THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage,
Biberaj (Biberaj Snow & Sinclair, PC, on brief), for
W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General; Elizabeth Kiernan Fitzgerald, Assistant
Attorney General, on brief), for appellee.
Present: Chief Judge Decker, [*] Judge Malveaux and Senior Judge
GRAFF DECKER CHIEF JUDGE
Matthew Kelley appeals his conviction for assault and battery
in violation of Code § 18.2-57. He argues that the trial
court erred by finding that a touching occurred, that he had
the required intent, and that he acted without a legal excuse
or justification. We hold that the evidence, viewed under the
proper standard, supports the court's determination that
the appellant committed the offense of assault and battery.
Further, the trial court did not err by rejecting the
appellant's argument that he had a legal excuse or
justification for his actions. Consequently, we affirm the
appellant's conviction is based on his behavior on April
3, 2016. At that time, the appellant and Jasmin Hester, the
victim, were coworkers at a veterinary clinic. Hester worked
as a member of the administrative staff, and the appellant
was a facilities manager.
bench trial, Hester testified regarding the appellant's
actions that day. The appellant arrived at work while Hester
was sitting on the porch. According to Hester, after she said
"[g]ood evening" to him, the appellant approached
her, leaned forward, and grabbed her chin with his hand.
Hester leaned away, telling him "no, no, no." She
explained that she leaned away and said "no" even
before the appellant touched her because she "could
sense what was about to occur." Nevertheless, using his
hand, the appellant turned Hester's face toward him and
attempted to kiss her. She pulled away until they "broke
contact." The appellant then walked away and said,
"I'm told that it tickles," referencing his
mustache. He also thanked her for "helping" at the
clinic during the previous few weeks.
the appellant asked Hester if she was "okay."
Although she responded affirmatively at the time, she
testified that her response to him was inaccurate. Hester
described the incident as "scary" and
"shocking." She said that the contact caused her to
be offended, terrified, angry, and upset.
the appellant left, Hester called the Loudoun County
Sheriff's Office. Later that day, she met with Deputy
Taylor Bauer and provided a statement about the incident. The
next day, Hester filed a criminal complaint with a
magistrate, who issued a summons against the appellant for
assault and battery.
trial, during cross-examination, Hester admitted that the day
before the incident she had expressed dissatisfaction with
her job at the clinic. She also testified that her civil
lawyer had requested $175, 000 on her behalf as a result of
the appellant's behavior. Additionally, it came to light
that Hester had messaged two friends, either through text
message or social media, that the appellant "tried to
kiss" her and "[t]ried to grab" her face.
Deputy Bauer's initial investigation on the day of the
offense, the appellant told him that although he had
approached Hester and "leaned down to give her a kiss on
the cheek," she stood up. The appellant explained to the
deputy that at that time "he extended his hand out for a
handshake, and she walked away."
Jennifer Henry, with Loudoun County Animal Services,
testified at trial that the appellant previously had stated
under oath in general district court that he "approached
[Hester] with the intention of kissing her." The
appellant also had acknowledged that he thought Hester was
uncomfortable. Henry stated that according to the appellant,
he then told Hester that they would "save the kiss for
trial court found the appellant guilty of misdemeanor assault
and battery in violation of Code § 18.2-57. The court
expressly found Hester's testimony to be
"credible," and it concluded that a touching
occurred. The court recognized the evidence that Hester had
communicated with friends electronically that the appellant
had "tried" to grab her face. However, the court
reconciled her assertions, finding that the appellant tried
to touch her and then did so. Noting that "[t]he
slightest touching of another if done in a rude, insolent, or
angry manner constitutes a battery," the court found
that the appellant grabbed Hester's chin "during and
after" she repeatedly said "no" and physically
withdrew from him. It concluded that "touching someone
by grabbing their ...