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Lewis v. Commonwealth

Supreme Court of Virginia

May 31, 2018

ANTONIO RICARDO LEWIS
v.
COMMONWEALTH OF VIRGINIA

          FROM THE COURT OF APPEALS OF VIRGINIA

          OPINION

          WILLIAM C. MIMS JUSTICE.

         In this appeal, we consider what the phrase "has been previously convicted" means in Code § 18.2-57.2(B), which makes assault and battery of a family or household member a felony under certain circumstances.

         I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

         Antonio Ricardo Lewis lived with his girlfriend, Pamela McDavid, in a hotel room in Williamsburg. During an argument with Lewis on October 9, 2015, McDavid retreated into the bathroom. Lewis continued yelling at her through the closed door. When McDavid came out of the bathroom intending to leave the hotel room, Lewis pushed her and wrapped his arm around her neck. They fell on the bed and scuffled. McDavid felt blood drip onto her leg. She returned to the bathroom and saw that her lip had been split. She later came out of the bathroom again, darted past Lewis, and went to the police station. A police officer went to the hotel to arrest Lewis but was unable to find him there.

         December 23, 2015 was McDavid's birthday. She celebrated with her family at her mother's house. Late that evening she returned to the hotel room, which she still shared with Lewis. She found him pacing the floor angrily. She saw that he had been drinking and had taken cocaine. He attempted to provoke another argument but she refused to be drawn in. She got ready for bed and went to sleep.

         Sometime later McDavid awoke to find Lewis shaking her and demanding that she talk with him. She went onto the balcony to smoke a cigarette. He followed her and slapped her face so hard the cigarette was knocked away. She slapped him back and he slapped her again even harder. She went into the bathroom to look at her face and saw a handprint there. She fled to the parking lot, locked herself in her car, and called the police.

         On March 16, 2016, a grand jury indicted Lewis on one count of felony assault and battery of a family or household member after having been twice previously convicted of the same offense within twenty years, in violation of Code § 18.2-57.2(B), for each of the October and December offenses. Prior to trial, the Commonwealth moved to amend the indictment relating to the October offense to charge only misdemeanor assault and battery of a family or household member. Lewis joined in the motion and the circuit court granted it.

         Lewis was tried by the court on May 5, 2016. The Commonwealth moved to bifurcate the trial for the two charges, trying the October offense first. The Commonwealth intended to use the anticipated conviction for it as one of the two predicate convictions required to thereafter try the December offense as a felony. The court granted the motion over Lewis' objection.

         The court then arraigned Lewis on the misdemeanor charge for the October offense. Lewis pled not guilty and the court proceeded to a bench trial. After hearing the evidence, the circuit court found Lewis guilty. It deferred sentencing and ordered a presentencing report.

         The court then arraigned Lewis on the felony charge for the December offense. Lewis again pled not guilty and the court proceeded to a second bench trial. At the conclusion of the witnesses' testimony, the court admitted as evidence an order entered in June 2011 by the Juvenile and Domestic Relations District Court of the City of Newport News memorializing Lewis' prior conviction and sentence for misdemeanor assault and battery of a family or household member. The Commonwealth then moved the court to find that Lewis had been convicted of a second misdemeanor offense earlier that day. Lewis objected, arguing that he had not been convicted of a misdemeanor for the October offense because he had not yet been sentenced on that charge. The court overruled the objection, ruling that it would take judicial notice that it had found him guilty.

         Lewis thereafter moved to strike. He argued that the indictment for the December offense charged that he "has twice previously been convicted of assault and battery, " but that he had not been previously convicted twice at the time of the December offense. The Commonwealth's evidence established that in December, he had been previously convicted only once: in Newport News in 2011. He argued that the Commonwealth therefore had not proven the charge in the indictment. The Commonwealth responded that at the time Lewis was arraigned for the felony offense immediately prior to trial, he had been convicted of two misdemeanor offenses.

         The court denied Lewis' motion, ruling that the misdemeanor conviction from Norfolk and the court's own finding of guilt earlier that day were sufficient to prove the two statutory predicate convictions for the felony charge. Lewis presented his defense and thereafter renewed his motion to strike, which the court again denied. The court then found him guilty of the felony charge.

         On May 16, 2016, the circuit court entered separate orders convicting Lewis of misdemeanor and felony assault and battery of a family or household member for the October and December offenses, respectively. In July 2016, it entered a single sentencing order for both offenses.

         Lewis thereafter appealed to the Court of Appeals. By per curiam order, the Court of Appeals affirmed ...


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