Gregorio Maria Paone v. Commonwealth of Virginia ( 2024 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Malveaux and Chaney
UNPUBLISHED
Argued by videoconference
GREGORIO MARIA PAONE
MEMORANDUM OPINION* BY
v. Record No. 1426-22-3 JUDGE VERNIDA R. CHANEY
JUNE 18, 2024
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Andrew S. Baugher, Judge
(David R. Martin; Law Office of David R. Martin, PLLC, on brief),
for appellant. Appellant submitting on brief.
William K. Hamilton, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Following a jury trial, Gregorio Maria Paone appeals his conviction for assault and battery
of a family or household member. Paone contends that the circuit court erred in (1) allowing
testimony from a Commonwealth’s witness when the Commonwealth failed to disclose in
advance the exculpatory portions of the witness’s testimony and the exculpatory statements the
witness received from Paone; (2) rejecting Paone’s proposed jury instruction regarding
self-defense; and (3) ruling that the evidence was sufficient to find that the alleged battery was
not justified or excused, and sufficient to support a conviction. For the following reasons, this
Court affirms the trial court’s judgment.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
BACKGROUND
“On appeal, we review the facts in the light most favorable to the Commonwealth, the
prevailing party below.” Sarka v. Commonwealth, 73 Va. App. 56, 59 (2021).
On the evening of October 30, 2021, Paone became verbally aggressive during an argument
with D.M., with whom he resided.1 D.M. retreated to the bedroom, locked Paone out, and told him
to “please sleep downstairs.” Paone went downstairs to make a phone call; when he returned, he
was “enraged” and “demanded that [she] open the door.” When D.M. refused, he “pound[ed] on
the door with a water bottle,” making several holes.
D.M. opened the bedroom door after Paone said he would take his belongings and leave. As
D.M. removed Paone’s clothes from the closet, he continued arguing and calling her names—
“bitch,” “whore,” and a racial slur. Then D.M. threw some of Paone’s expensive suits and ties on
the ground. Then, Paone became irate and pushed D.M. into the back of the closet, causing her arm
to hit a metallic closet rack and bruising it.
In response, D.M. shoved Paone in the chest. He then grabbed her, pushed her to the
ground, and punched her three times—in the eye, nose, and stomach. This caused bleeding from
D.M.’s eye, and she felt intense pain.
At trial, Paone testified to a markedly different version of events wherein D.M. was the
principal aggressor—both physically and verbally. Paone admitted hitting, pushing, and restraining
D.M. but insisted that he acted in response to her aggressive acts.
Rockingham County Sheriff’s Deputy David Dodson, who had responded to the scene,
testified that Paone told him that the physical altercation began when he pushed D.M. after she
1
To protect the victim’s privacy, this opinion refers to her by her initials.
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threw his expensive ties on the floor. Deputy Dodson testified that he saw a “slight red mark” on
Paone’s face but did not see any blood.
Harrisonburg volunteer EMT Dylan Kelly responded to the scene and attended to D.M. and
Paone. Kelly observed bruising along the right side of D.M.’s face and to the back of her head. He
also observed that “the whites of her eyes were entirely red and bloody.” Kelly determined that
D.M. needed to be transported to the hospital.
When Kelly examined Paone, Paone told him that D.M. had shoved him. Paone reported
that he felt some pain in his back but that he “was predominately feeling mental pain.” Kelly did
not observe any physical injuries or marks on Paone. Kelly offered Paone medical assistance and
called a second ambulance, but Paone refused further medical care.
Paone objected to Kelly’s testimony recounting Paone’s statements that he had been pushed
into a closet and that he felt back pain. He argued that these statements were exculpatory and he
had a “due process right to know” about them before trial. The trial court overruled this objection.
The trial court instructed the jury that to convict Paone, the Commonwealth must prove
beyond a reasonable doubt that Paone “committed an assault and battery against” D.M. and that
D.M. was Paone’s “household member.” The jury was instructed that if it found that the
Commonwealth “failed to prove” these elements beyond a reasonable doubt, it must acquit Paone.
The trial court then gave separate instructions on justifiable and excusable self-defense. In both
instructions, the trial court directed that if the jury found that Paone acted in self-defense, it must
acquit him.
Paone proffered an instruction that included the elements of the offense but added: “If you
find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the
above elements of the crime as charged, but you also find that the defendant acted in self-defense,
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then you shall find the defendant not guilty.” The trial court declined to give Paone’s proposed
instruction, indicating that it feared the instruction “could be misleading.”
After the jury convicted Paone, he moved to set aside the verdict, asserting that the evidence
was insufficient to convict him. He also argued that the trial court “erred in permitting” Kelly’s
exculpatory testimony about Paone’s statements because the Commonwealth did not disclose that
testimony before trial in violation of Brady v. Maryland, 373 U.S. 83 (1963).
The trial court denied the motion to set aside, finding sufficient evidence to support the
verdict. Regarding the Brady claim, the trial court concluded that “pre-trial disclosure of th[e] oral
statement would not have changed the weight or substance of the evidence offered at trial. It all
came out and the jury” convicted Paone.
Paone now appeals, challenging the trial court’s refusal to exclude Kelly’s testimony under
Brady, its refusal to give Paone’s proposed jury instruction, and the sufficiency of the evidence.
ANALYSIS
I. The Brady Violation
Paone contends that the trial court violated his due process rights under Brady v. Maryland
by admitting Kelly’s testimony about Paone’s statements. He argues that the statements were
exculpatory and the Commonwealth’s failure to disclose them before trial was “an impediment to
presenting the exculpatory evidence and the self-defense argument.” Paone has not established a
Brady violation.2
“Under Brady, due process requires that the prosecution disclose evidence favorable to the
accused that is material to guilt or punishment.” Church v. Commonwealth, 71 Va. App. 107, 117
(2019). To prevail on a Brady claim, the defendant bears the burden of establishing three elements.
Paone does not argue on appeal that the Commonwealth violated any applicable
2
discovery rules.
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Id. “First, the prosecution must have suppressed the evidence, either purposefully or inadvertently.”
Id. Next, the relevant evidence must be “favorable” to the defendant, “either because it is
exculpatory, or because it is impeaching.” Id. (quoting Commonwealth v. Tuma, 285 Va. 629, 634
(2013)). Finally, “the evidence must be ‘material’ under Brady, meaning ‘there is a reasonable
probability that had the evidence been disclosed, the result of the proceeding would have been
different.’” Id. (quoting Tuma, 285 Va. at 634-35). A “reasonable probability” means that “the
likelihood of a different result is great enough to ‘undermine[] confidence in the outcome of the
trial.’” Smith v. Cain, 565 U.S. 73, 75 (2012) (alteration in original) (quoting Kyles v. Whitley, 514
U.S. 419, 434 (1995)).
We conclude that Paone has failed to show the materiality of Kelly’s testimony. Paone
contends that “there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different,” but fails to offer more. The
Commonwealth elicited, and the jury heard, Kelly’s testimony about Paone’s statements. As stated
by the trial court, “it all came out and the jury ruled against” Paone. Thus, the jury would have
considered the alleged exculpatory evidence in its verdict.
Further, Paone has not demonstrated that the alleged failure of the Commonwealth to
disclose Kelly’s testimony before trial prejudiced his ability to present his defense. He does not
argue that he would have pursued a different trial strategy had he known of Kelly’s testimony;
indeed, he maintains that Kelly’s testimony supports his assertion of self-defense. See Church, 71
Va. App. at 118-19. Paone also does not contend that earlier disclosure would have facilitated the
discovery of any additional favorable evidence. Finally, he does not argue that pretrial disclosure
would have facilitated further cross-examination or impeachment of Kelly.3 This Court has held
3
Additionally, Paone fails to explain how excluding evidence he claims was exculpatory
would have yielded a more favorable result.
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that mid-trial disclosure of impeachment evidence does not violate Brady if “the defendant has
‘sufficient time to make use of it at trial.’” See id. at 119-20. Moreover, upon disclosure, Paone did
not seek a recess or continuance before cross-examining Kelly. See id. at 120-21. In sum, any
failure by the Commonwealth to disclose Kelly’s testimony before trial does not undermine
confidence in the outcome of the trial. Thus, Paone’s Brady claim fails.
II. Sufficiency of the Evidence
“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 it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)
(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,
228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). “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.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018)).
Assault and battery against a family or household member is a Class 1 misdemeanor.
Code § 18.2-57.2(A). “Any person who commits an assault and battery against a family or
household member is guilty of a Class 1 misdemeanor.” Id. “A battery is the ‘willful or
unlawful touching of the person of another by the assailant, or by some object set in motion by
him.’” Woodson v. Commonwealth, 74 Va. App. 685, 693 (2022) (quoting Wood v.
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Commonwealth, 149 Va. 401, 404 (1927)). “An intentional touching qualifies as a battery unless
the actor has some legal justification or excuse. The presence of a justification or excuse
transforms what would otherwise be a criminal offense into a permissible act. Common
justifications for battery include consent and self-defense.” Id. at 694.
Virginia law “has long recognized that a person who reasonably apprehends bodily harm
by another is privileged to exercise reasonable force to repel the assault.” Diffendal v.
Commonwealth, 8 Va. App. 417, 421 (1989). “A defendant bears the burden of introducing
evidence supporting the affirmative defense of self-defense.” Washington v. Commonwealth, 75
Va. App. 606, 617 (2022). “‘Whether an accused’ meets this threshold ‘is a question of fact.’”
Id. (quoting Smith v. Commonwealth, 17 Va. App. 68, 71 (1993)). “In order to establish self-
defense, a defendant must show that he . . . ‘reasonably believed that [he] was in danger of””
bodily harm. See id. (alterations in original) (quoting Jones v. Commonwealth, 71 Va. App. 70,
86 (2019)).
D.M. and Paone presented materially conflicting versions of the altercation. In support of
his assertion that he established self-defense as a matter of law, Paone asks us to credit his
testimony and reject D.M’s. But, under our appellate standard of review, this Court must view
the evidence in the light most favorable to the Commonwealth, not in the light most favorable to
him.
D.M. testified that after calling her profane names and a racial slur, Paone shoved her into
the closet rack. After she pushed him back, he knocked her to the ground and hit her three times,
twice in the face. Deputy Dodson also testified that Paone admitted to shoving D.M. after she
threw his ties on the ground. A rational jury viewing this evidence in the light most favorable to
the Commonwealth could find that Paone committed an unjustified assault and battery against
D.M.
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Paone further contends that D.M.’s testimony was impeached with prior inconsistent
statements, while his testimony “regarding self-defense was consistent and unimpeached.” But
the jury, “who ha[d] the opportunity to see and hear the witnesses,” and to see the evidence about
the parties’ respective injuries, “ha[d] the sole responsibility to determine their credibility, the
weight to be given their testimony, and the inferences to be drawn from proven facts.”
Commonwealth v. McNeal, 282 Va. 16, 22 (2011) (quoting Commonwealth v. Taylor, 256 Va.
514, 518 (1998)). Thus, it was the jury’s prerogative to decide how much credibility to give the
testimony. Accordingly, the fact that the defense sought to impeach D.M.’s testimony provides
no cause for this Court to disturb the jury’s credibility determinations.
III. Proposed Self-Defense Jury Instruction
Finally, Paone challenges the trial court’s refusal to instruct the jury that it must acquit
him if it found that the Commonwealth proved the elements of the offense beyond a reasonable
doubt but also found that he acted in self-defense.
This Court reviews a trial court’s decisions in giving and denying requested jury
instructions for abuse of discretion. Conley v. Commonwealth, 74 Va. App. 658, 675 (2022).
Our “responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated
and that the instructions cover all issues which the evidence fairly raises.’” Id. at 674-75
(quoting Fahringer v. Commonwealth, 70 Va. App. 208, 211 (2019)). “If the principles set forth
in a proposed instruction are fully and fairly covered in other instructions that have been granted,
a trial court does not abuse its discretion in refusing to grant a repetitious instruction.”
Fahringer, 70 Va. App. at 211 (quoting Joseph v. Commonwealth, 249 Va. 78, 90 (1995)).
Paone contends that his proposed instruction “accurately state[d] the law and provided a concise
statement of both the elements of the crime and the law on self-defense.” However, Paone does
not contest that the provided instructions accurately informed the jury of the elements, the
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Commonwealth’s burden of proof, and the law of self-defense. Instead, he only challenges the
trial court’s refusal to include an additional reference to self-defense in the elements instruction.
Though he argues that his proposed instruction would avoid confusion, he does not explain how
the trial court’s instructions presented a colorable risk of confusion. Given that Paone was
charged with only one offense, and the self-defense instructions immediately followed the
elements instruction, we find no such risk here. The trial court’s instructions fully and accurately
stated the law, and the court did not abuse its discretion by declining to give Paone’s proposed
instruction.
CONCLUSION
Accordingly, this Court affirms the circuit court’s judgment.
Affirmed.
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