COURT OF APPEALS OF VIRGINIA 

Present: Judges Beales, Chafin and Senior Judge Bumgardner 

Argued at Chesapeake, Virginia 

CARLUN FONTAINE HART 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2074-15-1 JUDGE 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 (“appellant”) was convicted in a bench trial of misdemeanor assault 

and battery in violation of Code § 18.2-57.1

 The circuit court sentenced appellant to twelve 

months in jail, and then suspended all twelve months 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 was acting in his capacity as a 

‘school security officer’ as defined in § 18.2-57(F).” 

ANALYSIS

 Because this memorandum opinion carries no precedential value, we recite only those 

facts and incidents of the proceedings as are necessary to the parties’ understanding of the 

 *

 Pursuant to Code § 17.1-413, this opinion 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 the Commonwealth’s evidence, the circuit court 

granted appellant’s motion to strike the evidence as to that charge. 

UNPUBLISHED 
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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. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. 

Commonwealth, 268 Va. 296, 330, 601 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 established 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 judge stated from the bench that appellant’s pushing of 

D.W. into the refrigerator served as the basis for appellant’s conviction 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 charged in Indictment 01513-15, the assault and battery.” (emphasis 

added)). Under settled law, a trial 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). Although we are mindful of this deferential standard of appellate review, we 

conclude that the circuit court’s factual conclusion that appellant pushed D.W. into a refrigerator 

was plainly wrong based upon 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 witnesses at trial. Paula Francis, 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 cafeteria. 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 prior statement she had made in writing after the 
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incident, by testifying that she saw appellant “put [D.W.] next to the 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 appeal. 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 court’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 testified that D.W. continued to yell as appellant escorted him to the 

teachers’ lounge. Bordino did not see appellant push 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 teachers’ 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 into a refrigerator in the teachers’ lounge. 

Importantly, not even D.W. testified that appellant pushed him into a refrigerator in the 

teachers’ lounge (although he did allege that appellant had punched him). Nevertheless, at the 

conclusion of appellant’s bench trial, the trial judge explicitly found that appellant’s alleged action 

of pushing D.W. into the refrigerator constituted an assault, and, therefore, 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 appellant pushed D.W. into a refrigerator (or a 

machine) was apparently a prior written statement of witness Paula Francis that was not ever 

admitted as evidence at trial and is not contained in the record on appeal – and where Francis 
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testified completely differently 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 disturbed on appeal 

unless ‘plainly wrong or without evidence to support it.’” Williams v. Commonwealth, 278 Va. 

190, 193, 677 S.E.2d 280, 282 (2009) (quoting Code § 8.01-680). 

At the conclusion of the trial, the circuit court stated, “I note one of the teachers indicating 

the pushing into the machine [refrigerator]. I think that constitutes an assault. I do find you are 

guilty as charged in Indictment 01513-15, the assault and battery.” (Emphasis added). “Under 

basic principles of appellate review, we may not go beyond the record developed 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 factual conclusion that was contrary to the evidence 

admitted at trial – and is simply not supported by the record on appeal, we find that the circuit 

court’s judgment was plainly wrong. 

CONCLUSION

 In summary, the circuit court explicitly based its finding of appellant’s guilt of assault 

and battery upon statements allegedly made by teacher 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 finding of fact that appellant pushed D.W. into a refrigerator – on which it 

explicitly relied in finding appellant guilty of assault and battery – 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.