Margaret Cousins v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 8, 2002
• Docket: 1553012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Clements and Agee Argued at Richmond, Virginia

MARGARET COUSINS MEMORANDUM OPINION * BY v. Record No. 1553-01-2 JUDGE ROBERT J. HUMPHREYS OCTOBER 8, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Margaret P. Spencer, Judge

Bruce P. Ganey (Chalkley & Witmeyer, L.L.P., on brief), for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Margaret Cousins appeals her conviction, after a bench trial,

for assault and battery. 1 Cousins contends the trial court erred

in denying the admission of certain evidence during trial. For

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Further, because this opinion has no precedential value, we recite only those facts essential to our holding.

1 Cousins was actually indicted and tried for unlawful wounding, in violation of Code § 18.2-51. However, after hearing the evidence, the trial court found Cousins guilty of the lesser offense of assault and battery, and sentenced her pursuant to Code § 18.2-57. In reviewing the record before us, we note that the sentencing order appears to erroneously state that Cousins was convicted of assault and battery in violation of Code § 18.2-51, the unlawful wounding statute. We, therefore, remand this matter solely for the purpose of correcting the sentencing order to remedy this conflict. the reasons that follow, we affirm the judgment of the trial court

and remand with instructions to correct the sentencing order as

directed in this opinion.

Cousins was indicted for unlawfully wounding Charlene Pullin,

her former employee, during an incident which took place on

December 26, 2000 in Pullin's driveway. The incident left Pullin

with a contusion on her right hip.

During the trial of April 25, 2001, Cousins' counsel

attempted to introduce, in his cross-examination of Pullin,

evidence concerning an injury Pullin had sustained several weeks

before the December 26, 2000 incident. The following colloquy

took place:

[DEFENSE COUNSEL]: And when you were painting at her office on December 2nd, you had a fall off a ladder, did you not?

[COMMONWEALTH'S ATTORNEY]: Judge, I have an objection to the relevance. This is about an injury, an unlawful wounding that occurred on December 26 of 2000. He's going all the way back to the 2nd.

THE COURT: How is this relevant, counsel?

[DEFENSE COUNSEL]: Your Honor, because we would submit to the Court that she was injured on that day, received medical treatment at a hospital for an injury to her right side.

THE COURT: This isn't a civil action, so even if she was injured on that day and received treatment in a hospital for an injury to her right side, how is that relevant to the issue of whether your client is guilty of a malicious wounding on December 26, 2000?

- 2 - [DEFENSE COUNSEL]: Your Honor, we submit some of the injuries she complained about could be the same thing that occurred back then.

THE COURT: And, again, how is that relevant to the issue of guilt or innocence? It may be relevant, if she's found guilty, to the issue of restitution or punishment; but how is the fact that a person is injured one day relevant to the fact as to whether a person was injured another day at the hands of another party? I am not sure I understand your argument.

[DEFENSE COUNSEL]: Judge, we submit it goes to credibility of her testimony here that she was injured by this vehicle backing up into her and that she had to go to the hospital that night and received treatment. If she was injured several weeks prior to that, it could be the same injury that she's complaining of.

THE COURT: Overruled.

[DEFENSE COUNSEL]: Fine.

Cousins' counsel then ended his questioning on this issue.

Later in the proceedings, Cousins attempted to introduce

evidence concerning statements Pullin had made to her about

Pullin's criminal record, statements she made immediately prior to

the incident in question, and statements concerning injuries she

had sustained in the recent past. However, the court sustained

the Commonwealth's objection to the hearsay evidence.

At the conclusion of the trial, the court convicted Cousins

of the lesser charge of assault and battery, and imposed a fine

and a suspended sentence of 12 months in prison.

- 3 - On appeal, Cousins first argues that the trial court erred in

refusing to admit the evidence concerning Pullin's alleged injury

which occurred prior to the December 26, 2000 incident. However,

according to the record, it is clear that the trial court

overruled the Commonwealth's objection to the admission of this

evidence. Thus, despite her assignment of error on appeal

concerning this matter, the record demonstrates that Cousins was

not aggrieved by the trial court's ruling on this issue.

Cousins next contends on appeal that the trial court erred in

refusing to admit the hearsay statements made by Pullin. Cousins

argues in her brief on appeal that the evidence should have been

admitted pursuant to the party-opponent exception to the hearsay

rule, as well as the "present stat[e] of mind and physical

condition exceptions to the Hearsay Rule." However, we need not

address the merits of Cousins' contentions because the record

demonstrates that Cousins failed to raise these arguments before

the trial court. Accordingly, these issues are barred from our

consideration pursuant to Rule 5A:18, and we find no reason to

invoke the ends of justice exception to the rule. See Walton v.

Commonwealth, 24 Va. App. 757, 485 S.E.2d 641 (1997), aff'd, 255

Va. 422, 497 S.E.2d 869 (1998) (holding defendant was precluded

from raising an alternative argument for the first time on

appeal).

- 4 - Thus, we affirm the judgment of the trial court and remand

for the sole purpose of correcting the sentencing order in

accordance with this opinion.

Affirmed and remanded.

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