Wandemberg v. Commonwealth, 040219 VACA, 0137-18-2
|Opinion Judge:||JUDGE ROBERT J. HUMPHREYS|
|Party Name:||ERIC WILLIAM WANDEMBERG v. COMMONWEALTH OF VIRGINIA|
|Attorney:||Gregory R. Sheldon (Bain Sheldon, P.L.C., on brief), for appellant. Alice Anne Lloyd, Assistant Attorney General (Mark R. Herring, Attorney General; Brittany A. Dunn-Pirio, Assistant Attorney General, on brief), for appellee.|
|Judge Panel:||Present: Judges Humphreys, Petty and Chafin Argued at Richmond, Virginia|
|Case Date:||April 02, 2019|
|Court:||Court of Appeals of Virginia|
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Lynn S. Brice, Judge
Gregory R. Sheldon (Bain Sheldon, P.L.C., on brief), for appellant.
Alice Anne Lloyd, Assistant Attorney General (Mark R. Herring, Attorney General; Brittany A. Dunn-Pirio, Assistant Attorney General, on brief), for appellee.
Present: Judges Humphreys, Petty and Chafin Argued at Richmond, Virginia
JUDGE ROBERT J. HUMPHREYS
Following a bench trial, the Circuit Court of Chesterfield County (the "circuit court") convicted Eric William Wandemberg ("Wandemberg") of two counts of strangulation, in violation of Code § 18.2-51.6, two counts of misdemeanor assault and battery, in violation of Code § 18.2-57, misdemeanor "vandalism, "1 in violation of Code § 18.2-137, and damaging a telephone line (hereinafter, "interfering with a 911 phone call"), 2 in violation of Code § 18.2-164(B). The circuit court sentenced Wandemberg to a total of fourteen years of incarceration, with eight years and twenty-four months suspended. The circuit court also ordered Wandemberg to pay restitution to the victim's mother to fix a door that he damaged. On appeal, Wandemberg asserts the following two assignments of error: 1. The [circuit] court erred by finding sufficient evidence to support each strangulation conviction in the absence of evidence of a bodily injury, as required by [Code §] 18.2-51.6.
2. The [circuit] court erred by finding sufficient evidence to support a conviction for interfering with a 911 call where the trial court made a specific factual finding that it could not determine who damaged the phone.
The record reflects that Wandemberg and the victim were in a volatile romantic relationship. Over the course of several months, Wandemberg damaged property at the victim's mother's home3 and committed three instances of domestic violence, including two separate incidents of strangulation.
The first domestic violence incident, as well as the first strangulation, occurred on June 24, 2016. That day, Wandemberg arrived at the victim's home after finishing work. Wandemberg and the victim did not live together, but Wandemberg occasionally stayed at her home. After arriving, Wandemberg woke the victim and told her to get out of bed. They then began arguing. The argument escalated, and Wandemberg grabbed the victim by the throat, started choking her, and threw her onto the bed. Wandemberg continued to choke the victim with his right hand, squeezing and pressing down on her neck. Wandemberg repeatedly threatened to kill the victim during this first assault, which lasted at least five minutes.
The victim described that Wandemberg would choke her, "let up after a couple of minutes, and then he'd go right back at it. He was yelling at the time." The victim also testified that she could not breathe and felt pain. She further testified that when she attempted to call the police with her cell phone, Wandemberg took the phone from her and threw it against a window, causing it to break. The victim subsequently started banging on the window, "hoping [her] neighbor would see or come over." Wandemberg then punched the victim in her temple with a closed fist and started choking her again.
The first attack left the victim with a "knot" on her temple "about the size of a golf ball[.]" The victim also suffered "bad headaches," a black eye, and other bruising on her face. Her brother, Clinton Webber ("Webber"), explained that when he saw the victim on June 24, 2016, she "had a goose-egg-sized knot on her face and abrasions around the neck . . . . It looked like somebody had choked her." The victim's mother, Michelle Lilly ("Lilly"), also confirmed that when she saw the victim that same day, she had "some marks on her neck and a knot on her head."
Webber took the victim to the hospital a few hours later. During the hospital visit, however, the victim did not tell any medical personnel about the strangulation because she was pregnant, did not want the police to get involved, and "just wanted this to go away."
When interviewed about the incident by Officer Bechtold of the Chesterfield County Police Department, Wandemberg admitted that he and the victim got into "a tussle." Wandemberg claimed, however, that the victim became angry with him, threw her phone at him, and repeatedly hit his back. Wandemberg also claimed that when the victim threw her phone at him, the phone missed and hit the dresser, which caused it to break. Wandemberg also explained that he pushed the victim away with both of his hands, which caused the victim to fall and hit her head on the bathtub. Wandemberg alleged that he restrained the victim using both of his hands around her neck because she continued to chase him. Wandemberg also told Officer Bechtold that he remembered the victim having some scratches around her neck.
The second domestic violence incident occurred on December 15, 2016. That day, the victim was driving Wandemberg and Wandemberg told the victim that he had been cheating on her. The victim stopped the car and told Wandemberg to get out. Wandemberg refused to exit the car and then "backhanded" the victim and "clawed" her face. The victim explained that her face "looked like a cat had . . . crawled up on [her] face and clawed it."
In his interview with Officer Bechtold, Wandemberg admitted to getting into an altercation with the victim while she drove him to work. Wandemberg also admitted to backhanding the victim in the face, which "popped her lip." Wandemberg explained, however, that he only did so after the victim punched him in the face multiple times.
The third domestic violence incident, as well as the second strangulation, occurred in mid-January 2017. Wandemberg and the victim started arguing in the victim's bedroom. The argument then moved into the bathroom where Wandemberg threw the victim up against the wall and started choking her. She fell to the ground, got up, and then started screaming. Wandemberg subsequently dragged the victim from the bathroom to the closet by her hair and neck and then grabbed the victim by the throat, which caused the victim to fall backwards and hit her head on a box. At that point, Wandemberg got on top of the victim and straddled her, placed both hands on her neck, and began choking her.
The victim stated that Wandemberg choked her for so long that she...
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