PRESENT: All the Justices
CHRISTOPHER BURKEEN OPINION BY v. Record No. 122178 JUSTICE S. BERNARD GOODWYN October 31, 2013 COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in affirming the conviction of Christopher Burkeen for
malicious wounding, in violation of Code § 18.2-51, when
Burkeen struck the victim with a bare fist only once.
Procedural Background
Burkeen was indicted for malicious wounding in the Circuit
Court of the City of Newport News. The circuit court found
Burkeen guilty as charged. Burkeen appealed his conviction to
the Court of Appeals. A three-judge panel of the Court of
Appeals affirmed Burkeen’s conviction by ruling that the
evidence was sufficient to establish his intent to maliciously
wound the victim and his violation of Code § 18.2-51. Burkeen
v. Commonwealth, Record No. 2566-11-1 (November 27, 2012).
Burkeen appeals.
Burkeen’s assignment of error states:
The Court of Appeals erred when it found that the evidence was sufficient to prove intent to maim, disfigure, disable or kill where the defendant struck the victim with a single blow with his bare fist. Facts
Around closing time on December 30, 2009, Donald Mayer
stood outside a bar where he had been playing pool. Burkeen
approached Mayer and asked to see his pool cue. Mayer
acquiesced. Burkeen asked Mayer how much the cue cost, and
Mayer informed Burkeen that he purchased it for $230. Burkeen
responded, “You’ll take $200.” Mayer told Burkeen that the
pool cue was not for sale, and then Burkeen said, “No, you’ll
take $200 for it.” Mayer put his hand on his cue that Burkeen
was holding. Burkeen let go of the cue and immediately punched
Mayer in the face.
Mayer held his nose, which began bleeding. Burkeen then
called Mayer a “bitch” and said that he could “kick [his] ass”
and take Mayer’s cue if he wanted to. Burkeen also proclaimed
that he was in the Army and could bench press 200 pounds.
Keith Taylor saw Burkeen with his arm raised as if he was
going to hit Mayer again, and he quickly moved to shield Mayer
from Burkeen’s attack. Burkeen proceeded to hit Taylor on the
back of his head three to five times, until Taylor fell to the
ground. Burkeen stopped his attack and ran when a bystander
mentioned that he had called the police.
A doctor testified that as a result of the blow delivered
by Burkeen, Mayer had “fractures of the orbit, the malar
region, which is a series of bones around the cheek, and nasal
2 fractures.” The doctor treated Mayer by performing “major
reconstructive surgery” to address this “significant injury,”
which was caused by a “significant force.” Mayer continues to
have headaches, and he has visible scars and puffiness around
his eyes because of scar tissue.
Analysis
Burkeen argues that, as a matter of law, a single blow
from a bare fist is not sufficient evidence of the intent to
maim, disfigure, disable or kill, which is required for a
malicious wounding conviction. He notes that this Court has
only sustained a conviction for malicious wounding from a bare
fist in cases that involved multiple blows. Therefore, Burkeen
contends, the Court of Appeals erred in ruling that there was
sufficient evidence to convict him of malicious wounding.
The Commonwealth responds that the evidence in this case
was sufficient to convict Burkeen of malicious wounding.
The standard of review in this case is well-settled.
When considering a challenge to the sufficiency of the evidence to sustain a conviction, . . . . [t]his Court will only reverse the judgment of the trial court if the judgment is plainly wrong or without evidence to support it. If there is evidence to support 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.
Clark v. Commonwealth, 279 Va. 636, 640-41, 691 S.E.2d 786, 788
(2010) (citations and internal quotation marks omitted).
3 Additionally, when considering the sufficiency of the evidence
to sustain a conviction, this Court reviews “the evidence in
the light most favorable to the prevailing party at trial and
consider[s] all inferences fairly deducible from that
evidence.” Id. at 640, 691 S.E.2d at 788 (citation and
internal quotation marks omitted).
The circuit court convicted Burkeen of malicious wounding
pursuant to Code § 18.2-51. 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.” Id.; Dowdy v. Commonwealth, 220
Va. 114, 116, 255 S.E.2d 506, 508 (1979) (“It is elementary
that the burden is on the Commonwealth to prove every essential
element of the offense beyond a reasonable doubt.”) (internal
quotation marks omitted).
“Malice ∗ inheres in the doing of a wrongful act
intentionally, or without just cause or excuse, or as a result
of ill will. [Malicious intent to wound] may be directly
evidenced by words, or inferred from acts and conduct which
necessarily result in injury.” Dawkins v. Commonwealth, 186
Va. 55, 61, 41 S.E.2d 500, 503 (1947). The Court of Appeals
∗ The instant assignment of error only contests “intent” and does not implicate “malice.” Malice is discussed here only because it is an integral element of the offense.
4 has stated, “To be guilty [of malicious wounding], a person
must [also] intend to permanently, not merely temporarily, harm
another person.” Johnson v. Commonwealth, 53 Va. App. 79, 101,
669 S.E.2d 368, 378 (2008) (citation omitted). We agree with
the ruling of the Court of Appeals in Johnson.
“Under ordinary circumstances an intent to maim may not be
presumed from a blow with a bare fist. But an assault with a
bare fist may be attended with such circumstances of violence
and brutality that an intent to kill may be presumed.”
Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 273
(1969) (citation omitted); see Johnson, 53 Va. App. at 103, 669
S.E.2d at 380 (“Although we have not previously held in a
reported opinion that a single blow with a bare fist may
constitute sufficient evidence to prove an intent to
permanently injure, we hold that under the circumstances of
this case the jury could make such a determination.”).
“Intent is a state of mind which can be evidenced only by
the words or conduct of the person who is claimed to have
entertained it.” Banovitch v. Commonwealth, 196 Va. 210, 216,
83 S.E.2d 369, 373 (1954) (citations omitted). The intent to
maliciously wound, therefore, “may, like any other fact, be
shown by circumstances.” Id.
In Roark v. Commonwealth, 182 Va.
Free access — add to your briefcase to read the full text and ask questions with AI
PRESENT: All the Justices
CHRISTOPHER BURKEEN OPINION BY v. Record No. 122178 JUSTICE S. BERNARD GOODWYN October 31, 2013 COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in affirming the conviction of Christopher Burkeen for
malicious wounding, in violation of Code § 18.2-51, when
Burkeen struck the victim with a bare fist only once.
Procedural Background
Burkeen was indicted for malicious wounding in the Circuit
Court of the City of Newport News. The circuit court found
Burkeen guilty as charged. Burkeen appealed his conviction to
the Court of Appeals. A three-judge panel of the Court of
Appeals affirmed Burkeen’s conviction by ruling that the
evidence was sufficient to establish his intent to maliciously
wound the victim and his violation of Code § 18.2-51. Burkeen
v. Commonwealth, Record No. 2566-11-1 (November 27, 2012).
Burkeen appeals.
Burkeen’s assignment of error states:
The Court of Appeals erred when it found that the evidence was sufficient to prove intent to maim, disfigure, disable or kill where the defendant struck the victim with a single blow with his bare fist. Facts
Around closing time on December 30, 2009, Donald Mayer
stood outside a bar where he had been playing pool. Burkeen
approached Mayer and asked to see his pool cue. Mayer
acquiesced. Burkeen asked Mayer how much the cue cost, and
Mayer informed Burkeen that he purchased it for $230. Burkeen
responded, “You’ll take $200.” Mayer told Burkeen that the
pool cue was not for sale, and then Burkeen said, “No, you’ll
take $200 for it.” Mayer put his hand on his cue that Burkeen
was holding. Burkeen let go of the cue and immediately punched
Mayer in the face.
Mayer held his nose, which began bleeding. Burkeen then
called Mayer a “bitch” and said that he could “kick [his] ass”
and take Mayer’s cue if he wanted to. Burkeen also proclaimed
that he was in the Army and could bench press 200 pounds.
Keith Taylor saw Burkeen with his arm raised as if he was
going to hit Mayer again, and he quickly moved to shield Mayer
from Burkeen’s attack. Burkeen proceeded to hit Taylor on the
back of his head three to five times, until Taylor fell to the
ground. Burkeen stopped his attack and ran when a bystander
mentioned that he had called the police.
A doctor testified that as a result of the blow delivered
by Burkeen, Mayer had “fractures of the orbit, the malar
region, which is a series of bones around the cheek, and nasal
2 fractures.” The doctor treated Mayer by performing “major
reconstructive surgery” to address this “significant injury,”
which was caused by a “significant force.” Mayer continues to
have headaches, and he has visible scars and puffiness around
his eyes because of scar tissue.
Analysis
Burkeen argues that, as a matter of law, a single blow
from a bare fist is not sufficient evidence of the intent to
maim, disfigure, disable or kill, which is required for a
malicious wounding conviction. He notes that this Court has
only sustained a conviction for malicious wounding from a bare
fist in cases that involved multiple blows. Therefore, Burkeen
contends, the Court of Appeals erred in ruling that there was
sufficient evidence to convict him of malicious wounding.
The Commonwealth responds that the evidence in this case
was sufficient to convict Burkeen of malicious wounding.
The standard of review in this case is well-settled.
When considering a challenge to the sufficiency of the evidence to sustain a conviction, . . . . [t]his Court will only reverse the judgment of the trial court if the judgment is plainly wrong or without evidence to support it. If there is evidence to support 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.
Clark v. Commonwealth, 279 Va. 636, 640-41, 691 S.E.2d 786, 788
(2010) (citations and internal quotation marks omitted).
3 Additionally, when considering the sufficiency of the evidence
to sustain a conviction, this Court reviews “the evidence in
the light most favorable to the prevailing party at trial and
consider[s] all inferences fairly deducible from that
evidence.” Id. at 640, 691 S.E.2d at 788 (citation and
internal quotation marks omitted).
The circuit court convicted Burkeen of malicious wounding
pursuant to Code § 18.2-51. 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.” Id.; Dowdy v. Commonwealth, 220
Va. 114, 116, 255 S.E.2d 506, 508 (1979) (“It is elementary
that the burden is on the Commonwealth to prove every essential
element of the offense beyond a reasonable doubt.”) (internal
quotation marks omitted).
“Malice ∗ inheres in the doing of a wrongful act
intentionally, or without just cause or excuse, or as a result
of ill will. [Malicious intent to wound] may be directly
evidenced by words, or inferred from acts and conduct which
necessarily result in injury.” Dawkins v. Commonwealth, 186
Va. 55, 61, 41 S.E.2d 500, 503 (1947). The Court of Appeals
∗ The instant assignment of error only contests “intent” and does not implicate “malice.” Malice is discussed here only because it is an integral element of the offense.
4 has stated, “To be guilty [of malicious wounding], a person
must [also] intend to permanently, not merely temporarily, harm
another person.” Johnson v. Commonwealth, 53 Va. App. 79, 101,
669 S.E.2d 368, 378 (2008) (citation omitted). We agree with
the ruling of the Court of Appeals in Johnson.
“Under ordinary circumstances an intent to maim may not be
presumed from a blow with a bare fist. But an assault with a
bare fist may be attended with such circumstances of violence
and brutality that an intent to kill may be presumed.”
Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 273
(1969) (citation omitted); see Johnson, 53 Va. App. at 103, 669
S.E.2d at 380 (“Although we have not previously held in a
reported opinion that a single blow with a bare fist may
constitute sufficient evidence to prove an intent to
permanently injure, we hold that under the circumstances of
this case the jury could make such a determination.”).
“Intent is a state of mind which can be evidenced only by
the words or conduct of the person who is claimed to have
entertained it.” Banovitch v. Commonwealth, 196 Va. 210, 216,
83 S.E.2d 369, 373 (1954) (citations omitted). The intent to
maliciously wound, therefore, “may, like any other fact, be
shown by circumstances.” Id.
In Roark v. Commonwealth, 182 Va. 244, 251, 28 S.E.2d 693,
696 (1944), an attack with a bare fist did not constitute
5 malicious wounding. Roark got into an argument with the
victim, shouting “You don’t know a . . . damned thing about
what you are talking about.” Id. at 246, 28 S.E.2d at 694.
“Thereupon Roark struck [the victim] with [his non-dominant
hand] and knocked him down on the sidewalk.” Id. at 246, 252,
28 S.E.2d at 694, 696. Seeing the victim’s injury, Roark
rushed him to the hospital and offered to pay for all his
medical expenses. Id. at 246, 28 S.E.2d at 694. “The relation
of the parties, the facts leading up to the blow, the use of
the left hand or fist, and the acts of [the] defendant
immediately after the blow clearly show that defendant did not
intend to inflict serious bodily injury upon [the victim].”
Id. at 252, 28 S.E.2d at 696. Therefore, this Court found that
the defendant did not act with the requisite intent, and as a
consequence, there was insufficient evidence for a malicious
wounding conviction. Id.
However, this Court found the attendant violence and
brutality that evidences an intent to maliciously wound in
Shackelford v. Commonwealth, 183 Va. 423, 32 S.E.2d 682 (1945).
“The accused, a strong, hale, heavy-set man, made an unprovoked
attack upon a frail woman 50 years of age in her own kitchen.”
Id. at 426, 32 S.E.2d at 684. Further, “[w]hile the attack
apparently lasted only a few moments, it was brought to an end
not by the voluntary action of the accused but by the attempts
6 of [his wife] to stop him . . . and the fact that [the victim]
made her escape from the room.” Id. at 427, 32 S.E.2d 684.
The defendant admitted that he had not only struck the victim,
“but that he had ‘followed up’ the blow.” Id. All of these
actions and statements were evidence of the brutal and violent
circumstances of the crime and the defendant’s intent to maim.
Id.
In Fletcher, 209 Va. at 638, 166 S.E.2d at 271, the
defendant struck the awakening victim with a bare fist,
resulting in a “blow-out fracture of the orbital floor with
incarceration of muscle and the orbital tissue in the
fracture.” The defendant also attacked two other individuals
in the same incident. This Court held that the assault upon
the victim “with the bare fist was attended with such
circumstances of violence and brutality that [there was
sufficient evidence of] an intent to maim.” Id. at 640-41, 166
S.E.2d at 273.
It 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. See Dawkins, 186 Va. at 63, 41 S.E.2d at 504.
In the present case, the victim did nothing to provoke the
attack, and he was hit with extreme force in a vulnerable area
7 of his body while he was defenseless and not expecting such a
blow. The blow resulted in serious and disfiguring injury.
Burkeen bragged of his strength and training while taunting and
cursing the victim after the first blow, indicating his intent
to inflict such harm upon the victim. Additionally, Burkeen
was poised to attack the victim further until Taylor
intervened, at which time Taylor was attacked instead. In
fact, Burkeen only discontinued his attack when he heard that
the police had been called.
We hold that, under the circumstances, there was
sufficient evidence of violence and brutality for the circuit
court to find that, although Burkeen delivered only one blow
with a closed fist, he acted with malice and he intended to
maim Mayer. Accordingly, we will affirm the judgment of the
Court of Appeals.
Affirmed.