COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and Fulton UNPUBLISHED
Argued at Norfolk, Virginia
EBONEE ARNAE HINES MEMORANDUM OPINION* BY v. Record No. 0704-23-1 JUDGE MARY GRACE O’BRIEN JUNE 11, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK David W. Lannetti, Judge
J. Barry McCracken, Assistant Public Defender, for appellant.
Liam A. Curry, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Ebonee Arnae Hines (appellant) appeals her conviction for assault and battery of a family
member in violation of Code § 18.2-57.2. Appellant contends the court erred because that
offense was not a lesser-included offense of the indicted charge. She acknowledges she did not
preserve this argument but contends that the ends of justice exception to Rule 5A:18 allows us to
reverse her conviction. Because we find that the exception does not apply under the facts and
circumstances of this case, we affirm.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
On December 11, 2019, appellant went to Taquan Saunders’s house to retrieve her
daughter from a scheduled visitation with Saunders—her daughter’s father. Appellant, who had
arrived early, banged on the door and rang the doorbell repeatedly. Saunders’s sister answered
the door and began arguing with appellant. Saunders attempted to intervene and “got in between
them.” Appellant then reached up and choked Saunders around his neck. Saunders tried to push
her away, but they struggled and stumbled down the front porch. Appellant was “on top” of
Saunders until family members pulled her away.
The Commonwealth charged appellant with strangulation, in violation of Code
§ 18.2-51.6. Appellant testified at trial and acknowledged that Saunders was her daughter’s
father but denied strangling him. At the conclusion of the evidence, the court determined there
was “sufficient evidence for a finding of guilt for the strangulation” but instead found appellant
guilty of misdemeanor assault and battery “under the circumstances.” Just before the
proceedings ended, the court asked the parties, “Assault and battery of a family member, or
lesser included, or just assault and battery?” The prosecutor asked the court to convict appellant
of assault and battery of a family member, which the court did. Appellant’s attorney did not
object.
ANALYSIS
Appellant correctly asserts, and the Commonwealth acknowledges, that the court erred by
convicting her of assault and battery of a family member because it is not a lesser-included
On appeal, we state the facts “in the ‘light most favorable’ to the Commonwealth, the 1
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we discard appellant’s conflicting evidence and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. See Gerald v. Commonwealth, 295 Va. 469, 473 (2018). -2- offense of the indicted strangulation charge. See Harrell v. Commonwealth, 11 Va. App. 1, 6
(1990) (“The state may not accuse a person of one crime and convict h[er] by proving another,
unless the offense is a lesser included one of that charged.”). An offense cannot be considered
lesser-included “unless all its elements are included in the offense charged. Stated differently, an
offense is not a lesser-included offense if it contains an element that the charged offense does not
contain.” Commonwealth v. Dalton, 259 Va. 249, 253 (2000). Here, the crime of assault and
battery of a family member requires proof of an element that the crime of strangulation does
not—that the victim be a family member as defined in Code § 16.1-228. Compare Code
§ 18.2-57.2(A), (D) (assault and battery of a family member statute), with Code § 18.2-51.6
(strangulation statute). Although simple assault and battery is a lesser-included offense of
strangulation, Harris v. Commonwealth, No. 1413-21-4, slip op. at 4 (Va. Ct. App. Oct. 11,
2022) (per curiam), assault and battery of a family member is not.
Appellant concedes she failed to preserve this issue below and asks this Court to apply
the ends of justice exception to Rule 5A:18 to reverse her conviction. She argues that her
conviction would be reversible error had she preserved the issue and therefore constitutes a
miscarriage of justice.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “‘The ends of justice
exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation
where a miscarriage of justice has occurred.” Holt v. Commonwealth, 66 Va. App. 199, 209
(2016) (en banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220 (1997)). It is not
enough for an appellant “to merely assert a winning argument on the merits — for if that were
enough[,] procedural default ‘would never apply, except when it does not matter.’” Winslow v.
-3- Commonwealth, 62 Va. App. 539, 546 (2013) (quoting Alford v. Commonwealth, 56 Va. App.
706, 710 (2010)).
When determining whether to apply the exception, this Court considers whether a “‘grave
injustice’ or a wholly inexcusable ‘denial of essential rights’” would result if the exception were
not granted. Id. at 546-47 (quoting Brittle v. Commonwealth, 54 Va. App. 505, 513 (2009)). It is
an appellant’s “heavy” burden to demonstrate that a miscarriage of justice has occurred. Holt, 66
Va. App. at 210 (quoting Brittle, 54 Va. App. at 514). To establish a miscarriage of justice, “the
appellant must demonstrate that he or she was convicted for conduct that was not a criminal
offense or the record must affirmatively prove that an element of the offense did not occur.” Id.
(quoting Redman, 25 Va. App. at 222). In either case, it is an appellant’s burden “to point us to a
particular place in the record that establishes h[er] innocence.” Brittle, 54 Va. App. at 517.
This case turns on a unique circumstance. Because appellant acknowledges that the court
could have convicted her of simple assault and battery as a lesser-included misdemeanor of
strangulation, it follows that the only element appellant did not have notice of by virtue of the
indictment was that the assault and battery was committed “against a family or household
member” as defined in Code § 16.1-228.2 See Code § 18.2-57.2(A), (D).
Appellant, however, cannot demonstrate that she has suffered a grave injustice because
the record contains affirmative proof—from her own testimony—of this element. See Holt, 66
Va. App. at 210. On direct examination, appellant’s attorney asked her, “[H]ow did you know
Mr. Taquan Saunders prior to December 11?” Appellant responded, “He is [my daughter]’s
father.” Under Code § 16.1-228, “any individual who has a child in common” with the
defendant is considered a “family or household member.” See also Code § 18.2-57.2(D) (“The
2 Appellant does not argue that this lack of notice constitutes a denial of an essential right warranting the exception to Rule 5A:18. See Winslow, 62 Va. App. at 546-47.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and Fulton UNPUBLISHED
Argued at Norfolk, Virginia
EBONEE ARNAE HINES MEMORANDUM OPINION* BY v. Record No. 0704-23-1 JUDGE MARY GRACE O’BRIEN JUNE 11, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK David W. Lannetti, Judge
J. Barry McCracken, Assistant Public Defender, for appellant.
Liam A. Curry, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Ebonee Arnae Hines (appellant) appeals her conviction for assault and battery of a family
member in violation of Code § 18.2-57.2. Appellant contends the court erred because that
offense was not a lesser-included offense of the indicted charge. She acknowledges she did not
preserve this argument but contends that the ends of justice exception to Rule 5A:18 allows us to
reverse her conviction. Because we find that the exception does not apply under the facts and
circumstances of this case, we affirm.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
On December 11, 2019, appellant went to Taquan Saunders’s house to retrieve her
daughter from a scheduled visitation with Saunders—her daughter’s father. Appellant, who had
arrived early, banged on the door and rang the doorbell repeatedly. Saunders’s sister answered
the door and began arguing with appellant. Saunders attempted to intervene and “got in between
them.” Appellant then reached up and choked Saunders around his neck. Saunders tried to push
her away, but they struggled and stumbled down the front porch. Appellant was “on top” of
Saunders until family members pulled her away.
The Commonwealth charged appellant with strangulation, in violation of Code
§ 18.2-51.6. Appellant testified at trial and acknowledged that Saunders was her daughter’s
father but denied strangling him. At the conclusion of the evidence, the court determined there
was “sufficient evidence for a finding of guilt for the strangulation” but instead found appellant
guilty of misdemeanor assault and battery “under the circumstances.” Just before the
proceedings ended, the court asked the parties, “Assault and battery of a family member, or
lesser included, or just assault and battery?” The prosecutor asked the court to convict appellant
of assault and battery of a family member, which the court did. Appellant’s attorney did not
object.
ANALYSIS
Appellant correctly asserts, and the Commonwealth acknowledges, that the court erred by
convicting her of assault and battery of a family member because it is not a lesser-included
On appeal, we state the facts “in the ‘light most favorable’ to the Commonwealth, the 1
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we discard appellant’s conflicting evidence and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. See Gerald v. Commonwealth, 295 Va. 469, 473 (2018). -2- offense of the indicted strangulation charge. See Harrell v. Commonwealth, 11 Va. App. 1, 6
(1990) (“The state may not accuse a person of one crime and convict h[er] by proving another,
unless the offense is a lesser included one of that charged.”). An offense cannot be considered
lesser-included “unless all its elements are included in the offense charged. Stated differently, an
offense is not a lesser-included offense if it contains an element that the charged offense does not
contain.” Commonwealth v. Dalton, 259 Va. 249, 253 (2000). Here, the crime of assault and
battery of a family member requires proof of an element that the crime of strangulation does
not—that the victim be a family member as defined in Code § 16.1-228. Compare Code
§ 18.2-57.2(A), (D) (assault and battery of a family member statute), with Code § 18.2-51.6
(strangulation statute). Although simple assault and battery is a lesser-included offense of
strangulation, Harris v. Commonwealth, No. 1413-21-4, slip op. at 4 (Va. Ct. App. Oct. 11,
2022) (per curiam), assault and battery of a family member is not.
Appellant concedes she failed to preserve this issue below and asks this Court to apply
the ends of justice exception to Rule 5A:18 to reverse her conviction. She argues that her
conviction would be reversible error had she preserved the issue and therefore constitutes a
miscarriage of justice.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “‘The ends of justice
exception is narrow and is to be used sparingly,’ and applies only in the extraordinary situation
where a miscarriage of justice has occurred.” Holt v. Commonwealth, 66 Va. App. 199, 209
(2016) (en banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220 (1997)). It is not
enough for an appellant “to merely assert a winning argument on the merits — for if that were
enough[,] procedural default ‘would never apply, except when it does not matter.’” Winslow v.
-3- Commonwealth, 62 Va. App. 539, 546 (2013) (quoting Alford v. Commonwealth, 56 Va. App.
706, 710 (2010)).
When determining whether to apply the exception, this Court considers whether a “‘grave
injustice’ or a wholly inexcusable ‘denial of essential rights’” would result if the exception were
not granted. Id. at 546-47 (quoting Brittle v. Commonwealth, 54 Va. App. 505, 513 (2009)). It is
an appellant’s “heavy” burden to demonstrate that a miscarriage of justice has occurred. Holt, 66
Va. App. at 210 (quoting Brittle, 54 Va. App. at 514). To establish a miscarriage of justice, “the
appellant must demonstrate that he or she was convicted for conduct that was not a criminal
offense or the record must affirmatively prove that an element of the offense did not occur.” Id.
(quoting Redman, 25 Va. App. at 222). In either case, it is an appellant’s burden “to point us to a
particular place in the record that establishes h[er] innocence.” Brittle, 54 Va. App. at 517.
This case turns on a unique circumstance. Because appellant acknowledges that the court
could have convicted her of simple assault and battery as a lesser-included misdemeanor of
strangulation, it follows that the only element appellant did not have notice of by virtue of the
indictment was that the assault and battery was committed “against a family or household
member” as defined in Code § 16.1-228.2 See Code § 18.2-57.2(A), (D).
Appellant, however, cannot demonstrate that she has suffered a grave injustice because
the record contains affirmative proof—from her own testimony—of this element. See Holt, 66
Va. App. at 210. On direct examination, appellant’s attorney asked her, “[H]ow did you know
Mr. Taquan Saunders prior to December 11?” Appellant responded, “He is [my daughter]’s
father.” Under Code § 16.1-228, “any individual who has a child in common” with the
defendant is considered a “family or household member.” See also Code § 18.2-57.2(D) (“The
2 Appellant does not argue that this lack of notice constitutes a denial of an essential right warranting the exception to Rule 5A:18. See Winslow, 62 Va. App. at 546-47. -4- definition of ‘family or household member’ in [Code] § 16.1-228 applies to this section.”).
Thus, appellant cannot show that she was convicted of a non-offense or that the record
affirmatively proves that “an element of the offense did not occur,” because the record contains
affirmative evidence establishing her guilt. Holt, 66 Va. App. at 210 (quoting Redman, 25
Va. App. at 222).
In reaching this decision, we find McKinnon v. Commonwealth, No. 0044-11-1 (Va. Ct.
App. Nov. 29, 2011), persuasive.3 In McKinnon, this Court declined to invoke the ends of justice
exception to reverse a defendant’s conviction for a charge that was not a lesser-included offense
of the indictment. Id., slip op. at 5-6. In doing so, we noted that even when “there is ‘a
conviction of an offense . . . [that] is not a lesser-included offense of the indicted charge,’ the
judgment appealed from is [still] subject to the usual procedural requirements for consideration
on appeal – Rule 5A:18.” Id. at 4 (first and second alterations in original) (quoting Edwards v.
Commonwealth, 41 Va. App. 752, 765 (2003) (en banc)). We reasoned that the ends of justice
exception to Rule 5A:18 did not apply because the defendant had failed to point to a place in the
record that affirmatively established her innocence and her failure to object amounted to trial
strategy. Id. at 5-6. Although appellant stresses that her conviction would have constituted “per
se reversible error” had she preserved her objection, we apply “the usual procedural requirements
for consideration [of an issue] on appeal” to this case, as we did in McKinnon. Id. at 4. Because
appellant similarly fails to point to a place in the record that establishes her innocence and does
not contest the sufficiency of the evidence to support her conviction, she does not qualify for the
exception to Rule 5A:18.
3 “Although not binding precedent, unpublished opinions can be cited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012); see also Rule 5A:1(f). -5- CONCLUSION
For these reasons, appellant cannot establish that her conviction constitutes a miscarriage
of justice, and we decline to apply the ends of justice exception to Rule 5A:18. Accordingly, we
affirm the court’s judgment.
Affirmed.
-6-