We would like to welcome Brent Vincenzes to our guest blog program.
Crimes of Violence: Assault and Malicious Wounding
Domestic violence, simple assault, and other serious offenses such as malicious wounding are “crimes of violence,” and present unique a challenge to the accused.
It is important for anyone accused of an assault-type charge (misdemeanor or felony), to have a support team consisting of a reputable bail bondsman on speed-dial, and an experienced, local criminal attorney. This is due to the fact that both may be necessary to secure:
- Release from jail before trial; and,
- the best possible legal defense.
The First Battle Post-Arrest
After arrest but before trial, the accused may or may not be released from jail. Often, the defendant’s trial date will be scheduled 2, 3, or sometimes 4 months in the future. Imagine waiting in jail for 4 months, only to be found not guilty.
What makes a violent offense different?
First, it may be more difficult to obtain release on personal recognizance. “Personal Recognizance” is when the defendant is released from jail based upon their signature and promise to appear in court on the trial date. This is because one of biggest factors the judge will consider is the threat (if any) the individual poses to society.
When accused of a crime of violence (as opposed to drug possession, for example), a judge may be inclined to perceive a higher threat level. For this reason, it is important any accused and arrested individual hires an attorney who has knowledge of local, trusted bail-bond firms. Having a plan in place to present to the judge is important.
Whether or not one will be allowed to post a bond (to get out of jail prior to the scheduled trial date) depends on a variety of factors, including but not limited to:
- Has the defendant been convicted of any violent crimes in the past?
- Does the defendant have a job, place to live, and familial support?
- Has the defendant ever missed a court date (failure to appear conviction)?
- Does the defendant reside in the Commonwealth of Virginia?
- Are any factors present to lead a judge to believe the defendant may be a flight risk (someone who would possibly not appear on the court date for trial).
- Are any factors present to lead a judge to believe the defendant poses a threat to the community?
Crimes involving physical violence are punished severely in Virginia. The extent of the penalty upon conviction depends upon a number of factors:
- Is the alleged victim a family or household member of the defendant?
- Did the incident involve use of a weapon?
- Was the alleged victim injured, and to what extent?
- Was the accused arrested on a felony warrant, or is the charge a misdemeanor?
Virginia Code 18.2-51 addresses malicious wounding. A defendant may be convicted if the Commonwealth can prove he or she intended to “maim, disfigure, disable, or kill.” It is a very serious offense: a Class 3 felony. In some circumstances, it may be treated as a Class 6 felony.
If accused of malicious wounding, there may be viable defenses an experienced Northern Virginia and Fairfax defense attorney can explain in more detail. The following information is not legal advice.
Unlawful Wounding vs. Malicious Wounding
The penal laws in the United States, derived from the Common Law concepts of England, almost always include a “mental state” as an element of the offense.
“Malice” is synonymous with malevolence, cruelty, hatred, and spite. “Unlawful Wounding” may be the proper charge if the defendant acted suddenly, without premeditation, and in reaction to a seriously traumatizing event. This is called “heat of passion.” If a husband or wife walks in on a significant other having relations with another person and, as a result, attacks one or both parties, it would potentially be a “heat of passion” unlawful wounding case, rather than the more serious malicious wounding case.
Self Defense, Defense of Others, and Defense of Property
What is legally allowed? Self-defense is only a valid defense if the force used was reasonable and proportional to the aggressor’s attack. It is possible for an aggressor to become a victim, if the original victim goes beyond what is reasonable. In Virginia, a person under attack does not have a duty to retreat.1
Defense of Others
In Virginia, one may use force to defend another person, but there must be a reasonable belief that the person who needs defending was not at fault. It does not matter whether or not the person was actually at fault. The relevant inquiry has to do with the state of mind of the person (subjective viewpoint, rather than an objective one).2
Defense of Property
When it comes to defense of property, the law is different. One may use force to protect property, but he/she may not put a human life in danger nor is use of force that could inflict great bodily harm permissible. Furthermore, Virginia law and case developments stand for the idea that an owner of land has no right to use a deadly weapon on a person who is merely trespassing.3
Lesser Included Offenses
Aggravated Malicious Wounding requires the Commonwealth prove the alleged victim suffered a lasting and substantial physical injury as a result of the crime.
Non-aggravated malicious wounding does not require a showing of permanent injury or magnitude (all that is needed for regular malicious wounding is the intent).
Assault and battery and unlawful wounding are also lesser-included offenses.
 Thornton v. Commonwealth, No. 2579-99-1, 2000 Va. App. LEXIS 794 (Va. Ct. App. Dec. 5, 2000).
 Foster v. Commonwealth, 13 Va. App. 380, 412 S.E.2d 198, 1991 Va. App. LEXIS 315 (Va. Ct. App. 1991).
 Montgomery v. Commonwealth, 99 Va. 833, 37 S.E. 841, 1901 Va. LEXIS 107 (Va. 1901).