Larry Edwin Tatum, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 30, 1999
• Docket: 1469983
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner Argued at Salem, Virginia

LARRY EDWIN TATUM, JR. MEMORANDUM OPINION * BY v. Record No. 1469-98-3 JUDGE RUDOLPH BUMGARDNER, III MARCH 30, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRY COUNTY David V. Williams, Judge

S. Jane Chittom, Appellate Counsel (Elwood Earl Sanders, Jr.; Public Defender Commission, on brief), for appellant.

Daniel J. Munroe, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Larry Edwin Tatum, Jr. appeals his conviction after a bench

trial of malicious wounding. He contends the evidence was not

sufficient to permit a finding of malice. Concluding that

sufficient evidence supported that finding, we affirm.

On appeal we view the evidence in the light most favorable

to the Commonwealth, with all reasonable inferences fairly

deducible therefrom. See Archer v. Commonwealth, 26 Va. App. 1,

11, 492 S.E.2d 826, 831 (1997). We must discard the evidence of

the accused in conflict with that of the Commonwealth, see

Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. (1988), and not substitute our judgment for that of the fact

finder. See Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d

218, 220 (1992).

The defendant and the victim were both at a party when the

victim started arguing with a woman. The defendant intervened

and ended up arguing with the victim. The victim walked away,

but the defendant went up behind him and broke a beer bottle

over his head. The two separated, but a few minutes later they

started fistfighting and wrestling on the ground. No weapons

were involved as the victim got the defendant on the ground and

began winning the fight. While the victim was on top, the

defendant unexpectedly pulled a switchblade and stabbed the

victim five times. The victim received wounds to his arm, ribs,

and back. The defendant admitted stabbing the victim and

putting the knife under a pickup truck. The defendant says that

he was in fear of the victim and acted in self-defense when the

victim started the second fight. Defense witnesses corroborate

his claim.

"Whether or not an accused acted with malice is generally a

question of fact and may be proved by circumstantial evidence."

Canipe v. Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747,

753 (1997). "Implied malice may be inferred from 'conduct

likely to cause death or great bodily harm, wilfully or

purposefully undertaken.'" Id. (quoting Essex v. Commonwealth,

- 2 - 228 Va. 273, 281, 322 S.E.2d 216, 220 (1984)). Furthermore,

"[m]alice may be inferred 'from the deliberate use of a deadly

weapon.'" Doss v. Commonwealth, 23 Va. App. 679, 686, 479

S.E.2d 92, 96 (1996) (quoting Perricllia v. Commonwealth, 229

Va. 85, 91, 326 S.E.2d 679, 683 (1985)).

The defendant argues that the evidence was insufficient to

support a finding of malice because evidence showed he acted in

self-defense during mutual combat. He contends that after he

struck the victim in the head with a bottle, the victim resumed

the fight and he stabbed the victim while provoked by fear.

"The trier of fact is free to disregard the defendant's evidence

of self defense . . . ." See Bell v. Commonwealth, 2 Va. App.

48, 56, 341 S.E.2d 654, 658 (1986). "In its role of judging

witness credibility, the fact finder is entitled to disbelieve

the self-serving testimony of the accused and to conclude that

the accused is lying to conceal his guilt." Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235

(1998).

The trial court determined that the fight was a fistfight,

that the victim was unarmed, and that the victim was "getting

the better of the Defendant." The court found that the

defendant's use of a deadly weapon to stab the victim five times

was sufficient to establish malice, even though the fight was "a

mutual fray situation."

- 3 - The fact finder alone determines the credibility of

witnesses, the weight accorded their testimony, and the

inferences to be drawn from proven facts. See Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

The fact finder is free to believe and disbelieve in part or in

whole the testimony of any witness. See Rollston v.

Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).

We conclude that there is sufficient evidence to support

the finding of malice, and we affirm the conviction.

Affirmed.

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