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LONG v. COMMONWEALTH
Factual and Procedural Background
Dwayne Alan Long was convicted of malicious wounding after an altercation at his residence involving Frank and Gary Boothe. The dispute began over gasoline and escalated into a physical fight between Long and Gary Boothe. During the fight, Long released his chained pitbull terrier, allegedly commanding the dog to attack. The dog bit Frank Boothe, who was not involved in the fight. Long claimed self defense, asserting that Gary Boothe was armed and threatened his wife, and that the dog escaped unintentionally. The Boothe brothers denied possessing any weapons. The trial judge credited the Boothe brothers' testimony, convicted Long of malicious wounding, and sentenced him to a suspended five-year penitentiary term and three years of probation. Long appealed, challenging whether a dog could constitute a "means" under the malicious wounding statute, the sufficiency of evidence, and the validity of his self-defense claim.
Legal Issues Presented
- Whether a dog constitutes a "means" as contemplated by the malicious wounding statute (Code Sec. 18.2-51).
- Whether the Commonwealth proved all elements necessary to support the malicious wounding conviction.
- Whether the evidence established that Long acted in self defense.
Arguments of the Parties
Appellant's Arguments
- A dog cannot be the means of accomplishing malicious wounding under the statute unless it is shown to be trained to attack or inherently vicious.
- The evidence showed that Long acted in self defense because Gary Boothe was armed and threatened Long and his wife.
Appellee's Arguments
- The malicious wounding statute includes injury inflicted "by any means," without limitation to the nature of the means.
- The Commonwealth proved the requisite intent and malice through Long's conduct and statements.
- The self-defense claim was a factual dispute properly resolved by the trial court in favor of the Boothe brothers' testimony.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dawkins v. Commonwealth, 186 Va. 55, 41 S.E.2d 500 (1947) | The offense of malicious wounding is defined by the intent to cause bodily injury, not by the inherent danger of the means used. | The court relied on Dawkins to reject the argument that the dog must be inherently dangerous, emphasizing that "any means" suffices if intent is proven. |
| Fletcher v. Commonwealth, 209 Va. 636, 166 S.E.2d 269 (1969) | Assault with hands or feet can constitute "means" under the malicious wounding statute if intent is established. | Used to support that the nature of the means is irrelevant so long as the intent to injure is proven. |
| Higginbotham v. Commonwealth, 216 Va. 349, 218 S.E.2d 534 (1975) | Standard for appellate review requires viewing evidence in the light most favorable to the Commonwealth. | The court applied this standard in affirming the sufficiency of evidence supporting the conviction. |
| Johnson v. Commonwealth, 142 Va. 639, 128 S.E. 456 (1925) | The trier of fact’s credibility determinations are binding on appellate courts. | The trial judge’s choice to credit the Boothe brothers’ testimony was upheld. |
| Ridley v. Commonwealth, 219 Va. 834, 252 S.E.2d 313 (1979) | Intent may be inferred from facts and circumstances; intent is the purpose formed in the mind. | Used to support that Long’s conduct and statements demonstrated intent to maim or kill. |
| Hargrove v. Commonwealth, 214 Va. 436, 201 S.E.2d 597 (1974) | Intent may be shown by conduct and statements. | Supported the inference of Long’s intent from his command to the dog. |
| Riddick v. Commonwealth, 226 Va. 244, 308 S.E.2d 117 (1983) | Transferred intent doctrine: intent to harm one person transfers to unintended victims harmed by the act. | Applied to show malicious intent extended to the brother bitten by the dog, even if he was not involved in the fight. |
| Barker v. Commonwealth, 230 Va. 370, 337 S.E.2d 729 (1985) | Credibility and weight of witness testimony are exclusively for the trier of fact. | Supported the trial judge’s credibility assessment rejecting Long’s self-defense claim. |
Court's Reasoning and Analysis
The court began by interpreting the malicious wounding statute (Code Sec. 18.2-51), which prohibits inflicting bodily injury "by any means," emphasizing that the statute does not limit the nature of the means used. The court rejected Long's argument that a dog could not be a "means" unless it was shown to be trained or vicious, citing precedent that the focus is on the intent behind the act rather than the inherent danger of the instrumentality.
Applying the standard of appellate review, the court viewed the evidence in the light most favorable to the Commonwealth and gave due deference to the trial judge's credibility determinations. The trial judge found the Boothe brothers' testimony more credible, including their denial of possessing firearms and their account of Long commanding the dog to attack.
The court found that malice was established by Long's conduct and words, specifically his command to the dog to "sic him, Dozer. Kill!" which demonstrated ill will and intent to cause serious bodily harm. The fact that the dog bit an uninvolved party did not diminish the malicious intent, as intent transfers to unintended victims under established doctrine.
Regarding self defense, the court deferred to the trial court's resolution of conflicting evidence about whether Long was threatened with a weapon. The trial judge reasonably concluded Long was not acting in self defense when he released the dog, as he had already disengaged from the physical fight.
Ultimately, the court concluded that the evidence was sufficient to prove all elements of malicious wounding beyond a reasonable doubt and affirmed the conviction.
Holding and Implications
Affirmed.
The Court of Appeals of Virginia upheld Dwayne Alan Long’s conviction for malicious wounding, ruling that a dog can constitute a "means" under the statute without proof of inherent viciousness or specialized training. The court confirmed that the critical element is the defendant's intent to cause bodily injury. The decision affirms the trial court's factual findings, including the rejection of Long’s self-defense claim. No new precedent beyond the application of existing principles was established; the ruling directly affects the parties by sustaining the conviction and sentence imposed on Long.
(1) Criminal Law — Malicious Wounding — Proof. — Code Sec. 18.2-51 proscribes the infliction of bodily injury upon another by any means; the statute does not contain a limitation upon the means employed.
(2) Criminal Law — Malicious Wounding — Proof. — The test of the offense of maliciously causing bodily injury is the intent with which the result is accomplished rather than the nature of the means; because the statute specifies "any means" the Commonwealth is not required to prove that the means used were inherently dangerous.
(3) Appellate Review — Appeals — From the Circuit Court — Standard. — In assessing the sufficiency of the evidence, an appellate court must consider the evidence in the light most favorable to the Commonwealth and give the evidence all reasonable inferences fairly deducible therefrom.
(4) Criminal Law — Malice — Defined. — Malice inheres in the doing of a wrongful act intentionally or without just cause or excuse, or as a result of ill will; it may be directly evidenced by words or inferred from acts and conduct which necessarily results in injury.
(5) Criminal Law — Intent — Proof. — Intent is the purpose formed in a person's mind which may, and often must, be inferred from the facts and circumstances in a particular case; intent may be shown by a person's conduct and by his statements.
(6) Evidence — Witness Credibility — Standard. — The trier of fact's determination of the credibility of witnesses and the weight to be given their testimony are questions exclusively within its province.
Defendant was convicted of malicious wounding. He argued that a dog cannot be the means of accomplishing the malicious wounding as contemplated by the statute and that the evidence established that he acted in self defense (Circuit Court of Botetourt County, George E. Honts, III, Judge).
The Court of Appeals affirmed, holding that nothing in the malicious wounding statute requires that the means used to accomplish the wounding be inherently dangerous. The Court also held that the defendant's claim of self defense was an issue of fact for the trier of fact.
Affirmed.
BENTON, J.
Dwayne Alan Long presents for review five questions, which, succinctly stated, raise the issues (1) whether Long's dog was a "means" as used in the malicious wounding statute, (2) whether the Commonwealth proved all the elements necessary to support the malicious wounding conviction, and (3) whether the evidence established that Long acted in self defense. For the reasons that follow, we affirm the conviction.
Code Sec. 18.2-51 states:
If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
Frank and Gary Boothe were guests at Long's home in Botetourt County. The testimony is in conflict concerning the events that gave rise to the prosecution. According to the Boothe brothers, Long invited them over to smoke marijuana and promised to provide gasoline for their pick-up truck because the drive was approximately twenty miles each way. Long testified, however, that he invited the Boothes to his property to deer hunt. Long also testified that he only promised to allow the Boothes the opportunity to siphon gas from a neighbor's truck.
After they arrived at the Long residence, the Boothes drove to a nearby convenience store with Long and purchased two quarts of beer. When they returned to the residence, an altercation developed between Long and Gary Boothe over the gasoline. Gary Boothe testified that he objected to the plan to steal the gasoline and was angry with Long for having lured him such a long distance under "false pretenses." Long was less specific concerning the reason the argument began; however, he did recall Gary Boothe making a comment about "false pretenses."
The argument soon developed into a fist fight. Gary Boothe admitted that he "probably" hit Long first. Frank Boothe stood some fifteen feet away and was not involved in the fight. At some point in the fight, Long yelled to his wife to call the police and broke free from Gary Boothe. Long went twenty feet to a spot where his pitbull terrier was chained. According to the testimony of Gary and Frank Boothe, Long unchained the dog, pointed at Gary, and said "Sic him, Dozer. Kill." The dog attacked Frank Boothe, instead, biting his leg. As the dog released Frank Boothe's leg and started off toward Gary Boothe and Long, who had resumed fighting, Frank Boothe grabbed the dog's collar. Frank Boothe testified that the dog bit him on the wrist before he was finally able to pin the dog between his legs. He kept the dog's head pressed to the ground, until Long called the dog. Long denied that he commanded the dog to attack or that he said, "kill." He said that the dog slipped from his grasp when he and Gary Boothe resumed the scuffle.
Long also testified that Gary Boothe was armed with a shotgun and threatened Long's wife with the gun when she came out of the residence in response to the commotion. Long's wife testified that Gary Boothe pointed a rifle at her. Long also testified that Gary Boothe hit him in the chest with the butt of the shotgun. The Boothe brothers denied possessing a gun.
After Long regained control of the dog, the two brothers got into their vehicle and began to leave the property. In the meantime, Deputy Dave Mullins of the Botetourt County Sheriff's Department arrived to investigate the calls from Long's wife. He stopped the Boothe's pick-up truck in the driveway. While Mullins waited for the rescue squad to arrive, he conducted a cursory "plain view" inspection of the truck and the area around the truck. He saw no guns. The Boothes told him that they did not have a gun. No gun was found on the premises.
At the conclusion of all the evidence, the trial judge stated he believed the Boothe brothers' version of the incident. The trial judge convicted Long of malicious wounding and sentenced him to a suspended term of five years in the penitentiary and to three years probation.
(1-2) Code Sec. 18.2-51 proscribes the infliction of bodily injury upon another "by any means." The statute, by its explicit terms, does not contain a limitation upon the means employed. Indeed, the focus of the established "test of the offense of maliciously . . . causing bodily injury is the intent with which the result is accomplished rather than the nature of the means. . . ." Dawkins v. Commonwealth, 186 Va. 55, 63, 41 S.E.2d 500, 504 (1947). We disagree, therefore, with Long's contention that, absent proof that the dog was trained to attack or vicious, the conviction of malicious wounding must be reversed. Because the statute specifies "any means," the Commonwealth was not constrained to prove that the method Long used to cause bodily harm was inherently dangerous. See id.; Fletcher v. Commonwealth, 209 Va. 636, 639-40, 166 S.E.2d 269, 272-73 (1969) (assault with hands or feet will suffice as "means" provided the requisite intent is established). Once the Commonwealth established a basis upon which the trier of fact could have reasonably inferred that Long intended to command the dog to attack, the character of the dog was not relevant to the proof of "means."
(3-4) In assessing the sufficiency of the evidence to sustain the conviction, "it is our duty to consider [the evidence] in the light most favorable to the Commonwealth and give [the evidence] all reasonable inferences fairly deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We also are aided in our assessment of the evidence in this case by the trial judge's statement at the conclusion of the trial that he weighed the conflicting evidence in favor of the testimony of the Boothes. See Johnson v. Commonwealth, 142 Va. 639, 640-41 128 S.E. 456, 456 (1925). With these principles as our guide, we conclude that the evidence established malice.
Malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will. It may be directly evidenced by words, or inferred from acts and conduct which necessarily [sic] result in injury. Its existence is a question of fact to be determined by [the trier of fact].
Dawkins v. Commonwealth, 186 Va. at 61, 41 S.E.2d at 503. Long's conduct in releasing his dog while saying, "sic him, Dozer. Kill!," evinced ill will sufficient to constitute malice.
(5) Moreover, Long's actions and command to the dog establish that Long intended that his dog would "maim, disfigure, disable, or kill" his adversary. Code Sec. 18.2-51. "Intent is the purpose formed in a person's mind which may, and often must, be inferred from the facts and circumstances in a particular case." Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). Intent may be shown by a person's conduct and by his statements. Hargrove v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974). That the dog attacked and wounded the brother who was not involved in the fray neither diminishes the maliciousness of the act nor negates the intent. See Riddick v. Commonwealth, 226 Va. 244, 248, 308 S.E.2d 117, 119 (1983) ("if an accused shoots at another intending to kill him, and a third person is killed because of the act, that same intent follows the bullet and is transferred to the killing of the third person, even if such death was accidental or unintentional").
(6) Finally, the evidence revealed that Long had broken away from the fray, was distant from the combat, and was no longer defending himself when he released the dog. Although Long defended the case on the ground that he only got the dog because the Boothes threatened him and his wife with a gun and that the "dog broke loose," the trial judge stated that he weighed the conflicting evidence in favor of the testimony of the Boothes. The trial judge's determination of "the credibility of witnesses and the weight to be given their testimony are questions exclusively within the province of [the trier of fact]." Barker v. Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732 (1985) (citations omitted). We cannot say as a matter of law that the trial judge erred in resolving against Long the conflicting evidence concerning the presence of guns and, thus, whether he acted in self defense when he released the dog.
Accordingly, we conclude that the evidence established beyond a reasonable doubt the charge of malicious wounding and we affirm the judgment.
Affirmed.
Coleman, J., and Duff, J., concurred.
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