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COURT OF APPEALS OF VIRGINIA
Present:     Judges Beales, Powell and Alston
Argued at Richmond, Virginia
TRAVIS WAYNE LAMM, A/K/A
TRAVIS LAMB
OPINION BY
v.                                                                                                      Record No. 0085-09-2   JUDGE RANDOLPH A. BEALES
FEBRUARY 9, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge
Christopher C. Graham (Eustis & Graham, PC, on brief), for
appellant.
Kathleen B. Martin, Senior Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.
Travis Wayne Lamm (appellant) was convicted by a jury of aggravated malicious
wounding, pursuant to Code § 18.2-51.2.  He argues on appeal that the trial court erred by denying
his motion for a new trial based on after-discovered evidence.1  He claims that, after the trial, the
victim’s “permanent and significant physical impairment” disappeared.2  We find the trial court did
not err.
1 In his question presented, appellant also suggests that he made a motion to set aside the
verdict pursuant to Rule 3A:15.  However, on brief, he argues only that he is entitled to a new
trial, not to dismissal of his conviction.  Therefore, pursuant to Rule 5A:20(e), we do not
consider this second contention in his question presented.  See Mason v. Commonwealth, 49
Va. App. 39, 46 n.2, 636 S.E.2d 480, 483 n.2 (2006).
2 Under Code § 18.2-51.2(A),
[i]f 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




I.  BACKGROUND
Appellant’s girlfriend, Ms. S.3 , received a call from appellant asking her to pick him up
d.”                                                                                                       from a bar.  When Ms. S. arrived, appellant was “very intoxicate
Ms. S. first drove to her own house, then she drove appellant to his home.  Rather than
getting out of the car, appellant told Ms. S. that he wanted to have sexual intercourse with her.
Ms. S. refused, and an argument ensued.  Appellant then began assaulting Ms. S.
During his assault, appellant attempted to strangle Ms. S.  She eventually was able to get out
of the car, but appellant caught her and hit her in the back of the head.  He then began hitting Ms. S.
numerous times in the face.  At trial, Ms. S. could not say how many times he hit her because she
passed out during the attack.  When she came around, Ms. S.’s nose and face were bleeding.  She
tried to call for help on her cell phone, but appellant grabbed it and broke it.
Ms. S. then told appellant that she needed to go to the hospital.  Appellant apparently
agreed.  He gave his t-shirt to Ms. S. to hold against her nose, and he drove her to the hospital.
When they arrived there, appellant parked the car, gave the keys to Ms. S., and walked away.
Ms. S. went into the emergency room, where she received immediate attention.  Eventually,
Ms. S. had to have her nose reset and had “some metal plates” put in her forehead, according to her
surgeon.  As a result of appellant’s attack, Ms. S. lost her sense of smell and her sense of taste.  In
addition, a number of her teeth were “numb.”  Ms. S. testified at trial that she had not regained her
sense of taste or smell, and her teeth were still numb.
At trial, Ms. S.’s facial plastic surgeon, Dr. Stephen Park, explained to the jury that appellant
broke “bones in her face” around her nose and eye sockets.  He characterized it as a “complex
felony if the victim is thereby severely injured and is caused to
suffer permanent and significant physical impairment.
3 We use this designation for the victim rather than her actual name so as to better protect
her privacy.
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fracture,” rather than indicating the number of broken bones in her face, although he identified four
areas of her face where the bone was broken.  Dr. Park explained that during surgery he had to bring
“these broken bones back into alignment, put some metal plates to hold them in position, [and] put
some splints inside her nose to re-project it to give it its definition.”  He described these plates as
“permanent” in the sense that they would not dissolve, but “not permanent” in the sense that they
could perhaps eventually be removed.  There was no evidence that the plates would ever be
removed, given that Dr. Park testified that he anticipated no further surgery.  Dr. Park also testified
that Ms. S. had informed him that “she couldn’t smell very well.”  When asked by the prosecutor if
this condition was likely to be permanent, Dr. Park responded, “Unpredictable.”  He described
Ms. S.’s prognosis as “good.”
After hearing this evidence, the jury convicted appellant of aggravated malicious wounding
and recommended a sentence of twenty years.  At the subsequent sentencing hearing before the trial
court, the Commonwealth informed the trial court that Ms. S.’s sense of taste and of smell had
returned, admitting that this development might justify a reduction in the jury’s recommended
sentence.4  Appellant argued that this development was “more than just mitigating,” contending that
the trial court should grant him a new trial “pursuant to Rule 3A:15.”
The Commonwealth called Ms. S. as a witness during this hearing.  She testified that she
was now “able to taste and smell everything.”  She also explained that these senses returned after
the jury trial, over the course of about a month.
The trial court denied appellant’s motion for a new trial and then sentenced appellant to
twenty years in prison, with ten years of that sentence suspended.  Appellant then appealed his
conviction to this Court.
4 This sentencing hearing was finally held almost eleven months after appellant’s assault
on Ms. S. and over five months after appellant’s jury trial.
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II.  ANALYSIS
A.  Standard of Review
Rule 3A:15(c) allows a trial court to “grant a new trial if it sets aside the verdict” based
on after-discovered evidence.  A motion for a new trial based on after-discovered evidence “is a
matter submitted to the sound discretion of the circuit court and will be granted only under
unusual circumstances after particular care and caution has been given to the evidence
presented.”  Orndorff v. Commonwealth, 271 Va. 486, 501, 628 S.E.2d 344, 352 (2006); see also
Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983) (“Motions for new
trials based on after-discovered evidence are addressed to the sound discretion of the trial judge,
are not looked upon with favor, are considered with special care and caution, and are awarded
with great reluctance.”).
B.  After-Discovered Evidence
To establish that a trial court should grant a motion for a new trial based on
after-discovered evidence, a defendant must prove four things:
1).  that the evidence was discovered after the trial;
2).  that the evidence could not have been discovered, through the exercise of due
diligence, prior to the trial;
3).  that the evidence is not merely cumulative, corroborative, or collateral;
4).  that the evidence is material to the extent that it is likely to produce different results
from a new trial.
See Garnett v. Commonwealth, 275 Va. 397, 416-17, 657 S.E.2d 100, 112, cert. denied, 129
S. Ct. 116 (2008); Orndorff, 271 Va. at 501, 628 S.E.2d at 352; Odum, 225 Va. at 130, 301
S.E.2d at 149.  The Virginia courts have used this standard for over 100 years.  See, e.g.,
Thompson v. Commonwealth, 49 Va. (8 Gratt.) 637, 641 (1851) (“[A]fter-discovered evidence
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in order to afford proper ground for a new trial, must be such as reasonable diligence on the part
of the party offering it, could not have secured at the former trial: must be material in its object,
and not merely cumulative and corroborative or collateral; and must be such as ought to be
decisive, and productive, on another trial, of an opposite result on the merits.”).
Here, the first three prongs were clearly proven by appellant.  On appeal, the
Commonwealth argues only that the evidence of Ms. S.’s recovery was not material to the extent
that the outcome of the trial would have been affected by the return of her sense of smell and of
taste.  The Commonwealth argues that the plates that remained in Ms. S.’s face would still
require that a jury convict appellant of aggravated malicious wounding.
Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923), Whittington v.
Commonwealth, 5 Va. App. 212, 361 S.E.2d 449 (1987), and Gatling v. Commonwealth, 14
Va. App. 60, 414 S.E.2d 862 (1992), are three of the very few cases where our appellate courts
have found that a motion for a new trial should have been granted.  All of these cases involved
evidence that, if believed credible, would clearly have resulted in an acquittal.  For example, in
Hines, the only evidence linking Hines to the murder of a police officer was a cap found at the
scene that several people testified belonged to Hines.   136 Va. at 734, 117 S.E. at 844.  After the
trial, it was discovered that another man (who owned a similar cap, owned the same caliber gun
as the one that killed the officer, did not have an alibi for that night, and was working as a
bootlegger like Hines on the night of the murder and near the scene of the murder) had confessed
to the murder of the officer and said that Hines was not guilty.  Id. at 737, 117 S.E. at 845.  The
Supreme Court found, “this new evidence, if [the factfinder] had heard and believed it, would
necessarily have produced a different result.”  Id. at 750-51, 117 S.E. at 849 (emphasis added).
In Whittington, this Court concluded that, when the after-discovered evidence is a
retraction of the testimony of the Commonwealth’s key witness -- who was the only other person
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there during the commission of the alleged crime -- saying the crime never occurred, the
defendant’s motion for a retrial should be granted.   5 Va. App. at 216-17, 361 S.E.2d at 452.
Similarly, in Gatling, this Court found that a trial court erred in denying a motion for a new trial
where the newly discovered evidence indicated that the victim of a rape had told a friend that
Gatling did not rape her.   14 Va. App. at 63, 414 S.E.2d at 864.
Here, we are confronted with a situation in which the credibility of after-discovered
evidence is unquestioned, unlike in Hines, Whittington, and Gatling (in fact, the Commonwealth
concedes it is true), which makes appellant’s argument initially appear to be strong for reversal
and remand of his case.  However, unlike in Hines, Whittington, and Gatling -- where the
after-discovered evidence, if believed, would clearly prove the defendants were not guilty -- in
the case before this Court, the new evidence would not definitively prove that appellant did not
commit aggravated malicious wounding.  Here, unlike in Hines, Whittington, and Gatling, the
jury had evidence, in addition to the loss of taste and smell, to consider as proof of the
“aggravated” element of appellant’s conviction, which requires that the injury inflicted in the
attack be permanent and significant.  Code § 18.2-51.2.
To be convicted of aggravated malicious wounding under Code § 18.2-51.2, the injuries
inflicted on the victim must be both a “significant physical impairment” and “permanent.”  Case
law defines “physical impairment” for purposes of this criminal statute as “‘any physical
condition, anatomic loss, or cosmetic disfigurement.’”  Newton v. Commonwealth, 21 Va. App.
86, 90, 462 S.E.2d 117, 119 (1995) (quoting Code § 51.5-3) (emphasis omitted).  To prove an
injury is permanent, the Commonwealth need not present definitive testimony that a victim’s
injuries will never improve, but instead can leave it to the common sense of the jury to determine
if the injuries are permanent.  Martinez v. Commonwealth, 42 Va. App. 9, 23-25, 590 S.E.2d 57,
64 (2003).  Though the victim’s injuries in the instant case are perhaps not as visible as the
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injuries discussed in cases like Cottee v. Commonwealth, 31 Va. App. 546, 556-57, 525 S.E.2d
25, 30-31 (2000), or Newton, 21 Va. App. at 90, 462 S.E.2d at 119, where the records included
evidence of the victims’ scarring on the day of trial, it would strain credulity here to hold as a
matter of law that the insertion of permanent metal plates in Ms. S.’s face does not constitute a
permanent physical injury, especially as the evidence proved that those plates remained in
Ms. S.’s face at the time of trial and the surgeon said he did not intend to remove them.  In
addition, the after-discovered evidence that was presented during appellant’s sentencing hearing
did not indicate that Ms. S.’s numbness in her teeth had stopped.  This numbness was before the
jury for its consideration as part of the significant and permanent injury done to Ms. S. by
appellant.  The jury also examined pictures of Ms. S. taken fairly soon after appellant’s attack,
and they could observe her on the witness stand, which gave them additional evidence to
consider in determining whether she was permanently and significantly injured.
We also note that Dr. Park testified before the jury that he could not say if Ms. S.’s loss
of smell and taste was permanent.  He gave this trial testimony over five months after appellant’s
attack on Ms. S., when she still had not recovered her sense of smell and of taste.  Thus, the jury
had evidence before it that her sense of smell and taste might well return.  Her eventual recovery
of her sense of smell and taste, almost a year after appellant’s brutal attack on Ms. S., did not
require that the trial court grant appellant’s motion for a new trial based on this evidence.  The
improvement in her taste and smell was foreseeable by the jury, and additional evidence before
the jury - independent of her sense of taste and smell - proved that Ms. S. was significantly and
permanently injured by appellant’s attack even after the return of these senses.
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III.  CONCLUSION
Keeping in mind the steep burden imposed by the standard of review for motions
requesting a new trial based on after-discovered evidence, we find the trial court did not err in
denying appellant’s motion for a new trial based on after-discovered evidence.
Affirmed.
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