Darien Anthony Ewell v. Commonwealth of Virginia ( 2022 )


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  •                                               COURT OF APPEALS OF VIRGINIA
    UNPUBLISHED
    Present: Judges Fulton, Ortiz and Senior Judge Petty
    Argued at Lexington, Virginia
    DARIEN ANTHONY EWELL
    MEMORANDUM OPINION* BY
    v.      Record No. 1185-21-3                                   JUDGE JUNIUS P. FULTON, III
    NOVEMBER 9, 2022
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
    James J. Reynolds, Judge
    Jason S. Eisner for appellant.
    Mason D. Williams, Assistant Attorney General (Jason S. Miyares,
    Attorney General, on brief), for appellee.
    The trial court convicted Darien Anthony Ewell of assault and battery of a law enforcement
    officer and sentenced him to five years’ incarceration with two years suspended.1 On appeal, he
    challenges the sufficiency of the evidence to support his conviction. For the following reasons, we
    affirm the trial court’s judgment.
    BACKGROUND
    On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the
    prevailing party in the trial court.” Hammer v. Commonwealth, 
    74 Va. App. 225
    , 231 (2022)
    (quoting Commonwealth v. Cady, 
    300 Va. 325
    , 329 (2021)). Doing so requires us to “discard the
    evidence of the accused in conflict with that of the Commonwealth, and regard as true all the
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    The trial court also convicted Ewell of possession of a firearm by a convicted felon,
    misdemeanor destruction of property, brandishing a firearm, identity theft to avoid arrest,
    shoplifting, and obstruction of justice. Ewell did not appeal those convictions.
    credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.”
    Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 
    295 Va. 323
    , 323-24 (2018)).
    On May 20, 2021, Noah Pruitt was working as a loss prevention officer for Walmart when
    he noticed Ewell “putting a lot of large items into a cart and . . . exhibiting [the] mannerism[s] of a
    shoplifter.” After calling the police, Pruitt saw Ewell walk “to a self-checkout register” and “ring
    up” some, but not all, of the items in his cart. Pruitt unsuccessfully tried to stop Ewell as he walked
    toward the store’s exit.
    Danville Police Officer Pickeral responded to Pruitt’s call and arrived in time to stop Ewell
    as he was exiting the store. Ewell accompanied Officer Pickeral and Pruitt to the loss prevention
    office to compare the items in his cart with those on his receipt. Once in the office, Ewell provided
    a false name and identifying information but admitted that he intended to steal “pretty much the
    whole cart.” Officer Pickeral went to his patrol car to verify Ewell’s identity but returned moments
    later and asked Ewell for his “real name.” Ewell was “uncooperative” and insisted that he had
    provided his true identity.
    Officer Pickeral asked Ewell to stand and place his hands behind his back, but Ewell
    resisted; he “became combative” and “tried to escape” the room through the door. Ewell swung his
    “hands back and forth,” striking Officer Pickeral’s chest, side, and shoulder. Ewell also “grabb[ed]”
    Officer Pickeral to maneuver his way past him. During the ensuing struggle, which was recorded
    on the store’s surveillance video, Ewell pushed and shoved Officer Pickeral as he tried to open the
    door two or three times; they bumped into the light switch, darkening the room. Multiple times
    during the conflict, Ewell told Officer Pickeral “get off me man.” At one point, Ewell wrestled
    Officer Pickeral onto the ground. When Officer Pickeral regained his feet and separated from
    Ewell, Pruitt noticed that Ewell had a gun in his hand. After Pruitt yelled, “He’s got a gun,” Officer
    Pickeral drew his firearm and ordered that Ewell “drop the weapon.” Ewell “dropped the gun
    -2-
    immediately,” and Pruitt retrieved it and placed it on a desk. Officer Pickeral ordered Ewell to the
    ground and handcuffed him. Officer Pickeral sustained a “small tear” in his rotator cuff during the
    struggle and missed a week of work.
    At trial, Ewell admitted that he had been shoplifting at Walmart and had given Officer
    Pickeral a false name. Ewell testified that he never intended to “harm” or “assault” Officer Pickeral
    but was trying only “to get out the door.” Ewell claimed that Officer Pickeral “grabbed” him and
    his gun “fell out of [his] shorts.” Ewell retrieved his gun and “tried to hide it,” but Officer Pickeral
    saw it before he could do so. Ewell denied that he had punched or purposely struck Officer
    Pickeral.2
    Ewell moved to strike at the close of the Commonwealth’s case-in-chief and at the close of
    all the evidence; the trial court denied both motions. After further argument by counsel, the trial
    court convicted Ewell of assault and battery of a law enforcement officer. The court found that
    although Ewell’s “ultimate goal” was to escape the room, he had assaulted Officer Pickeral to
    achieve that end. Ewell appeals.
    ANALYSIS
    Ewell argues that the evidence was insufficient to sustain his conviction for assault and
    battery of a law enforcement officer because he “was only trying to leave the room” and “any
    contact” with Officer Pickeral was “incidental.” He maintains that he did not commit “any
    intentional act” to strike Officer Pickeral and there was “no evidence” that any of his conduct was
    “rude, insolent, or angry” or “done with an intention to do bodily harm.”
    “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
    presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support
    2
    Although Ewell acknowledges that he used force against Officer Pickeral in attempting
    his escape, he contends he lacked the intent to batter. It is the evidence of Ewell’s intent that is
    at issue in this appeal.
    -3-
    it.’” Commonwealth v. Perkins, 
    295 Va. 323
    , 327 (2018) (quoting Pijor v. Commonwealth, 
    294 Va. 502
    , 512 (2017)). In such cases, “this Court does not ‘ask itself whether it believes that the evidence
    at the trial established guilt beyond a reasonable doubt.’” 
    Id.
     (quoting Williams v. Commonwealth,
    
    278 Va. 190
    , 193 (2009)). “Rather, the relevant question is whether ‘any rational trier of fact could
    have found the essential elements of the crime beyond a reasonable doubt.’” Williams, 278 Va. at
    193 (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979)). “If there is evidentiary support for the
    conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion
    might differ from the conclusions reached by the finder of fact at the trial.’” Chavez v.
    Commonwealth, 
    69 Va. App. 149
    , 161 (2018) (quoting Banks v. Commonwealth, 
    67 Va. App. 273
    ,
    288 (2017)).
    Furthermore,
    [o]ur deference . . . is not limited to matters of witness credibility.
    We owe deference to the trial court’s interpretation of all of the
    evidence, including video evidence that we are able to observe much
    as the trial court did. Such deference stems not from the trial court
    being in a superior position to view the video evidence but from the
    difference in our respective roles. As factfinder, a trial court views
    video and other evidence to determine what it believes happened;
    we, on appellate review, view video evidence not to determine what
    we think happened, but for the limited purpose of determining
    whether any rational factfinder could have viewed it as the trial court
    did.
    Meade v. Commonwealth, 
    74 Va. App. 796
    , 806 (2022). “It is likewise within the province of the
    trier of fact to draw inferences from the proven evidence, and its inferences are binding so long as
    they are reasonable and justified.” Lucas v. Commonwealth, 
    75 Va. App. 334
    , 343 (2022) (citing
    Commonwealth v. Hudson, 
    265 Va. 505
    , 514 (2003)).
    “[I]f any person commits an assault or an assault and battery against another knowing or
    having reason to know that such other person is . . . a law-enforcement officer . . . , such person
    is guilty of a Class 6 felony.” Code § 18.2-57(C). “Code § 18.2-57 does not define assault or
    -4-
    battery,” however, so “we must look to the common law definition of the terms.” Parish v.
    Commonwealth, 
    56 Va. App. 324
    , 329 (2010) (citing Clark v. Commonwealth, 
    279 Va. 636
    , 641
    (2010)); see also Montague v. Commonwealth, 
    278 Va. 532
    , 541 (2010) (“Assault and battery
    are common law crimes.”). “To sustain a conviction for assault, the Commonwealth must prove
    ‘an attempt or offer, with force and violence, to do some bodily hurt to another.’” Parish, 56
    Va. App. at 329 (quoting Adams v. Commonwealth, 
    33 Va. App. 463
    , 468 (2000)). “The attempt
    or offer to do bodily harm ‘occurs when an assailant engages in an overt act intended to inflict
    bodily harm [while he] has the present ability to inflict such harm.’” 
    Id.
     at 329‑30 (alteration in
    original) (quoting Clark, 279 Va. at 641). “To sustain a conviction for battery, the
    Commonwealth must prove a ‘wil[l]ful or unlawful touching’ of another.” Id. at 330 (alteration
    in original) (quoting Wood v. Commonwealth, 
    149 Va. 401
    , 404 (1927)). “Whether a touching is
    a battery, depends on the intent of the actor, not on the force applied.” Adams, 33 Va. App. at
    469.
    “One cannot be convicted of assault and battery ‘without an intention to do bodily
    harm—either an actual intention or an intention imputed by law,’” including by commission of a
    reckless act. Id. at 468 (quoting Davis v. Commonwealth, 
    150 Va. 611
    , 617 (1928)). “‘Intent is
    the purpose formed in a person’s mind and may, like any other fact, be shown by circumstances,’
    including the ‘words or conduct’ of the alleged offender.” Secret v. Commonwealth, 
    296 Va. 204
    , 228-29 (2018) (quoting Commonwealth v. Herring, 
    288 Va. 59
    , 75 (2014)). Indeed,
    “[w]ords and prior conduct are highly relevant in shedding light on intent and the context within
    which certain actions transpired. A perpetrator’s intent may be inferred from the nature of the
    overt act and the surrounding circumstances.” Parish, 56 Va. App. at 331 (quoting Clark, 279
    Va. at 642). Moreover, the intent necessary to sustain an assault and battery conviction “may be
    imputed if the touching is ‘done in a rude, insolent, or angry manner.’” Id. (quoting Adams, 33
    -5-
    Va. App. at 469). A fact finder’s “decision on the question of intent is afforded great deference
    on appeal and will not be reversed unless clearly erroneous.” Towler v. Commonwealth, 
    59 Va. App. 284
    , 297 (2011) (citing Robertson v. Commonwealth, 
    18 Va. App. 635
    , 639 (1994)).
    When Officer Pickeral attempted to arrest Ewell, Ewell “became combative” and “tried to
    escape.” After Officer Pickeral blocked Ewell’s escape from the room, Ewell swung his “hands
    back and forth,” striking Officer Pickeral’s chest, side, and shoulder. Ewell then “grabb[ed]”
    Officer Pickeral and tried to push past him. During the ensuing, nearly minute-long struggle, Ewell
    told Officer Pickeral to “get off” of him, pushed Officer Pickeral, and wrestled him to the floor.
    The struggle with Ewell caused a “small tear” in Officer Pickeral’s rotator cuff. See Montague, 278
    Va. at 541 (affirming a defendant’s assault and battery against a law enforcement officer
    conviction when he tried “to prevent the officers from taking him into custody” by “pushing”
    and “striking [one officer] in the chest with an elbow”).
    Although Ewell denied that he intended to strike or harm Officer Pickeral, it is
    well-established that a fact finder “is entitled to disbelieve the self-serving testimony of the accused
    and to conclude that [he] is lying to conceal his guilt.” Marable v. Commonwealth, 
    27 Va. App. 505
    , 509-10 (1998). Moreover, a “fact finder may infer that a person intends the immediate, direct,
    and necessary consequences of his voluntary acts.” Robertson v. Commonwealth, 
    31 Va. App. 814
    ,
    820 (2000). Here, the trial court weighed Ewell’s testimony against the evidence as a whole,
    including video evidence of Ewell’s physical actions, testimony about his demeanor and attitude,
    and evidence of injury to Officer Pickeral, and found that Ewell intended to assault Officer Pickeral
    as he attempted to escape the room. That factual conclusion is neither plainly wrong nor without
    evidentiary support, so we will not disturb it on appeal. Thus, the Commonwealth’s evidence was
    competent, not inherently incredible, and sufficient to sustain Ewell’s conviction for assault and
    battery of a law enforcement officer.
    -6-
    CONCLUSION
    For the foregoing reasons, the trial court’s judgment is affirmed.
    Affirmed.
    -7-
    

Document Info

Docket Number: 1185213

Filed Date: 11/9/2022

Precedential Status: Non-Precedential

Modified Date: 11/9/2022