Troy McGowan v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 24, 2020
• Docket: 0436201
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judge Humphreys and Senior Judge Annunziata Argued by videoconference PUBLISHED

TROY McGOWAN OPINION BY v. Record No. 0436‑20‑1 JUDGE ROSEMARIE ANNUNZIATA NOVEMBER 24, 2020 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON David F. Pugh, Judge Designate

David W. Anderson, II, Assistant Public Defender (Miranda Mayhill, Assistant Public Defender, on brief), for appellant.

Maureen E. Mshar, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

The trial court convicted Troy McGowan, appellant, of violating a protective order by

committing an assault and battery that resulted in bodily injury, in violation of Code

§ 16.1-253.2(C). On appeal, appellant challenges the sufficiency of the evidence to support his

conviction.1 For the following reasons, we affirm.

BACKGROUND

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

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

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

(2016)). In doing so, we discard any of appellant’s conflicting evidence and regard as true all

1 The trial court also convicted appellant of assault and battery of a family member, in violation of Code § 18.2-57.2. Appellant does not challenge that conviction on appeal. credible evidence favorable to the Commonwealth and all inferences that may reasonably be

drawn from that evidence. Id. at 473.

On November 24, 2018, L.M. obtained a permanent protective order against appellant,

with whom she had a young son. The protective order prohibited appellant from having “contact

of any kind with” L.M. except as permitted by a custody or visitation order and from

“commit[ting] acts of family abuse or criminal offenses that result in injury to person or

property.” On the morning of December 13, 2018, appellant knocked on L.M.’s front door.

L.M. told appellant to “go away” and walked to her bedroom.

A few minutes later, L.M. heard a noise behind her house. She ran out of her bedroom

and saw appellant standing inside her hallway. L.M. returned to her bedroom and grabbed her

son. Appellant followed L.M. into the bedroom and asked to hold the child, but L.M. refused

and “balled up” with the child in her arms. L.M. testified that, in response, “[appellant] bit me

on my leg and so I just screamed, and then he just walked out the front door.” L.M.

subsequently clarified that appellant had bitten her on her knee. She did not remember if

appellant had left a bite mark and admitted that she did not look at her knee after the incident.

A few hours later, L.M. went to the police station to report the incident. A police officer

asked to see L.M.’s knee, so L.M. pulled up her left pantleg. The officer photographed the knee,

which had a spot of “discoloration” on the kneecap. L.M. did not know if the photograph

depicted “where” appellant had bitten her because she could not “remember [which] leg it was.”

L.M. testified that she suffered from “hypomelanosis,” a condition that causes a “lack of pigment

on certain parts of [her] body, like on [her] knee.” She testified that the “coloration” of her knee

as displayed in the photograph is how her knee “usually looks.” L.M. did not tell the officer at

the police station about her skin condition.

-2- Appellant did not present any evidence and argued that the evidence failed to prove that

“an injury ha[d] occurred.” He contended that L.M. had “explained that she ha[d] a skin

condition that cause[d] some of the discoloration seen” in the photograph. The trial court

convicted appellant of violating a protective order by committing an assault and battery that

resulted in bodily injury. The court believed L.M.’s testimony but noted “that she may have told

an untruth to [the] officer” at the police station. The court held,

[t]he key issue here is whether or not there was an assault and battery on [L.M.], the witness, and whether or not he came in contact with her in violation of the protective order. . . . Not some scars on the knee or anything. The felony charge is grounded on did he violate the protective order by not having contact, one, and by not committing any injury to her.

. . . [T]he order provides that [appellant] shall not commit acts of family abuse or criminal offense that result[] in injury to person or property. And it goes on, that [appellant] shall have no contact of any kind with [L.M.].

So it doesn’t have to be injury to her at all. He wasn’t supposed to have any contact with her. . . . He comes into the house unauthorized, uninvited. He contacts her. . . . [H]e bites her—I believe that happened—and the rest speaks for itself. . . .

This appeal follows.

ANALYSIS

Appellant argues that the evidence was insufficient to sustain his conviction under Code

§ 16.1-253.2(C) because it did not establish that L.M. had suffered a “bodily injury.” That

argument requires us to interpret the phrase “bodily injury” in the context of Code

§ 16.1-253.2(C).

“[U]nder basic rules of statutory construction, we determine the General Assembly’s

intent from the words contained in the statute.” Ricks v. Commonwealth, 290 Va. 470, 477

(2015) (quoting Elliott v. Commonwealth, 277 Va. 457, 463 (2009)). We “are bound by the

plain meaning of that language and may not assign a construction that amounts to holding that -3- the General Assembly did not mean what it actually has stated.” Id. In addition, “[p]roper

construction seeks to harmonize the provisions of a statute both internally and in relation to other

statutes.” Hulcher v. Commonwealth, 39 Va. App. 601, 605 (2003) (quoting Moreno v. Moreno,

24 Va. App. 190, 197 (1997)). “The Code of Virginia constitutes a single body of law, and other

sections can be looked to where the same phraseology is employed.” King v. Commonwealth, 2

Va. App. 708, 710 (1986) (citing First National Bank of Richmond v. Holland, 99 Va. 495, 504

(1901)).

Before a 2016 amendment to the protective order statute, a respondent to a protective

order was guilty of a Class 6 felony if he “commit[ted] an assault and battery upon any party

protected by the protective order, resulting in serious bodily injury to the party.” 2016 Va. Acts

ch. 583 (emphasis added); see also Code § 16.1-253.2(C). This Court initially interpreted the

phrase “serious bodily injury,” as used in that statute, in Nolen v. Commonwealth, 53 Va. App.

593, 597 (2009). First, we held that a “bodily injury” means “any bodily hurt whatsoever.” Id.

at 598 (quoting Bryant v. Commonwealth, 189 Va. 310, 316 (1949) (defining the phrase in the

context of a predecessor of the malicious wounding statute)). Next, we added that for a bodily

injury to be “serious,” it must “fairly and reasonably be deemed not trifling, grave, giving rise to

apprehension, giving rise to considerable care, and attended with danger.” Id. at 599.

In 2016, however, the General Assembly amended Code § 16.1-253.2(C) to remove the

word “serious.” 2016 Va. Acts ch. 583. Thus, the statute now provides that a respondent to a

protective order who “commits an assault and battery upon any party protected by the protective

order resulting in bodily injury to the party . . . is guilty of a Class 6 felony.” Code

§ 16.1-253.2(C) (emphasis added).

-4- Two years after Nolen, this Court construed the phrase “bodily injury” in the context of

the malicious wounding statute.2 English v. Commonwealth, 58 Va. App. 711, 718 (2011). As

in Nolen, we relied on Bryant to hold that the “‘everyday, ordinary meaning’” of the phrase

includes “‘any bodily hurt whatsoever.’” Id. (first quoting Luck v. Commonwealth, 32 Va. App.

827, 832 (2000); and then quoting Bryant, 189 Va. at 316). That everyday meaning “includes

any ‘detriment, hurt, loss, [or] impairment’ that could fairly be considered an injury to the human

body.” Id. (quoting Johnson v. Commonwealth, 184 Va. 409, 416 (1945)). We further explained

that “[t]o prove a bodily injury, the victim need not experience any observable wounds, cuts, or

breaking of the skin. Nor must she offer proof of ‘broken bones or bruises.’” Id. at 719 (quoting

Luck, 32 Va. App. at 831-32). “[I]nternal injuries—no less than external injuries—fall within

the scope” of bodily injuries. Id.

The Supreme Court has similarly construed the phrase “bodily injury” in the context of

the strangulation statute.3 Ricks, 290 Va. at 477-79. The Court found that the “everyday,

ordinary meaning” of the phrase that we applied for the malicious wounding statute in English

was equally applicable for the strangulation statute. Ricks, 290 Va. at 478-79. Thus, the Court

held that a “bodily injury,” as proscribed by the statute, is “any bodily injury whatsoever and

includes an act of damage or harm or hurt that relates to the body; is an impairment of a function

of a bodily member, organ, or mental faculty; or is an act of impairment of a physical condition.”

Id. at 479.

2 “If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall . . . be guilty of a Class 3 felony.” Code § 18.2-51 (emphasis added). 3 “Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony.” Code § 18.2-51.6 (emphasis added). -5- Considering those precedents construing the same statutory phrase, we hold that the

plain, obvious, and broad meaning of “bodily injury” in Code § 16.1-253.2(C) is any bodily

damage, harm, hurt, or injury; or any impairment of a bodily function, mental faculty, or physical

condition. Ricks, 290 Va. at 479; see Auer v. Commonwealth, 46 Va. App. 637, 645-47 (2005)

(relying, in part, on definitions established in prior opinions to interpret a statute). The victim

need not “experience any observable wounds, cuts, or breaking of the skin. Nor must she offer

proof of ‘broken bones or bruises.’” English, 58 Va. App. at 719 (quoting Luck, 32 Va. App. at

831-32). “[I]nternal injuries—no less than external injuries—fall within the scope” of bodily

injuries. Id.

Nevertheless, not every unlawful or offensive touching that would be sufficient to convict

a defendant of assault and battery constitutes a bodily injury. It is well-established that “[t]he

touching necessary for a battery . . . need not include a physical injury.” Kelley v.

Commonwealth, 69 Va. App. 617, 625 (2019). Indeed, the text of Code § 16.1-253.2(C)

explicitly contemplates that distinction. For a defendant who “commits an assault and battery

upon a[] party protected by [a] protective order” is not guilty of a felony under Code

§ 16.1-253.2(C) unless the victim also suffers a “bodily injury.”

Accordingly, we now turn to appellant’s contention that the evidence was insufficient to

demonstrate that L.M. actually suffered a bodily injury. Specifically, he argues that L.M. did not

suffer any damage, harm, hurt, or impairment of a bodily function. “When reviewing 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) (quoting Commonwealth v. Perkins, 295 Va. 323, 327

(2018)). “In such cases, ‘[t]he Court does not ask itself whether it believes that the evidence at

the trial established guilt beyond a reasonable doubt.’” Secret v. Commonwealth, 296 Va. 204,

-6- 228 (2018) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). Instead, we ask only

“whether any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (quoting Pijor, 294 Va. at 512). “If there is evidentiary support for the

conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its

opinion might differ from the conclusions reached by the finder of fact at the trial.’” Chavez v.

Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App.

273, 288 (2017)).

L.M. testified that appellant bit her on the leg or knee, “so” she screamed. Indeed,

although appellant had forcibly entered L.M.’s house without permission and in violation of the

protective order, she did not scream until after appellant had bitten her. Before the bite, she was

“balled up” with her child in her arms. Thus, the trial court could reasonably infer from L.M.’s

testimony and the timing of her scream that the scream evinced pain and hurt because of

appellant’s bite. See Luck, 32 Va. App. at 832 (affirming that two troopers had suffered bodily

injuries in malicious wounding cases when they suffered “soft-tissue injuries that required

medical treatment and caused pain”).

Although the evidence did not demonstrate that appellant left bite marks on L.M., the

Commonwealth was not required to prove that she suffered “any observable wounds, cuts, or

breaking of the skin” to sustain a conviction. English, 58 Va. App. at 719. In addition, the

record demonstrates that while reporting the incident to the police within a “few hours” of the

offense, L.M. lifted her pantleg and allowed a police officer to photograph her knee, which had

an area of discoloration. Although L.M. testified that the discoloration was caused by a skin

condition, that testimony does not prohibit the trial court from reasonably inferring that L.M.

allowed the officer to document the area of her body that appellant hurt when he had bitten her a

few hours earlier.

-7- Appellant’s reliance on Chilton v. Commonwealth4 is misplaced. There, the Supreme

Court concluded that the evidence failed to prove a bodily injury in a strangulation case. Ricks,

290 Va. at 481. The victim did not complain of injury, did not seek medical attention, did not

suffer any physical impairment, and did not testify to any residual effects, including any loss of

consciousness. Id. Instead, she merely testified that the defendant had touched “th[e] general

area [of her throat],” but not in “a chocking motion”; she also “saw black” after she “closed [her]

eyes.” Id. Finding that the evidence was “so minimal that it failed to establish” a bodily injury,

the Supreme Court reversed Chilton’s conviction. Id.

Here, the evidence, viewed in the light most favorable to the Commonwealth,

demonstrated that L.M. screamed when appellant bit her, evidencing pain and hurt, and that L.M.

allowed a police officer to document the location of that hurt within hours of the offense. In

short, unlike in Chilton, the facts in the instant case show a bodily injury occurred as a result of

appellant’s act of biting the victim in violation of Code § 16.1-253.2(C). We affirm.

Affirmed.

4 The Supreme Court consolidated Chilton v. Commonwealth with Ricks v. Commonwealth since both cases presented a similar issue on appeal. Ricks, 290 Va. at 478-81. -8-