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UNPUBLISHED- 2 - disposition of this appeal.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.