VIRGINIA:
             In the Court of Appeals of Virginia on Tuesday         the 17th day of January, 2017.

Carlun Fontaine Hart,                                                                                     Appellant,

against              Record No. 2074-15-1
                     Circuit Court No. CR15001513-00

Commonwealth of Virginia,                                                                                 Appellee.

                                      Upon a Petition for Rehearing

                         Before Judges Beales, Chafin and Senior Judge Bumgardner

       On December 19, 2016 came the Commonwealth, by the Attorney General of Virginia, and filed a

petition praying that the Court set aside the judgment rendered herein on December 6, 2016, and grant a

rehearing thereof.

       On consideration whereof, the petition for rehearing is granted by the panel, the mandate entered

herein on December 6, 2016 is stayed pending the decision of the Court, and the appeal is reinstated on the

docket of this Court.

       The parties hereby are directed to be prepared to address at oral argument of this case before a panel

of judges of this Court the effect on this case of the decision of the Supreme Court of Virginia in

Commonwealth of Virginia v. Heather Hogston Lambert, Record No. 160132, 2016 Va. Lexis 189 (Va. Dec.

15, 2016).

       Pursuant to Rule 5A:35(a), the respondent Hart shall file an answering brief within 21 days of the date

of entry of this order. An electronic version of the brief shall be filed with the Court and served on opposing

counsel.1 In addition, four printed copies of the answering brief shall be filed.

                                          A Copy,
                                                Teste:
                                                                      Cynthia L. McCoy, Clerk

                                                         original order signed by a deputy clerk of the
                                                  By:    Court of Appeals of Virginia at the direction
                                                         of the Court

                                                                      Deputy Clerk

       1
       The guidelines for filing electronic briefs can be found at
www.courts.state.va.us/online/vaces/resources/guidelines.pdf.
                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Chafin and Senior Judge Bumgardner
UNPUBLISHED


              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.
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.




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