A felony charge for a Wounding has much higher potential penalties than a misdemeanor Assault & Battery. How you are charged will first be determined by the police and prosecutors; but if you are convicted -and of what crime- will be argued by your criminal defense attorney. Call Brian M. Latuga, Esq. now for a free consultation, (757) 687-3657.

 

When charged with the felony of Unlawful, Malicious, or Aggravated Malicious Wounding, many people ask why the charge isn’t just a misdemeanor “Assault and Battery.” After all, Virginia law imposes an incredibly harsh penalty for causing certain injuries. Unless the evidence is clear and unequivocal, many of these cases go to trial. There is often some room for argument to ‘downgrade’ the seriousness of the charge. Malicious wounding is very often the ‘default’ charge when there is a serious injury. Unlawful wounding is a lower-level offense, and Aggravated Malicious Wounding is a higher-level offense.

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Malicious Wounding: Virginia Code 18.2-51

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A conviction for Malicious Wounding results in a Class 3 Felony and a potential jury prison sentence of 5 to 20 years. The statute is short, but it is packed with an incredible amount of meaning that has been interpreted through years of case law. Aside from intent to maim, disfigure, or kill, which can be inferred from the circumstances, the most often litigated aspects of Malicious Wounding are “malice” and the “injury.” The law says:

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“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.”

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Malice

The Commonwealth must prove that the defendant acted with malice. “Malice” is a complicated and complex concept under the law. Malice is defined by the courts as “the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will.” It includes any action “flowing from a wicked or corrupt motive, done with an evil mind or wrongful intention.” Some other cases describe it differently. It is a motive that can be implied from any willful, deliberate and cruel act against another.” Simply, any anger, hatred, revenge, or unnecessary use of a weapon or fists can constitute malice. Every Wounding case should be carefully reviewed for malice.

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To shoot, stab, cut, or wound… or by any means cause him bodily injury

The words of the statute make it seem like a weapon is required to be convicted of Malicious Wounding. But that is not the case. The terms “shoot,” “stab,” “cut,” or “wound” are analogous according to the interpreting case law.

 

A “wound” is simply a breach of the skin. Or, one could “by any means cause him bodily injury.” This is obviously a very broad definition. At least one case upheld a conviction for Malicious Wounding when someone received punches and kicks resulting in a “small cut inside of his mouth.” That small cut constituted a “bodily injury” under the Malicious Wounding Statute. Bryant v. Commonwealth, 189 Va. 310, 53 S.E.2d 54 (1949).

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“Bodily Injury” also includes soft tissue injuries, any bodily hurt whatsoever, even without any observable wound, cut, or breaking of the skin. So, you can see, if someone is “hurt” (no matter how fragile), that could meet one major element of an Unlawful or Malicious wounding charge.

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Aggravated Malicious Wounding

 

Shockingly, there is another level of wounding- the “Aggravated” Malicious Wounding statute. This is found in Virginia Code 18.2-51.2.  This is quite a bit more serious and is punishable as a Class 2 felony, a jury sentence of 20 years to Life in prison, and a $100,000 fine. The distinguishing factor from Malicious Wounding is that it requires proof that the victim suffered a “permanent and significant physical impairment” as a result of the wound inflicted. This is basically a “severity” and “permanence” element. Again, there are an enormous amount of cases interpreting that language. Perhaps the easiest example is a scar: A scar resulting from an injury (or surgery from the injury) is certainly “permanent.” However, it depends upon the size, nature and placement of the scar whether it would be considered “significant.” A knowledgeable and experienced criminal defense attorney will look at all the applicable distinctions.

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Unlawful Wounding      

 

Malice distinguishes Unlawful Wounding from Malicious Wounding (remember, Unlawful Wounding is a lower-level offense than Malicious Wounding). Unlawful Wounding is a Class 6 felony and may be punished by up to one year in jail, or one to five years in prison, as well as a $2,500 fine. One of many potential attacks on a Malicious Wounding case is to show that the defendant acted without malice, and therefore can only be found guilty of Unlawful Wounding. If the defendant still engaged in an intentional act that caused harm, but without malice, then that constitutes an Unlawful Wounding. If the person didn’t intend to cause harm at all, then he may be guilty of a misdemeanor Assault and Battery, or of no crime at all.

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It is obvious that Wounding cases involve an incredible amount of research and case comparisons. They are typically far from “open and shut” case. Even the small and seemingly insignificant facts can mean the difference between Life imprisonment and an acquittal. Brian M. Latuga, Esq. knows the importance of thoroughly preparing and researching Wounding cases. To discuss an Assault & Battery, Unlawful Wounding, Malicious Wounding, or Aggravated Malicious Wounding charge in Virginia, call (757) 687-3657 or submit your contact information here, to request a free, confidential consultation with a knowledgeable and experienced criminal defense attorney.