Michael Christopher Runion v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: August 23, 2022
• Docket: 1117213
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges AtLee, Friedman and Raphael Argued at Lexington, Virginia

MICHAEL CHRISTOPHER RUNION MEMORANDUM OPINION* BY v. Record No. 1117-21-3 JUDGE STUART A. RAPHAEL AUGUST 23, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Bruce D. Albertson, Judge

Robert W. Stone (Stone Law Group, PLC, on brief), for appellant.

Craig W. Stallard, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

The trial court found appellant Michael Christopher Runion in violation of his probation and

revoked his suspended sentences. Runion asserts that the trial court erred by granting the

Commonwealth’s motion to continue the initial revocation hearing from July to September 2021.

He also contends that the trial court erred by finding him in violation of his probation on the basis

that he engaged in “abusive conduct” towards his estranged wife. We find neither of Runion’s

claims meritorious and affirm the trial court’s judgment.

BACKGROUND1

On August 31, 2020, Runion was convicted of felony child abuse and four counts of

violating a protective order. Following his release from incarceration, Runion began supervised

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 In revocation appeals like this one, we consider the evidence “in the light most favorable to the Commonwealth, as the prevailing party below.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013). probation on December 23, 2020. A special condition of his probation directed that he “not have

any abusive contact with Melissa Runion or any of her family members” and that he “follow any

protective orders.”2 On May 18, 2021, Melissa sought a protective order against Runion after he

tried to pursue a romantic relationship with her in the face of her repeated objections.

On May 26, 2021, Runion’s probation officer filed a major violation report citing Runion’s

violation of the special condition prohibiting him from abusive contact with Melissa. A revocation

hearing was scheduled for July 27, 2021, but Melissa failed to appear. The Commonwealth

requested a brief continuance to secure her attendance. Runion objected, asserting that the

Commonwealth had had a “couple months” since the major violation report to subpoena her. He

did not claim that a continuance would cause him any prejudice. Noting that Runion had multiple

convictions for violating protective orders and that a new protective order had been issued since his

release, the trial court granted the Commonwealth’s motion and continued the hearing to September

3, 2021.

At that hearing, Melissa testified that Runion ignored her protests that she was not interested

in a romantic relationship. She stated that he kissed her in front of their children and sent her

lingerie. He also exposed his genitals while she supervised a video call with their three-year-old

son. After Melissa refused his sexual advances, Runion texted her that “he was going to f[- - -] both

of [her] holes up and there was nothing [she] could do about it.” Melissa testified that, after reading

2 The trial court’s original sentencing order prohibited Runion from having “any contact” with Melissa or her family, but at Runion’s request, the trial court amended the order to prohibit “abusive contact.” Although the amended sentencing order was entered more than twenty-one days after the original sentencing order, the trial court retained jurisdiction to modify Runion’s sentence under Code § 19.2-303 because Runion was still in the custody of the Rockingham Sheriff. See Akers v. Commonwealth, 298 Va. 448, 452-53 (2020) (stating that “Code § 19.2-303 is an exception to Rule 1:1” that vests the trial court with jurisdiction to modify a felony sentence before a defendant’s transfer to the Department of Corrections). -2- that text, the juvenile and domestic relations judge granted her a protective order against Runion in

June 2021.

Testifying on his own behalf, Runion said that he was engaged in anger counseling and had

completed a Battery Intervention Program. Runion admitted that he was naked and preparing to

shower during the video call, but he maintained that he was visible only from the waist up. He

admitted that he had kissed Melissa but claimed that she was considering reconciliation and had

“leaned into [him],” so he “figured she wanted a kiss.” Runion agreed that he had sent her lingerie

but maintained that the lingerie was part of a general shopping list that Melissa had given him. As

for the text message, Runion explained that he texted Melissa because she had made “sexual

comments” during a phone conversation. He denied that he had threatened to “f[- - -] up her two

holes.”

At the conclusion of the evidence, Runion argued that the evidence failed to establish that he

had violated his probation because he did not engage in “abusive contact” with Melissa. His

counsel conceded, however, that the trial court’s decision was “purely . . . a credibility issue.”

The trial court noted the witnesses’ conflicting accounts but found that the text message

alone showed that Runion engaged in “abusive contact” in violation of the terms of his suspended

sentences. The court also characterized the text as offensive enough to establish “family abuse

under the statute regarding protective orders.” The court rejected Runion’s account of events that

his text was just “some sort of dating ritual or some sort of sexual discussion to invite things

between parties.” The court concluded that Runion bore “a lot of anger” and “animosity” towards

Melissa and had “trouble taking and controlling [his] anger.” The court found Melissa “more

credible.”

Concluding that Runion had violated the terms of his probation, the court revoked his

suspended sentences and ordered that he have “no contact” with Melissa.

-3- ANALYSIS

A. Continuance

Runion asserts that the trial court erred by finding good cause to continue the probation

violation hearing from July 27 to September 3, 2021. He maintains that the Commonwealth had

sufficient time to subpoena Melissa for the July hearing, and its lack of preparation did not

constitute “good cause” for a continuance. Runion admits, however, that he did not argue in the

trial court that he suffered any prejudice from the continuance. Runion asserts on brief here that,

had the continuance been denied, the Commonwealth could not have called Melissa to testify

against him and the probation-violation proceeding would have been dismissed.

Trial courts “necessarily require a great deal of latitude in scheduling.” Va. Bd. of Med. v.

Hagmann, 67 Va. App. 488, 502 (2017) (quoting Morris v. Slappy, 461 U.S. 1, 11 (1983)).

Whether to grant a continuance “is within the sound discretion of the circuit court and must be

considered in view of the circumstances unique to each case.” Reyes v. Commonwealth, 68

Va. App. 379, 385 (2018) (quoting Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27,

34 (2007)), aff’d, 297 Va. 133 (2019). We will reverse a decision granting a continuance “only

upon a showing of abuse of discretion and resulting prejudice.” Reyes v. Commonwealth, 297 Va.

133, 139 (2019) (quoting Ortiz v. Commonwealth, 276 Va. 705, 723 (2008)). In other words,

Runion must show both abuse of discretion and prejudice. Herrington v. Commonwealth, 291 Va.

181, 191 (2016).

The Commonwealth argues that Runion’s argument is defaulted because he failed to claim

prejudice in the trial court. See Rule 5A:18. Assuming for argument’s sake that Runion’s

assignment of error is not defaulted, we find no abuse of discretion or prejudice.

A defendant does not automatically suffer unfair prejudice simply because the proceedings

are continued to allow the Commonwealth to obtain necessary evidence—harm to the party

-4- claiming abuse of discretion must be shown. Id. In Herrington, for instance, the defendant argued

that the Commonwealth failed to establish “good cause” for a continuance because it had had five

months before trial to execute a search warrant to obtain the information it needed. 291 Va. at 190.

The Court explained that, “[a]lthough Herrington argue[d] the Commonwealth did not establish

‘due diligence’ in obtaining its evidence for trial, he fail[ed] to allege any harm to him resulting

from the two-week continuance and the record disclose[ed] no such prejudice.” Id. at 191.

The trial court here did not abuse its discretion in granting the continuance. It was not

unreasonable for the trial court to find good cause in having Melissa available to testify. See, e.g.,

United States v. Tedesco, 726 F.2d 1216, 1222 (7th Cir. 1984) (“A defendant is not entitled to, and

justice is ill-served by, a trial during which the Government is not able to present relevant

evidence.”). And the sole prejudice alleged by Runion is that the continuance enabled the

Commonwealth to secure her testimony. He identifies no “injustice or unfair prejudice attributable

to the . . . continuance.” United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995). “Obviously[,

the witness’s] appearance worked to the disadvantage of [the defendant], but so did the introduction

of other incriminating evidence. ‘Prejudice’ is not caused by allowing the Government properly to

strengthen its case, but rather by delays intended to hamper defendant’s ability to present his

defense.” Tedesco, 726 F.2d at 1221. Accordingly, we find Runion’s assignment of error to lack

merit.

B. Probation Violation

After suspending a sentence, a trial court “may revoke the suspension of sentence for any

cause the court deems sufficient that occurred at any time within the probation period, or within the

period of suspension fixed by the court.” Code § 19.2-306(A). The trial court’s decision to revoke

a suspended sentence “must be based on reasonable cause.” Bailey v. Commonwealth, 19 Va. App.

355, 357 (1994) (quoting Patterson v. Commonwealth, 12 Va. App. 1046, 1048 (1991)).

-5- Runion contends that the trial court lacked sufficient evidence to conclude that he engaged

in “abusive conduct” toward Melissa in violation of the terms of his probation. We disagree.

The trial court found that Runion’s text message, standing alone, sufficed to violate the

terms of Runion’s probation. The court said, “I find that it’s abusive contact and it would satisfy

family abuse under the statute regarding protective orders.” (Emphasis added.) We look at those

two conclusions separately.

As to the first, the trial court did not err in finding that the text amounted to “abusive

contact.” The text was objectively offensive and abusive, saying that Runion would “f[- - -] both of

[Melissa’s] holes and there was nothing [she] could do about it.” Runion admitted in the trial court

that “[a]rguably, the comment, the text, whatever it was, may qualify [as abusive contact],” but he

maintained that Melissa had mischaracterized the text in her testimony. His counsel conceded,

however, that this was “purely . . . a credibility issue for [the trial court] to determine.” And the trial

court rejected Runion’s version of events, finding Melissa more credible. Because determining

credibility is a matter solely for the trial court, we will not disturb that finding here. Flanagan v.

Commonwealth, 58 Va. App. 681, 701-02 (2011).

Runion disputes the trial court’s second finding—that the text also “would satisfy family

abuse under the statute regarding protective orders.” The statutory definition of “family abuse,”

Runion argues, requires an “act involving violence, force, or threat that results in bodily injury or

places one in reasonable apprehension of death, sexual assault, or bodily injury.” Code § 16.1-228.

Runion says that his text to Melissa did not qualify because she claimed that she felt only

“uncomfortable” and did not affirmatively testify that she felt threatened with death, sexual assault,

or bodily injury.

Runion’s statutory argument is unpersuasive. It ignores that the trial court found that

Runion’s conduct amounted to “abusive contact” under the sentencing order. That constituted

-6- adequate grounds to revoke his suspended sentences, quite apart from whether it also qualified as

“family abuse” under Code § 16.1-228. We see no basis for Runion’s assumption that the term

“abusive conduct” in the sentencing order depended for its meaning on the definition of “family

abuse” in Code § 16.1-228. And even if the statutory definition controlled, the trial court did not err

in concluding that it was satisfied here. When she testified, Melissa was asked if Runion had sent

“any threatening messages or made any threats to her.” She answered by describing the abusive text

message in question. She also testified that “I truly feel like he was doing some things that would

trigger my PTSD of sexual assault in the past.” Taken in the light most favorable to the

Commonwealth, Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013), that evidence would

enable a reasonable fact finder to conclude that the text was a threat that placed Melissa in

reasonable apprehension of sexual assault or bodily injury. Code § 16.1-228. Indeed, after reading

Runion’s text, the juvenile and domestic relations judge issued a civil protective order against

Runion.

“In revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed

unless there is a clear showing of abuse of discretion.’” Jacobs, 61 Va. App. at 535 (quoting Davis

v. Commonwealth, 12 Va. App. 81, 86 (1991)). We find no such abuse of discretion here.

CONCLUSION

In sum, the trial court committed no error in granting the Commonwealth a continuance for

Melissa to testify about Runion’s misconduct. Nor did the court abuse its discretion in concluding

that Runion engaged in abusive conduct towards her in violation of the terms of his probation. As a

result, we see no error in the trial court’s decision to revoke Runion’s suspended sentences.

Affirmed.

-7-