What is Malicious Wounding in Virginia? What are the Penalties?

There are two charges — “malicious” wounding and “unlawful” wounding.  This jury instruction includes both, along with the misdemeanor of Assault & Battery.  “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.  Here is the jury instruction:

The defendant is charged with the crime of  [Malicious Wounding or Maliciously Causing Bodily Injury].  The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

(1)               That the defendant [wounded; caused bodily injury by any means] to Victim ; and

(2)               That such [wounding; bodily injury] was with intent to kill or permanently maim, disfigure, disable or kill Victim; and

(3)               That the act was done with malice.

If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty of [Malicious Wounding; Maliciously Causing Bodily Injury], but you shall not fix the punishment until your verdict has been returned and further evidence has been heard by you.

If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the first two elements of the offense as charged, but that the act was done unlawfully, and not maliciously, then you shall find the defendant guilty of [Unlawful Wounding; Unlawfully  Causing Bodily Injury]  but you shall not fix the punishment until your verdict has been returned and further evidence has been heard by you.

If you find that the Commonwealth has failed to prove beyond a reasonable doubt either [Malicious Wounding; Maliciously Causing Bodily Injury] or  [Unlawful Wounding; Unlawfully Causing Bodily Injury] but you do find beyond a reasonable doubt that:

(1)               That the defendant willfully touched the Victim without legal excuse or justification; and

(2)               That the touching was done in an angry, rude, insulting or vengeful manner; then you shall find the defendant guilty of assault and battery, but you shall not fix the punishment until your verdict has been returned and further evidence has been heard by you.

            If you find that the Commonwealth has failed to prove beyond a reasonable doubt any of the above offenses, then you shall find the defendant not guilty.

If the act is done “maliciously” it is a Class 3 felony with a punishment range of 5 to 20 years in prison and a fine of up to $100,000. If it is done “unlawfully” and not “maliciously,” it is a Class 6 felony with a punishment of 1 to 5 years in prison or, in the discretion of a judge or jury, up to 1 year in jail and/or a fine of up to $2,500. Conversely, Assault & Battery is a Class 1 misdemeanor with a maximum punishment of up to 1 year in jail and a fine of up to $2,500.

Virginia uses discretionary Sentencing Guidelines.  This means that a judge must consult them but doesn’t have to follow them.  They represent the most common punishment for a given charge considering the defendant.  For a first offense, by a person with no criminal record, where no weapon is used, the Guidelines recommend a range of between 1 year, 6 months and 4 years, 2 months.  (The midpoint is 2 years, 10 months).

Naturally, there are defenses to Malicious Wounding.  When one is acquitted there is no punishment.  Even in cases where the government can prove the case, mitigating circumstances are often considered to reduce the charges and penalties.  However, these are very serious cases.  A great criminal defense attorney is needed to defend them.