ROBERT TERRELL JACKSON V COMMONWEALTH OF VIRGINIA

• Court: Court of Appeals of Virginia
• Decided: July 30, 2002
• Docket: 1266012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Clements Argued at Richmond, Virginia

ROBERT TERRELL JACKSON MEMORANDUM OPINION * BY v. Record No. 1266-01-2 JUDGE RUDOLPH BUMGARDNER, III JULY 30, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUISA COUNTY Daniel R. Bouton, Judge

John R. Maus for appellant.

John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Robert Terrell Jackson appeals his conviction of attempted

malicious wounding arguing the evidence was insufficient. He

also contends the trial court erred in revoking an earlier

suspended sentence because of this new conviction. Finding no

error, we affirm.

We review the evidence in the light most favorable to the

Commonwealth granting it all reasonable inferences arising from

it. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d

415, 418 (1987). The victim was surveying for the Department of

Transportation. He parked on the defendant's property and began

removing surveying instruments from his van. Suddenly the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. defendant appeared screaming and holding a machete above his

head. The defendant screamed that he was going to cut the

victim's head off, and came within two feet of the victim as he

yelled, "I'll kill your ass right here." The defendant

repeatedly raised and lowered the machete over the victim's head

as if to strike him and came within eight to ten inches of doing

so. The victim tried to get back to his van and leave. After

two to three minutes, he finally got into his van, hurriedly

left, and called the police. The defendant never struck the

victim.

"[A]n attempt is an unfinished crime, and is compounded of

two elements, the intent to commit the crime and the doing of

some direct act towards its consummation, [more than mere

preparation,] but falling short of the execution of the ultimate

design . . . ." Martin v. Commonwealth, 195 Va. 1107, 1110, 81

S.E.2d 574, 576 (1954). Although the Commonwealth must prove an

overt act in order to establish an attempt, if

"the design of a person to commit a crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt, and this court will not destroy the practical and common sense administration of the law with subtleties as to what constitutes preparation, and what an act done toward the commission of a crime."

Id. at 1112, 81 S.E.2d at 577 (quoting Stokes v. State, 46 So.

627, 629 (Miss. 1908)).

- 2 - The defendant contends the evidence failed to prove he

intended to maim the victim though the defendant repeatedly

stated that he intended to kill and maim the victim. Such

explicit statements of intention provide piercing insight into

the defendant's state of mind. While stating an intent to kill

and maim, the defendant approached the victim waving a lethal

weapon. He repeatedly raised and lowered it as if he was going

to hit the victim and brought it within inches of the victim's

head. Such evidence permits a finding that the defendant had

the specific intent to commit the crime he vocalized.

The defendant argues the fact that he did not injure the

victim shows he merely wanted him to leave his property. The

victim evaded the defendant and got into his van, but the

defendant never abandoned his attack. The defendant's words and

acts never abated before the victim reached safety and drove for

help. The trial court could find the victim escaped to safety

before the defendant could consummate the crime by cleaving the

victim's head. The defendant's actions "need not be the last

proximate act towards the consummation of the crime in

contemplation." Martin, 195 Va. at 1110, 81 S.E.2d at 576. To

commit an attempt, the defendant did not have to do the last

act, striking the victim with the machete. See Sizemore v.

Commonwealth, 218 Va. 980, 986, 243 S.E.2d 212, 216 (1978).

The Commonwealth's evidence was sufficient to prove

attempted malicious wounding beyond a reasonable doubt. That - 3 - conviction also supported the finding that the defendant

violated his probation. Accordingly, we affirm the trial court.

Affirmed.

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