David Reginald Jones v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 29, 2022
• Docket: 0321222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Beales, Friedman and Callins Argued at Richmond, Virginia

DAVID REGINALD JONES MEMORANDUM OPINION BY v. Record No. 0321-22-2 JUDGE RANDOLPH A. BEALES DECEMBER 29, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HALIFAX COUNTY Kimberley S. White, Judge1

John A. Terry (Bagwell & Bagwell, PC, on brief), for appellant.

Rebecca M. Garcia, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

The Circuit Court of Halifax County convicted David Reginald Jones of assault and battery,

violating a protective order, trespassing, and abduction. On appeal, Jones challenges the sufficiency

of the evidence to support his convictions.

I. BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, [as] the prevailing party at trial.” Gerald v.

Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381

(2016)). As the Supreme Court has stated, “This principle requires us to ‘discard the evidence of

the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence

favorable to the Commonwealth and all fair inferences to be drawn therefrom.’” Kelley v.

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The Honorable Kimberley S. White presided over the proceedings below. Now a member of this Court, Judge White took no part in this decision. Commonwealth, 289 Va. 463, 467-68 (2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498

(1980)).

As established by her testimony at trial, P.L.2 and Jones had been in a romantic relationship

until a few months before July 2020. By that time, P.L. had ended her relationship with Jones and

had told him repeatedly that he was not welcome at her home. Around 5:00 p.m., on July 17, 2020,

P.L. took her medication and went to bed early because she was recovering from injuries

sustained during a car crash. In addition, she suffered from chronic obstructive pulmonary disease

(COPD) and severe bronchitis and had been using an oxygen tank since 2016.

A few hours after P.L. went to bed, Jones began calling her and sending her text messages

asking her to give their relationship another chance, but she did not respond. At approximately

9:00 p.m., she noticed headlights shining through her window and thought that someone was pulling

into her yard. She then walked to her bathroom window and saw a truck backing away from her

house. At that moment, a video doorbell application on her phone alerted her that someone was

near her door. Using her phone, she saw Jones approaching her door with a beer in his hand, so she

rushed to the door and told him to leave. Jones refused to leave and stated that his ride had left, that

he needed to talk with her, and that he suspected she was with another man.

When P.L. again insisted that Jones leave, he briefly faked walking away and then seized

the door as P.L. tried to close it. P.L. further testified that Jones jerked the door open, positioned his

body so that it could not close, and then announced that “he was not going anywhere.” He then

grabbed P.L. by her hair and pushed her from the doorway into the kitchen. P.L. stated that Jones

forced her into the kitchen corner and raised her onto the tips of her toes by her hair. As Jones held

her in the corner, he threatened to kill her while reaching into his back pocket, acting as though he

2 We use initials, instead of the victim’s actual name, in an attempt to better protect her privacy. -2- was going to pull out a gun. She then testified that Jones released her hair, yanked her oxygen cord

from her head, and wrapped it around her hands.

After Jones released her, P.L. stated that she slumped to the kitchen floor and was struggling

to breathe. She claimed that Jones then pressed a chair against her and sat in it “to make sure I

didn’t go anywhere.” Next, for about three hours, Jones talked about “all that he wanted to do” so

that they could get back together. She testified that she did not respond to Jones other than to beg

for her life and to ask him to call an ambulance because she was “in so much pain.” She added that,

eventually, Jones began pacing in and out of the house, “acting like he was talking to someone

outside.” When Jones walked outside, she went to the door and locked it. P.L. then immediately

called her adult daughter and asked her to call the police. P.L. next called her nearby landlord

because Jones was banging on her door and trying to get into the house again.

At trial, in addition to P.L.’s testimony, the Commonwealth presented evidence, including a

photograph of her injury, a photograph of her hair, records of Jones’s messages to her, police

body-worn camera footage, and additional testimony. Her landlord testified that when P.L. spoke to

him on the phone, it “[s]ounded like something was really wrong.”

Deputy Bush, of the Halifax County Sheriff’s Office, testified that he was dispatched to

P.L.’s house on the night of the incident and found her crying and shaking as she slid herself into a

corner. She had redness on her face, around her neck, and down her arms. Deputy Bush’s

body-worn camera recorded his efforts to speak with her and depicted her crying and shaking on the

living room floor. P.L.’s daughter testified that she arrived while Deputy Bush was in the house

with P.L. and observed that her mother was shaking, crying, and sitting on the floor. She also stated

that P.L.’s lip “was busted on the inside” and bruised.

P.L.’s daughter informed Deputy Bush that she had just seen Jones outside next to a

deputy’s car. Deputy Bush arrested Jones outside of P.L.’s house and drove him to the magistrate’s

-3- office. At 1:32 a.m. on July 18, 2020, the magistrate issued an emergency protective order that

prohibited Jones from having contact of any kind with P.L. Deputy Bush served the protective

order on Jones at 1:35 a.m.–three minutes after it was issued. Despite the protective order, Jones

resumed calling and texting P.L. and sending her messages through Facebook within hours on the

same morning the protective order was issued. Throughout these messages Jones called P.L. a liar,

professed his love for her, and admitted that he had made a mistake after she had earlier closed her

door in his face.

At the close of the Commonwealth’s case-in-chief, after the Commonwealth had presented

testimony from four witnesses, and had also presented photographs, copies of written messages, and

other evidence, including Deputy Bush’s body-worn camera footage, counsel for Jones moved to

strike the evidence because it was not sufficient as a matter of law. The trial court granted the

motion to strike as to the counts of breaking and entering and preventing another from contacting

emergency services, but denied the motion as to the four counts that are the subject of this appeal.

Jones then testified in his own defense. He denied grabbing or dragging P.L. and claimed

that he could not have prevented her from moving because he had a cast on his arm. He also denied

threatening to kill her and insisted that he only wanted to know why she was cheating on him.

Jones admitted that he attempted to pull her hair when she would not answer him, but that it “slid

out” of his hand. Jones admitted that he was upset when he sent the text messages to P.L. after his

arrest but denied that he intended to harm her. Counsel for Jones then renewed his motion to strike,

arguing that the testimony of both P.L. and Jones had inconsistencies and that “the truth is

somewhere between” both sides.

The trial court acknowledged Jones’s renewed motion to strike but found that P.L.’s

testimony was credible and that it was corroborated by the Commonwealth’s other evidence. The

trial court noted that P.L.’s daughter was upset and “had tears coming down her cheeks” as she

-4- described her mother’s condition shortly after the incident, which the trial court found to support the

daughter’s credibility. The trial court also found that Deputy Bush’s testimony and body-worn

camera footage demonstrated that P.L. was crying, was shaking, and was unable to stand up when

he arrived, indicating that P.L. had experienced an exceedingly traumatic event. Accordingly, the

trial court convicted Jones of assault and battery, violating a protective order, trespassing, and

abduction. Jones appeals to this Court.

II. ANALYSIS

On appeal, Jones contends that the evidence was not sufficient to support his convictions.

When an appellate court reviews 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 (2018). In such cases, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663 (2003) (quoting Jackson v. Virginia,

443 U.S. 307, 318-19 (1979)). Instead, “[v]iewing the evidence in the light most favorable to the

Commonwealth, as we must since it was the prevailing party” below, Riner v. Commonwealth, 268

Va. 296, 330 (2004), we must ask whether “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt,” Kelly v. Commonwealth, 41 Va. App. 250, 257

(2003) (en banc) (emphasis added). “This familiar standard gives full play to the responsibility of

the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.

Jones argues that the evidence was insufficient to sustain his convictions because the

Commonwealth’s evidence was incredible. Specifically, he argues that the evidence consisted

primarily of his and P.L.’s contradictory testimony and that “no other individuals” could “confirm

[who] was telling the truth.” He also argues that no evidence corroborated P.L.’s testimony and that

-5- she had “a possible motive” to lie, given his allegation that he caught her with another man. Jones

argues that his testimony, by contrast, was corroborated by Deputy Bush’s body-worn camera

footage, which depicted a cast on his arm, a circumstance that diminished his ability to commit the

offenses in the manner that P.L. described.

“Determining the credibility of witnesses . . . is within the exclusive province of the [fact

finder], which has the unique opportunity to observe the demeanor of the witnesses as they

testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525 (2015) (first alteration in original)

(quoting Lea v. Commonwealth, 16 Va. App. 300, 304 (1993)). In addition, as the present case

illustrates, a “fact finder’s evaluations of credibility” include “choosing between competing

accounts offered by different witnesses.” Commonwealth v. McNeal, 282 Va. 16, 22 (2011). In

conducting those evaluations, the fact finder is “free to believe or disbelieve, in part or in whole,

the testimony of any witness.” Bazemore v. Commonwealth, 42 Va. App. 203, 213 (2004). A

fact finder may also reject a defendant’s self-serving testimony and “conclude that the accused is

lying to conceal his guilt.” Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011) (quoting

Marable v. Commonwealth, 27 Va. App. 505, 509-10 (1998)).

“[T]he conclusions of the fact finder on issues of witness credibility may be disturbed on

appeal only when we find that the witness’ testimony was ‘inherently incredible, or so contrary

to human experience as to render it unworthy of belief.’” Ragsdale v. Commonwealth, 38

Va. App. 421, 429 (2002) (quoting Ashby v. Commonwealth, 33 Va. App. 540, 548 (2000)).

However, as the Supreme Court has stated, “Evidence is not ‘incredible’ unless it is ‘so

manifestly false that reasonable men ought not to believe it’ or ‘shown to be false by objects or

things as to the existence and meaning of which reasonable men should not differ.’” Gerald, 295

Va. at 487 (quoting Juniper v. Commonwealth, 271 Va. 362, 415 (2006)).

-6- P.L.’s testimony simply was not inherently incredible. A witness’s testimony is not

inherently incredible when it is corroborated by other evidence, although corroboration is not

necessary. See Lambert v. Commonwealth, 70 Va. App. 740, 760 (2019). Here, substantial

evidence corroborated P.L.’s account. First, Deputy Bush’s body-worn camera footage depicted

P.L.’s clear distress. She was crying and shaking on her floor shortly after the incident. As the

trial court found, that video evidence corroborated P.L.’s testimony by demonstrating that “what

[she] had experienced was exceedingly traumatic.” Second, her daughter’s testimony and

Deputy Bush’s testimony demonstrated that, when they arrived, P.L. had a lacerated lip and

redness on her face, around her neck, and down her arms. Those injuries were consistent with

P.L.’s account of her struggle with Jones and the force he applied against her, including grabbing

her by her hair, forcing her into a corner of the kitchen, yanking her oxygen cord from her head,

and tying her oxygen cord around her hands. See Ward v. Commonwealth, 264 Va. 648, 653

(2002) (holding that a victim’s “physical injuries” tend to “corroborate the victim’s testimony”).

Finally, Jones’s own statements corroborated P.L.’s testimony. At trial, Jones conceded

that he attempted to pull her hair although he tried to minimize his actions by claiming the hair

slid out of his hand. Jones’s text messages to P.L. the morning after the incident—which he sent

in violation of the protective order prohibiting any contact with her—also corroborated P.L.’s

account of what occurred. In written messages, Jones admitted that he had made a mistake and

acknowledged that P.L. had tried to close her door without letting him into her home. Although

Jones denied dragging P.L. by her hair, preventing her from moving, or threatening to kill her, the

balance of the Commonwealth’s evidence, including some of Jones’s own statements, contradicted

Jones’s testimony. Thus, the trial court was entitled to reject Jones’s version of the facts. See

Coleman v. Commonwealth, 52 Va. App. 19, 25 (2008). After having seen and heard all the

-7- witnesses and considering the evidence, including a video recording, the trial court accepted

P.L.’s testimony.

Given P.L.’s testimony and Jones’s own admissions—in addition to the Commonwealth’s

other evidence—the elements for each offense were clearly established. “Trespass is the

unauthorized use of or entry onto another’s property.” Kim v. Commonwealth, 293 Va. 304, 317

(2017). A person is guilty of abduction if he, “by force . . . seizes, takes, transports, detains or

secretes another person with the intent to deprive such other person of his personal liberty.”

Code § 18.2-47(A). A protective order is violated when that order “prohibits contacts” with “the

allegedly abused person” under Code § 16.1-253.2(A) and then the person against whom the

protective order is issued nevertheless still establishes communication with that other person

protected by the protective order. See Green v. Commonwealth, 72 Va. App. 193, 203 (2020).

Finally, “[t]o sustain a conviction for battery, the Commonwealth must prove a ‘wil[l]ful or

unlawful touching’ of another.” Parish v. Commonwealth, 56 Va. App. 324, 330 (2010) (second

alteration in original) (quoting Wood v. Commonwealth, 149 Va. 401, 404 (1927)). In addition,

“[t]he unlawful intent may be imputed if the touching is done in a rude, insolent, or angry

manner.” Id. at 331 (quotation omitted).

Given the evidence in the record, it is clear that a rational fact finder could certainly

conclude that Jones grabbed P.L., pulled her by her hair across the room, wrapped her oxygen

tube around her hands, and kept her from leaving (or being where P.L. wanted to be) for several

hours by trapping her in the corner of a room. P.L. had not invited Jones into her home, had told

him he was not welcome, and had asked him to leave multiple times after he arrived.

Consequently, there is plenty of evidence for a rational fact finder to find Jones guilty beyond a

-8- reasonable doubt of assault and battery, abduction, and trespassing.3 In addition, by 1:35 a.m. on

July 18, 2020, the police had served Jones with an emergency protective order that Jones

violated within hours that same day by texting and calling P.L. and by messaging her on

Facebook.

Given that P.L.’s testimony was not inherently incredible, given that the

Commonwealth’s evidence was competent, and given that Jones admitted that he grabbed P.L.’s

hair, went into her home after she had tried to shut the door on him when he arrived, and texted

and called her after being served the emergency protective order, we certainly cannot say that no

rational fact finder could have found the evidence sufficient to sustain Jones’s convictions

beyond a reasonable doubt.

III. CONCLUSION

For all of the foregoing reasons, we affirm Jones’s convictions by the trial court.

Affirmed.

3 Jones also argues that the evidence was insufficient to convict him of trespassing because, as in Reed v. Commonwealth, 6 Va. App. 65, 71 (1988), Jones had a “good faith belief that” he had “a right to be on the premises.” Contrary to Jones’s argument, however, Reed does not control in the case now before us. First, Reed had an agreement of tenancy with the owner giving him a right to be on the property, but Jones had no such tenancy agreement here with P.L. Id. at 67. Second, P.L. asked Jones to leave her property multiple times, but he refused to do so. Third, Jones did not raise this specific argument before the trial court, and, therefore, he failed to preserve this argument for appeal. See Rule 5A:18; Bethea v. Commonwealth, 297 Va. 730, 743- 45 (2019). -9-