Chal'lia Sharee Johnson v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges O’Brien and Lorish
UNPUBLISHED
CHAL’LIA SHAREE JOHNSON
MEMORANDUM OPINION*
v. Record No. 0918-22-3 PER CURIAM
JUNE 20, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Onzlee Ware, Judge
(Melvin L. Hill, on brief), for appellant. Appellant submitting on
brief.
(Jason S. Miyares, Attorney General; William K. Hamilton, Assistant
Attorney General, on brief), for appellee.
Following a bench trial, Chal’lia Sharee Johnson (appellant) was convicted of misdemeanor
assault and battery in violation of Code § 18.2-57. She challenges the sufficiency of the evidence
supporting her conviction. After examining the briefs and record, the panel unanimously holds that
oral argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a);
Rule 5A:27(a). Accordingly, we affirm.
BACKGROUND
On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “discard the
evidence of the accused in conflict with that of the Commonwealth, and regard as true all the
*
This opinion is not designated for publication. See Code § 17.1-413.
credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.”
Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
On May 11, 2021, appellant and her housemate, Taniqua Adams, were arguing and
appellant threatened to have her pit bull attack Adams. A struggle ensued, and the dog “nicked”
both Adams and her nine-year-old daughter. Adams called 911, and appellant threatened her with
two “kitchen knives.”
Roanoke City Police Officer Brittany Robinson arrived at the home, and when she knocked
on the door, Adams’s daughter answered and fled from the house. Adams exited a bedroom and
followed her daughter outside. Appellant came out of the same bedroom, holding her pit bull by the
neck.
Officer Robinson asked appellant “to put the dog up,” but appellant refused. Officer
Robinson, who had drawn her service weapon, warned that she would defend herself if the dog
attacked. At that point, appellant secured the dog in a bedroom. Appellant gave Officer Robinson
her name and a date of birth, but she refused to provide her social security number. When appellant
continued to decline to provide her social security number, the officer informed her that she was
under arrest for failing to identify herself.
Appellant, who was sitting on the floor, refused Officer Robinson’s direction to stand and
place her hands behind her back. With help from Officer William Frosell, Officer Robinson
handcuffed appellant. Officer Robinson told appellant that she planned to take her to the officer’s
patrol car. Officer Robinson and Roanoke City Sheriff’s Deputy Mulligan brought appellant from
the house, and Officer Frosell followed them outside. As the two officers and appellant were
coming down the front porch stairs, appellant swung her leg backwards into Officer Robinson’s leg,
causing all three of them to fall down the stairs onto the concrete sidewalk. Officer Robinson
testified that appellant appeared to trip her intentionally. Officer Robinson stood and walked
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appellant down the sidewalk toward the patrol car, but as she did so, appellant swung her leg back
again, causing the officer to stumble a second time.
At trial, footage from Officer Robinson’s body-worn camera depicting the incidents on the
steps and on the sidewalk was played, but neither party admitted it as an exhibit. Officer Robinson
testified that the footage showed her fall down the porch stairs and her stumble on the sidewalk after
appellant kicked her. Officer Frosell, who witnessed the incident on the steps, testified that
appellant kicked Officer Robinson, causing all the officers to “land[] hard on the sidewalk.” Officer
Frosell also saw appellant continuing to “kick at officers” as they walked her to the police car.
Officer Frosell described appellant as “disorderly” and uncooperative during her interactions with
the officers.
Appellant, testifying on her own behalf, admitted that she was “pretty belligerent with the
officers” but denied kicking them. She maintained that her sock “caught” on something as she and
the officers descended the porch steps, and she swung her leg as she tried to pull her sock on.
Appellant denied that she fell down the steps or struck the ground, and she denied seeing Officer
Robinson fall.
At the end of the case, appellant argued that the body-worn camera footage failed to show
that the officers fell, consistent with her testimony that she stumbled when her sock “caught” on a
nail. She reiterated that “she didn’t kick and cause anybody to fall.” The court disagreed, and
found the evidence sufficient to convict appellant of assault and battery; however, it withheld
entering a finding of guilt until appellant’s sentencing hearing. At that hearing, the court noted that
it had watched “the tapes several times” and “there’s no doubt that as [appellant] was walking down
the sidewalk, she kicked back at [Officer Robinson], which caused the officer to fall” and appellant
also was attempting to “interfere” with her arrest. The court convicted appellant of assault and
battery.
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ANALYSIS
“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.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting
Smith v. Commonwealth, 296 Va. 450, 460 (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.’” Id.(alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather, the
relevant question is whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting
Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “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.’” McGowan, 72
Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
Appellant asserts that the evidence failed to prove that she intentionally tripped Officer
Robinson on the porch steps.1 She cites her testimony denying that she kicked Officer Robinson.
Appellant stresses that the evidence is undisputed that she was wearing socks as she left the house
and “[t]he only logical conclusion [is] . . . that [her] sock was caught in a nail or [a] piece of wood”
and that “the fall” was caused by appellant’s “attempt to put her sock back on her foot.” Appellant
contends that “the fall was accidental” rather than “the result of an intentional act.”
1
Although appellant cites her testimony denying that she “ever” kicked Officer Robinson,
she does not expressly challenge the court’s finding that she intentionally kicked Officer Robinson
as the officer escorted her down the sidewalk, the principal basis cited by the court for its verdict.
Thus, even assuming arguendo that appellant’s argument regarding the incident on the steps had
merit, her failure to contest both grounds for the court’s decision precludes reversal of her
conviction. See Ferguson v. Stokes, 287 Va. 446, 452 (2014) (“It is well-settled that a party who
challenges the ruling of a lower court must on appeal assign error to each articulated basis for
that ruling.” (quoting Manchester Oaks Homeowners Ass’n v. Batt, 284 Va. 409, 421 (2012))).
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To satisfy its burden of proof, the Commonwealth must exclude “every reasonable
hypothesis of innocence, that is, those ‘which flow from the evidence itself, and not from the
imagination of defendant’s counsel.’” Tyler v. Commonwealth, 254 Va. 162, 166 (1997) (quoting
Turner v. Commonwealth, 218 Va. 141, 148 (1977)). This “reasonable-hypothesis principle,”
however, “is not a discrete rule unto itself” and “‘does not add to the burden of proof placed upon
the Commonwealth in a criminal case.’” Vasquez, 291 Va. at 249-50 (quoting Commonwealth v.
Hudson, 265 Va. 505, 513 (2003)). The Commonwealth need not “negate what ‘could have been’
or what was a ‘possibility.’” Nelson v. Commonwealth, 281 Va. 212, 218 (2011). Thus, while “a
factfinder cannot ‘arbitrarily’ choose, as between two equally plausible interpretations of a fact, one
that incriminates the defendant,” an arbitrary choice occurs “only when no rational factfinder could
believe the incriminating interpretation of the evidence and disbelieve the exculpatory one.”
Vasquez, 291 Va. at 250. “When examining an alternate hypothesis of innocence, the question is
not whether ‘some evidence’ supports the hypothesis, but whether a rational factfinder could have
found that the incriminating evidence renders the hypothesis of innocence unreasonable.” Id.(quoting Hudson, 265 Va. at 513).
“Assault and battery are common law crimes.” Montague v. Commonwealth, 278 Va. 532,
541 (2009).2 “[B]ecause the elements of assault are not statutorily defined, [courts] must apply the
common law definition.” Clark v. Commonwealth, 279 Va. 636, 641 (2010). “To 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) (alteration in original) (quoting
Wood v. Commonwealth, 149 Va. 401, 404 (1927)). A willful act is “[v]oluntary and intentional,
but not necessarily malicious.” Willful, Black’s Law Dictionary (11th ed. 2019). “The law is clear
2
The penalty for the offenses is set by statute. Code § 18.2-57(A) provides, in pertinent
part, that “[a]ny person who commits a simple assault or assault and battery is guilty of a Class 1
misdemeanor[.]”
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that ‘[t]he slightest touching of another . . . if done in a rude, insolent, or angry manner, constitutes a
battery for which the law affords redress.’” Kelley v. Commonwealth, 69 Va. App. 617, 628 (2019)
(alterations in original) (quoting Adams v. Commonwealth, 33 Va. App. 463, 469 (2000)). “In such
circumstances, ‘[t]he unlawful intent may be imputed.’” Id. (alteration in original) (quoting Parish,
56 Va. App. at 331). “Whether an act is done in a ‘rude, insolent, or angry manner’ is a finding of
fact that this Court will not disturb on appeal unless the finding is plainly wrong or no evidence
supports it.” Id. at 628-29 (quoting Parish, 56 Va. App. at 331).
“Intent is a factual determination, and a [fact finder]’s decision on the question of intent is
accorded great deference on appeal and will not be reversed unless clearly erroneous.” Towler v.
Commonwealth, 59 Va. App. 284, 297 (2011). “Circumstantial evidence is as acceptable to prove
guilt as direct evidence, and in some cases, such as proof of intent or knowledge, it is practically the
only method of proof.” Abdo v. Commonwealth, 64 Va. App. 468, 476 (2015) (quoting Parks v.
Commonwealth, 221 Va. 492, 498 (1980)). “While no single piece of evidence may be sufficient,
the ‘combined force of many concurrent and related circumstances, each insufficient in itself, may
lead a reasonable mind irresistibly to a conclusion [of guilt].’” Rams v. Commonwealth, 70
Va. App. 12, 37 (2019) (alteration in original) (quoting Stamper v. Commonwealth, 220 Va. 260,
273 (1979)).
“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)). We give “deference to the fact finder who, having
seen and heard the witnesses, assesses their credibility and weighs their testimony.” Elliott v.
Commonwealth, 277 Va. 457, 462 (2009). An “appellate court does not ‘retry the facts,’ reweigh
the evidence, or make its own determination of the ‘credibility of [the] witnesses.’” Yahner v.
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Fire-X Corp., 70 Va. App. 265, 273 (2019) (alteration in original) (quoting Jeffreys v. Uninsured
Emp.’s Fund, 297 Va. 82, 87 (2019)). Thus, we accept “the [fact finder]’s determination of the
credibility of witness testimony unless, ‘as a matter of law, the testimony is inherently incredible.’”
Nobrega v. Commonwealth, 271 Va. 508, 518 (2006) (quoting Walker v. Commonwealth, 258 Va.
54, 70-71 (1999)). “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 v. Commonwealth, 295 Va. 469, 487 (2018)
(quoting Juniper v. Commonwealth, 271 Va. 362, 415 (2006)).
Here, a rational fact finder could reject appellant’s self-serving denial that she kicked the
officer and conclude that she was lying to conceal her guilt. Flanagan v. Commonwealth, 58
Va. App. 681, 702 (2011). Although the footage of the incidents is not part of the record, the record
does include Officer Robinson’s summary of the footage, including her testimony that appellant
tripped her twice, once on the stairs and once on the sidewalk. Officer Frosell corroborated Officer
Robinson’s testimony. Appellant herself also admitted that she was “pretty belligerent with the
officers.” Viewed as a whole, the evidence was sufficient to support the court’s finding that
appellant intentionally kicked Officer Robinson in an “angry” or “rude manner.” Kelley, 69
Va. App. at 628. Even without the body-worn camera footage of the incident, appellant’s
belligerent behavior before and during the officers’ attempt to handcuff her, coupled with Officer
Robinson’s testimony that appellant kicked her twice, was sufficient to support the court’s finding
that appellant kicked Officer Robinson on the sidewalk with the requisite intent. See Gilbert v.
Commonwealth, 45 Va. App. 67, 70-72 (2005) (requisite intent for assault and battery for spitting on
a law enforcement officer established through defendant’s obstreperous behavior before and during
assault). The evidence was therefore competent, credible, and sufficient to prove beyond a
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reasonable doubt that appellant was guilty of misdemeanor assault and battery in violation of Code
§ 18.2-57.
CONCLUSION
For these reasons, the circuit court’s judgment is affirmed.
Affirmed.
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