COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Norfolk, Virginia 

KENNETH NEIL BARNETT 

 MEMORANDUM OPINION* BY 

v. Record No. 2622-95-1 JUDGE JOSEPH E. BAKER 

 SEPTEMBER 24, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert P. Frank, Judge 

 R. L. Shrecengost for appellant. 

 Leah A. Darron, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Kenneth Neil Barnett (defendant) was convicted of assault 

and battery, a violation of Code § 18.2-57, on an indictment 

charging felony child abuse. He complains on appeal that the 

misdemeanor is not a lesser-included offense of the felony 

originally subject of the indictment. Finding no error, we 

affirm the conviction. 

 The parties are fully conversant with the record, and we 

recite only those facts necessary to a disposition of this 

appeal. 

 Upon well established principles, we view the evidence in 

the light most favorable to the Commonwealth. Martin v. 

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

On June 3, 1995, Jay Michael Kerivan, then three years of age, 

was entrusted to defendant's care for several days by the child's 

mother, Jennifer Miller. When Jay was returned to Miller, she 

noted numerous bruises about his body. The child was immediately 

taken to the hospital, and his injuries were determined to be 

consistent with abuse. Defendant subsequently admitted to 

"los[ing] his temper," "smacking" and "slapp[ing]" the child in 

the face, hitting him in the stomach "about six times," 

"pinch[ing] his nose, and "grabb[ing] him by his neck."1

 

 At the conclusion of the Commonwealth's evidence, defendant 

moved the trial court to "reduc[e]" the "felony abuse to assault 

and battery," arguing that the Commonwealth had failed to 

establish conduct "so gross, wanton and culpable as to show a 

reckless disregard for human life," a necessary element of the 

offense. See Code § 18.2-371.1(B). Defendant's motion prompted 

the following colloquy between the court and his counsel. 

 The Court: Are you suggesting that there's a lessor 

[sic] included offense? 

 Counsel: Yes, I would suggest that there is. If not, 

 we would certainly have no--quite frankly, we 

would have no objection at this point to 

amend the charge and plead guilty to assault 

and battery, waive any defense that might 

come from to eliminate the Court--the Appeals 

 

 1Defendant was indicted for a "willful act or omission in 

the care of the child . . . so gross, wanton and culpable as to 

show a reckless disregard for the life of Jay Michael Kerivan" in 

violation of Code § 18.2-371.1(B). 
- 3 - 

Court finding that it's not lessor [sic] 

included.

 The Court: Well, my question to you is are you 

suggesting that assault and battery is a 

lessor [sic] included in this offense? 

 Counsel: I believe that it's implicit in that charge. 

 The Court: All right, sir. I'm going to grant your 

motion. What this man did was reprehensible 

of a three-year-old child who was 

defenseless. . . . The evidence before me 

does not indicate that there's a reckless 

disregard for human life; clearly there's a 

willful act of assault and battery. 

(Emphasis added). 

 Nevertheless, defendant later requested the court to "set 

aside the conviction of assault and battery," contending that the 

offense is not "lesser included . . . in the abuse or neglect 

charged in the indictment." The trial court denied this motion 

and defendant appeals. 

 It is well established that a "'defendant, having agreed 

upon the action taken by the trial court, should not be allowed 

to assume an inconsistent position.'" Manns v. Commonwealth, 13 

Va. App. 677, 679, 414 S.E.2d 613, 615 (1992) (citation omitted). 

 "'No litigant, even a defendant in a criminal case, will be 

permitted to approbate and reprobate--to invite error . . . and 

then to take advantage of the situation created by his own 

wrong.'" Id. at 680, 414 S.E.2d at 615 (citation omitted). 

 Moreover, assuming, without deciding, that assault and 

battery is not lesser included within the indicted offense, the 

order of conviction in this instance clearly reflects that the 
- 4 - 

court "reduce[d] the . . . indictment to [a]ssault and [b]attery" 

on defendant's motion. Code § 19.2-231 provides that "if there 

shall appear to be any variance between the allegations therein 

and the evidence offered in proof thereof, the court may permit 

amendment of such indictment . . . at any time before the jury 

returns a verdict or the court finds the accused guilty or not 

guilty, provided the amendment does not change the nature or 

character of the offense charged."2

 Any objection to 

deficiencies in arraignment on the amended indictment was not 

presented to the trial court and, therefore, is not before this 

Court on appeal. See Rule 5A:18; Jacques v. Commonwealth, 12 Va. 

App. 591, 593, 405 S.E.2d 630, 631 (1991). 

 Accordingly, we affirm defendant's conviction. 

 Affirmed.

 

 2Defendant concedes that the Commonwealth's evidence was 

sufficient to prove assault and battery.