                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Clements
Argued at Salem, Virginia


MARK ANTHONY GRAVES
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2938-05-3                                     JUDGE LARRY G. ELDER
                                                                  FEBRUARY 20, 2007
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                                Charles J. Strauss, Judge

                 John Gregory, Jr., for appellant.

                 Eugene Murphy, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Mark Anthony Graves (appellant) appeals from his bench trial convictions for two counts of

third-offense domestic assault and battery in violation of Code § 18.2-57.2(B). On appeal, he

contends the court erroneously (1) excluded evidence of the victim’s bias against him, (2) concluded

the evidence was sufficient to convict him in the absence of paternity testing or credible evidence

that an assault had occurred, and (3) exercised jurisdiction over the charged criminal offenses before

the completion of paternity testing ordered as part of a child support proceeding then underway in

the juvenile and domestic relations district court. We hold the trial court committed no reversible

error, and we affirm the challenged convictions.

                                  I. EXCLUSION OF TESTIMONY

       “Bias is a term used in the ‘common law of evidence’ to describe the relationship between a

party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
in favor of or against a party.” United States v. Abel, 469 U.S. 45, 52 (1984). Evidence relating to

a point, such as bias, properly at issue in the case is relevant and, therefore, admissible “if it has any

logical tendency, however slight, to establish a fact at issue in the case.” Ragland v.

Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993); see also Charles E. Friend, The

Law of Evidence in Virginia § 11-1 (5th ed. 1999 & Supp. 2001). “The admissibility of evidence is

within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the

absence of an abuse of discretion.” Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 833,

842 (1988). In order to preserve for appeal a ruling excluding evidence at trial, “the party must

proffer or avouch the evidence for the record . . . ; otherwise, the appellate court has no basis to

decide whether the [exclusion of the] evidence was [error].” Smith v. Hylton, 14 Va. App. 354,

357-58, 416 S.E.2d 712, 715 (1992).

        Here, appellant’s counsel proffered his belief that “Ms. Lewis would answer that she has

heard Ms. Leftwich swear at the [appellant] over the telephone at Ms. Lewis’ house when Ms.

Leftwich was at the home of Ms. Lewis and talking to the defendant, swearing at him over the

telephone.” Appellant’s counsel elaborated, “[T]hat’s the specific that I think I could get to.”

Because the proffered testimony would have established, at best, that Ms. Lewis heard Ms. Leftwich

swear at appellant over the telephone for an unknown reason at an unknown time during the course

of their five-year relationship, the record failed to establish that this proffered testimony was

relevant or material to establish bias.

        On this record, we hold the trial court did not abuse its discretion in excluding the proffered

testimony.

                              II. SUFFICIENCY OF THE EVIDENCE

        Under familiar principles of appellate review, we must examine the evidence in the light

most favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly

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deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987). “Determining the credibility of witnesses who give conflicting accounts is within the

exclusive province of the [trier of fact], which has the unique opportunity to observe the

demeanor of the witnesses as they testify.” Lea v. Commonwealth, 16 Va. App. 300, 304, 429

S.E.2d 477, 479 (1993).

       Code § 18.2-57.2 provides that “[a]ny person who commits an assault and battery against a

family or household member is guilty of” a criminal offense as prescribed therein. It incorporates

by reference the definition of “family or household member” contained in Code § 16.1-228, which

provides in relevant part as follows:

               “Family or household member” means . . . (v) any individual who
               has a child in common with the person, whether or not the person
               and that individual have been married or have resided together at any
               time, or (vi) any individual who cohabits or who, within the previous
               12 months, cohabited with the person . . . .

                  A. Sufficiency of the Evidence to Prove Occurrence of Assaults

       A battery is “an unlawful touching.” Adams v. Commonwealth, 33 Va. App. 463, 468, 534

S.E.2d 347, 350 (2000). The touching need not result in injury to be a battery. Id. In the case of an

intentional battery, “[a] battery always includes an assault.” Hinkle v. Commonwealth, 137 Va.

791, 794, 119 S.E. 53, 54 (1923).

       Here, Wendy Leftwich testified that appellant assaulted and battered her on both February 1

and May 19, 2005. She testified that, on February 1, appellant “got real, really, really angry, angry

and grabbed me by my throat and pushed me from the living room all the way to the bedroom

holding my throat and pushing me down on the bed and said that I hate you. I should kill you . . . .”

Shortly thereafter, he “grabbed [her] again and pushed [her] towards the air conditioner and said that

. . . if he had a hammer he would bash [her] F brains out.” As to the May 19, 2005 incident, she said

that appellant “barged into [her] house and snatched [her] up out of [her] bed while she was asleep”

                                                 -3-
at 3:00 a.m. After taking food and various other items from her house, he asked Leftwich if she was

“messing around with anybody.” Although she told him no, “he had a[n] evil look . . . on his face

and he said you know what? I ought to, girl, you don’t know exactly what I want to do to you,” and

then he “punched [her] in the nose” “very hard.” When Deputy Timothy Eanes responded to

Leftwich’s residence shortly before 5:00 a.m., he observed that Leftwich’s nose was swollen and

appeared to have been bleeding. The trial court specifically found Leftwich’s testimony about the

batteries credible.

        The evidence, including Leftwich’s testimony, viewed in the light most favorable to the

Commonwealth, was sufficient to prove beyond a reasonable doubt that appellant assaulted and

battered Leftwich on both February 1 and May 19, 2005.

         B. Sufficiency of the Evidence to Prove Victim was Family or Household Member

        Leftwich testified that, as of the date of trial on September 6, 2005, she had known appellant

for five years and that during that time, they were boyfriend and girlfriend, living together on an

“off and on basis.” Leftwich testified that appellant was the biological father of her daughter,

Makala Graves, who had been born on September 14, 2002. Appellant testified that in response to

Leftwich’s claim for child support filed prior to the institution of the criminal charges, he was

challenging his paternity of Makala, but throughout his testimony at the criminal trial, he referred to

Makala as “my daughter.” Appellant admitted that since Makala’s birth, he had called her his

daughter and that he stayed at Leftwich’s home sometimes because it was the only way he could see

“his daughter.” Appellant admitted that he had only recently challenged his paternity because

Leftwich had filed for child support and he “want[ed] to make sure that . . . the child is mine.”

Appellant’s mother also testified that Makala was appellant’s daughter, stating, “That’s his

daughter, far as I know my grandchild.”




                                                 -4-
        The trial court found Leftwich was a “family or household member” as required to support

appellant’s conviction under Code § 18.2-57.2, stating, “There’s no question that this falls under the

definition of a family or household member through his daughter, a child in common even if I don’t

believe they were [living together].” The evidence viewed in the light most favorable to the

Commonwealth, including Leftwich’s statements and appellant’s numerous prior

acknowledgements of Makala as his daughter, was sufficient to prove beyond a reasonable doubt

that Leftwich was a “family or household member” of appellant’s, as defined in Code § 16.1-228

and incorporated in Code § 18.2-57.2, because they had “a child in common.”

        Appellant contends for the first time on appeal that the court could not find him guilty

without evidence falling into any of the seven categories listed in Code § 20-49.4, which he labels

“the statutorily preferred evidence” for proving paternity. We reject that contention.

        Nothing in Code § 20-49.4 provides that parentage may be proved only with the listed

categories of evidence. Rather, that statute provides that “[a]ll relevant evidence on the issue of

paternity shall be admissible” and that “[s]uch evidence may include, but shall not be limited to,

the” seven categories of evidence listed in the statute. Code § 20-49.4 (emphasis added). In

addition, subsection (2) compels the court, “upon request” of a putative father, to require the parties

to “submit to appropriate” “[m]edical or anthropological” “tests” to determine parentage. Code

§ 20-49.4(2) (emphasis added).

        We need not decide whether this subsection applies in criminal matters because the record

contains no indication that appellant made a request for such testing in the criminal proceedings. To

the contrary, appellant’s counsel mentioned in opening argument at trial on September 6, 2005, that

appellant planned to challenge paternity in a hearing scheduled for October 14, 2005, in juvenile

and domestic relations district court but that only “heaven knows when the DNA actual evidence of

the child either being his or not his will be back.” Appellant’s counsel then stated in closing

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argument, “We’ll know more obviously when there’s a DNA test but that’s for . . . another court of

another jurisdiction.” Because appellant made no timely request for court-ordered DNA testing, he

may not now raise these issues to challenge the sufficiency of the evidence to support his

convictions in this criminal trial.1

            III. JURISDICTION TO CONVICT APPELLANT UNDER CODE § 18.2-57.2

        Appellant contends the circuit court lacked jurisdiction to convict him for violating Code

§ 18.2-57.2(B) based on a finding that Wendy Leftwich was a household or family member as

defined under that statute because they had a child in common. This is so, he claims, because at the

time he was charged with violating that statute, Leftwich had already filed a petition for child

support in the juvenile and domestic relations district court and he had already asserted a challenge

to his paternity in that proceeding. Appellant argues that the district court was the first to acquire

jurisdiction over the issue of paternity and that the circuit court lacked jurisdiction to adjudicate the

issue of paternity while that question was still pending in the district court. Appellant concedes he

did not raise this issue in the trial court but contends it renders his criminal convictions void and

that, because the convictions are void, the ends of justice exception to Rule 5A:18 permits us to

consider the question. We conclude the applicability of the ends of justice exception is inextricably

linked to the merits of appellant’s claim. Because we conclude the trial court had jurisdiction to

address the issue, we hold the ends of justice exception does not apply.



        1
          Appellant contends on brief that “The court received an exhibit that showed that the
[juvenile and domestic relations district court (J&DR court)] had ordered a paternity test. That
case was to be heard February 21, 2006 in the [J&DR court].” However, appellant cites no
portion of the appendix or the record in support of his claim. Further, the trial transcript contains
no reference to such an exhibit, and we are unable to find such an exhibit in the trial record for
this matter. As discussed supra in Part II.B., the transcript reflects that appellant’s counsel
mentioned the district court proceedings in appellant’s criminal trial on September 6, 2005 only
briefly. Appellant does not allege and nothing in the record indicates that he asked the trial court to
stay the criminal proceedings pending the results of the paternity test or the district court’s
determination of paternity.
                                                 -6-
        “A void judgment is one that has been procured by extrinsic or collateral fraud or entered by

a court that did not have jurisdiction over the subject matter or the parties.” Rook v. Rook, 233 Va.

92, 95, 353 S.E.2d 756, 758 (1987) (citations omitted).

                An issue of subject matter jurisdiction, as distinguished from an issue
                of the exercise of subject matter jurisdiction, concerns the “‘power of
                a court to adjudicate a specified class of cases.’” Nelson [v.
                Warden], 262 Va. [276,] 281, 552 S.E.2d [73,] 75 [(2001)] (quoting
                Moore [v. Commonwealth], 259 Va. [431,] 437, 527 S.E.2d [406,]
                409 [(2000), overruled on other grounds by Nelson, 262 Va. at 285,
                552 S.E.2d at 77]); see also Moore, 259 Va. at 437, 527 S.E.2d at
                409 (“emphasizing the necessary distinction to be drawn . . . between
                the power of a court to adjudicate a specified class of cases,
                commonly known as ‘subject matter jurisdiction,’ and the authority
                of a court to exercise that power in a particular case”).

Parker v. Commonwealth, 42 Va. App. 358, 374-75, 592 S.E.2d 358, 366 (2004).

        Code § 17.1-513 clearly provided the circuit court with subject matter jurisdiction to

adjudicate felony familial assaults after indictment. Appellant does not contend the circuit court

lacked subject matter jurisdiction to adjudicate the question whether he was guilty of the charged

criminal offenses. Instead, appellant contends that the circuit court lacked the authority to exercise

that jurisdiction until the determination regarding parentage was made by the district court. If, as he

argues, the circuit court did, in fact, lack authority to exercise its subject matter jurisdiction when it

convicted him, appellant’s convictions would be, at most, voidable rather than void. E.g. Robertson

v. Commonwealth, 181 Va. 520, 536, 25 S.E.2d 352, 358 (1943). Thus, they would be subject to

attack only on direct appeal, following either a timely objection in the trial court or application of

Rule 5A:18’s ends of justice exception.

        We conclude, however, that a circuit court does not err in exercising subject matter

jurisdiction to determine parentage for purposes of adjudicating a defendant’s guilt on charges of

felony domestic assault, whether or not other proceedings involving a determination of parentage

are then pending in the juvenile and domestic relations district court. Appellant cites no statute or

                                                   -7-
case law prohibiting a circuit court from determining guilt of a domestic crime based on “a child in

common” under these circumstances,2 and we are aware of none.

        Code § 20-49.2 specifically states as follows: “The circuit courts and the juvenile and

domestic relations district courts shall have concurrent original jurisdiction of cases arising under

this chapter. The determination of parentage, when raised in any proceeding, shall be governed by

this chapter.” (Emphases added). Thus, as to “cases arising under this chapter,” a clear reference

to civil proceedings to determine parentage instituted by petition pursuant to Code §§ 20-49.1 to

-49.10, the circuit and juvenile courts have concurrent original jurisdiction. The general rule with

regard to courts having concurrent jurisdiction is that “‘the court which first takes jurisdiction

always has priority and the right to conclude the specific litigation.’” Billington v. Commonwealth,

13 Va. App. 341, 344, 412 S.E.2d 461, 462-63 (1991) (quoting Owens v. Commonwealth, 129 Va.

757, 761, 105 S.E. 531, 532 (1921)). For purposes of determining priority, a court takes jurisdiction

when the document instituting the proceeding in that court is filed or served. See 20 Am. Jur. 2d

Courts § 88 (2d ed. 2006).

        However, assuming the provisions of Code §§ 20-49.1 to -49.10 regarding determinations of

parentage apply to the “child in common” finding made in these criminal proceedings, these

proceedings do not constitute a “case[] arising under this chapter” for purposes of the concurrent

jurisdiction provisions. Code § 20-49.2 contains no concurrent jurisdiction provision regarding

jurisdiction for “proceeding[s]” in which a determination of parentage is involved other than those


        2
         We note that the statutory scheme governing determinations of parentage provides a
method for making the child at issue a party to the action and expressly states that a
determination of parentage made “under the provisions of this chapter shall not be binding on
any person who is not a party.” Code § 20-49.2; see also Commonwealth ex rel. Gray v.
Johnson, 7 Va. App. 614, 623-24, 376 S.E.2d 787, 792 (1989) (citing statute to hold prior
adjudication of paternity obtained by mother had no res judicata effect as against child and
reasoning that public policy to achieve best interests of child “would be thwarted if a child were
bound by a paternity determination in which the child’s independent rights and interests were not
adequately protected”).
                                                -8-
“cases arising under this chapter.” Thus, the rules governing priority in concurrent jurisdiction

cases do not apply. Even if the statute did provide for concurrent jurisdiction in all proceedings

involving a determination of parentage, not just those instituted by civil petition filed pursuant to

Code § 20-49.2, the result would be the same here because “[t]he rule that priority controls the

exercise of concurrent jurisdiction applies only when the cases involved are identical as to subject

matter, parties, and relief sought.” 20 Am. Jur. 2d, supra, § 89. Manifestly, this is not the case

where one proceeding is criminal and the other is civil.

        Because the court had both subject matter jurisdiction and the authority to exercise that

jurisdiction over the issue of appellant’s paternity of the victim’s child in the instant criminal

proceedings, appellant’s convictions are neither void nor voidable and may not be challenged on

this basis for the first time in this appeal. See also 20 Am. Jur. 2d, supra, § 90 (stating that “[a]n

objection to a forum’s exercise of jurisdiction on the basis of the priority principle may be waived”).

                                                   IV.

        For these reasons, we conclude the court did not erroneously exclude evidence of the

victim’s bias against appellant, exercise jurisdiction over the charged criminal offenses, or hold the

evidence was sufficient to convict him. Thus, we affirm the challenged convictions.

                                                                                                Affirmed.




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