Kelley v. Commonwealth

• Decision Date: 08 January 2019
• Docket Number: Record No. 1063-17-4
• Citation: 69 Va.App. 617,822 S.E.2d 375
• Parties: Donald Matthew KELLEY v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

69 Va.App. 617

822 S.E.2d 375

Donald Matthew KELLEY

v.COMMONWEALTH of Virginia

Record No. 1063-17-4

Court of Appeals of Virginia, Fredericksburg.

JANUARY 8, 2019

Buta Biberaj (Biberaj Snow & Sinclair, PC, on brief), for appellant.¹

Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General; Elizabeth Kiernan Fitzgerald, Assistant Attorney General, on brief), for appellee.

Present: Chief Judge Decker,^* Judge Malveaux and Senior Judge Haley

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Donald Matthew Kelley appeals his conviction for assault and battery in violation of Code § 18.2-57. He argues that the trial court erred by finding that a touching occurred, that he had the required intent, and that he acted without a legal excuse or justification. We hold that the evidence, viewed under the proper standard, supports the court's determination that the appellant committed the offense of assault and battery. Further, the trial court did not err by rejecting the appellant's argument that he had a legal excuse or justification for his actions. Consequently, we affirm the conviction.

I. BACKGROUND²

The appellant's conviction is based on his behavior on April 3, 2016. At that time, the appellant and Jasmin Hester, the victim, were coworkers at a veterinary clinic. Hester worked as a member of the administrative staff, and the appellant was a facilities manager.

In a bench trial, Hester testified regarding the appellant's actions that day. The appellant arrived at work while Hester was sitting on the porch. According to Hester, after she said "[g]ood evening" to him, the appellant approached her, leaned forward, and grabbed her chin with his hand. Hester leaned away, telling him "no, no, no." She explained that she leaned away and said "no" even before the appellant touched her because she "could sense what was about to occur." Nevertheless, using his hand, the appellant turned Hester's face toward him and attempted to kiss her. She pulled away until they "broke contact." The appellant then walked away and said, "I'm told that it tickles," referencing his mustache. He also thanked her for "helping" at the clinic during the previous few weeks.

Later, the appellant asked Hester if she was "okay." Although she responded affirmatively at the time, she testified that her response to him was inaccurate. Hester described the incident as "scary" and "shocking." She said that the contact caused her to be offended, terrified, angry, and upset.

After the appellant left, Hester called the Loudoun County Sheriff's Office. Later that day, she met with Deputy Taylor Bauer and provided a statement about the incident. The next day, Hester filed a criminal complaint with a magistrate, who issued a summons against the appellant for assault and battery.

At trial, during cross-examination, Hester admitted that the day before the incident she had expressed dissatisfaction with her job at the clinic. She also testified that her civil lawyer had requested $175,000 on her behalf as a result of the appellant's behavior. Additionally, it came to light that Hester had messaged two friends, either through text message or social media, that the appellant "tried to kiss" her and "[t]ried to grab" her face.

During Deputy Bauer's initial investigation on the day of the offense, the appellant told him that although he had approached Hester and "leaned down to give her a kiss on the cheek," she stood up. The appellant explained to the deputy that at that time "he extended his hand out for a handshake, and she walked away."

Officer Jennifer Henry, with Loudoun County Animal Services, testified at trial that the appellant previously had stated under oath in general district court that he "approached [Hester] with the intention of kissing her." The appellant also had acknowledged that he thought Hester was uncomfortable. Henry stated that according to the appellant, he then told Hester that they would "save the kiss for later."

The trial court found the appellant guilty of misdemeanor assault and battery in violation of Code § 18.2-57. The court expressly found Hester's testimony to be "credible," and it concluded that a touching occurred. The court recognized the evidence that Hester had communicated with friends electronically that the appellant had "tried" to grab her face. However, the court reconciled her assertions, finding that the appellant tried to touch her and then did so. Noting that "[t]he slightest touching of another if done in a rude, insolent, or angry manner constitutes a battery," the court found that the appellant grabbed Hester's chin "during and after" she repeatedly said "no" and physically withdrew from him. It concluded that "touching someone by grabbing their face when attempting a clearly unwanted kiss is an action that is done in a rude manner." Subsequent to the finding of guilt, the appellant was fined $100.

II. ANALYSIS

The appellant challenges the sufficiency of the evidence to support his conviction. He argues that the evidence did not prove that he touched Hester or that, if he did so, he intended to do so in a rude manner. The appellant alternatively suggests that he should not be criminally culpable because the evidence established that he had a legal justification or excuse for touching Hester.

When considering a challenge to the sufficiency of the evidence, this Court reviews the evidence in the light most favorable to the Commonwealth, "as the prevailing party in the trial court." Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168 (2010). "In doing so, the Court ‘ "discard[s] all evidence of the accused that conflicts with that of the Commonwealth and regard[s] as true all credible evidence favorable to the Commonwealth and all fair inferences reasonably deducible" ’ from that evidence." Parham v. Commonwealth, 64 Va. App. 560, 565, 770 S.E.2d 204 (2015) (alterations in original) (quoting Henry v. Commonwealth, 63 Va. App. 30, 37, 753 S.E.2d 868 (2014) ).

The central question on appellate review of a sufficiency challenge "is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499 (2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). The appellant was tried by the circuit court, sitting without a jury. Consequently, that court was the fact finder, and its judgment is afforded the same weight as a jury verdict. Commonwealth v. Perkins, 295 Va. 323, 327, 812 S.E.2d 212 (2018). "[W]e must uphold the conviction unless it is plainly wrong or without evidence to support it." Hamilton, 279 Va. at 103, 688 S.E.2d 168. "If there is evidence to support 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." Synan v. Commonwealth, 67 Va. App. 173, 185, 795 S.E.2d 464 (2017) (quoting Courtney v. Commonwealth, 281 Va. 363, 366, 706 S.E.2d 344 (2011) ).

We apply these well-established legal principles when considering whether the evidence was sufficient to support the trial court's conclusion that the appellant was guilty of assault and battery. The appellant's challenge consists of three parts. He argues that the trial court erred "by finding that ‘a touching’ occurred." He also suggests that the court erred by concluding that the Commonwealth proved the element of intent. Finally, the appellant contends that if a touching occurred, a legal excuse or justification rendered the act lawful.

A. Touching

The appellant argues that the trial court erred by finding that a touching occurred. He suggests that the victim's testimony that he touched her was not credible because she initially asserted merely that he "tried" to touch her and she had a "pending demand" for remuneration from the clinic, giving her a motivation to lie about what had occurred.

"Assault and battery are common law crimes." Montague v. Commonwealth, 278 Va. 532, 541, 684 S.E.2d 583 (2009) ; see also Code § 18.2-57. Placing an individual in reasonable apprehension of bodily harm constitutes an assault.

Parish v. Commonwealth, 56 Va. App. 324, 330-31, 693 S.E.2d 315 (2010) ; see also Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786 (2010) (defining the common law offense of assault as also including an "overt act intended to inflict bodily harm" when the assailant "has the present ability to inflict such harm" (quoting Carter v. Commonwealth, 269 Va. 44, 47, 606 S.E.2d 839 (2005) ) ). "To sustain a conviction for battery, the Commonwealth must prove a ‘wil[l]ful or unlawful touching’ of another." Parish, 56 Va. App. at 330, 693 S.E.2d 315 (alteration in original) (quoting Wood v. Commonwealth, 149 Va. 401, 404, 140 S.E. 114 (1927) ).

The touching necessary for a battery, however, need not include a physical injury. Id. ("It is sufficient if it does injury to the [victim's] mind or feelings.'" (alteration in original) (quoting Wood, 149 Va. at 405, 140 S.E. 114 ) ). See generally Marquardt v. State, 164 Md.App. 95, 882 A.2d 900, 920 (Md. 2005) (noting that battery includes kissing another person without consent).

Here, the trial court specifically found the victim's testimony at trial to be credible. This is significant for purposes of appellate review. "The fact finder, who has the opportunity to see and hear the witnesses, has the sole responsibility to determine their credibility" as well as "the weight to be given their testimony." Hamilton, 279 Va. at 105, 688 S.E.2d 168 (quoting Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312 (1998) ). Further, the finder of fact, "who determines the credibility of the witnesses and the weight accorded their testimony, may accept or reject the testimony in whole or in part." Perkins v. Commonwealth, 31 Va. App. 326, 331, 523 S.E.2d 512 (2...