Eberhardt v. Commonwealth

• Decision Date: 14 December 2021
• Docket Number: Record No. 0028-21-2
• Citation: 866 S.E.2d 38,74 Va.App. 23
• Parties: James EBERHARDT v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

74 Va.App. 23

866 S.E.2d 38

James EBERHARDT

v.COMMONWEALTH of Virginia

Record No. 0028-21-2

Court of Appeals of Virginia.

DECEMBER 14, 2021

George F. Marable, III, for appellant.

Susan Wosk, Assistant Attorney General (Mark R. Herring, Attorney General; Rachel L. Yates, Assistant Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Beales and Fulton

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

James Eberhardt appeals his conviction of child cruelty in violation of Code § 40.1-103(A). On appeal, he argues that the evidence was insufficient to support his conviction. He contends that the Commonwealth failed to prove that his behavior violated the statute or that he acted with the requisite intent because his only purpose was to discipline his child. For the following reasons, this Court affirms the appellant's conviction.

I. BACKGROUND¹

The appellant and Tiffany Camp, the parents of nine-year-old B.E., were tried jointly in a bench trial for injuries that the child sustained on or about December 4, 2019. On December 5, 2019, B.E. told the school nurse, Caren Edwards, that her right arm hurt. Edwards examined the girl's arm and saw "significant bruising." She also saw "tons of bruising" on B.E.’s legs, buttocks, and right hip. Edwards notified the school resource officer, Sergeant Dooley of the Dinwiddie County Sheriff's Office, and showed him B.E.’s bruises.

Donna Harrison, an employee of the Dinwiddie County Department of Social Services, spoke with B.E. that same day. Harrison noted that the child's injuries included redness and bruising from a single mark on her upper right arm, five to eight "linear marks" on her right arm, and "at least that many" linear marks on the backs of her legs and buttocks. Harrison took photographs of B.E.’s injuries.²

B.E. testified that when she came home from school on December 4, 2019, the appellant was angry because her teacher had reported to him that B.E. had been "talking again" in school. B.E. said that the appellant "got mad," pushed her to the floor, and told her to go to her room and remove her clothes. Then her mother, Tiffany Camp, punched her three times on her upper right arm, and when the appellant told Camp "to move out [of] the way," Camp left the room. The appellant said to B.E., "I told you to stop talking in class," and started hitting her with the webbed "belt" portion of a dog leash. B.E. said that it hurt and she screamed and cried.

According to B.E., the appellant had spoken with her on at least two prior occasions about not disrupting her class by talking. As punishment, he had taken away her phone and videogame privileges. B.E. generally agreed that the appellant punished her by "spank[ing]" after he had talked to her about an issue "a certain number of times." B.E. also testified that she had "basically been hit [her] whole life" but had "never told anybody."

Investigator Crowder, also with the Dinwiddie County Sheriff's Office, was among the several officials who spoke with B.E. at school on December 5, 2019. Although he did not conduct a comprehensive examination of the child for injuries, he noticed that she had redness on her face. Additionally, when B.E. showed him where her right arm hurt, he saw welts, bruising, swelling, and redness in that location. Crowder interviewed Camp at B.E.’s school that day. Camp admitted she was aware that the appellant had hit B.E. the night before but claimed that she had not been involved.

Crowder later spoke with the appellant at the family's home. The appellant was "very cooperative" and admitted "whip[ping]" B.E. He said he did so because she had continued to talk in school despite his other attempts to discipline her to stop the behavior. The appellant noted that "in the bible Jesus stated[, ‘]spare the rod[,] spoil the child.[’]" He indicated his belief that this statement was "true" and said that he intended "to continue to discipline his child the same way."

The appellant testified at trial that he was the "primary disciplinarian" in his home. He asserted that he used "spanking" only as a "last resort" when B.E. continued to misbehave. He denied pushing B.E. to the floor but admitted that he "grabbed" her, held her arm, and "spanked" her ten times with the dog leash. He said that he himself had been "beat[en] with switches and belts" as a child and that he used the webbed-belt portion of the dog leash on B.E. because he "didn't want to hurt her." The appellant suggested that he intended to hit only B.E.’s buttocks but struck her arms and legs, as well, because she was moving to avoid the blows. He admitted that B.E. yelled while he was striking her but claimed that she cried only "a little bit."

The appellant contested the sufficiency of the evidence to prove the charged offense in his motions to strike and closing argument. He suggested that his behavior did not amount to beating within the meaning of the statute. The appellant further contended that the Commonwealth had to prove that he acted with at least criminal negligence and not merely with the intent to impose an appropriate corporal punishment.

The trial court accepted a portion of the appellant's testimony, finding that he used a "webbed dog leash" to strike B.E. ten times. It noted that although the appellant's "intended target was ... [the] soft tissue of [her] buttocks," the child was moving, and the evidence also showed marks on her arm and legs. The judge further found that "the blows ... were strong enough to have raised whelps [sic ] on the flesh of the victim," as shown in the photographs, and also caused bruising. He relied on a dictionary definition of "beat" as meaning "repeatedly striking so as to harm or hurt." In holding that the evidence satisfied that definition, the judge observed that the appellant's behavior was "clearly beyond anything that would be considered to be reasonable based on the number of blows," the force used to inflict them, "the use of an implement" to do so, and the "ultimate injury that was sustained," particularly in light of the appellant's "testi[mony] that it was his intent to do that." Finally, the judge noted that the fact that the appellant could hear the child "crying out ... during each of these lashes" made clear that he knew while he "continued to beat" her that he was "causing [her] hurt and pain."

The court convicted the appellant of child cruelty based on the beating and sentenced him to five years in prison with three years seven months suspended.³

II. ANALYSIS

The appellant argues that the evidence was insufficient to support his conviction of child cruelty in violation of Code § 40.1-103(A). In addressing this claim, we examine the evidence in the record in light of both well-established standards of review and additional, more nuanced legal principles.

"When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’ " Smith v. Commonwealth, 296 Va. 450, 460, 821 S.E.2d 543 (2018) (quoting Commonwealth v. Perkins, 295 Va. 323, 327, 812 S.E.2d 212 (2018) ). "If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’ " Chavez v. Commonwealth, 69 Va. App. 149, 161, 817 S.E.2d 330 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288, 795 S.E.2d 908 (2017) ). This deference is owed to both the trial court's assessment of the credibility of the witnesses and the inferences to be drawn "from basic facts to ultimate facts." See Davis v. Commonwealth, 65 Va. App. 485, 500, 778 S.E.2d 557 (2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). In the end, the appellate court "ask[s] whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Id. (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384 (2003) ).

To the extent that statutory interpretation is necessary to resolve a particular sufficiency issue, this Court reviews that aspect de novo. See Green v. Commonwealth, 72 Va. App. 193, 202, 843 S.E.2d 389 (2020). Criminal statutes must be "strictly construed against the Commonwealth." Id. Nonetheless, the court interpreting the statute must determine legislative intent "from the plain meaning of the language used." Hillman v. Commonwealth, 68 Va. App. 585, 592-93, 811 S.E.2d 853 (2018) (quoting Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637 (2007) ). An undefined term in a statute may be defined using its standard dictionary definition. See Jones v. Commonwealth, 296 Va. 412, 415, 821 S.E.2d 540 (2018) ; see also Mollenhauer v. Commonwealth, 73 Va. App. 318, 335, 859 S.E.2d 680 (2021) (defining other undefined terms in Code § 40.1-103(A) with reference to dictionary definitions).

The appellant was convicted of violating Code § 40.1-103(A), which provides in pertinent part that it is unlawful for a person with "custody of any child willfully or negligently to cause or permit the life of such child to be endangered or the health of such child to be injured, ... or to cause or permit such child to be overworked, tortured, tormented, mutilated, beaten or cruelly treated."⁴ The statute "covers a wide swath of criminal behavior [ ]from mere endangerment to actual torture." Barnes v. Commonwealth, 47 Va. App. 105, 111, 622 S.E.2d 278 (2005).

The appellant offers two sufficiency arguments. First, he suggests that he did not engage in any behavior proscribed by the statute. Second, he contends that the evidence was insufficient to prove that he acted with the requisite intent because he was merely disciplining his child.

Our analysis of these issues is guided by the overarching principle that the common law generally permits a parent to use corporal punishment in disciplining...