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Kelley v. Commonwealth

Court of Appeals of Virginia

January 8, 2019


          FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage, Judge

          Buta Biberaj (Biberaj Snow & Sinclair, PC, on brief), for appellant. [1]

          Craig 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 Haley



         Donald 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 conviction.

         I. BACKGROUND[2]

         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.

         In a 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.

         Later, 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.

         After 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.

         At 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.

         During 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."

         Officer 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 later."

         The 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 ...

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