T]o convict a defendant of attempted robbery, 'the Commonwealth is required to prove beyond a reasonable doubt that [the defendant] intended to steal personal property from [the victim], against his will, by force, violence, or intimidation.'" Jones, 70 Va.App. at 318 (second and third alterations in original) (quoting Pitt v. Commonwealth, 260 Va. 692, 695 (2000)).^[1] The intent to steal is the "inten[t] to deprive the owner permanently of his property." Pierce v. Commonwealth, 205 Va. 528, 533 (1964). This intent "does not have to exist for any particular length of time. It may occur momentarily." Durham v. Commonwealth, 214 Va. 166, 169 (1973)). "Intent is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances. It is a state of mind which may be proved by a person's conduct or by his statements." Johnson v. Commonwealth, 209 Va. 291, 295 ...