Ferguson v. Com.

• Decision Date: 11 September 2007
• Docket Number: Record No. 0539-06-1.
• Citation: 50 Va. App. 351,649 S.E.2d 724
• Parties: Kenneth FERGUSON v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

649 S.E.2d 724

50 Va. App. 351

Kenneth FERGUSON v.COMMONWEALTH of Virginia.

Record No. 0539-06-1.

Court of Appeals of Virginia, Chesapeake.

September 11, 2007.

Edward W. Webb, Public Defender(Office of the Public Defender, on brief), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General(Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and FRANK and BEALES, JJ.

ROBERT P. FRANK, Judge.

Following a bench trial, Kenneth Ferguson(appellant) was convicted of two counts of malicious wounding (in violation of Code§ 18.2-51), abduction (in violation of Code§ 18.2-47),¹ and five counts of felony child neglect (in violation of Code§ 18.2-371.1(B)).Appellant contends the trial court erred in convicting and sentencing him on one of the malicious wounding charges because the indictment charged only unlawful wounding.Appellant also challenges the sufficiency of the evidence to convict him on both malicious wounding charges and three of the five felony child neglect charges.We agree that the trial court erred in finding appellant guilty of malicious wounding on an indictment that the Commonwealth concedes charges only unlawful wounding.Accordingly, we reverse that conviction and remand for a new trial on that charge.We affirm the remaining conviction for malicious wounding, and affirm the two felony child neglect charges involving "brother" and "sister."We reverse the remaining felony child neglect conviction involving A.C.

BACKGROUND

On appeal, we examine the evidence in the light most favorable to the Commonwealth.That principle requires us to discard the evidence of the accused in conflict with that of the Commonwealth and to regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.

Guda v. Commonwealth,42 Va.App. 453, 455, 592 S.E.2d 748, 749(2004)(citation omitted).

Applying that standard, the evidence demonstrates that appellant became a foster parent to siblings A.C., "brother," and "sister"² in June 2000.³As A.C. explained, "[w]hen [we children] first moved in, everything was fine and dandy.Then after a certain period of time, things changed."A.C. recalled that initially appellant disciplined the children by requiring them to perform push-ups and situps, but the children "got used to it, so [appellant] had to find other ways."

A.C. explained that appellant began to physically beat the two younger children, mostly upon suspicion of stealing food and money.Appellant would beat the children "with belts and then when that wasn't working, he started using cable cords."According to A.C., the beatings took place almost daily.After "brother" began waking up in the middle of the night and taking food from the downstairs pantry, appellant starting chaining "brother" to his bed at night.On some occasions, appellant would make A.C. chain his brother to the bed."Brother" also remembered being chained by appellant to an exercise machine in the garage "a couple of times."

The malicious wounding indictment relevant to this appeal relates to appellant's conduct in September 2003 when appellant struck A.C. with his hands and feet, and whipped him with a cable cord after he attempted to provide excuses for his brother's and sister's conduct.A.C.'s Spanish teacher, along with his guidance counselor, took several photographs showing scabs and dried blood on A.C.'s back and left shoulder that were a result of appellant's beating him repeatedly with the cable cord.

All three children testified about events that occurred on December 3, 2003."Brother" and "sister" had been in trouble and were suspended from school on December 2.Appellant, who had a recording studio located in the church where he worked, woke the children at 2:00 a.m. and ordered them to come with him to the studio.Appellant instructed the children to stand guard outside the studio on this cold December night and watch for vandalism, as a car parked in the studio's parking lot had recently been damaged by vandals.According to A.C., appellant told him "that the only time ["brother"] and ["sister"] was [sic] allowed inside was to go to the bathroom, [but] that [A.C.] could come in any time [A.C.] wanted to."Appellant placed A.C. outside of the studio standing between his brother, who stood "on the far left side," and his sister, who stood "on the far right side," and instructed him "to stand out there and keep guard."A.C. remembered that he was wearing "a hoodie, a pair of jeans and a T-shirt"; "["sister"] was wearing a light jacket that you'd wear in the spring or in the summertime and her pajamas"; and "["brother"] was wearing a jean jacket and a pair of jeans and a shirt."Because it was cold outside, A.C. went inside the studio and found coats to give to his brother and sister.⁴While the children were standing guard outside, appellant"went into their recording room and was working on some new stuff, then he fell asleep."

At 5:30 a.m., A.C. began calling his aunt to ask her if she could come get them.A.C. finally reached her at 7:00 a.m., and, upon his aunt's suggestion, A.C. started walking with "brother" and "sister" along the highway leading away from the studio.At about 7:30 a.m., the aunt picked the children up at a location that was approximately a thirty-minute walk from the studio.According to the aunt, "it was freezing out[side]."She recalled that two days later "brother" contracted pneumonia, and "sister""had the flu."

Appellant initially testified that he brought the children to his studio because they could not be left alone and that they were only outside for a few minutes.On cross-examination, however, appellant confirmed that he had given a statement to police admitting that he had placed the children outside the studio to stand guard because of the recent vandalism.

Several neighbors testified that the children had a bad reputation for truthfulness.In addition, "brother," who had some special needs, also had a problem with stealing.On the issue of credibility, however, the trial court specifically found the Commonwealth's witnesses more credible than appellant.The trial court found appellant guilty of two counts of malicious wounding, one count of abduction, and five counts of felony child neglect.

This appeal follows.

ANALYSIS

I.THE MALICIOUS WOUNDING CHARGE

Appellant contends the trial court erred by convicting and sentencing him on the charge of malicious wounding of "brother" because the indictment did not charge appellant acted with malicious intent.The indictment in question read:

[Appellant], Between the 19th day of June, 2000, through the 3rd day of December, 2003, feloniously, with intent to maim, disfigure, disable or kill, did shoot, stab, cut, wound or cause bodily injury to ["brother"] in violation of §§ 18.2-51 of the code of Virginia(1950) as [amended].

The Commonwealth concedes the error, noting that the ends of justice exception should apply since the error was not discovered until after the trial and the sentencing hearing.⁵The Commonwealth further requests that the case be remanded for sentencing on the charge of unlawful wounding, consistent with Legette v. Commonwealth,33 Va.App. 221, 532 S.E.2d 353(2000).

In Legette, although the accused was indicted and convicted on a charge of unlawful wounding, the trial court sentenced Legette for malicious wounding.Id. at 228, 532 S.E.2d at 356.This Court reversed and remanded for new sentencing consistent with the indictment and conviction.Id.In contrast, we note that the trial court in this case not only sentenced, but convicted, appellant of malicious wounding, an offense greater than that for which he was indicted.

"An indictment is a written accusation of a crime and is intended to inform the accused of the nature and cause of the accusation against him."Hairston v. Commonwealth,2 Va.App. 211, 213, 343 S.E.2d 355, 357(1986)."An accused has the right to be clearly informed of the charge he faces."Williams v. Commonwealth,8 Va.App. 336, 341, 381 S.E.2d 361, 364(1989)."`The accused cannot be convicted unless the evidence brings him within the offense charged in his indictment. . . .[T]he indictment must charge the very offense for which a conviction is asked.'"Scott v. Commonwealth,49 Va.App. 68, 73, 636 S.E.2d 893, 895(2006)(quotingWilliams,8 Va.App. at 341, 381 S.E.2d at 364)."`When a defendant is convicted of charges not included in the indictment, [either expressly or as a lesser included offense,] . . . per se reversible error [has occurred],' and no showing of actual prejudice is required."Id. at 74, 636 S.E.2d at 896(quotingUnited States v. Fletcher,74 F.3d 49, 53(4th Cir.1996)).

In finding that the trial court convicted appellant of an offense not charged in the indictment, we reverse that conviction.We conclude that the appropriate remedy in this case is to reverse and remand for a new trial consistent with the indictment.SeeHummer v. Commonwealth,122 Va. 826, 94 S.E. 157(1917)(reversing malicious wounding conviction and remanding for a new trial when appellant was indicted for unlawful wounding).Accordingly, we reverse appellant's conviction for malicious wounding and remand for retrial on the unlawful wounding indictment.⁶

II.SUFFICIENCY OF THE EVIDENCE⁷

When considering on appeal the sufficiency of the evidence presented below, we"presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence to support it."Davis v. Commonwealth,39 Va.App. 96, 99, 570 S.E.2d 875, 876-77(2002);see alsoMcGee v. Commonwealth,25 Va.App. 193, 197-98, 487 S.E.2d 259, 261(1997)(en banc).Under this standard, "a reviewing court does not `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'"Myers v. Commonwealth,43 Va. App. 113, 118, 596...