                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Chafin and Senior Judge Bumgardner
UNPUBLISHED


              Argued by teleconference


              CARLUN FONTAINE HART
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 2074-15-1                                   JUDGE RANDOLPH A. BEALES
                                                                                   MAY 2, 2017
              COMMONWEALTH OF VIRGINIA


                                                     UPON A REHEARING

                             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.


                     On December 6, 2016, this Court reversed appellant’s conviction for assault and battery

              because the trial court explicitly based its finding of guilt upon written statements allegedly made

              by a witness although those alleged statements were never admitted at trial. Hart v.

              Commonwealth, No. 2074-15-1, 2016 Va. App. LEXIS 335 (Va. Ct. App. Dec. 6, 2016). On

              December 15, 2016, nine days after the panel’s opinion was released, the Supreme Court issued

              its opinion in Commonwealth v. Lambert, 292 Va. 748, 793 S.E.2d 805 (2016), in which the

              Supreme Court reversed this Court. The Commonwealth then filed a petition for rehearing in

              this matter. The panel granted a rehearing on this appeal and stayed the mandate. On rehearing,

              in light of the Supreme Court’s holding in Lambert, this Court now affirms the circuit court.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                             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

disposition of this appeal.

       Appellant challenges his conviction by asserting that he had acted within the exceptions

to assault and battery provided in Code § 18.2-57(G).1 In Lambert, a special education teacher

was convicted in a bench trial of assault and battery of a special needs student in violation of

Code § 18.2-57. The trial court in Lambert found that the Code § 18.2-57(G) exception to

assault and battery for school personnel was inapplicable to the facts of the case for two separate

reasons. First, the trial court found that Lambert’s actions fell outside the scope of her

employment because her actions did not comport with what the school board had previously

determined to be appropriate conduct in that situation. Id. at 755, 793 S.E.2d at 808. The trial


       1
           Code § 18.2-57(G) states:

                “Simple assault” or “assault and battery” shall not be construed to
                include the use of, by any school security officer or full-time or
                part-time employee of any public or private elementary or
                secondary school while acting in the course and scope of his
                official capacity, any of the following: (i) incidental, minor or
                reasonable physical contact or other actions designed to maintain
                order and control; (ii) reasonable and necessary force to quell a
                disturbance or remove a student from the scene of a disturbance
                that threatens physical injury to persons or damage to property;
                (iii) reasonable and necessary force to prevent a student from
                inflicting physical harm on himself; (iv) reasonable and necessary
                force for self-defense or the defense of others; or (v) reasonable
                and necessary force to obtain possession of weapons or other
                dangerous objects or controlled substances or associated
                paraphernalia that are upon the person of the student or within his
                control.
                In determining whether a person was acting within the exceptions
                provided in this subsection, due deference shall be given to
                reasonable judgments that were made by a school security officer
                or full-time or part-time employee of any public or private
                elementary or secondary school at the time of the event.
                                                  -2-
court then articulated a second, alternative holding. Recognizing the due deference to be given

to school personnel under the Code § 18.2-57(G) exception, the trial court found that, even if it

accepted Lambert’s version of the events, Lambert’s physical contact with the student was

“neither incidental, nor minor, nor reasonable contact designed to maintain order or control.” Id.

at 754, 793 S.E.2d at 807.

        When Lambert appealed her conviction to the Court of Appeals, this Court reversed the

conviction and remanded the matter for a new trial. Lambert v. Commonwealth, 65 Va. App.

682, 691, 779 S.E.2d 871, 875 (2015). However, on December 15, 2016, the Supreme Court

reversed the Court of Appeals, finding that this Court “did not give sufficient consideration to the

trial court’s alternative holding – the ‘objective’ ruling that, even under Lambert’s version of the

facts, Lambert’s response to [the student] was still ‘unreasonable’ and exceeded the physical

contact permitted by school personnel under Code § 18.2-57(G)(i).” Lambert, 292 Va. at 759,

793 S.E.2d at 810. The Supreme Court noted that the trial court found that “even if there were a

‘reasonable reason for Ms. Lambert to be disciplining, directing [or] instructing’ [the student],

Lambert’s actions nonetheless constituted an ‘unreasonable response to the level of disobedience

that is alleged.’” Id. The Supreme Court held that this particular finding by the trial court was

supported by the evidence, and, therefore, the Supreme Court affirmed appellant’s conviction

under Code § 18.2-57.

        Much like in Lambert, the trial court in this matter made two findings in support of

appellant’s conviction for assault and battery. At the time of finding appellant guilty, the trial

court explicitly stated that it had relied on certain alleged statements as evidence – which were,

in fact, not admitted into the record at trial – stating, “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.” This Court reversed the trial court because

                                                 -3-
those alleged statements on which the trial judge relied were never admitted as evidence at trial,

and the teacher who allegedly wrote them testified quite differently at trial that she never saw

appellant push the child into the refrigerator in the teacher’s lounge – only “put him next to the

refrigerator.” However, the trial court also articulated what is essentially a second finding on

which it could base its conviction in that it stated that it believed the child (“D.W.”). In

announcing its finding of guilt, the trial court also stated, “I find the totality of the actions and

testimony of the young man – I do believe the young man.”

        As the Supreme Court made clear in Lambert, “[t]he appellate court has the duty to

review the evidence that tends to support the conviction and to uphold the circuit court’s

judgment unless it is plainly wrong or without evidence to support it.” Id. at 757, 793 S.E.2d at

809. See also Velazquez v. Commonwealth, 292 Va. 603, 617, 791 S.E.2d 556, 562 (2016)

(affirming the trial court where the trial court’s alternative holding was fully supported by

evidence in the record). In this matter, the trial court essentially appeared to make an alternative

finding that appellant’s actions were unreasonable and excessive based upon the fact that it

believed D.W.’s testimony. At trial, as part of his testimony, D.W. testified that appellant had

punched him in the chest, and stated at least three separate times in his testimony that appellant

had punched him.2 The trial court, prior to announcing its finding of guilt, specifically credited

its belief in the overall testimony of D.W., stating that it “believe[d] the young man.” Viewing

this evidence in the light most favorable to the Commonwealth, as we must since the

Commonwealth prevailed at trial, we find that the trial court’s alternative factual basis for

convicting appellant of assault and battery was supported by the child’s testimony that appellant

punched him.



        2
        At trial, photographs of bruising on D.W.’s upper chest area appeared to corroborate
D.W.’s testimony that appellant had punched him in the chest.
                                              -4-
                                           CONCLUSION

       In short, the trial judge’s alternative factual finding that he believed D.W.’s testimony

was a separate alternative basis for the conviction. Furthermore, his implicit finding that

appellant’s actions were unreasonable and excessive was supported by evidence – specifically,

the child’s testimony that appellant punched him in the chest. Based on that testimony, which

was apparently found credible by the trial judge when he said, “I do believe the young man,” we

cannot say that no rational trier of fact could have found that appellant’s actions here were

excessive and unreasonable. Consequently, given this alternative finding by the trial court and

the Supreme Court’s recent decision reversing this Court in Lambert, we now vacate our earlier

decision and affirm appellant’s conviction for assault and battery in violation of Code § 18.2-57.

                                                                                          Affirmed.




                                                -5-
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

                                                  -2-
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

                                                  -3-
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.




                                                   -4-
