Milton Franklin Mizell v. Commonwealth of Virgnia

• Court: Court of Appeals of Virginia
• Decided: April 2, 2024
• Docket: 0052231
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Chief Judge Decker, Judges Fulton and Ortiz Argued at Norfolk, Virginia

MILTON FRANKLIN MIZELL MEMORANDUM OPINION* BY v. Record No. 0052-23-1 JUDGE JUNIUS P. FULTON, III APRIL 2, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK L. Wayne Farmer, Judge

Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.

Jessica M. Bradley, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

The Circuit Court for the City of Suffolk convicted Milton Franklin Mizell of aggravated

malicious wounding and abduction, in violation of Code §§ 18.2-51.2 and 18.2-47, respectively.

Mizell also entered a guilty plea to a charge of assault and battery of a family member, in violation

of Code § 18.2-57.2. Mizell asserts that the trial court erred in finding the evidence sufficient to

support his convictions for aggravated malicious wounding and abduction, and he maintains that the

trial court abused its discretion by imposing a lengthier period of suspension than that which is

authorized by statute for the assault and battery of a family member charge. For the following

reasons, we find no error and affirm the judgment.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND

We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing party

in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting

Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we “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 [from that evidence].” Ray v.

Commonwealth, 74 Va. App. 291, 307 (2022) (alteration in original) (quoting Bagley v.

Commonwealth, 73 Va. App. 1, 26 (2021)).

On May 2 and 3, 2020, Mizell and his girlfriend R.P.1 lived together in a rented room on the

second floor of a boarding house. On the morning of May 2, 2020, Mizell locked R.P. in their room

and left for work. 2 He did not return until around 5:00 a.m. the next morning. R.P. was “really

upset” because Mizell did not return all night to let her out. She had to use the bathroom in a

trashcan and had nothing to eat. On his return, R.P. confronted Mizell, but he told her to “shut up”

and “stop talking.” When she asked where he had been all night, Mizell “got in [her] face” and hit

her. The blow left her bloody and unable to defend herself. When asked how many times Mizell

hit her, R.P. struggled to remember and said “[h]onestly, I remember just one hit” with “[a] closed

fist.” Following the blow, she almost lost consciousness and she felt dizzy, as blood ran down her

face. R.P. looked into a mirror and was shocked to see that her tooth was pushed back and her lip

was split, making it difficult to speak. Mizell frantically stated, “look what you made me do.” He

said he would go “make a plug” and left the room, again locking her inside. R.P. found Mizell’s

cell phone and called 911.

1 We refer to the victim by her initials in an attempt to protect her privacy. 2 The door was secured with a padlock on the outside of the door. R.P. did not have a key to the door or the padlock. -2- Officer Daniel Nesbitt responded to R.P.’s call for help. He located R.P.’s room and

observed that the door was locked on the outside with a padlock. Officer Nesbitt kicked the door in

to make entry into R.P.’s room. He did not see any other safe exit from the room except the door.

R.P. spent four days in the hospital enduring several surgeries for her gums and teeth. Her

medical records indicated that she suffered several facial fractures including to the bottom part of

her jaw and beneath her eye, a “[l]ip laceration,” and two lacerations to the inside of her left lower

lip. At the time of trial in October 2022, the left side of R.P.’s mouth was still numb and she had

wires in her mouth holding her tooth in place. There was no anticipated date scheduled for removal

of the wires.

The trial court convicted Mizell of aggravated malicious wounding and abduction. The trial

court sentenced Mizell to 25 years in prison, with 10 years suspended, for the aggravated malicious

wounding charge, 10 years in prison, with 5 years suspended, for the abduction charge, and 12

months in jail, with 12 months suspended, for the assault and battery of a family member charge.

The trial court’s misdemeanor sentencing order specifically stated that it was suspending the

12-month sentence “for a period beginning today [December 22, 2022] and continue [sic] for a

period of 12 months after the defendant’s release from incarceration.” The terms of suspension

mirrored those ordered for the felony convictions, each of which had partially suspended sentences.

This appeal followed.

ANALYSIS

I. Sufficiency of the Evidence

In his first two assignments of error, Mizell argues that the trial court erred in finding

sufficient evidence to convict him for aggravated malicious wounding and abduction. Mizell

specifically asserts that the trial court erred in finding the evidence sufficient to support his

conviction for aggravated malicious wounding where (1) the evidence failed to prove he intended to

-3- maim, disfigure, disable or kill R.P. and (2) the evidence failed to prove R.P. suffered a permanent

and significant injury. Mizell also contends that the trial court erred in denying his motion to strike

the abduction charge because (1) the evidence failed to establish that he used force, intimidation, or

deception and (2) the evidence was insufficient to prove he intended to deprive R.P. of her personal

liberty. Because we find that the Commonwealth’s evidence sufficiently proved the elements of

each offense, we affirm the convictions.

II. 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.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (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.’” McGowan, 72

Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).

This deferential standard of review “applies not only to the historical facts themselves, but

the inferences from those facts as well.” Crowder v. Commonwealth, 41 Va. App. 658, 663 n.2

(2003). “The inferences to be drawn from proven facts, so long as they are reasonable, are within

the province of the trier of fact.” Hancock v. Commonwealth, 12 Va. App. 774, 782 (1991). Thus,

a fact finder may “draw reasonable inferences from basic to ultimate facts,” Haskins v.

-4- Commonwealth, 44 Va. App. 1, 10 (2004) (quoting Pease v. Commonwealth, 39 Va. App. 342, 355

(2002)), unless doing so would push “into the realm of non sequitur,” Thomas v. Commonwealth,

48 Va. App. 605, 608 (2006) (quoting Crowder, 41 Va. App. at 665). Such deference stems, in part,

from the trial court’s “opportunity to observe the testimony and demeanor of all witnesses.” Lopez

v. Commonwealth, 73 Va. App. 70, 81 (2021). Accordingly, settled principles dictate that

“[d]etermining the credibility of witnesses . . . is within the exclusive province of the [fact finder],

which has the unique opportunity to observe the demeanor of the witnesses as they testify.” Dalton

v. Commonwealth, 64 Va. App. 512, 525 (2015) (second alteration in original) (quoting Lea v.

Commonwealth, 16 Va. App. 300, 304 (1993)).

III. Aggravated Malicious Wounding

“If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means

causes bodily injury, with the intent to maim, disfigure, disable or kill,” he is guilty of aggravated

malicious wounding “if the victim is thereby severely injured and is caused to suffer permanent and

significant physical impairment.” Code § 18.2-51.2(A). Arguing that the evidence established that

he struck only one blow, Mizell does not dispute that his actions were malicious or that he wounded

R.P.; he merely contends that the evidence failed to prove he intended to seriously wound her, and

he denies that she suffered permanent and significant injury.

“Intent is the purpose formed in a person’s mind at the time an act is committed. Intent

may, and often must, be inferred from the facts and circumstances of the case, including the actions

and statements of the accused.” Johnson v. Commonwealth, 53 Va. App. 79, 100 (2008) (quoting

Commonwealth v. Taylor, 256 Va. 514, 519 (1998)). It is axiomatic that the question of whether a

defendant possessed the requisite intent normally rests with the trier of fact, Nobles v.

Commonwealth, 218 Va. 548, 551 (1977), and that the fact finder may infer a “person intends the

natural and probable consequences of his or her acts,” Velasquez v. Commonwealth, 276 Va. 326,

-5- 330 (2008). To that end, “an assault with the bare fists may be attended with such circumstances of

violence and brutality that an intent to maim, disfigure, disable, or kill will be presumed.”

Shackelford v. Commonwealth, 183 Va. 423, 426 (1945); see also Johnson, 53 Va. App. at 101

(“[A] person may be found to have intended permanent harm by an attack with fists where the

assailant employs sufficient brutality.”).

With respect to the element of permanent and significant physical impairment, we have said

that “physical impairment” is “any physical condition, anatomic loss, or cosmetic disfigurement.”

Lamm v. Commonwealth, 55 Va. App. 637, 644 (2010) (quoting Newton v. Commonwealth, 21

Va. App. 86, 90 (1995)). “The word ‘permanent’ has been defined as ‘continuing or enduring (as in

the same state, status, place) without fundamental or marked change.’” Ellis v. Commonwealth, 70

Va. App. 385, 392 (2019) (quoting Webster’s Third New International Dictionary 1683 (3d ed.

1993)). In order to prove that a physical impairment is permanent under Code § 18.2-51.2, “the

Commonwealth need not present definitive testimony that a victim’s injuries will never improve.”

Id. (quoting Lamm, 55 Va. App. at 644). Nor is expert testimony required to prove the significance

and permanence of the victim’s injuries. Martinez v. Commonwealth, 42 Va. App. 9, 24-25 (2003).

“[T]he determination of permanency is left to the ‘common sense of the [finder of fact].’” Ellis, 70

Va. App. at 392 (second alteration in original) (quoting Lamm, 55 Va. App. at 644).

The evidence in this case proved that Mizell left R.P. locked in their room in the morning

hours of May 2, 2020, until the early morning hours of May 3, 2020. Upon his return, R.P. was

naturally upset because she was left without food or the ability to use a bathroom all day and

overnight. When confronted, rather than apologizing, Mizell told R.P. to “shut up” and “stop

talking.” When R.P. continued to speak, Mizell struck her. R.P. did not recall how many blows she

endured, but she testified that she remembered Mizell throwing one punch to her face that almost

knocked her out and caused her to feel dizzy. Blood began to stream down her face. Her tooth was

-6- pushed back, and her lip was split. Then, following the assault, Mizell showed a complete lack of

remorse by blaming R.P. for the attack. After striking R.P., Mizell did not take any action to

address her obviously serious injuries nor did he seek medical assistance for her. Instead, he left

her, injured, in the locked room and fled, not taking any action to potentially mitigate the

permanency of R.P.’s injuries. “[E]vidence of flight may be considered as evidence of guilt along

with other pertinent facts and circumstances.” Hope v. Commonwealth, 10 Va. App. 381, 386

(1990) (en banc). Additionally, medical records showed that R.P. endured broken bones in her face

and lacerations on her lip. Her injuries were so severe that she remained in the hospital for at least

four days and underwent several surgeries for her gums and teeth. At the time of trial more than

two years later, her lip was still numb and she had wires in her mouth holding her tooth in place.

The totality of this evidence sufficiently proved the elements of aggravated malicious

wounding. Even if merely a single blow, the blow to R.P.’s face was attended with such

circumstances of violence and brutality that a reasonable fact finder could infer Mizell possessed the

requisite intent to maim, disable, disfigure, or kill R.P. and that his actions resulted in permanent

and significant injury. Because the trial court’s findings are not plainly wrong or without supporting

evidence, we are bound by them. We, therefore, affirm the conviction for aggravated malicious

wounding.

IV. Abduction

“Any person who, by force, intimidation or deception, and without legal justification or

excuse, seizes, takes, transports, detains or secretes another person with the intent to deprive such

other person of his personal liberty . . . shall be deemed guilty of abduction.” Code § 18.2-47(A).

“[T]he actus reus of the crime is a taking, transporting, or detention of another, while the mens rea

of the crime is a specific intent to deprive another of her liberty.” Brown v. Commonwealth, 74

Va. App. 721, 730-31 (2022). “A defendant detains his victim by keeping the victim in a specific

-7- place ‘through the use of force, intimidation, or deception.’” Id. at 731 (quoting Commonwealth v.

Herring, 288 Va. 59, 74 (2014)). Proof of asportation is not required. “[M]ere detention is

sufficient under Code § 18.2-47 to establish abduction.” Walker v. Commonwealth, 272 Va. 511,

517 (2006). Again, “[i]ntent is the purpose formed in a person’s mind and may, like any other fact,

be shown by circumstances, including the ‘words or conduct’ of the alleged offender.” Fary v.

Commonwealth, 77 Va. App. 331, 342 (2023) (quoting Secret, 296 Va. at 228-29).

In this case, after striking a blow to R.P. that caused multiple serious injuries, Mizell again

secured the door with a padlock and exited the boarding house, leaving R.P. bleeding, alone, dizzy,

and nearly unconscious.3 When asked if she gave Mizell permission to lock her in the room and

leave here there, R.P. said, “No.” R.P. also did not consent to being locked in the room the previous

day, for more than 18 hours without food, fresh air, or access to the bathroom. After the blow, she

felt scared and had to wait until after the police arrived to obtain necessary medical care. Officer

Nesbitt had to kick the door in to gain access to the room, and he testified that he did not see any

other safe exit from the room. Contrary to Mizell’s suggestion, R.P. was not required to jump out of

a second story window, nor was she required to scream for help. The crime of abduction was

completed when Mizell purposely locked R.P. in the room, scared and bleeding. In doing so, he

knowingly and intentionally deprived R.P. of her personal liberty without legal justification or

excuse.

In short, the trial court did not err in concluding that the evidence was sufficient to support a

conviction for abduction.

The trial court’s finding of abduction was based on Mizell’s conduct after his arrival on 3

May 3, 2020. The trial court did not make a ruling as to whether locking R.P. in the room prior to the blow was an abduction. -8- V. Sentencing

Mizell argues that the trial court exceeded the period of suspension allowed by Code

§ 19.2-303.1 for his misdemeanor conviction. We note that the trial court’s misdemeanor

sentencing order conflates the period of suspension for the misdemeanor offense with the period of

suspension ordered for the felonies. In light of the ambiguity created by the order’s disparity with

the record, we find that this was a clerical error. Accordingly, we remand this case for the trial court

to correct the clerical error in the sentencing order to comply with Code § 19.2-303.1.

CONCLUSION

For the foregoing reasons, we affirm Mizell’s convictions for aggravated malicious

wounding and abduction, but we remand this case to the trial court to correct the clerical error in the

sentencing order for the assault and battery of a family member conviction.

Affirmed and remanded.

-9-