William Edward Mize v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 13, 2001
• Docket: 1185003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Agee Argued at Salem, Virginia

WILLIAM EDWARD MIZE MEMORANDUM OPINION * BY v. Record No. 1185-00-3 JUDGE RUDOLPH BUMGARDNER, III MARCH 13, 2001 COMMONWEALTH OF VIRGINIA

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

S. Jane Chittom, Appellate Defender (Public Defender Commission, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

William Edward Mize was convicted of aggravated malicious

wounding and malicious wounding. He contends the evidence is

insufficient to establish malice or the intent to maim,

disfigure, disable, or kill. He also contends the evidence was

not sufficient to prove use of a firearm during the commission

of the malicious woundings because the evidence was not

sufficient to prove the underlying offenses. Finding no error,

we affirm.

The defendant shot his sister-in-law and her daughter with

a 16-gauge shotgun. He hit the fourteen-year-old daughter,

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Amanda, in her face leaving her totally blind. He hit the

sister-in-law, Wanda, in the back of her neck with one pellet.

At trial, the defendant maintained the shotgun discharged

accidentally while he was cleaning it. "On appeal, 'we review

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492

S.E.2d 826, 831 (1997) (citation omitted). So viewed the

evidence supports the finding that the defendant fired the

weapon at the two victims maliciously and intentionally.

Malice may be inferred "from the deliberate use of a deadly

weapon." Perricllia v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d

679, 683 (1985). Similarly, use of a deadly weapon, coupled

with defendant's conduct and statements, may be sufficient to

prove specific intent to kill. Hargrave v. Commonwealth, 214

Va. 436, 437, 201 S.E.2d 597, 598 (1974). Voluntarily

brandishing a firearm and firing a weapon near victims supported

the inference of intent to kill. Bell v. Commonwealth, 11 Va.

App. 530, 533-34, 399 S.E.2d 450, 452 (1991). A defendant's

intent may be inferred from the facts and circumstances of a

particular case. Hernandez v. Commonwealth, 15 Va. App. 626,

631, 426 S.E.2d 137, 140 (1993).

The defendant lived next door to his brother Johnny. The

two began drinking beer around noon. At some point, they argued

after the defendant complained that Johnny's stepdaughter was

- 2 - dressing too suggestively for a fourteen-year-old girl. The

drinking continued into the afternoon. After a friend, Timothy

Dunford, arrived, the defendant told him, "I hate that little

bitch."

Johnny and Dunford left to get some more beer, and the

defendant retrieved his shotgun from his bedroom where he kept

it. He usually kept the gun unloaded and stored the ammunition

separately. The defendant returned outside with his shotgun,

and the gun discharged. Wanda looked up to see the defendant

standing right outside his front door holding the gun against

his shoulder in a firing position, pointing it at her and her

daughter. She then realized the shot had hit Amanda in the

face. Her son, David, also saw the defendant holding the gun in

a firing position pointed at his mother and sister. The

defendant dropped the shotgun and fled into the woods. He did

not turn himself in to the police until the next day.

The defendant gave different accounts of what happened. At

first, he claimed he took the gun to the front porch to clean

it. While leaning against the picnic table with the gun on his

lap, it fired accidentally. When the police challenged that

story because of the witness reports and the physical

impossibility of hitting the victims from that firing position,

the defendant suggested he might have had the gun raised higher

as he was blowing it clean.

- 3 - He next stated he realized Amanda and another girl were on

the porch, he aimed at the porch, and he fired. He explicitly

stated his first story was not true, the shooting was not an

accident, and he did raise the gun and shoot in the direction of

Amanda. At trial, the defendant again claimed the shooting was

an accident, he explained his conflicting accounts, and

extenuated the incriminating statements.

Whether a shooting is intentional or accidental is "a

matter peculiarly within the province of [the fact finder] to

determine." Compton v. Commonwealth, 219 Va. 716, 731, 250

S.E.2d 749, 758 (1979). The fact finder "was entitled to weigh

the defendant's contradictory statements." Toler v.

Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210, 213 (1949). It

is also entitled to infer the defendant was concealing his guilt

by giving differing accounts. Black v. Commonwealth, 222 Va.

838, 842, 284 S.E.2d 608, 610 (1981); Marable v. Commonwealth,

27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).

Based on these facts, coupled with the defendant's flight,

Clagett v. Commonwealth, 252 Va. 79, 93, 472 S.E.2d 263, 271

(1996), cert. denied, 579 U.S. 1122 (1997), the fact finder

could reasonably find the defendant maliciously shot the victims

with the intent to main, disfigure, disable, or kill. Because

the evidence supports the finding of guilt of the primary

offenses, aggravated malicious wounding and malicious wounding,

- 4 - it permits a finding of guilt of the related firearm possession

offenses. Accordingly, we affirm his convictions.

Affirmed.

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