FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG. James F. D'Alton, Jr., Judge.
Steven P. Hanna for appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Petty,
Beales and Alston.
[64 Va.App. 243] WILLIAM G. PETTY,
James Edward Williams was convicted of malicious wounding in violation of Code § 18.2-51. On appeal, Williams argues that the trial court erred in denying jury instructions for the lesser-included offense of unlawful wounding. We disagree and affirm Williams's conviction.
[64 Va.App. 244] I. Background
" When reviewing a trial court's refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction." Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002). So viewed, the facts are as follows.
Williams testified that on September 25, 2012, he went to a 7-11 convenience store with his companion, Delvon Brown. Initially, Brown entered the store and Williams waited outside. When Williams entered the store to " ask [Brown] what was taking so long," he saw Brown arguing with a female. With the female were the victim and another male. Williams and Brown then left the store; about one minute later, the victim left the store. Williams saw Brown " com[e] up to [the victim]" and " hit him" on the back of the head. After Brown hit the victim, Williams " walked around [the car] and went and got [a gun]," which was loaded, from under the seat of the car. Williams admitted that the victim had done nothing to him or to Brown and that Williams was the only one who pulled out a gun during the incident. Williams testified that he fired shots " to scare" the victim " because [the victim], after [Brown] hit him, he was ready to fight back" --the victim " got upright like[,] like he was ready to defend hi[m]self." The first shot Williams fired hit the victim in his front lower torso, above the hip. Williams fired six additional shots as the victim was fleeing, none of which hit the victim.
Williams testified that he fired the shots because he heard that a friend of his " just got murdered leaving a gas station. And was -- was followed and gunned down." The friend's death had occurred in Atlanta, while Williams was in California, sometime between September 16, 2012 and September 23, 2012. Williams testified as to his state of mind at the time of the shooting:
[64 Va.App. 245] The only thing I -- the only thing I was thinking about was my friend. That's -- that's it. I wasn't thinking about doing anything or hurting anybody.
I was just thinking about [my friend] and the situation. I had just left his mom's house, not even a couple hours ago. . . . That was in my mind the whole time. When this whole thing was going down. That's what everything that was going on in my mind.
Williams testified that when he shot the gun he was " trying to scare [the victim and his friends] out of the situation."
Williams was charged with malicious wounding in violation of Code § 18.2-51 and tried by jury. When the defense rested, Williams renewed his motion to strike the evidence. He conceded there was " ample sufficient evidence, quite frankly, for an unlawful wounding" charge, but " no sufficient evidence for any malicious wounding charge." The court denied the motion to strike, finding that it " d[id]n't see any evidence to support [unlawful wounding] as a lesser offense," but finding that " [c]ertainly there [was] ample evidence to support [malicious wounding] as the offense as charged." The court noted three facts: Williams testified his companion struck the victim first, Williams shot at the victim because Williams was afraid the victim would defend himself, and the first shot hit the ...