COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

NED JACOB GOODWIN 

 OPINION BY 

v. Record No. 1701-95-2 JUDGE JAMES W. BENTON, JR. 

 NOVEMBER 19, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FLUVANNA COUNTY 

John R. Cullen, Judge 

 Norman Lamson for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Ned Jacob Goodwin was convicted of assault and battery of 

his former spouse in violation of Code § 18.2-57.2. On appeal, 

Goodwin contends that (1) Code § 16.1-278.14 barred the trial 

judge from sentencing him in a criminal proceeding after entering 

a protective order based on the same conduct; (2) the Double 

Jeopardy Clause barred the trial judge from sentencing him in a 

criminal proceeding after having entered a protective order based 

on the same conduct; and (3) the evidence was insufficient to 

support the conviction. For the reasons that follow, we affirm 

the conviction. 

 I. 

 On June 15, 1994, Goodwin encountered his former spouse, 

Linda Samuel, outside the Fluvanna County courthouse. They were 

going to a hearing on a contempt petition filed by Goodwin 

against Samuel in a custody dispute. Goodwin approached Samuel, 
- 2 - 

asked her to speak with him, and handed her a business card 

belonging to a detective employed in the vice and narcotics 

section of the Chesterfield County Police Department. Samuel 

read the card, did not understand why Goodwin had given the card 

to her, and returned it to him. As she continued up the steps, 

Goodwin told her that "this is not petty . . . and . . . I'll 

probably go to jail for this." 

 Samuel testified that Goodwin had been hospitalized several 

years earlier because of a bipolar disorder that caused him to 

develop acute paranoia. She had detected a recurrence of 

abnormal behavior when she took the child to visit with Goodwin 

and Goodwin told her that his truck was bugged. Because Samuel 

thought the information on the card might be pertinent to her 

child's safety, she asked Goodwin if she could have the card. 

Goodwin again handed her the card. After Samuel reread the card, 

she continued walking toward the courthouse and began to place 

the card into her purse. 

 Goodwin became angry and lunged at Samuel. He pushed Samuel 

into a rail, twisted her arm, and demanded that she return the 

card. Samuel testified that Goodwin was "growling" and making 

other unusual sounds. She became frightened and repeatedly asked 

Goodwin to let her go. A state trooper heard Samuel call for 

help and ordered Goodwin to release Samuel. 

 Goodwin did not deny that an altercation occurred. He 

testified, however, that he tried to explain to Samuel that he 
- 3 - 

was having "problems . . . in another area" and that he wanted to 

tell her not to interfere. He said that the problem occurred 

because she snatched the card after she had returned it to him. 

When she turned to run, he struggled with her to retrieve the 

card. 

 After the altercation, Samuel filed a criminal complaint for 

assault and battery and a petition for a protective order. A 

judge of the juvenile and domestic relations district court heard 

evidence on both matters. The judge found Goodwin guilty of 

assault and battery and continued the sentencing until after a 

psychiatric evaluation could be performed. In addition, the 

judge granted Samuel's petition for a protective order and 

prohibited Goodwin from having contact with Samuel for a period 

of one year. At the sentencing hearing on the assault and 

battery conviction, the judge imposed a sentence of thirty days 

in jail, all of which was suspended. Goodwin appealed the 

conviction. 

 Following a de novo hearing in the circuit court, the trial 

judge found Goodwin guilty of assault and battery and imposed a 

sentence of ten days in jail and a fine of $300. The trial judge 

suspended the entire jail sentence and suspended $200 of the 

fine. 

 II. 

 Goodwin argues that Code § 16.1-278.14 precluded the trial 

judge from sentencing him in the criminal matter after a judge 
- 4 - 

had issued a protective order based on the same act of assault 

and battery. Goodwin misconstrues the meaning of Code 

§ 16.1-278.14. 

 The judge's authority to issue the protective order derived 

from Code §§ 16.1-278.14 and 16.1-279.1. The former states: 

 In cases involving . . . offenses committed 

by one spouse against another, the juvenile 

court or the circuit court may impose a 

penalty prescribed by applicable sections of 

the Code. However, in cases involving 

offenses committed by one family or household 

member against another, the court may impose 

conditions and limitations upon the abusing 

party . . . including, but not limited to, an 

 order of protection as provided in § 16.1-279.1 

. . . . 

Code § 16.1-278.14. The first sentence of Code § 16.1-278.14 

does not apply to this case because Goodwin did not assault a 

spouse; he assaulted his former spouse. The second sentence does 

apply, however, because Code § 16.1-228 states that a family or 

household member includes "the person's former spouse, whether or 

not he or she resides in the same home with the person." 

 In pertinent part, Code § 16.1-279.1 states as follows: 

 A. In cases of family abuse, the court may 

issue an order of protection to protect the 

health and safety of the petitioner and to 

effect the rehabilitation of the abusing 

person and reconciliation of the parties as 

the court deems appropriate. An order of 

protection issued under this section may 

include any one or more of the following 

conditions to be imposed on the abusing 

person: 

 1. Prohibition of further acts of 

 family abuse; 

 2. Prohibition of such contacts between 
- 5 - 

 the parties as the court deems 

 appropriate; 

 3. Granting the petitioner possession of 

 the residence occupied by the parties 

 to the exclusion of the abusing person; 

 however, no such grant of possession 

 shall affect title to any real or 

 personal property; 

 4. Requiring that the abusing person provide 

 suitable alternative housing for the 

 petitioner, and, if appropriate, any 

 other family or household member; 

 5. Ordering the petitioner, with his or her 

 consent, or the abusing person to 

 participate in treatment, counseling or 

 other programs designed for the 

 rehabilitation and reconciliation of the 

 parties; and 

 6. Any other relief necessary for the 

 protection of the petitioner and minor 

 children. 

Based on the finding that Goodwin committed an act of abuse 

against a family member, Code §§ 16.1-278.14 and 16.1-279.1 

authorized the judge to issue an order to protect Samuel. 

 Code § 18.2-57.2(A) states that "[a]ny person who commits an 

assault and battery against a family or household member shall be 

guilty of a Class 1 misdemeanor." Code § 18.2-57.2(C) defines 

family or household member to include "the defendant's former 

spouse, whether or not he or she resides in the same home with 

the defendant." Thus, Code § 18.2-57.2 clearly authorized the 

prosecution of Goodwin for the assault and battery of Samuel. 

 Nothing in Code § 16.1-278.14 prevented the judge from 

convicting Goodwin under Code § 18.2-57.2 after issuing a 
- 6 - 

protective order under Code § 16.1-279.1. "The plain, obvious, 

and rational meaning of a statute is always preferred to any 

curious, narrow or strained construction . . . ." Branch v. 

Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992). 

The plain meaning of these provisions of the Code is that both 

options are available to the judge when a spouse commits an act 

of assault or battery against a former spouse. Goodwin's 

interpretation of Code § 16.1-278.14 would force a judge to 

choose between punishing past misconduct and preventing future 

harm. Had the General Assembly intended to impose such a 

limitation, it would have stated its intention expressly. We 

hold that by separately setting forth two options, the General 

Assembly intended to authorize judges both to impose criminal 

sanctions punishing past misconduct and to issue orders 

protecting family members from future harm. 

 III. 

 Goodwin next argues that under the Double Jeopardy Clause, 

the judge's issuance of a protective order barred a prosecution 

against him in the criminal matter based on the same conduct. 

Goodwin asserts that he was wrongfully subjected to multiple 

"punishments" for the same offense. We disagree. 

 One of the protections afforded by the Double Jeopardy 

Clause is the prohibition "against multiple punishments for the 

same offense." North Carolina v. Pearce, 395 U.S. 711, 717 

(1969) (footnote omitted). "The double jeopardy clause becomes 
- 7 - 

operative if one of the sanctions 'may not fairly be 

characterized as remedial' . . . . A sanction is not 'remedial' 

if it 'bears no rational relation' to [a remedial goal] . . . ." 

Small v. Commonwealth, 12 Va. App. 314, 317, 398 S.E.2d 98, 100 

(1991) (en banc) (quoting United States v. Halper, 490 U.S. 435, 

449 (1989)). "[T]he determination whether a given . . . sanction 

constitutes punishment in the relevant sense requires a 

particularized assessment of the penalty imposed and the purposes 

that the penalty may fairly be said to serve." Halper, 490 U.S. 

at 448. 

 In this case, the Double Jeopardy Clause is not operative 

because the protective order is remedial. Code § 16.1-279.1 

states that "[i]n cases of family abuse, the court may issue an 

order of protection to protect the health and safety of the 

petitioner and to effect the rehabilitation of the abusing person 

and reconciliation of the parties." The protective order issued 

in this case serves the remedial goals of (1) protecting Samuel 

from future abuse by prohibiting future contact between her and 

Goodwin; (2) rehabilitating Goodwin by prohibiting him from 

placing himself in a situation that could lead to abuse; and (3) 

effecting a reconciliation of the parties by preventing further 

conflict between them. These goals are not punitive. 

 In addition, the terms of the order are rationally related 

to the advancement of the remedial goals. The order prohibited 

Goodwin from having contact with his former spouse for a period 
- 8 - 

of one year. The limited duration of the order supports an 

inference that the purpose was not to punish, but rather, to 

prevent abuse during a time when abuse was likely to occur. 

Moreover, the Code states that "[e]ither party may at any time 

file a written motion with the court requesting a hearing to 

dissolve or modify the order." Code § 16.1-279.1(B). The 

ability to modify or dissolve the order adds to its remedial 

nature because it allows the judge to ensure that the order 

remains rationally related to its remedial goals. 

 For these reasons, we hold that the protective order issued 

pursuant to Code § 16.1-279.1 is remedial and did not constitute 

punishment for double jeopardy purposes. Therefore, the sentence 

imposed in the criminal proceeding did not violate the Double 

Jeopardy Clause. 

 IV. 

 Goodwin also argues that the evidence was insufficient to 

support a conviction of assault and battery. He contends that he 

was privileged to use force to recover his property. We hold 

that the evidence supported the judge's finding that Goodwin used 

excessive force. 

 When one is privileged to use force, the amount of force 

used must be reasonable in relation to the harm threatened. See

Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 26 

(1989). The reasonableness of the force used is a factual issue. 

See id. at 422, 382 S.E.2d at 26; Foster v. Commonwealth, 13 Va. 
- 9 - 

App. 380, 384, 412 S.E.2d 198, 201 (1991). In considering the 

sufficiency of the evidence, we apply the usual standards. "On 

appeal, we review the evidence in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 

443, 358 S.E.2d 415, 418 (1987). 

 The evidence proved that Goodwin pushed Samuel against a 

rail, twisted her arm, and demanded that Samuel return the 

business card. Although Goodwin partially disputed the testimony 

regarding his actions, the trial judge found that Samuel's 

testimony was more credible than Goodwin's testimony. "The 

weight which should be given to evidence and whether the 

testimony of a witness is credible are questions which the fact 

finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 

528, 351 S.E.2d 598, 601 (1986). 

 Samuel's testimony proved that Goodwin used excessive force. 

 Upon that evidence, the trial judge ruled that Goodwin's defense 

of privilege was not viable under the facts of this case. The 

Commonwealth's evidence was sufficient to prove Goodwin's guilt 

beyond a reasonable doubt. Accordingly, we affirm the 

conviction. 

 Affirmed.