Aggravated assault / disfiguring in Virginia- Fairfax criminal lawyer warns about the conviction and penalty risks

Aggravated assault (AA) is worse of a Virginia conviction than simple misdemeanor assault. As a Fairfax criminal lawyer, I have defended hundreds of people prosecuted for assault crimes. When I first meet with a potential assault client, I usually preface their telling me what happened by telling them the main possible defenses against assault allegations, which are that the incident did not happen, that the alleged type of touching or allegedly threatened touching do not meet the assault definition, that the touching was unintentional or accidental in a non-criminal way, some other dude did it (also known as the SODDI defense), the touching was consensual (for instance slapping someone pursuant to consensual BDSM (bondage / domination / sadomacochism) activity, the action was lawful parental disciplining of a child, the action constituted reasonable and proportional self defense, or that the action constituted lawful defense of others. At least when the defendant is only charged with misdemeanor assault, the accused is not risking more than one year in jail (divided by two to result in 6 months maximum, for not being a misdemeanor carrying any mandatory minimum sentencing.) AA (defined here as maiming, disfiguring or disabling) is a Virginia felony that therefore risks worse maximum punishment than misdemeanor assault, and the scarlet letter of being a convicted felon.

If I punch someone, can that risk a Virginia aggravated assault conviction?

Unfortunately for Virginia criminal defendants, as addressed further below concerning the Alston v. Virginia case, slugging someone in a way that fractures a bone or dislodges teeth can amount to aggravated assault. The least serious Virginia AA code section provides that: “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.” Virginia Code § 18.2-51. This presents at least two issues, which are defining “maliciously” and defining “maim, disfigure [and] disable”.

What is the meaning of “maliciously” for a Virginia AA prosecution?

A key for a Virginia aggravated assault defendant is to give meaning to “maliciously” as being something distinct from simply committing an intentional act. The relevant portion of the “malice” definition in the Virginia criminal model jury instructions provides: “Malice is that state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason. Malice may result from any unlawful or unjustifiable motive including anger, hatred or revenge. You may, but are not required, to infer malice from any deliberate, willful, and cruel act against another, however sudden.” Virginia Model Criminal Instruction No. 33.220. Consequently, Virginia AA defendants need to consider not only arguing that criminal intent was absent, but that unlawful motive was also absent. For the caselaw on this issue, the Virginia Supreme Court in 1980 stated:

“The malice necessary to constitute a malicious wounding may be either express or implied. The word ‘malice’ is used in a technical sense, and includes not only anger, hatred and revenge, but every unlawful and unjustifiable motive. It is not confined to ill will to any one or more particular persons, but is intended to denote an action flowing from a wicked or corrupt motive, done with an evil mind and purpose and wrongful intention, where the act has been attended with such circumstances as to carry in them the plain indication of a heart regardless of social duty and deliberately bent on mischief; therefore, malice is implied by law from any wilful, deliberate and cruel act against another, however sudden.” Shiflett v. Commonwealth of Virginia, 221 Va. 191, 269 S.E.2d 353 (1980).

What is the meaning of maim, disfigure, and disable in the Virginia AA statute?

Maim and disable are more commonly understandable than “disable”, which is the word that will be addressed here for Virginia aggravated assault defense: “The word ‘disfigure’ means a ‘permanent and not merely a temporary and inconsequential disfigurement.’… “Similarly, the word ‘disable’ must refer to a permanent, not a temporary, disablement. Thus, if a person intentionally takes an action, the probable consequence of which is the permanent disability of another, even if permanent disability does not result, he or she can be found to have intended to cause a permanent disability.” Campbell v. Commonwealth of Virginia, 12 Va. App. 476 (1991). As recently confirmed by the Virginia Court of Appeals, punching someone repeatedly in the mouth and dislodging teeth is permanent disfigurement, even if the teeth can be repaired (here they were removed) or replaced. Alston v. Commonwealth of Virginia, ___ Va. App. ___, 2023 WL 3587516(May 23, 2023).

Fairfax criminal lawyer Jonathan Katz does not stop fighting for your liberty and best possible result until your court case has concluded. You need that level of Virginia DUI and criminal defense. Call 703-383-1100 for your free initial confidential consultation with Jon Katz about your court-pending case.