COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Chafi n and Senior Judge Bumgardner Argued by teleconference

CARLUN FONTAINE HART MEMORANDUM OPINION * BY v. Record No . 2074-15-1 JUDGE RANDOLPH A. BEALES MAY 2, 2017 COMMONWEALTH OF VIRGINIA

UPON A REHEARING FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS C. Peter Tench, Judge Barbara E. Rosenblatt, Assistant Public Defender, for appellan t. Leah A. Darron, Senior Assist ant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

On December 6, 2016, this Court reve rsed appellant’s convictio n for assault and battery because the trial court explic itly based its finding of guilt u pon written statements allegedly made by a witness although those allege d statements were never admit ted at trial. Hart v. Commonwealth, No. 2074-15-1, 2016 Va . App. LEXIS 335 (Va. Ct. A pp. Dec. 6, 2016). On December 15, 2016, nine days after the panel’s opinion was rele ased, the Supreme Court issued its opinion in Commonwealth v. Lambert, 292 Va. 748, 793 S.E.2d 805 (2016), in which the Supreme Court reversed this Cour t. The Commonwealth then filed a petition for rehearing in this matter. The panel gran ted a rehearing on this appeal and stayed the mandate. On rehearing, in light of the Supreme Court’s holding in Lambert, this Court now affirms the circuit court.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - A

NALYSIS Because this memorandum opinion c arries no precedential value, we recite only those facts and incidents of the proceed ings as are necessary to the parties’ understanding of the disposition of this appeal. Appellant challenges his convic tion by asserting that he had ac ted within the exceptions to assault and battery prov ided in Code § 18.2-57(G). 1 In Lambert, a special education teacher was convicted in a bench trial of assault and battery of a spec ial needs student in violation of Code § 18.2-57. The trial court in L ambert found that the Code § 18.2-57(G) exception to assault and battery for school pe rsonnel was ina pplicable to th e facts of the case for two separate reasons. First, the trial court found that Lambert’s actions f ell outside the scope of her employment because her actions did not comport with what the sc hool board had previously determined to be appropriate c onduct in that situation. Id. at 755, 793 S.E.2d at 808. The trial

1 Code § 18.2-57(G) states: “Simple assault” or “assault a nd battery” shall not be construe d to include the use of, by any school security officer or full-time or part-time employee of any public or private elementary or secondary school while acting in the course and scope of his official capacity, any of the follo wing: (i) incidental, minor or reasonable physical contact or o ther actions designed to mainta in order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student f rom the scene of a disturbance that threatens physical injury t o persons or damage to property ; (iii) reasonable and necessary f orce to prevent a student from inflicting physical harm on himsel f; (iv) reasonable and necess ary force for self-defense or the de fense of others; or (v) reasona ble and necessary force to obtain possession of weapons or other dangerous objects or control led substances or associated paraphernalia that are upon the pe rson of the student or within his control. In determining whether a person w as acting within the exception s provided in this subsection, due deference shall be given to reasonable judgments that were made by a school security office r or full-time or part-time employee of any public or private elementary or secondary school at the time of the event.- 3 - court then articulated a sec ond, alternative holding. Recogniz ing the due deference to be given to school personnel under the Code § 18.2-57(G) exception, the trial court found that, even if it accepted Lambert’s version of the e vents, Lambert’s physical co ntact with the student was “neither incidental, nor minor , nor reasonable contact designed to maintain order or control.” Id. at 754, 793 S.E.2d at 807. When Lambert appealed her convi ction to the Court of Appeals, t his Court reversed the conviction and remanded the matte r for a new trial. Lambert v. Commonwealth, 65 Va. App. 682, 691, 779 S.E.2d 871, 875 (2015). However, on December 15, 2016, the Supreme Court reversed the Court of Appeals, f inding that this Court “did not give sufficient consideration to the trial court’s alternative hold ing – the ‘objective’ ruling that , even under Lambert’s version of the facts, Lambert’s response to [th e student] was still ‘unreasona ble’ and exceeded the physical contact permitted by school personnel under Code § 18.2-57(G)(i ).” Lambert, 292 Va. at 759, 793 S.E.2d at 810. The Supreme Court noted that the trial cour t found that “even if there were a ‘reasonable reason for Ms. Lambe rt to be disciplining, directin g [or] instructing’ [the student], Lambert’s actions nonetheless co nstituted an ‘unreasonable resp onse to the level of disobedience that is alleged.’” Id. The Suprem e Court held that this parti cular finding by the trial court was supported by the evidence, and, the refore, the Supreme Court af firmed appellant’s conviction under Code § 18.2-57. Much like in Lambert, the trial court in this matter made two f indings in support of appellant’s conviction for assa ult and batter y. At the time of finding appellant guilty, the trial court explicitly stated that it had relied on certain alleged s tatements as evidence – which were, in fact, not admitted into the record at trial – stating, “I no te one of the teache rs indicating the pushing into the machine. I thi nk that constitu tes an assault. I do find you are guilty as charged in Indictment 01513-15, the assau lt and battery.” This Court r eversed the trial court because- 4 - those alleged statements on whic h the trial judge relied were n ever admitted as evidence at trial, and the teacher who allegedly wro te them testified quite differ ently at trial that she never saw appellant push the child into the refrigerator in the teacher’s lounge – only “put him next to the refrigerator.” However, the tri al court also articulated what is essentially a second finding on which it could base its convicti on in that it st ated that it be lieved the child (“D.W.”). In announcing its finding of guilt, the trial court also stated, “ I find the totality of the actions and testimony of the young man – I do b elieve the young man.” As the Supreme Court made clear in Lambert, “[t]he appellate co urt has the duty to review the evidence that tends to support the conviction and to uphold the circuit court’s judgment unless it is plainly w rong or without evidence to supp ort it.” Id. at 757, 793 S.E.2d at 809. See also Velazquez v. Commonwealth, 292 Va. 603, 617, 791 S.E.2d 556, 562 (2016) (affirming the trial court where the trial court’s alternative holding was fully supported by evidence in the record). In thi s matter, the trial court essen tially appeared to make an alternative finding that appellant’s actions were unreasonable and excessiv e based upon the fact that it believed D.W.’s testimony. At tr ial, as part of his testimony, D.W. testified that appellant had punched him in the chest, and state d at least three separate ti mes in his testimony that appellant had punched him. 2 The trial court, prior to a nnouncing its finding of guilt, sp ecifically credited its belief in the overall tes timony of D.W., stating that it “b elieve[d] the young man.” Viewing this evidence in the light most favorable to the Commonwealth, as we must since the Commonwealth prevailed at trial , we find that the trial court’s alternative factual basis for convicting appellant of assault and battery w as supported by th e child’s testimony that appellant punched him.

2 At trial, photographs of bruis ing on D.W.’s upper chest area a ppeared to corroborate D.W.’s testimony that appellant had punched him in the chest.- 5 - C ONCLUSION In short, the trial judge’s alte rnative factual finding that he believed D.W.’s testimony was a separate alternative basi s for the conviction. Furthermo re, his implicit finding that appellant’s actions were unreasona ble and excessive was support ed by evidence – specifically, the child’s testimony that appe llant punched him in the chest. Based on that testimony, which was apparently found credible by the trial judge when he said, “I do believe the young man,” we cannot say that no rational trie r of fact could have found that appellant’s actions here were excessive and unreasonable. Conseq uently, given t his alternati ve finding by the trial court and the Supreme Court’s recent deci sion reversing this Court in Lam bert, we now vacate our earlier decision and affirm appellant’s conviction for assault and batt ery in violation of Code § 18.2-57. Affirmed.

# VIRGINIA: In the Court of Appe als of Virginia on Tuesday 

### the 17th 

### day of January, 2017

. Carlun Fontaine Hart, Appellant, against Record No. 2074-15-1 Circuit Court No. CR15001513-00 Commonwealth of Virginia, Appellee. Upon a Petition for Rehearing Before Judges Beales, Chafin and Senior Judge Bumgardner On December 19, 2016 came the Commonwealth, by the Attorney General of Virginia, and filed a petition praying that the Court set aside the judgme nt rendered herein on December 6, 2016, and grant a rehearing thereof. On consideration whereof, the petition for rehear ing is granted by the panel, the mandate entered herein on December 6, 2016 is stayed pending the decision of the Court, and the appeal is reinstated on the docket of this Court. The parties hereby are directed to be prepared to address at oral argument of this case before a panel of judges of this Court the effect on this case of the decision of the Supreme Court of Virginia in Commonwealth of Virginia v. Heather Hogston Lamb ert, Record No. 160132, 2016 Va. Lexis 189 (Va. Dec. 15, 2016). Pursuant to Rule 5A:35(a), the resp ondent Hart shall file an answeri ng brief within 21 days of the date of entry of this order. An electr onic version of the brief sh all be filed with the C ourt and served on opposing counsel. 1 In addition, four printed copies of the answering brief shall be filed. A Copy, Teste: Cynthia L. McCoy, Clerk original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court Deputy Clerk

1 The guidelines for filing electroni c briefs can be found at www.courts.state.va.us/online/ vaces/resources/guidelines.pdf.COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Chaf in and Senior Judge Bumgardner Argued at Chesapeake, Virginia

CARLUN FONTAINE HART MEMORANDUM OPINION * BY v. Record No. 2074-15-1 J UDGE RANDOLPH A. BEALES DECEMBER 6, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS C. Peter Tench, Judge Barbara E. Rosenblatt, Assistant Public Defender, for appellant. Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Carlun Fontaine Hart (“appell ant”) was convicted in a bench trial of misdemeanor assault and battery in violation of Code § 18.2-57. 1 The circuit court senten ced appellant to twelve months in jail, and then suspended all twelve mo nths of his sentence. Appellant challenges the sufficiency of the evidence in support of that conviction by arguing that the circuit court “erred by finding that Hart assaulted and battered [D.W.] because Hart wa s acting in his capacity as a ‘school security officer’ as defined in § 18.2-57(F).”
A NALYSIS Because this memorandum opinion carries no pr ecedential value, we recite only those facts and incidents of the proceedings as are n ecessary to the parties’ understanding of the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant was also charged with one count of cruelty and injury to a child in violation of Code § 40.1-103. At the conclusion of th e Commonwealth’s eviden ce, the circuit court granted appellant’s motion to strike th e evidence as to that charge.UNPUBLISHED- 2 - disposition of this appeal. We consider the evidence on appeal “in the light most favorable to the Commonwealth, as we must since it was the prevailing party” in the circuit court. Beasley v. Commonwealth, 60 Va. App. 38 1, 391, 728 S.E.2d 499, 50 4 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 60 1 S.E.2d 555, 574 (2004)). Appellant contends that the evidence was insufficient to prove that he committed an assault and battery against D.W. The evidence at trial establishe d that appellant was employed at the Achievable Dream Academy in Newport News as a “student coordinator.” Among his duties, appellant helped resolve discipline issues with the students. At the conclusion of appellant’s bench trial, the trial judge plainly found as fact that appellant pushed D.W. into a refrigerator in the teachers’ lounge. The trial judg e stated from the bench that appellant’s pushing of D.W. into the refrigerator served as the basis for appellant’s conv iction for assault and battery . (“I note one of the teachers indicating the pushing into the machine. I think that constitutes an assault

. I do find you are guilty as char ged in Indictment 01513-15, the assault and battery.” (emphasis added)). Under settled law, a tria l court’s finding of fact will be disturbed only if it was plainly wrong or without evidence to support it. Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). Alth ough we are mindful of this deferentia l standard of appe llate review, we conclude that the circuit court’s factual conclusion that appellant pushed D.W. into a refrigerator was plainly wrong based up on our review of the record before us. The factual determination that appellant pushed D. W. into a refrigerator is contrary to the evidence and the testimony of the w itnesses at trial. Paula Franci s, a teacher at the Achievable Dream Academy, testified that she was standing at the door of the teachers’ lounge when she witnessed appellant leading D.W. out of the cafet eria. She noticed that appellant’s hand was on D.W.’s elbow. Francis testified, “After they came into the teacher ’s lounge, I didn’t see Mr. Hart with his hands on him.” She also clarified a pr ior statement she had made in writing after the- 3 - incident, by testifying that she saw appellant “put [D.W.] next to th e refrigerator.” In that prior written statement, Francis had allegedly stated that she had seen appellant push D.W. into a refrigerator. However, Francis’s prior written statement was never admitted into evidence and is not contained in the record on appe al. Francis never testified at trial that she ever saw appellant push D.W. into a refrigerator (or a machine) in the teachers’ lounge. In fact, her only admitted testimony contradicts the circuit co urt’s finding of fact on which the circuit court specifically based its finding of guilt. She testified that appellant’s hand was on D.W. ’s elbow as appellant “brought [D.W]. into the teachers’ lounge” and “put him next to the refrigerator.” Charlotte Bordino, a fourth grade teacher at the school, testified that she witnessed D.W. yelling and causing a commotion in the cafeteria. She then saw appellant attempt to guide D.W. out of the cafeteria. She testif ied that D.W. continued to yell as appellant escorted him to the teachers’ lounge. Bordino did not see appellant pus h or shove D.W. into a refrigerator, but she was apparently not inside the teachers’ lounge at the time. Delesheema Bonner is another teacher at the school. While inside the teacher s’ lounge, she looked into the hallway and saw D.W. on the ground yelling at appellant. She also did not testify, for example, that she saw appellant ever shove D.W. – or push him in to a refrigerator in the teachers’ lounge. Importantly, not even D.W. testified that ap pellant pushed him into a refrigerator in the teachers’ lounge (although he did allege that appe llant had punched him). Nevertheless, at the conclusion of appellant’s bench tr ial, the trial judge ex plicitly found that appe llant’s alleged action of pushing D.W. into the refrigerato r constituted an assault, and, th erefore, served as the basis for appellant’s conviction for assault and battery. Upon a review of the record, the only possible evidence in support of the circuit court’s finding that a ppellant pushed D.W. into a refrigerator (or a machine) was apparently a prio r written statement of witness Pa ula Francis that was not ever admitted as evidence at trial and is not containe d in the record on app eal – and where Francis- 4 - testified completely differ ently on this key issue at trial. “The judgment of the trial court, sitting without a jury, is entitled to the same weight as a jury verdict and will not be disturbe d on appeal unless ‘plainly wrong or without evidence to support it.’” Wi lliams v. Comm onwealth, 278 Va. 190, 193, 677 S.E. 2d 280, 282 (2009) (quo ting Code § 8.01-680). At the conclusion of th e trial, the circuit cour t stated, “I note one of the teachers indicating the pushing into the ma chine [refrigerator]. I think that constitutes an assault . I do find you are guilty as charged in Indictment 01513-15, the as sault and battery.” (Emphasis added). “Under basic principles of appellate review, we may not go beyond the record develope d in the trial court.” Boyd v. County of Henrico, 42 Va. App. 495, 505 n.4, 592 S.E.2d 768, 773 n.4 (2004). Because the circuit court based its finding of guilt upon a factua l conclusion that was contrary to the evidence admitted at trial – and is simply not suppor ted by the record on appeal, we find that the circuit court’s judgment wa s plainly wrong.
C ONCLUSION In summary, the circuit court explicitly ba sed its finding of appella nt’s guilt of assault and battery upon statements allegedly made by teach er Paula Francis that were never admitted at trial – and which were actually contradicted by the teacher’s actual testimony at trial. Therefore, the circuit court’s findin g of fact that appellant pushed D. W. into a refrigerator – on which it explicitly relied in finding appe llant guilty of assault and batter y – was plainly wrong. For these reasons, we reverse and dismiss appellant’s conviction for assault and battery under Code § 18.2-57. Reversed and dismissed.