Lee v. Commonwealth
| Decision Date | 28 July 2015 |
| Docket Number | Record No. 1896-14-2 |
| Court | Virginia Court of Appeals |
| Parties | LOUIS CHESTER LEE, JR. v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Chief Judge Huff, Judge Decker and Senior Judge Clements
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Patrick R. Bynum, Jr., for appellant.
Susan Baumgartner, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Louis Chester Lee, Jr. appeals his conviction for violating a protective order, as prohibited by Code § 16.1-253.2. Specifically, he contends that the evidence was insufficient to support his conviction because the Commonwealth failed to present any credible evidence that he violated the terms of the protective order. For the reasons that follow, we affirm the judgment of the trial court.
On July 1, 2013, the Henrico County Juvenile and Domestic Relations District Court granted Maritta Ellis a two-year protective order against the appellant. The order requires the appellant to have no contact with Ellis and remain at least 1,000 feet away from her at all times.The order specifically states, The appellant and Ellis have a child in common. The order requires that the appellant communicate with Ellis through a third party regarding any "visitation issues or any other issue pertaining to their child in common."
"On or about" October 20, 2013, pursuant to a visitation order concerning the transfer of their child, the appellant delivered the child to Ellis at a shopping center in the Town of Ashland.2 Ellis waited for her child in front of the Martin's supermarket in the shopping center. She saw a vehicle she associated with the appellant or his family in the lot of the shopping center within 1,000 feet of where she was waiting in her own vehicle. The child, who was escorted by another child, came over to Ellis in the parking lot.
After she picked up her child, Ellis proceeded to drive away. She stopped at a stoplight located at the exit of the parking lot. The appellant's vehicle was in front of her at the stoplight. While both parties were waiting for the light to change to green, Ellis saw the appellant appear "to be exaggerating laughter." He "raised his hand and gestured to her in a threatening manner." He also "made a gesture to her which she interpreted as [the appellant] making the sign of a pistol with his hand and exhibiting a gesture in which he pulled the trigger of the imaginary pistol . . . ." After the encounter, both parties exited the parking lot and left the area.
On cross-examination, Ellis said that she was unsure of the specific date of the incident. She also could not describe exactly how far away the appellant was from her during the transfer of the child. The only time she saw him was when both parties were leaving the parking lot.
The trial judge took judicial notice of the fact that, due to the size of the shopping center, anywhere that the appellant was within the parking lot was also within 1,000 feet of Ellis' location in front of the Martin's supermarket.
The appellant testified in his defense. He denied making any threatening gestures to Ellis. He also said that he was never within 1,000 feet of her. He testified that he was certain he did not have visitation with the child on October 20, 2013. The appellant acknowledged, however, that he had visitation every other weekend and would return the child to this particular shopping center's parking lot on Sundays. He did not remember whether he had dropped off the child at the parking lot on any other Sunday that October.
The appellant also testified that Ellis had brought two other charges of a violation of the protective order. The one in Caroline County had been dismissed, and the one in Henrico County was continued to a date after the instant case.
The trial court found the appellant guilty of a violation of a protective order and sentenced him to thirty days in jail, with twenty-eight days suspended.
As a preliminary matter, we resolve the issue of whether the written statement of facts is properly part of the record on appeal. In the order granting the petition for appeal, in addition to granting the assignment of error, this Court requested briefing on the following question:
Whether the statement of facts in lieu of a transcript is properly a part of the record on appeal in this case where the statement of facts has been timely filed in the circuit court and has been signed by both parties' attorneys - but does not include the signature of the circuit judge, and instead simply bears a stamp with the circuit court's judge's initials indicating that the judge has "seen" the statement of facts on the same day it was filed.
In this case, instead of a transcript, a written statement of facts was prepared by counsel for the appellant. The statement of facts was then signed as "seen and agreed" by counsel for the appellant and the Assistant Commonwealth's Attorney. It was stamped "received and/or filed" in the Hanover Circuit Court clerk's office on September 12, 2014. On that same date, it was also stamped "Seen Sep 12 2014 J.O.H., Judge."
Rule 5A:8(c) provides that:
Here, the appellant filed an agreed-upon statement of facts within fifty-five days of the entry of judgment. In accordance with the rule, "[t]hereafter, the trial judge must sign the statement, correct the statement and sign the corrected statement, or, in cases where the judge cannot in good faith recall or accurately reconstruct the relevant proceedings, order a new trial." Proctor v. Town of Colonial Beach, 15 Va. App. 608, 610-11, 425 S.E.2d 818, 820 (1993) (en banc). The issue in this case is whether the statement of facts is a part of the record on appeal, where it does not include the signature of the trial judge, and instead simply bears a stamp with the judge's initials, indicating that the judge has "seen" the statement of facts on the same day itwas filed. Based upon the totality of the circumstances, we conclude that the stamped initials are sufficient as a signature under Rule 5A:8(c).
In the case of an agreed-upon statement of facts, initials of the trial court are sufficient to comply with the Rules. Support for this conclusion comes from a variety of legal sources. Virginia law allows for initials to constitute a signature in the context of estate law. Code § 64.2-403 provides that a valid holographic will must be "signed by the testator"; however, the statute does not include a definition of what constitutes a signature. The Supreme Court of Virginia, in Pilcher v. Pilcher, 117 Va. 356, 366-67, 84 S.E. 667, 670-71 (1915), held that the testator's initials, rather than his full name, were sufficient to meet the statutory requirements of a signature. Additionally, several legal definitions of "signature" permit initials to constitute a valid signature. The Uniform Commercial Code defines signature as "any name, mark, or writing used with the intention of authenticating a document." U.C.C. § 1-201. The Restatement (Second) of Contracts § 134 contains the statement "[t]he signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer." Black's Law Dictionary 1593 (10th ed. 2014) defines signature as "[a] person's name or mark written by that person or at the person's direction." In this case, the agreed-upon statement of facts has a stamped mark with the word "Seen," the trial judge's initials, "J.O.H.," and his title, "Judge."3 The stamped initials signify a mark of the judge, made with the intention of authenticating the statement of facts, and therefore constitute a signature for purposes of Rule 5A:8.
Additionally, the procedure for a judge to approve a written statement of facts under Rule 5A:8 supports the conclusion that the judge's stamped initials suffice as a signature. Rule 5A:8(c) specifically states that the trial judge "may" sign the statement upon presentation to the court. "Implicit in the use of the permissive 'may' is the recognition that the judge is not required to sign a statement that he or she believes is not accurate." Proctor, 15 Va. App. at 610 n.2, 425 S.E.2d at 819 n.2. "In such situations, the judge may modify the statement and sign the modified statement, or, if the judge is unable accurately to recall the pertinent proceedings, order a new trial." Id. It is clear that the judge had the option to refuse to sign the statement if he believed it to be inaccurate. Here, the agreed-upon written statement of facts which was properly filed is stamped with the trial judge's initials, indicating his approval of the document as presented to him.
Finally, the overall purpose of the requirement that the trial judge sign the document is to "ensure an accurate and complete statement of the facts and procedural history of the proceeding in the trial court." Id. at 610, 425...
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