Robert Wayne Dawson, II v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Kelsey and Petty
PUBLISHED
Argued at Richmond, Virginia
ROBERT WAYNE DAWSON, II
OPINION BY
v. Record No. 1226-13-2 JUDGE ROBERT J. HUMPHREYS
MAY 27, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LANCASTER COUNTY
Joseph E. Spruill, Jr., Judge Designate
Michael L. Donner, Sr. (Dunton, Simmons & Dunton, LLP, on
brief), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Robert Wayne Dawson, II (“Dawson”) appeals his conviction of strangulation, in
violation of Code § 18.2-51.6, after a bench trial in the Circuit Court of Lancaster County (“trial
court”). Dawson argues that the evidence is insufficient to prove that the strangulation caused a
wounding or bodily injury to the victim.
I. BACKGROUND
We review the evidence in the light most favorable to the Commonwealth, the prevailing
party in the trial court. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003). In this light, the evidence established the following.
In July 2012, Dawson was living at the Knight’s Inn hotel in Richmond with his
girlfriend and their young child (collectively, “the family”). Knight’s Inn was forcing the family
to leave due to lack of funds. Dawson called his mother, Penney Pittman (“Pittman”), the victim,
and told her this news and that the family was going to live in a tent in the woods. Pittman drove
from Lancaster County to pick up the family on July 25, 2012. Pittman and the family arrived at
Pittman’s home in Lancaster County in the early evening of July 25. The family spent the night
at Pittman’s house, and Pittman washed the family’s clothes from 6:00 p.m. until 6:00 a.m. on
July 26.
Around 10:00 a.m. on July 26, Pittman informed Dawson that he could not stay on her
property and he became upset. Dawson started cursing his mother and blaming her for their
homelessness. Pittman was holding the child as Dawson was working himself up and yelling at
Pittman. Dawson took the child and put him outside on the back deck. As Pittman was trying to
go past Dawson to get the child, Dawson started grabbing her upper arms. Pittman pushed
Dawson’s chest to get away from him. Dawson grabbed Pittman several times—grabbing her
arms, shoulders, and shirt—and then he hit her in the face. Pittman told Dawson to stop, and she
turned away from him because the child was watching.
Once they were on the back deck, Dawson yanked Pittman’s wrist down to the deck and
spun her so that he was behind her and her back was physically touching his chest. His right
hand was holding her right wrist and he pinned her hand into the side of her neck and squeezed
her neck with the muscle from his right arm. Meanwhile, he “slammed” into her chest with his
left hand. “It knocked the breath out of me. [A]t that point, I could hear my heart beat in my
head because I couldn’t breathe anymore. I didn’t. Everything started going black.” Pittman
continued, “I started to hear my heart beat very loudly. There was pressure on the side of my
neck, on both sides.” She reiterated that the pressure was from her hand that Dawson was
holding beside her neck on one side and from his upper right arm muscle on the other side.
Pittman felt like she was “drowning without water” because of the pressure inside of her head,
and her heartbeat was getting louder and louder.
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Pittman believes she lost consciousness, but she could not say for certain. She
remembered reaching for Dawson’s girlfriend, who backed away, and then the next thing she
knew is that she was on her knees as if Dawson had just dropped her there on the deck beside the
picnic table. Once she realized she was down on the deck, she saw blood on her hands and she
had a pain in the left side of her chest. At first she thought she had been stabbed. She felt the
deck shaking as she was trying to get her “wits together.” As she started to turn, she saw
Dawson coming towards her with his right hand raised. He was walking fast and hard towards
her while she was still on her knees holding on to the picnic table and trying to get up. Dawson
hit Pittman in the back of her head, and her face hit the deck railing. Dawson went inside the
house for a few seconds and then came back out, yelling at Pittman again.
While waiting for help to arrive, Pittman noticed that her nose was bleeding and that
physically she was in a “pretty bad situation.” She was also bleeding inside of her mouth on the
same side that her face hit the railing. Her arms and chest were hurting. “The sides of my neck
were actually hurting. I just – my ribs were hurting.” “I was hurting from my neck to my
ankles.” Later that day, Pittman’s bruises started to appear. She had bruises on her upper arms
and lower arms, a large bruise on her chest, a bruise on her left torso, and bruises all the way
down both of her legs.
The day after the incident, Pittman’s friend took her to the Chesapeake Medical Group
where nurse practitioner Christine Collins (“Collins”) examined her. Collins testified that
Pittman “had contusion-type wounds about her face. She had injuries about her neck. She had
chest wounds. She had bruises on her legs[,] [b]ruises on her arms . . . and sort of a dark red
ligature-type wound around her neck.” On cross-examination, Collins again testified that
Pittman had a dark red bruise on her neck. There was no break in the skin on Pittman’s neck.
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Collins was suspicious that Pittman had a rib fracture and head injuries so she sent
Pittman to Rappahannock General for X-rays. X-rays showed that Pittman sustained a fracture
to the rib.1 Pittman received several prescription medications for her pain. Pittman returned to
see Collins two days later, and Pittman was transferred to the Medical College of Virginia where
she was admitted for four days with post-concussive syndrome and post-traumatic stress
symptoms. Pittman did not have any lasting effect from the injuries around her neck.
Without elaborating on its findings of fact, the trial court found Dawson guilty of assault
and battery and strangulation. Dawson does not contest his assault and battery conviction on
appeal.
II. ANALYSIS
Dawson’s assignment of error is:
The circuit court erred in finding the evidence sufficient to convict
the defendant/appellant, Robert W. Dawson, II, (“Dawson”) in
Indictment No. CR12-238 (violation of Va. Code § 18.2-51.6) by
ruling “I do believe the evidence supports that charge,” because the
Commonwealth’s evidence was insufficient as a matter of law to
prove that any strangulation caused a wounding or bodily injury to
Pittman, the victim.
When the sufficiency of the evidence is challenged on appeal, 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,
1
The parties stipulated to the evidence that the physician’s reading of the X-ray indicated
a recent injury to the rib but not the cause of the injury itself.
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443 U.S. 307, 319 (1979)). “Furthermore, we ‘accord the Commonwealth the benefit of all
inferences fairly deducible from the evidence.’” Brooks v. Commonwealth, 282 Va. 90, 95, 712
S.E.2d 464, 466 (2011) (quoting Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910,
923 (2008)).
Code § 18.2-51.6, enacted in 2012, provides that, “Any person who, without consent,
impedes the blood circulation or respiration of another person by knowingly, intentionally, and
unlawfully applying pressure to the neck of such person resulting in the wounding or bodily
injury of such person is guilty of strangulation, a Class 6 felony.” Pertinent to this appeal is the
interpretation of the terms “wounding” and “bodily injury.” While these terms are not defined in
the statute, they have been interpreted as used in other statutes in the Virginia Code, particularly
the malicious wounding statute, Code § 18.2-51,2 to which this Court may look for guidance.
See King v. Commonwealth, 2 Va. App. 708, 710, 347 S.E.2d 530, 531 (1986) (“The validity of
using other Code sections as interpretive guides is well established. The Code of Virginia
constitutes a single body of law, and other sections can be looked to where the same phraseology
is employed.”).
“[T]o prove the existence of a ‘wound,’ the Commonwealth must show that the victim’s
skin was broken or cut.” Johnson v. Commonwealth, 58 Va. App. 303, 317, 709 S.E.2d 175, 182
(2011) (citing Johnson v. Commonwealth, 184 Va. 409, 413, 35 S.E.2d 594, 595 (1945)). Here,
it is uncontested that any breaks in Pittman’s skin, or “wounds,” were caused by Dawson’s
battery of Pittman and not the act of strangulation. Therefore, the only issue before us is whether
the evidence was sufficient to show that Pittman suffered a “bodily injury” as a result of Dawson
applying pressure to her neck.
2
Code § 18.2-51 provides in relevant part, “If any person maliciously shoot, stab, cut, or
wound any person or by any means cause him bodily injury, with the intent to maim, disfigure,
disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony.”
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Neither Code § 18.2-51 nor Code § 18.2-51.6 defines bodily injury. “[C]ourts have been
reluctant to give juries a definition [of bodily injury] because the phrase has an ‘everyday,
ordinary meaning.’” Luck v. Commonwealth, 32 Va. App. 827, 832, 531 S.E.2d 41, 43 (2000)
(quoting Stein v. Commonwealth, 12 Va. App. 65, 69, 402 S.E.2d 238, 241 (1991) (interpreting
bodily injury under Code § 18.2-51.1, malicious bodily injury to law-enforcement officers)).3
“‘Bodily injury comprehends, it would seem, any bodily hurt whatsoever.’” Id. at 831, 531
S.E.2d at 43 (quoting Bryant v. Commonwealth, 189 Va. 310, 316, 53 S.E.2d 54, 57 (1949))
(emphasis in original).
In Luck, two state troopers were treated in the hospital after the appellant’s vehicle
collided with their vehicle. One trooper suffered stiffness for four to five days and took
prescription medication for his low back pain. The other trooper “had similar injuries,” also
suffering from back pain. Id. at 831, 531 S.E.2d at 42-43. This Court held that
[t]he evidence permits the finding that the two troopers suffered
bodily injury when they received soft-tissue injuries that required
medical treatment and caused pain and stiffness. If those injuries
did not meet the requirements for bodily injury, we would have the
anomaly of an “everyday, ordinary” phrase having different
meanings in criminal law and tort law.
Id. at 832, 531 S.E.2d 43.
In Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1 (1991) (en banc)
(superseded on other grounds), this Court found that there was sufficient evidence to uphold
appellant’s conviction under Code § 18.2-51 when he beat his three-year-old stepson with a belt.
While appellant did not break the toddler’s skin, there was “no question that the [appellant]
caused his stepson ‘bodily injury.’” Id. at 483, 405 S.E.2d at 4. The child had bruises on his
3
This Court said in Stein, “It is a basic rule of statutory construction that a word in a
statute is to be given its everyday ordinary meaning unless the word is a word of art.” Stein, 12
Va. App. at 69, 402 S.E.2d at 241.
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legs, back, and shoulders—the child’s mother was shocked when she discovered the bruises, and
the child’s grandmother “went frantic” when she saw them. The grandmother arranged for the
child to go to the hospital where photographs were taken. Id. at 482, 405 S.E.2d at 3-4. While
appellant argued that there must be a breaking of the skin to constitute malicious wounding, this
Court held that “the statute has been more broadly interpreted to include any bodily injury.” Id.
at 483, 405 S.E.2d at 4 (citing Bryant, 189 Va. at 316-17, 53 S.E.2d at 57).
More recently in English v. Commonwealth, 58 Va. App. 711, 715 S.E.2d 391 (2011),
this Court again emphasized that it gives the phrase “bodily injury” its “‘everyday, ordinary
meaning,’” “which needs no technical, anatomical definition.” Id. at 718, 715 S.E.2d at 395(quoting Luck, 32 Va. App. at 832, 531 S.E.2d at 43). The phrase includes “‘any bodily hurt
whatsoever.’” Id. (quoting Bryant, 189 Va. at 316, 53 S.E.2d at 57). “It includes any ‘detriment,
hurt, loss, [or] impairment’ that could fairly be considered an injury to the human body.” Id. at
718-19, 715 S.E.2d at 395 (quoting Johnson, 184 Va. at 416, 35 S.E.2d at 596). “To prove a
bodily injury, the victim need not experience any observable wounds, cuts, or breaking of the
skin. Nor must she offer proof of ‘broken bones or bruises.’” Id. at 719, 715 S.E.2d at 395(quoting Luck, 32 Va. App. at 831-32, 531 S.E.2d at 43). “[I]nternal injuries—no less than
external injuries—fall within the scope of Code § 18.2-51.” Id.
In this case, Pittman testified that Dawson applied pressure to her neck by pinning her
hand to one side of her neck and squeezing the other side of her neck with his arm muscle. She
was initially standing up when he committed this act. Pittman could not breathe; she described
that she felt like she was drowning and everything started going black. She did not remember
falling down, but she found herself on her knees. Pittman testified that the sides of her neck hurt,
and the nurse practitioner testified that Pittman had dark red bruises around her neck the day
following the incident. From this evidence, a reasonable fact-finder could conclude that Dawson
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applied pressure to Pittman’s neck which impeded her respiration and/or blood flow and that the
bruises around Pittman’s neck constituted a bodily injury that resulted from Dawson applying
pressure to her neck.4
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
4
Because the record contains no medical evidence regarding whether Pittman’s loss of
consciousness had any negative impact on her physical health or well-being, and because the
issue has not been briefed, we leave open the question of whether or not loss of consciousness
standing alone would constitute a bodily injury as contemplated by the statute.
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