Randy Lee Wyant v. Commonwealth of Virginia ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Petty and McCullough
UNPUBLISHED
Argued by teleconference
RANDY LEE WYANT
MEMORANDUM OPINION BY
v. Record No. 0726-14-3 JUDGE WILLIAM G. PETTY
MARCH 31, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Victor V. Ludwig, Judge
Duane Barron, Deputy Public Defender (Office of the Public
Defender, on brief), for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring,
Attorney General; Elizabeth C. Kiernan, Assistant Attorney General,
on brief), for appellee.
Randy Lee Wyant was convicted of violating a preliminary protective order pursuant to
Code § 16.1-253.2. On appeal, Wyant argues that the trial court erred in finding the evidence
sufficient to establish that Wyant made contact with the victim in violation of the protective
order. For the reasons stated below, we disagree and affirm the judgment of the trial court.
I.
Because the parties are fully conversant with the record in this case and 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.
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting
to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987)).
II.
Wyant argues that the trial court applied an erroneous definition of the word “contact”
and erred in finding the evidence sufficient to convict him of violating the preliminary protective
order because he did not make “contact” with the victim within any reasonable definition of the
word.
Code § 16.1-279.1(A)(2) provides that, upon a finding of abuse, a protective order may
prohibit “such contacts by the respondent with the petitioner or family or household members of
the petitioner as the court deems necessary for the health or safety of such persons.” On January
24, 2014, a preliminary protective order was issued against Wyant under Code
§ 16.1-279.1(A)(2). Here, the preliminary protective order directed that “[t]he Respondent shall
not commit acts of family abuse or criminal offenses that result in injury to person or property”
and that “[t]he Respondent shall have no contact of any kind with petitioner.” (Emphasis added).
Further, the order granted possession of the residence at 115 Thorofare Road to petitioner and
ordered that “[t]he Respondent shall immediately leave and stay away from the residence.”
First, Wyant argues that the trial judge’s comment “if you can see her, if you can smell
her, if you can hear her, you’re too close” demonstrates that the judge applied an incorrect
definition of “contact.” The definition of “contact” under Code § 16.1-279.1 is ‘“[a]n issue of
statutory interpretation”’ which “‘is a pure question of law which we review de novo.’” Sarafin
v. Commonwealth, 62 Va. App. 385, 394, 748 S.E.2d 641, 645 (2013) (quoting Scott v.
Commonwealth, 58 Va. App. 35, 48, 707 S.E.2d 17, 24 (2011)). This Court is bound by Elliott
v. Commonwealth, 277 Va. 457, 675 S.E.2d 178 (2009), in which the Supreme Court defined
“contacts” under Code § 16.1-279.1 as “those acts by the respondent that intentionally pierce the
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protective barrier between the petitioner and respondent fashioned by the protective order.” Id.
at 464, 675 S.E.2d at 182. The Court held that while Code § 16.1-279.1(A)(2) does not
explicitly define which “contacts” a protective order may prohibit, “in essence, the statute
permits the court to fashion protective orders that create a persistent barrier between the
petitioner and the respondent so as to reasonably ensure the health and physical safety of the
petitioner.” Id. at 463, 675 S.E.2d at 182. Further, the Court found that “the statute permits a
protective order that prohibits the respondent from entering a reasonable distance-defined space
around the petitioner and, thus, intentionally making visual contact with the petitioner.” Id. at
464, 675 S.E.2d at 182.
Wyant argues that the judge applied a broader definition of contact than the definition
from Elliott by using his “rule of thumb” that “if you can see her, if you can smell her, if you can
hear her, you’re too close.” However, “in Virginia, ‘we presume [trial] judges know the law and
correctly apply it.’” White v. White, 56 Va. App. 214, 218, 692 S.E.2d 289, 291 (2010) (quoting
de Haan v. de Haan, 54 Va. App. 428, 445, 680 S.E.2d 297, 306 (2009)). “An appellant can
rebut the presumption by showing, either by the ruling itself or the reasoning underlying it, the
trial judge misunderstood the governing legal principles. We are particularly skeptical, however,
of appellate efforts to piece together such a conclusion from fragmented remarks from the
bench.” Id. Moreover, it is improper to “fix upon isolated statements of the trial judge taken out
of the full context in which they were made, and use them as a predicate for holding the law has
been misapplied.” Damon v. York, 54 Va. App. 544, 555, 680 S.E.2d 354, 360 (2009) (internal
quotation marks omitted).
Here, in finding Wyant guilty, the judge also stated,
the person who is theoretically protected by the order is subject to
the person against whom the order is issued, sneaking around or
even quite overtly showing himself around the house, taking
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photographs. That’s the kind of conduct that—that protective
orders are designed to prevent. . . . [I]f this isn’t a case where
knowing he’s not supposed to have any contact with her he goes to
her house and photographs her house from two different direction,
I’m—I mean, that’s about as clear a—well, it isn’t the worst case,
but it is a clear case of violation of protective order and so I find
him guilty.
Thus, viewed in context, the trial judge’s remark that “if you can see her, if you can smell
her, if you can hear her, you’re too close” does not indicate that the judge applied an incorrect
definition of “contact.” Rather, the trial judge’s other comments and ultimate holding reflect that
he applied the proper definition of the term “contact” from Elliott—“those acts by the respondent
that intentionally pierce the protective barrier between the petitioner and respondent fashioned by
the protective order.” 277 Va. at 464, 675 S.E.2d at 182. Finally, because we review the
meaning of contact de novo, we would not be bound by the trial court’s “rule of thumb,” even if
erroneous.
Wyant’s second argument is that the evidence was insufficient to prove that he
“contacted” the victim within the proper definition of the term because he was not on the
victim’s property and did not intend to communicate with her. In a challenge to the sufficiency
of the evidence, we must “‘examine the evidence that supports the conviction and allow the
conviction to stand unless it is plainly wrong or without evidence to support it.’”
Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733, 735 (2011) (quoting Vincent v.
Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008)). We review the evidence in
the light most favorable to the Commonwealth, as the prevailing party below, and determine
whether “‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “‘This familiar
standard gives full play to the responsibility of the trier of fact . . . to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
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facts.’” Brown v. Commonwealth, 56 Va. App. 178, 185, 692 S.E.2d 271, 274 (2010) (quoting
Jackson, 443 U.S. at 319). “Thus, the fact-finder has the sole responsibility of determining the
credibility of the witnesses.” Mayfield v. Commonwealth, 59 Va. App. 839, 851, 722 S.E.2d
689, 695 (2012).
Wyant again relies on Elliott, in which the Supreme Court held that the evidence was
insufficient to establish that a defendant who stood a block away from the victim’s home
contacted the victim in violation of a protective order prohibiting “contact of any type.” 277 Va.
at 464, 675 S.E.2d at 182. The Court held that even though the defendant may have intentionally
placed himself where he was visible to the victim, his actions did not constitute “contacts” in
violation of the protective order because he posed no threat to the victim’s health and safety
while standing a block away from her home. Id.
Here, the evidence established that Wyant stood much closer to the victim’s home than
the defendant in Elliott. On February 4, 2014, Wyant drove to the victim’s home and parked his
car on the street in front of the neighbor’s house. Despite the protective order’s admonition that
he “leave and stay away from the [victim’s] residence,” Wyant walked up the neighbor’s
driveway and over to a tree on the victim’s property line. There was no fence or other physical
boundary separating the neighbor’s property from the victim’s property. Wyant began taking
pictures from his location by the tree. The victim was looking out her back door at the time. She
estimated that Wyant was only fifty feet from her back door. “Resolution of this appeal does not
require this Court to specify the bounds of “contacts” as proscribed by Code § 16.1-279.1, and
we decline to do so.” Elliott, 277 Va. at 464, 675 S.E.2d at 182. We simply decide that under
the circumstances of this case there was sufficient evidence for the trial court to conclude that
Wyant’s proximity to the home posed a threat to the victim’s mental and physical health and her
safety.
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Wyant also argues that his actions were not an intentional violation of the protective
order because he did not know if the victim was at home when he was standing in the neighbor’s
yard taking photos. Wyant testified that he was taking photos of the cars in the victim’s
driveway for use at the upcoming February 7 hearing on whether to make the protective order
permanent. Wyant claimed that he did not take photos of the victim’s home. He testified that he
did not see the victim’s son get on the school bus and did not see the victim standing near her
back door. The trial court was entitled to weigh Wyant’s testimony against the evidence that
Wyant saw the victim’s car in the driveway, saw her son get on the school bus, and then saw her
looking out the back door. Additionally, Wyant admitted that he never used the photos he took
at his hearing, and the trial court could reasonably conclude that his explanation for being at the
neighbor’s home was merely a pretext. From the evidence presented, the trial court could
reasonably infer that Wyant knew the victim was home and intended to visually communicate
with the victim in a manner that “intentionally pierce[d] the protective barrier between the
petitioner and respondent fashioned by the protective order.” Id.
Accordingly, the evidence was sufficient to establish that Wyant made “contact” with the
victim in violation of the protective order.
III.
For the foregoing reasons, we affirm Wyant’s conviction.
Affirmed.
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