Va. Code Ann. § 18.2-51 - Shooting, stabbing, etc., with intent to maim, kill, etc.

“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”.

What constitutes a Malicious Wounding?

The meaning of terms “shoot”, “stab”, “cut” is easy to interpret. But, there are a few operative words to consider here: maliciously, wound, injury, maim, disfigure, disable, and kill. The idea of maliciousness is relatively clear – this is when the accused allegedly had a state of mind which leads to the intentional doing of a wrongful act against another.

In order to be convicted of Malicious Wounding, the accused must have had control of his or her reason at the time of the act.  Insanity may be a defense.  Now, malice can be inferred from willful, deliberate, and cruel acts – whether sudden or well thought out.  A Judge or Jury can make a determination after learning the facts.  Malice can only occur if there is no legal or justifiable excuse.  So, reasonable self-defense may be a good defense argument. Anger, revenge, and hatred is not be considered justified.  Malice will only occur when there was deliberate intent to hurt the victim, in this case to either seriously hurt or kill.

What is not so clear is how Virginia treats wounds versus injuries. Under Virginia law, a wound requires the breaking of skin. Any sort of conflict leading to bleeding would be considered a wound. On the other hand, not every wound is an injury. An injury requires that there be internal and/or organ damage. Ostensibly, stabbings and shootings would contribute harm that constitutes an injury the vast majority of the time. This isn’t to say that it is required that there have been serious damage or disfigurement, only that the intent to permanently damage or disfigure was present at the time of the offense.

Now let’s consider the terms maim, disfigure, disable, and kill. These words are largely used to say in a more roundabout way that the perpetrator intended to inflict permanent, or what they believed to be permanent, damage against the victim.  Cases involving these issues are complex and have been analyzed on a case by case basis by the Courts over the years.

Some examples where the prosecution has been successful involved:

  1. Shaking a baby and causing permanent brain damage,
  2. Using a Pit Bull by ordering attack by saying “Sick him or Kill”,
  3. Striking another with a shiny object causing a wound and stitches.

Aggravated Malicious Wounding

Virginia Code Ann. § 18.2-51.2. Aggravated malicious wounding; penalty.

“A. 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 shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment”.

Aggravated Malicious Wounding Distinguished from Simple Malicious Wounding

             If the damage specified in the statute was actually inflicted upon the victim, leaving them “seriously or permanently damaged” as a result of the battery, you could be facing a charge of Aggravated Malicious Wounding.  This could also be regardless of malicious intent, despite the name of the charge. Aggravated malicious wounding is an incredibly serious offense that could destroy not only your life, but the lives of your family. Aggravated malicious wounding is a Class 2 felony in the state of Virginia, carrying a sentence of 20 years to life in prison along with a $100,000 fine. 20 years being mandatory. The advice and guidance of an experienced criminal attorney such as Attorney Sheryl Shane could prevent you from spending the rest of your life in prison.

Serious and Permanent Damage found in the Courts where:

  1. The Accused Attacked with a hammer which resulted in facial scarring and numbness to the victim’s face for more than (2) years after the attack,
  2. A stabbing resulting in stiches and permanent scar, limp, numbness in the leg, and abdominal cramps,
  3. The defendant struck the victim with a heavy metal object – which resulted in facial stitches, headaches, light sensitivity, difficulty walking, and cognitive impairment.
  4. The accused made death threats to the victim, hid in the dark, and later slashed her in the face and neck. Nor did the aggressor seek out medical assistance when available.
  5. A young man saw his stepfather and younger brother go outside with weapons to fight a neighbor which was against young man’s advice. The young man became worried and went out to check only for his brother’s safety.  When he approached the scene – the victim was harming his brother.  The accused allegedly used a bat and hit the victim on the leg to release his brother who was a minor.   The young man and his younger brother ran away.   The stepfather stayed and bashed in the skull of the victim.   The young man was found guilty of Aggravate Malicious Wounding.  The jury probably found him guilty for acting in concert with his family who started the altercation and or for using unreasonable force to defend a third party.

Unlawful Wounding Felony Charge under Virginia Code Ann. § 18.2-51

Under Va. Code Ann. § 18.2-51 – the Malicious Wounding Statute – the crime of Unlawful Wounding is also addressed.   “Unlawful Wounding” is a Class (6) felony with a maximum of (5) five years imprisonment versus the (20) years one could receive for Malicious Wounding or imprisonment of between (20) years to life for Aggravated Malicious Wounding.  In order to receive the lesser charge, the Defense Attorney can argue “heat of passion” for her client.  Heat of passion can be argued when the Defendant acted from an emotional state such as fear, terror, rage, hot blood, anger or resentment.   The Defendant suffered from it so he or she acted with impulse without conscious reflection.  There was no time for the Defendant to cool off and reflect upon his or her actions.   This type of argument is good when there is no direct evidence that the accused had the subjective intent to inflict bodily harm.  And, although the defendant intentionally committed the bad act and evidence can be inferred he or she should have reasonably anticipated the harm, the conviction should be for Unlawful wounding rather than the more serious charges.  

Examples of Unlawful Wounding

  1. Shooting a bullet into the cement 2 feet away where a reasonable person could anticipate it would bounce off and deflect it to another person causing serious injury.
  2. Punching a victim who was defenseless, his air supply cut off by a choke hold, he was drifting in and out of consciousness for ten minutes and the accused slammed the victim face first to the ground. The victim was found on aggressor’s property.
  3. Striking a prosecution’s witness in face, head, and kicking the party causing a cut and blood to flow.

Malicious Wounding by Intoxication or Being Under the Influence

There is one case in malicious wounding where the intent is somewhat irrelevant, and that is for devastating accidents resulting from driving while intoxicated. Anybody driving while intoxicated that acts in a “gross, wanton, and culpable” manner that shows a lack of regard and respect for human life that then seriously injures another in an accident will be guilty of a Class 6 felony. If the injury is permanent and causes “significant physical impairment,” this then increases to a Class 4 felony. Also expect a loss of driving privileges.  This is outlined in §18.2-51.4.

  • 18.2-51.4. Maiming, etc., of another resulting from driving while intoxicated

“A.  Any person who, as a result of driving while intoxicated in violation of § 18.2-266 or any local ordinance substantially similar thereto in a manner so gross, wanton, and culpable as to show a reckless disregard for human life, unintentionally causes the serious bodily injury of another person is guilty of a Class 6 felony”.

  1. Any person who, as a result of driving while intoxicated in violation of § 18.2-266 or any local ordinance substantially similar thereto in a manner so gross, wanton, and culpable as to show a reckless disregard for human life, unintentionally causes the serious bodily injury of another person resulting in permanent and significant physical impairment is guilty of a Class 4 felony.

A Note regarding Maiming While Intoxicated or Under the Influence under the Virginia Statute § 18.2-51.4

Driving While Intoxicated or Driving while Under the Influence penalties have become much more severe over the years.  Adding Malicious Wounding/ Maiming to the equation significantly worsens the situation for the defendants in these cases.  The Prosecution believes they have the edge on these types of cases because they could impassion the jury when the public has voiced its opinion stating “we do not want drunk drivers on the road” nor “do we want people driving under the influence on our highways”.   Adding this to injury – well, this is where the ability to communicate to the Judge and Jury and years of legal experience comes into play. In order for the prosecution to win these types of cases, the Commonwealth must generally prove:

  1. The Accused was the operator or driver of the motor vehicle,
  2. The accused was Intoxicated or Under the Influence at the time of the offense,
  3. As a result – unintentionally caused serious bodily injury to another,
  4. And that the accused person’s conduct was so wanton, gross, and culpable to reach the level of a reckless disregard for human life.

If this is proven, the Accused will be convicted of a Class (6) Felony.

But, is also important to note that if the prosecution can additionally prove “Serious bodily injury” which is defined as “bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty”, the conviction which be increased to a Class (4) felony.   Understand that a class (6) felony can land a person up to five years in prison. A class (4) felony can end in twenty years imprisonment.

Some examples where parties may be found guilty under this statute is as follows:

  1. The combination of intellectual and physical impairment from alcohol and or drugs, along with driving too fast and substantial permanent injury may reach to the level of Malicious Wounding,
  2. Voluntarily consuming so much alcohol to the point of intoxication or beyond, driving inattentively and causing required harm may result in the Judge or Jury finding Malicious Wounding,
  3. Driving into victim, other vehicles, and a tree while intoxicated after intentionally overdosing on pills and causing severe injury may amount to a Malicious Wounding,
  4. Having a high blood alcohol content, failing to break for a pedestrian, and causing substantial injury could be considered a Malicious Wounding.

Some defenses may include:

  1. The Accused was not intoxicated nor under the influence of drugs,
  2. The Accused was not the driver,
  3. The ingestion of Alcohol or drugs was involuntary,
  4. And other misc. - Consult with Attorney Sheryl Shane for further information.

It is also important to know that under Virginia Code Ann. § 46.2-391 – the Department of Motor Vehicles (DMV) Commissioner is not permitted to reissue a driver’s license if convicted under this statute, and this includes circumstances when the driver was a minor and the juvenile received a finding of “not innocent”.  In order to have one’s license restored, the convicted party will be required to petition the Court after a certain period of time has lapsed, and fulfill other statutory requirements, and request the Court to grant the privilege to drive upon our highways again.  Many persons also hire an attorney for representation for driving restoration rights.

Crimes Involving Unlawful Touching and More Serious Offenses against a party

In final, there are several Virginia laws written to protect the public against criminal actions against an individual’s person.  Additional Malicious Wounding statutes such as: using caustic substances or explosive and fires – Va. Code Ann. § 18.2-52, Maiming while Operating a Watercraft -Va. Code Ann. § 18.2-51.5, Strangulation is a crime against persons although not the same as a Malicious Wounding- Va. Code Ann. § 18.2-51.6, Recklessly Throwing Objects from buildings  - Va. Code Ann. § 18.2-51.3, and several others.  All are serious offenses.  

Va. Code Ann. § 18.2-52:  Malicious Wounding by using a caustic (dangerous) substance cases have been heard in the courts involving pepper spray.  Especially when it causes the victims eyes and skin to burn.  Or even worse causes temporary blindness.  Mace – a noxious gas – may also be considered a caustic substance.   Of course, we must look at intent and injury in these cases also.

Va. Code Ann. § 18.2-51.5 – Maiming while using a watercraft is essentially the same crime as using a motor vehicle except one is using a boat.

Va. Code Ann. § 18.2-51.6 – The strangulation statute is quite serious.   It has only been around for a few years.   When the prosecution can prove that the accused has unlawfully, with knowledge and intent, and without consent of the victim – applied pressure to the neck,  impeded the blood circulation or respiration, resulting in wounding or bodily injury, he or she can be found guilty of a Class (6) felony.  One may ask what is considered to be a bodily injury under this statute.   The courts have found that “bodily injury” can include acts of damage, hurt, or harm that relates to the body.  It includes an impairment of bodily function, organ or mental faculty.   It can also be an impairment of a physical condition. Soft tissue injury to the neck has been deemed sufficient harm under this statute to find one guilty of the crime.

Va. Code Ann. § 18.2-51.3 – Reckless Endangerment by Throwing Objects from Higher Places.   A party who intentionally throws an item from a roof, balcony, or other area more than one story high which results in the requisite level harm for criminal culpability can be found guilty of a Class (6) felony.   

General Defenses to Malicious Wounding Cases

  1. Self- Defense – for ones-self and others
  2. Defense of Impossibility
  3. Alibi – Someone knows you to have been somewhere else at time of incident
  4. Accident – there was no malice or recklessness

What is Most Important in these Cases    

Find an attorney who has tried these types of cases and will handle the case personally, an attorney who does not delegate to their subordinates, and attorney who will look at every angle. This is your life. Choose someone you feel you could trust. Call our Fairfax criminal defense lawyer for a free consultation today.