                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Huff and Senior Judge Annunziata
UNPUBLISHED


              Argued at Lexington, Virginia


              EDWARD CHILTON, S/K/A
               EDWARD CORNDELL CHILTON
                                                                            MEMORANDUM OPINION BY
              v.     Record No. 1531-13-3                                    JUDGE WILLIAM G. PETTY
                                                                                NOVEMBER 18, 2014
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                                                John T. Cook, Judge

                               David D. Embrey for appellant.

                               Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Edward Corndell Chilton was convicted of strangulation pursuant to Code § 18.2-51.6.

              On appeal, Chilton argues that the trial court erred in finding that the victim suffered a bodily

              injury as a result of the application of pressure to her neck. For the reasons stated below, we

              agree and reverse the judgment of the trial court.

                                                                I.

                     Because the parties are fully conversant with the record in this case and 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 disposition of this appeal.

              “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting

              to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26



                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438,

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

       So viewed, the evidence presented at trial established that Chilton went to the home of his

ex-girlfriend, Ebony Dickerson, on her invitation. At the end of the visit, the two got into an

argument. Chilton and Dickerson “pushed each other,” then Chilton left. Dickerson sat on the

sofa with her infant daughter and watched the television. Less than ten minutes later, Dickerson

heard “a lot of commotion,” that is, “screaming” and “hollering” outside her front door.

Dickerson got up and looked out the window of her front door to see that it was Chilton, visibly

upset, kicking at her door. Dickerson then opened the door and let him in. Once inside, Chilton

continued in his audible rant and eventually pushed and hit Dickerson. According to Dickerson,

Chilton pushed her onto the couch, next to her infant daughter. Chilton and Dickerson

proceeded to hit each other, while Dickerson was trying to get Chilton off of her. What

happened next is not entirely clear. Initially, on direct examination, Dickerson testified that

Chilton was “holding [her] down and at one point, he may have grabbed around [her] throat

briefly.” The questioning proceeded as follows:

               [Prosecutor:] As he grabbed you around your throat, did you ever
               lose consciousness? Did you ever black out?

               [Dickerson:] I saw black but it wasn’t like I completely and totally
               lost conscious [sic].

               [Prosecutor:] Okay. So when you say you saw black, were your
               eyes open?

               [Dickerson:] I closed my eyes.

               [Prosecutor:] Okay.

               [Dickerson:] And when I opened my eyes, he was still there but he
               wasn’t causing any harm to me then.




                                                -2-
Then, on cross-examination of Dickerson, the following exchange occurred:

               [Defense Counsel:] And did his hands actually go around your
               throat or was he just lying on you? Is that what caused you to
               close your eyes?

               [Dickerson:] He was in the general area.

               [Defense Counsel:] But you can’t say he actually put his hands
               around your throat?

               [Dickerson:] It wasn’t a choking motion.

Dickerson agreed with counsel that Chilton then got up and left on his own accord. Dickerson

said that she did not require any medical attention following the altercation and did not complain

of any injury. On direct examination of the officer responding to Dickerson’s eventual call to the

police, Officer A.J. Johnson testified that he took photos of Dickerson’s neck, but did not notice

any bruising or other injury.1

       At the conclusion of the trial, the trial judge noted, “I observed the witnesses on the stand

and I found Mr. – Ms. Dickerson credible that there was a personal injury and I find the

Commonwealth proved all the elements of that charge beyond a reasonable doubt.” Defense

counsel noted his objection to the ruling, and Chilton was eventually convicted of strangulation

pursuant to Code § 18.2-51.6. It is that conviction Chilton appeals here.

                                                 II.

       Chilton argues that the trial court erred in finding that the victim suffered bodily injury by

application of pressure to her neck. We agree.

       In a challenge to the sufficiency of the evidence, we must “‘examine the evidence that

supports the conviction and allow the conviction to stand unless it is plainly wrong or without

       1
        The Commonwealth entered into evidence the photograph that Officer Johnson took.
The photograph does not reveal, nor did the Commonwealth point to, any evidence that the
photograph establishes any type of injury to Dickerson. Furthermore, at oral argument, the
Commonwealth conceded that Dickerson did not suffer any bodily injury to her neck. See Oral
Argument Audio at 7:38 to 8:20.
                                              -3-
evidence to support it.’” Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733, 735

(2011) (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008)).

We review the evidence in the light most favorable to the Commonwealth, as the prevailing party

below, and determine whether “‘any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). “Furthermore, we ‘accord the Commonwealth the benefit of all inferences fairly

deducible from the evidence.’” Brooks v. Commonwealth, 282 Va. 90, 95, 712 S.E.2d 464, 466

(2011) (quoting Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 923 (2008)).

       Code § 18.2-51.6 provides, “Any person who, without consent, impedes the blood

circulation or respiration of another person by knowingly, intentionally, and unlawfully applying

pressure to the neck of such person resulting in the wounding or bodily injury of such person is

guilty of strangulation, a Class 6 felony.” The only issue on appeal is whether the victim

suffered a “bodily injury,” as required by Code § 18.2-51.6.2

       In response to Chilton’s appeal, the Commonwealth argues that Dickerson was strangled

until she lost consciousness, “albeit briefly,” and that “[t]his loss of consciousness was the result

of Chilton ‘applying pressure to the neck.’ The bodily injury contemplated by the statute is

injury resulting from the application of pressure to the neck. Consequently, loss of

consciousness is precisely the type of injury that this statute was meant to encompass.”

       In Dawson v. Commonwealth, 63 Va. App. 429, 758 S.E.2d 94 (2014), this Court

considered the term “bodily injury” as it relates to Code § 18.2-51.6. There, we upheld


       2
         We note that Chilton does not argue on appeal that there was no strangulation. He
argues, rather, that Dickerson suffered no bodily injury pursuant to Code § 18.2-51.6. Therefore,
we will not address whether Chilton’s actions amount to strangulation. Furthermore, it is
undisputed that there was no breaking of the skin that would constitute a wounding. See Johnson
v. Commonwealth, 58 Va. App. 303, 317, 709 S.E.2d 175, 182 (2011) (noting that “to prove the
existence of a ‘wound,’ the Commonwealth must show that the victim’s skin was broken or
cut”).
                                               -4-
Dawson’s conviction for strangulation pursuant to Code § 18.2-51.6. The evidence at trial

established that Dawson “applied pressure to [the victim’s] neck by pinning her hand to one side

of her neck and squeezing the other side of her neck with his arm muscle.” Id. at 437, 758

S.E.2d at 98. When Dawson applied pressure to the victim’s neck, she could not breathe, she felt

like she was drowning and everything started going black, and she fell down but could not

remember doing so. Id. at 431-32, 758 S.E.2d at 96. Significantly, the nurse practitioner who

treated her the following day testified that she had dark red bruises around her neck. Id. at 437,

758 S.E.2d at 98. After analyzing this Court’s precedent regarding bodily injury resulting from

strangulation, as well as this Court’s interpretation of bodily injury under the malicious

wounding statute,3 we held that Dawson’s acts impeded the victim’s respiration and/or blood

flow and that the bruises around her neck constituted a bodily injury. Id. at 435-37, 758 S.E.2d

at 98.

         One of the malicious wounding cases Dawson analyzed, as we do here, was Luck v.

Commonwealth, 32 Va. App. 827, 531 S.E.2d 41 (2000). In Luck, two state troopers were

injured as a result of a collision following a high speed car chase. Id. at 830-31, 531 S.E.2d at

42-43. One officer was out of work for a day or two, continued to be stiff for four to five days,

and took prescribed medication for lower back pain. Id. at 831, 531 S.E.2d at 42. “He suffered a

low back strain from being hit several times by the defendant’s vehicle.” Id. at 831, 531 S.E.2d

at 42-43. The other officer had similar injuries and “suffered from ‘mild back discomfort and

flexion and extension’ with ‘tenderness to palpitation in the lumbar musculature.’” Id. at 831,



         3
          See King v. Commonwealth, 2 Va. App. 708, 710, 347 S.E.2d 530, 531 (1986) (“The
validity of using other Code sections as interpretive guides is well established. The Code of
Virginia constitutes a single body of law, and other sections can be looked to where the same
phraseology is employed.”). Code § 18.2-51 provides, “If any person maliciously shoot, stab,
cut, or wound any person or by any means cause him bodily injury, with the intent to maim,
disfigure, disable, or kill, he shall . . . be guilty of a Class 3 felony. . . .”
                                                     -5-
531 S.E.2d at 43. Notably, this Court held that the officers’ injuries were sufficient to constitute

“bodily injury” pursuant to the malicious wounding statute:

                       The evidence permits the finding that the two troopers
               suffered bodily injury when they received soft-tissue injuries that
               required medical treatment and caused pain and stiffness. If those
               injuries did not meet the requirements for bodily injury, we would
               have the anomaly of an “everyday, ordinary” phrase having
               different meanings in criminal law and tort law.

Id. at 831, 531 S.E.2d at 43 (emphasis added).

       In Campbell v. Commonwealth, 12 Va. App. 476, 481, 405 S.E.2d 1, 3 (1991) (en banc)

(superseded on other grounds), this Court upheld Campbell’s conviction for malicious wounding

child abuse under Code § 18.2-51 for beating his three-year-old stepson with a belt. We held

that although Campbell did not break the child’s skin, “[t]here [was] no question that the

defendant caused his stepson ‘bodily injury.’” Id. at 483, 405 S.E.2d at 4. Campbell struck the

child with a belt approximately seventeen times, leaving marks and bruises that ranged from the

child’s shoulder blades to his buttocks on his backside and from under his arm to his upper thigh

on the right side of his body. Id. at 484-85, 405 S.E.2d at 5. The Court described this as a brutal

beating of a defenseless child—the circumstances of the attack as well as the child’s condition

afterward were sufficient to demonstrate that the child suffered bodily injury. Id.

       In English v. Commonwealth, 58 Va. App. 711, 718, 715 S.E.2d 391, 395 (2011)

(quoting Luck, 32 Va. App. at 832, 531 S.E.2d at 43), this Court emphasized that bodily injury

should be assigned its “‘everyday, ordinary meaning,’ which needs no technical, anatomical

definition.” We noted that “[t]o prove a bodily injury, the victim need not experience any

observable wounds, cuts, or breaking of the skin. Nor must she offer proof of ‘broken bones or

bruises.’” Id. at 719, 715 S.E.2d at 395 (quoting Luck, 32 Va. App. at 831-32, 531 S.E.2d at 43).

However, we specifically noted that “[b]odily injury ‘includes soft tissue injuries, at least those



                                                 -6-
which require medical attention and have some residual effect.’” Id. (quoting Ronald J. Bacigal,

Criminal Offenses and Defenses 46 (2010-11 ed.)).

       In contrast to Dawson, Luck, Campbell, and English, the Commonwealth’s evidence here

was insufficient to demonstrate that Dickerson suffered a bodily injury, as this Court has

previously defined that term. Dickerson neither sought nor required medical attention, displayed

no evidence of visible bruising or cuts, suffered no residual effects following the altercation, did

not take or require medication, and did not testify to suffering any type of pain or stiffness at the

time of the altercation.

       Furthermore, even if the victim suffered a momentary “black out,” there was no evidence,

medical or otherwise, that she suffered any physical or mental impairment as a result. Simply

put, by failing to establish any observable external injuries, particularly in light of the victim’s

lack of complaint of injury, and without any evidence, medical or otherwise, of any internal or

soft tissue injuries, the Commonwealth failed to establish that the application of pressure to the

neck of the victim resulted in a bodily injury. Thus, the evidence was insufficient to support a

conviction under the statute.4

                                                  III.

       Because we hold that the evidence was insufficient to conclude that Dickerson suffered a

bodily injury as required by Code § 18.2-51.6, we reverse the conviction and dismiss the

indictment.

                                                                             Reversed and dismissed.


       4
          Whatever the wisdom might be of criminalizing any strangulation that results in
unconsciousness regardless of whether it causes bodily injury, it is up to the General Assembly
to determine whether the statute should be amended to reach that result. “This Court’s function
is not to pass on the wisdom of legislation. ‘Whether legislation is wise is a question for the
General Assembly, and not [the Courts].’ Rather, we must interpret statutes as written.” Dale v.
City of Newport News, 18 Va. App. 800, 802, 447 S.E.2d 878, 879 (1994) (quoting City of
Portsmouth v. City of Chesapeake, 232 Va. 158, 163, 349 S.E.2d 351, 353 (1986)).
                                               -7-
