Barry Keith Ashworth v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 8, 2016
• Docket: 1993152
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Alston and Senior Judge Haley UNPUBLISHED

Argued at Richmond, Virginia

BARRY KEITH ASHWORTH MEMORANDUM OPINION* BY v. Record No. 1993-15-2 JUDGE RANDOLPH A. BEALES NOVEMBER 8, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY Leslie M. Osborn, Judge

Michael T. Trent (The Trent Law Practice, on brief), for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Following a bench trial on August 14, 2015, Barry Keith Ashworth (“appellant”) was

convicted of unlawful wounding in violation of Code § 18.2-51. On appeal, appellant challenges

the sufficiency of the evidence in support of that conviction. Specifically, he alleges that “the

evidence failed to establish that the Appellant acted with the necessary intent to maim, disfigure,

disable, or kill.”

I. BACKGROUND

We consider the evidence on appeal “in the light most favorable to the Commonwealth, as

we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60

Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,

330, 601 S.E.2d 555, 574 (2004)). So viewed, the evidence at trial was that appellant and Willie

Evans drove to Simply Wendy’s Beauty Salon (“the beauty salon” or “the salon”) in South Hill

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. in Mecklenburg County around 8:00 a.m. on the morning of March 26, 2015. Appellant had

driven to the salon, which is owned by his wife, to drop off his wife’s dog. According to his

testimony, appellant noticed a burgundy truck parked behind the salon when he arrived.

Appellant got out of his vehicle and entered the salon through a side entrance. Inside the salon,

appellant found his wife and Larry Moseley sleeping on a futon.

Willie Evans testified that appellant asked him to watch the dog as appellant entered the

beauty salon. After several minutes, Evans heard an argument from inside the salon and decided

to get out of the vehicle. After exiting the vehicle, Evans saw appellant shove Moseley out of the

door of the salon. As appellant ejected Moseley from the building, appellant stated, “Don’t you

know you’re in here with my wife?” Evans testified that Moseley attempted to re-enter the

salon, which caused appellant and Moseley to start fighting on the porch outside of the salon.

While appellant and Moseley were fighting and both standing, appellant placed Moseley in a

headlock. After Moseley was in the headlock, Evans noticed that Moseley’s skin tone turned

“quite dark” presumably due to a lack of oxygen. As physically demonstrated by Evans from the

witness stand, appellant was choking Moseley with his left arm and punching Moseley

repeatedly with his right hand. At some point, appellant “got a grip on [Moseley]” and

“slammed him down to the floor” of the porch face first. After Moseley’s face directly hit the

porch, Evans saw that Moseley was bleeding and decided to call the police. While Evans did

testify that Moseley was the aggressor, he also stated on the record that it was appellant who

threw the first punch. Evans did not see the fight end because he was on the phone with

emergency responders.

Moseley testified that he spent the evening of March 25, 2015 drinking alcohol with

Wendy Link, the wife of appellant. After having driven to Henderson, North Carolina to

purchase alcohol, Moseley and Link arrived at the salon at around 1:00 a.m. Moseley testified

-2- that he fell asleep on a fold-out couch inside the salon around 3:00 a.m. At around 8:00 a.m.,

Moseley awakened when he realized that he was being physically attacked. Moseley testified

that the first thing he remembered was that he was being hit and that blood was coming out of his

nose. Moseley then tried to cover his face to protect himself. Moseley identified appellant as the

attacker, having recognized his voice. Appellant repeatedly asked Moseley to apologize to him

during the attack for sleeping with appellant’s wife. Moseley testified that the attack lasted

approximately five or ten minutes. Moseley’s injuries from the attack included cuts on his head

that caused bloodstains to form on the porch of the beauty salon, as well as other bruises and

bumps. He also testified that he went “in and out of consciousness” during the attack and that he

felt dizzy.

Appellant testified that, when he asked Moseley to leave the salon, Moseley attacked him

“like a crazed man,” swung at appellant, and struck him in the face. Next, the two individuals

wrestled, went out of the door of the salon, and then fell to the ground. Appellant testified that

he “threw a couple punches, but [he] was always on the defensive position, not the offensive

position.” 1

Officer Richard Puryear responded to the call to the police sometime around 8:30 or

9:00 a.m. Puryear took photographs of Moseley’s injuries. Puryear noticed that Moseley had

some “marks, knots on his head” -- and that Moseley “looked real flush.” Puryear testified that

he did not remember seeing any visible bruises on appellant. Puryear also took photographs of

the outside of the salon that showed drops of blood on the porch.

1 The trial court determined that appellant’s testimony had been “significantly impeached” and stated, “It’s clear that Mr. Ashworth’s version of this is not correct.” -3- II. ANALYSIS

A. STANDARD OF REVIEW

When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light most

favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,”

Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must instead ask

whether ‘any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v.

Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell

v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar standard gives

full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443

U.S. at 319. Any issues of statutory interpretation are reviewed de novo.

B. SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence was insufficient to prove that he acted with the

intent to maim, disfigure, disable, or kill. Appellant was convicted of unlawful wounding in

violation of Code § 18.2-51, which states:

If any person 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, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.

“[W]hether the required intent exists is generally a question of fact for the trier of fact.”

Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). “Intent may be -4- shown by the circumstances, including a person’s conduct and statements.” Robertson v.

Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000). Moreover,

“[c]ircumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases,

such as proof of intent or knowledge, it is practically the only method of proof.” Abdo v.

Commonwealth, 64 Va. App. 468, 475-76, 769 S.E.2d 677, 680 (2015) (quoting Parks v.

Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)). Finally, “[t]he fact finder may

infer that a person intends the immediate, direct, and necessary consequences of his voluntary

acts.” Robertson, 31 Va. App. at 820, 525 S.E.2d at 643.

“Under ordinary circumstances, an intent to maim may not be presumed from a blow

with a bare fist.” Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 273 (1969)

(citing Lee v. Commonwealth, 135 Va. 572, 578, 115 S.E. 671, 673 (1923)). However, “an

assault with a bare fist may be attended with such circumstances of violence and brutality” that

the fact finder can reasonably conclude that the assailant acted with the necessary intent to maim,

disfigure, disable, or kill. Id. at 640, 166 S.E.2d at 272; Dawkins v. Commonwealth, 186 Va. 55,

63, 41 S.E.2d 500, 504 (1947); Shackelford v. Commonwealth, 183 Va. 423, 426, 32 S.E.2d 682,

684 (1945); Roark v. Commonwealth, 182 Va. 244, 250, 28 S.E.2d 693, 695 (1944). An intent

to maim, disfigure, disable, or kill a person can also be inferred from repeated blows applied to

“vital and delicate parts of the body of a defenseless, unresisting person on the ground.” Roark,

182 Va. at 250, 28 S.E.2d at 695 (quoting M’Whirt’s Case, 44 Va. (3 Gratt.) 594, 611 (1846); see

also Shackelford, 183 Va. at 427, 32 S.E.2d at 684.

Viewing the totality of the evidence in the light most favorable to the Commonwealth, as

we must since it was the prevailing party below, we hold that a rational trier of fact could find

that appellant acted with the necessary intent to maim, disfigure, disable, or kill Moseley. The

evidence at trial established that appellant walked into the salon and found Moseley lying on a

-5- futon with appellant’s wife. While appellant testified that he “really wasn’t that upset” when he

saw Moseley with his wife, the trial court rejected that testimony as not credible, stating, “I don’t

believe that for a minute. I just don’t believe that.” Thus, the trial court made a factual finding

that appellant was angry when he confronted Moseley inside the salon.

In addition, Evans’s testimony regarding appellant’s conduct outside of the salon also

demonstrated that appellant possessed the requisite intent. Evans testified that, during the fight

on the porch, appellant placed Moseley in a headlock. While appellant held Moseley in the

headlock, Evans observed that Moseley appeared to be short of breath. Evans also observed that

Moseley’s skin tone turned “quite dark” from a lack of oxygen. The trial court was particularly

influenced by Evans’s testimony regarding the discoloration of Moseley’s face during the

headlock. The trial court stated, “When you put somebody in a headlock and squeeze them so

hard that they turn from white to black because of lack of oxygen, that’s not an assault and

battery.” In short, appellant did much more than eject Moseley from his property and fight him

in the process of doing so.

Finally, appellant’s intent was evident in his repeated punches to Moseley’s head and

face while Moseley was essentially defenseless and being deprived of oxygen. Evans testified

that it was appellant who threw the first punch. He testified that appellant punched Moseley

“several times” while appellant was depriving Moseley of oxygen in the apparently suffocating

headlock. When the Commonwealth asked Evans if Moseley was doing anything while he was

being choked by appellant, Evans responded, “No, sir.” Moseley testified that he felt dizzy

during the attack and that he drifted “in and out of consciousness.” From this evidence, the trial

court properly rejected appellant’s claim that he was simply trying to eject Moseley from the

beauty salon and get Moseley away from appellant’s wife. Instead, the trial court concluded that

-6- appellant had choked Moseley to the point of unconsciousness and then repeatedly struck him in

the face while Moseley was largely defenseless.

In summary, the evidence established that appellant repeatedly punched Moseley while

he was either defenseless from the suffocating headlock or utterly helpless as he drifted in and

out of consciousness during an attack that, according to Moseley, lasted between five and ten

minutes.2 The attack continued until appellant slammed Moseley face first into the porch.

Interestingly, when it was apparent that Moseley was bleeding from his injuries and was largely

defenseless, it was Evans – appellant’s own friend and sometime employee – who called the

police. For all of these reasons, we cannot say that no rational trier of fact could have found that

appellant acted with the intent to maim, disfigure, disable, or kill Moseley, based on all of the

circumstances that precipitated the attack and the fact that appellant placed Moseley in a

suffocating headlock, severely reduced his supply of oxygen, and punched him repeatedly while

Moseley was essentially defenseless. Therefore, we hold that the trial court did not err.

III. CONCLUSION

For the foregoing reasons, we affirm appellant’s conviction for unlawful wounding in

violation of Code § 18.2-51.

Affirmed.

2 While appellant testified that the altercation lasted approximately three minutes, we are required to view the evidence on appeal in the light most favorable to the Commonwealth. Beasley, 60 Va. App. at 391, 728 S.E.2d at 504. -7-