Campbell v. Com.

• Decision Date: 14 May 1991
• Docket Number: No. 0049-89-3,0049-89-3
• Citation: 12 Va.App. 476,405 S.E.2d 1
• Parties: James D. CAMPBELL, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 1

405 S.E.2d 1

12 Va.App. 476

James D. CAMPBELL, Jr. v. COMMONWEALTH of Virginia.

Record No. 0049-89-3.

Court of Appeals of Virginia.

May 14, 1991.

Edward G. Stout (Bressler, Curcio & Stout, on brief), Bristol, for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BAKER, BARROW, BENTON, COLE, ^* COLEMAN, KEENAN and MOON, JJ.

BARROW, Judge.

This is a criminal appeal heard by this court sitting en banc. In it we consider the application of the contemporaneous objection rule to a challenge to the sufficiency of evidence of guilt. Also, we address the nature of the evidence necessary to prove the intent required for malicious wounding in a case of child abuse.

We hold that where an issue of sufficiency of evidence is presented to a trial court, sitting without a jury, in a motion to strike at the conclusion of the Commonwealth's evidence and, upon its denial and upon conclusion of the defendant's evidence, the same issue is presented in the defendant's final argument to the court, the defendant has preserved his right to appeal this issue, even though he did not make a motion to strike at the conclusion of his own evidence. We also hold that evidence that a parent or stepparent has caused his or her child bodily injury, has done so maliciously, and with an intent to cause permanent injury, even if he fails in this intention, is sufficient to support a conviction of malicious wounding.

CONTEMPORANEOUS OBJECTION

At the close of the Commonwealth's evidence, defense counsel made a motion to strike the Commonwealth's evidence and argued that there was no evidence that the defendant had the intent necessary to support a conviction of malicious wounding. The trial court denied the motion, and the defendant introduced evidence on his own behalf. The defendant's attorney failed to renew his motion to strike at the conclusion of his own evidence. However, in his closing argument, he argued:

We are talking about parenting skills, and we are talking about, frankly, very poorly developed parenting skills. But the only evidence before this court is an attempt, albeit a very poor attempt, to use those parenting skills....

[Code § 18.2-51] requires the intent to disfigure. The evidence is that there is no disfigurement. The testimony and the uncontradicted testimony was that no one ever saw him act with an attempt to, and with the intent to disfigure....

And, again, we admit that that is a poor use of parenting skills, but it does not go so far with the requisite intent to justify conviction under 18.2-51....

... I see more reversals, far more reversals under [§ 18.2-51] than is typically the rule under any other criminal statute that I am aware of. That is because the court strictly construes it, and that is because it requires in this case the intent to permanently disfigure, and that intent has not been shown.... (Emphasis added.)

In its ruling, the trial court discussed our opinion in David v. Commonwealth, 2 Va.App. 1, 340 S.E.2d 576 (1986), as to the issue of intent. The court then stated:

I have no problem in finding beyond any reasonable doubt that at the time these blows were administered they were done with the intent to disfigure or disable the victim of this offense.

It is hard to understand why or how there should be, but I think malice from all the circumstances can be inferred from the acts committed, and I find Mr. Campbell guilty of maliciously causing bodily injury to the victim of this offense with the intent to disfigure or disable....

On appeal, a ruling of a trial court cannot be a basis for reversal unless an objection is stated "together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to obtain the ends of justice." Rule 5A:18. An appeal of an issue of sufficiency of evidence is barred under this rule if not raised at trial. See Floyd v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978). It is sufficient, however, if "at the time the ruling or order of the court is made or sought, [a party] makes known to the court the action which he desires the court to take or his objections to the actions of the court and his grounds therefor." Code § 8.01-384. The goal of the contemporaneous objection rule is to avoid unnecessary appeals, reversals and mistrials by allowing the trial judge to intelligently consider an issue and, if necessary, to take corrective action. Head v. Commonwealth, 3 Va.App. 163, 167, 348 S.E.2d 423, 426 (1986).

Here, defense counsel moved to strike the Commonwealth's evidence at the close of the Commonwealth's case on the grounds that the evidence did not establish the intent necessary for a conviction of malicious wounding under Code § 18.2-51. Further, during his closing argument to the trial court, defense counsel argued that the evidence did not establish the intent necessary to convict the defendant of malicious wounding. In its ruling, the trial court expressly addressed the issue of intent and found the evidence sufficient. On this record, there is no question that the trial court was adequately advised of the defendant's position, that it did consider the issue raised, and that it had the opportunity to take corrective action. Therefore, the purpose underlying the contemporaneous objection rule was fulfilled, and it would be a useless technicality to hold that the failure of the defendant's attorney to renew his motion to strike at the conclusion of his own evidence barred this appeal.

In Williams v. Commonwealth, 6 Va.App. 412, 368 S.E.2d 293 (1988), a divided panel of this court held that an appeal of the sufficiency of the evidence in a criminal case tried without a jury was barred by the failure of the defendant to move to strike the evidence even though the closing argument raised the question of the sufficiency of the evidence. Id. at 414, 368 S.E.2d at 294. To the extent that Williams holds that an appeal of the sufficiency of the evidence is barred by the failure to move to strike the Commonwealth's evidence at the conclusion of the defendant's evidence even if the issue of sufficiency is clearly presented to the trial court by a motion to strike at the conclusion of the Commonwealth's evidence and in a closing argument to the trial court, we overrule it. It is sufficient if at the time of the court's ruling the defendant states what action he wants the court to take and the grounds for the action. Code § 8.01-384.

Not every closing argument accomplishes this objective. A closing argument may address other issues: application of a statute of limitations, an affirmative defense or the weight of the evidence. Furthermore, in a jury trial, the closing argument is addressed to the jury, not the trial judge, and does not require the trial judge to rule on the evidence as a matter of law. Only a motion to strike the evidence accomplishes that objective in a jury trial.

In this case, the argument was addressed directly to the court and expressly raised the issue of the sufficiency of the evidence of intent. For this reason, we hold that the trial court had an opportunity to, and did, consider and resolve the issue now raised on appeal. We, therefore, are not barred from addressing the issue of sufficiency of the evidence raised in this appeal.

SUFFICIENCY OF THE EVIDENCE

Since the defendant chose to introduce evidence on his own behalf following the denial of his motion to strike the Commonwealth's evidence, the sufficiency of the evidence must be judged by the evidence presented by the defendant as well as by the evidence presented by the Commonwealth. Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1948). Also, we must view this evidence in the light most favorable to the Commonwealth. Norman v. Commonwealth, 2 Va.App. 518, 520, 346 S.E.2d 44, 45 (1986).

Early in the morning of October 22, 1988, the defendant's wife, Janie Campbell, left the defendant, James Campbell, Jr., alone with her two children, the defendant's stepson, Cecil Campbell, age three, and his natural son, Joshua Campbell, age two. As his mother left for work, Cecil watched her from a window, screaming and crying because he did not want her to go. The defendant called Cecil into his bedroom, where he was trying to sleep, and asked the child, "Do you want something to do all that yelling about?" Cecil responded that he did not. The defendant said, "Shut your face and go in your room and lay back down." Cecil continued to cry, so the defendant picked up a patent leather belt and gave him "two licks" with it. The child went back to his room and was quiet.

About an hour later, Joshua woke the defendant and told him that he wanted to eat. The defendant told him it was too early to eat. Joshua went back to his bedroom, and fifteen or twenty minutes later, he and Cecil began fighting and yelling at one another. The defendant called the boys into his room and spanked both of them with the belt. He struck Joshua five times and sent him to his room. The defendant then struck Cecil fifteen times, five times for fighting with Joshua and ten times for fighting with his mother in public earlier in the week. The defendant testified that he was not present during Cecil's fight with his mother and he did not "really know what happened."

After returning home from work later that evening, Mrs. Campbell was shocked to discover bruises on Cecil's back, hips and buttocks. Mrs. Campbell became upset and called her friend Linda. After confronting the defendant about the bruises on Cecil's back and receiving an indifferent response, Mrs. Campbell took Cecil to Linda's house. Linda called the police, who in turn contacted the Department of Social Services. The Department of Social Services suggested that Mrs. Campbell take Cecil to her mother, Shirley Wampler.

The next day, Mrs. Campbell asked Mrs. Wampler to keep Cecil because she ...