Mark Anthony Graves v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Clements
Argued at Salem, Virginia
MARK ANTHONY GRAVES
MEMORANDUM OPINION* BY
v. Record No. 2938-05-3 JUDGE LARRY G. ELDER
FEBRUARY 20, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
John Gregory, Jr., for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Mark Anthony Graves (appellant) appeals from his bench trial convictions for two counts of
third-offense domestic assault and battery in violation of Code § 18.2-57.2(B). On appeal, he
contends the court erroneously (1) excluded evidence of the victim’s bias against him, (2) concluded
the evidence was sufficient to convict him in the absence of paternity testing or credible evidence
that an assault had occurred, and (3) exercised jurisdiction over the charged criminal offenses before
the completion of paternity testing ordered as part of a child support proceeding then underway in
the juvenile and domestic relations district court. We hold the trial court committed no reversible
error, and we affirm the challenged convictions.
I. EXCLUSION OF TESTIMONY
“Bias is a term used in the ‘common law of evidence’ to describe the relationship between a
party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
in favor of or against a party.” United States v. Abel, 469 U.S. 45, 52 (1984). Evidence relating to
a point, such as bias, properly at issue in the case is relevant and, therefore, admissible “if it has any
logical tendency, however slight, to establish a fact at issue in the case.” Ragland v.
Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993); see also Charles E. Friend, The
Law of Evidence in Virginia § 11-1 (5th ed. 1999 & Supp. 2001). “The admissibility of evidence is
within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the
absence of an abuse of discretion.” Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 833,
842 (1988). In order to preserve for appeal a ruling excluding evidence at trial, “the party must
proffer or avouch the evidence for the record . . . ; otherwise, the appellate court has no basis to
decide whether the [exclusion of the] evidence was [error].” Smith v. Hylton, 14 Va. App. 354,
357-58, 416 S.E.2d 712, 715 (1992).
Here, appellant’s counsel proffered his belief that “Ms. Lewis would answer that she has
heard Ms. Leftwich swear at the [appellant] over the telephone at Ms. Lewis’ house when Ms.
Leftwich was at the home of Ms. Lewis and talking to the defendant, swearing at him over the
telephone.” Appellant’s counsel elaborated, “[T]hat’s the specific that I think I could get to.”
Because the proffered testimony would have established, at best, that Ms. Lewis heard Ms. Leftwich
swear at appellant over the telephone for an unknown reason at an unknown time during the course
of their five-year relationship, the record failed to establish that this proffered testimony was
relevant or material to establish bias.
On this record, we hold the trial court did not abuse its discretion in excluding the proffered
testimony.
II. SUFFICIENCY OF THE EVIDENCE
Under familiar principles of appellate review, we must examine the evidence in the light
most favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly
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deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). “Determining the credibility of witnesses who give conflicting accounts is within the
exclusive province of the [trier of fact], which has the unique opportunity to observe the
demeanor of the witnesses as they testify.” Lea v. Commonwealth, 16 Va. App. 300, 304, 429
S.E.2d 477, 479 (1993).
Code § 18.2-57.2 provides that “[a]ny person who commits an assault and battery against a
family or household member is guilty of” a criminal offense as prescribed therein. It incorporates
by reference the definition of “family or household member” contained in Code § 16.1-228, which
provides in relevant part as follows:
“Family or household member” means . . . (v) any individual who
has a child in common with the person, whether or not the person
and that individual have been married or have resided together at any
time, or (vi) any individual who cohabits or who, within the previous
12 months, cohabited with the person . . . .
A. Sufficiency of the Evidence to Prove Occurrence of Assaults
A battery is “an unlawful touching.” Adams v. Commonwealth, 33 Va. App. 463, 468, 534
S.E.2d 347, 350 (2000). The touching need not result in injury to be a battery. Id. In the case of an
intentional battery, “[a] battery always includes an assault.” Hinkle v. Commonwealth, 137 Va.
791, 794, 119 S.E. 53, 54 (1923).
Here, Wendy Leftwich testified that appellant assaulted and battered her on both February 1
and May 19, 2005. She testified that, on February 1, appellant “got real, really, really angry, angry
and grabbed me by my throat and pushed me from the living room all the way to the bedroom
holding my throat and pushing me down on the bed and said that I hate you. I should kill you . . . .”
Shortly thereafter, he “grabbed [her] again and pushed [her] towards the air conditioner and said that
. . . if he had a hammer he would bash [her] F brains out.” As to the May 19, 2005 incident, she said
that appellant “barged into [her] house and snatched [her] up out of [her] bed while she was asleep”
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at 3:00 a.m. After taking food and various other items from her house, he asked Leftwich if she was
“messing around with anybody.” Although she told him no, “he had a[n] evil look . . . on his face
and he said you know what? I ought to, girl, you don’t know exactly what I want to do to you,” and
then he “punched [her] in the nose” “very hard.” When Deputy Timothy Eanes responded to
Leftwich’s residence shortly before 5:00 a.m., he observed that Leftwich’s nose was swollen and
appeared to have been bleeding. The trial court specifically found Leftwich’s testimony about the
batteries credible.
The evidence, including Leftwich’s testimony, viewed in the light most favorable to the
Commonwealth, was sufficient to prove beyond a reasonable doubt that appellant assaulted and
battered Leftwich on both February 1 and May 19, 2005.
B. Sufficiency of the Evidence to Prove Victim was Family or Household Member
Leftwich testified that, as of the date of trial on September 6, 2005, she had known appellant
for five years and that during that time, they were boyfriend and girlfriend, living together on an
“off and on basis.” Leftwich testified that appellant was the biological father of her daughter,
Makala Graves, who had been born on September 14, 2002. Appellant testified that in response to
Leftwich’s claim for child support filed prior to the institution of the criminal charges, he was
challenging his paternity of Makala, but throughout his testimony at the criminal trial, he referred to
Makala as “my daughter.” Appellant admitted that since Makala’s birth, he had called her his
daughter and that he stayed at Leftwich’s home sometimes because it was the only way he could see
“his daughter.” Appellant admitted that he had only recently challenged his paternity because
Leftwich had filed for child support and he “want[ed] to make sure that . . . the child is mine.”
Appellant’s mother also testified that Makala was appellant’s daughter, stating, “That’s his
daughter, far as I know my grandchild.”
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The trial court found Leftwich was a “family or household member” as required to support
appellant’s conviction under Code § 18.2-57.2, stating, “There’s no question that this falls under the
definition of a family or household member through his daughter, a child in common even if I don’t
believe they were [living together].” The evidence viewed in the light most favorable to the
Commonwealth, including Leftwich’s statements and appellant’s numerous prior
acknowledgements of Makala as his daughter, was sufficient to prove beyond a reasonable doubt
that Leftwich was a “family or household member” of appellant’s, as defined in Code § 16.1-228
and incorporated in Code § 18.2-57.2, because they had “a child in common.”
Appellant contends for the first time on appeal that the court could not find him guilty
without evidence falling into any of the seven categories listed in Code § 20-49.4, which he labels
“the statutorily preferred evidence” for proving paternity. We reject that contention.
Nothing in Code § 20-49.4 provides that parentage may be proved only with the listed
categories of evidence. Rather, that statute provides that “[a]ll relevant evidence on the issue of
paternity shall be admissible” and that “[s]uch evidence may include, but shall not be limited to,
the” seven categories of evidence listed in the statute. Code § 20-49.4 (emphasis added). In
addition, subsection (2) compels the court, “upon request” of a putative father, to require the parties
to “submit to appropriate” “[m]edical or anthropological” “tests” to determine parentage. Code
§ 20-49.4(2) (emphasis added).
We need not decide whether this subsection applies in criminal matters because the record
contains no indication that appellant made a request for such testing in the criminal proceedings. To
the contrary, appellant’s counsel mentioned in opening argument at trial on September 6, 2005, that
appellant planned to challenge paternity in a hearing scheduled for October 14, 2005, in juvenile
and domestic relations district court but that only “heaven knows when the DNA actual evidence of
the child either being his or not his will be back.” Appellant’s counsel then stated in closing
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argument, “We’ll know more obviously when there’s a DNA test but that’s for . . . another court of
another jurisdiction.” Because appellant made no timely request for court-ordered DNA testing, he
may not now raise these issues to challenge the sufficiency of the evidence to support his
convictions in this criminal trial.1
III. JURISDICTION TO CONVICT APPELLANT UNDER CODE § 18.2-57.2
Appellant contends the circuit court lacked jurisdiction to convict him for violating Code
§ 18.2-57.2(B) based on a finding that Wendy Leftwich was a household or family member as
defined under that statute because they had a child in common. This is so, he claims, because at the
time he was charged with violating that statute, Leftwich had already filed a petition for child
support in the juvenile and domestic relations district court and he had already asserted a challenge
to his paternity in that proceeding. Appellant argues that the district court was the first to acquire
jurisdiction over the issue of paternity and that the circuit court lacked jurisdiction to adjudicate the
issue of paternity while that question was still pending in the district court. Appellant concedes he
did not raise this issue in the trial court but contends it renders his criminal convictions void and
that, because the convictions are void, the ends of justice exception to Rule 5A:18 permits us to
consider the question. We conclude the applicability of the ends of justice exception is inextricably
linked to the merits of appellant’s claim. Because we conclude the trial court had jurisdiction to
address the issue, we hold the ends of justice exception does not apply.
1
Appellant contends on brief that “The court received an exhibit that showed that the
[juvenile and domestic relations district court (J&DR court)] had ordered a paternity test. That
case was to be heard February 21, 2006 in the [J&DR court].” However, appellant cites no
portion of the appendix or the record in support of his claim. Further, the trial transcript contains
no reference to such an exhibit, and we are unable to find such an exhibit in the trial record for
this matter. As discussed supra in Part II.B., the transcript reflects that appellant’s counsel
mentioned the district court proceedings in appellant’s criminal trial on September 6, 2005 only
briefly. Appellant does not allege and nothing in the record indicates that he asked the trial court to
stay the criminal proceedings pending the results of the paternity test or the district court’s
determination of paternity.
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“A void judgment is one that has been procured by extrinsic or collateral fraud or entered by
a court that did not have jurisdiction over the subject matter or the parties.” Rook v. Rook, 233 Va.
92, 95, 353 S.E.2d 756, 758 (1987) (citations omitted).
An issue of subject matter jurisdiction, as distinguished from an issue
of the exercise of subject matter jurisdiction, concerns the “‘power of
a court to adjudicate a specified class of cases.’” Nelson [v.
Warden], 262 Va. [276,] 281, 552 S.E.2d [73,] 75 [(2001)] (quoting
Moore [v. Commonwealth], 259 Va. [431,] 437, 527 S.E.2d [406,]
409 [(2000), overruled on other grounds by Nelson, 262 Va. at 285,
552 S.E.2d at 77]); see also Moore, 259 Va. at 437, 527 S.E.2d at
409 (“emphasizing the necessary distinction to be drawn . . . between
the power of a court to adjudicate a specified class of cases,
commonly known as ‘subject matter jurisdiction,’ and the authority
of a court to exercise that power in a particular case”).
Parker v. Commonwealth, 42 Va. App. 358, 374-75, 592 S.E.2d 358, 366 (2004).
Code § 17.1-513 clearly provided the circuit court with subject matter jurisdiction to
adjudicate felony familial assaults after indictment. Appellant does not contend the circuit court
lacked subject matter jurisdiction to adjudicate the question whether he was guilty of the charged
criminal offenses. Instead, appellant contends that the circuit court lacked the authority to exercise
that jurisdiction until the determination regarding parentage was made by the district court. If, as he
argues, the circuit court did, in fact, lack authority to exercise its subject matter jurisdiction when it
convicted him, appellant’s convictions would be, at most, voidable rather than void. E.g. Robertson
v. Commonwealth, 181 Va. 520, 536, 25 S.E.2d 352, 358 (1943). Thus, they would be subject to
attack only on direct appeal, following either a timely objection in the trial court or application of
Rule 5A:18’s ends of justice exception.
We conclude, however, that a circuit court does not err in exercising subject matter
jurisdiction to determine parentage for purposes of adjudicating a defendant’s guilt on charges of
felony domestic assault, whether or not other proceedings involving a determination of parentage
are then pending in the juvenile and domestic relations district court. Appellant cites no statute or
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case law prohibiting a circuit court from determining guilt of a domestic crime based on “a child in
common” under these circumstances,2 and we are aware of none.
Code § 20-49.2 specifically states as follows: “The circuit courts and the juvenile and
domestic relations district courts shall have concurrent original jurisdiction of cases arising under
this chapter. The determination of parentage, when raised in any proceeding, shall be governed by
this chapter.” (Emphases added). Thus, as to “cases arising under this chapter,” a clear reference
to civil proceedings to determine parentage instituted by petition pursuant to Code §§ 20-49.1 to
-49.10, the circuit and juvenile courts have concurrent original jurisdiction. The general rule with
regard to courts having concurrent jurisdiction is that “‘the court which first takes jurisdiction
always has priority and the right to conclude the specific litigation.’” Billington v. Commonwealth,
13 Va. App. 341, 344, 412 S.E.2d 461, 462-63 (1991) (quoting Owens v. Commonwealth, 129 Va.
757, 761, 105 S.E. 531, 532 (1921)). For purposes of determining priority, a court takes jurisdiction
when the document instituting the proceeding in that court is filed or served. See 20 Am. Jur. 2d
Courts § 88 (2d ed. 2006).
However, assuming the provisions of Code §§ 20-49.1 to -49.10 regarding determinations of
parentage apply to the “child in common” finding made in these criminal proceedings, these
proceedings do not constitute a “case[] arising under this chapter” for purposes of the concurrent
jurisdiction provisions. Code § 20-49.2 contains no concurrent jurisdiction provision regarding
jurisdiction for “proceeding[s]” in which a determination of parentage is involved other than those
2
We note that the statutory scheme governing determinations of parentage provides a
method for making the child at issue a party to the action and expressly states that a
determination of parentage made “under the provisions of this chapter shall not be binding on
any person who is not a party.” Code § 20-49.2; see also Commonwealth ex rel. Gray v.
Johnson, 7 Va. App. 614, 623-24, 376 S.E.2d 787, 792 (1989) (citing statute to hold prior
adjudication of paternity obtained by mother had no res judicata effect as against child and
reasoning that public policy to achieve best interests of child “would be thwarted if a child were
bound by a paternity determination in which the child’s independent rights and interests were not
adequately protected”).
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“cases arising under this chapter.” Thus, the rules governing priority in concurrent jurisdiction
cases do not apply. Even if the statute did provide for concurrent jurisdiction in all proceedings
involving a determination of parentage, not just those instituted by civil petition filed pursuant to
Code § 20-49.2, the result would be the same here because “[t]he rule that priority controls the
exercise of concurrent jurisdiction applies only when the cases involved are identical as to subject
matter, parties, and relief sought.” 20 Am. Jur. 2d, supra, § 89. Manifestly, this is not the case
where one proceeding is criminal and the other is civil.
Because the court had both subject matter jurisdiction and the authority to exercise that
jurisdiction over the issue of appellant’s paternity of the victim’s child in the instant criminal
proceedings, appellant’s convictions are neither void nor voidable and may not be challenged on
this basis for the first time in this appeal. See also 20 Am. Jur. 2d, supra, § 90 (stating that “[a]n
objection to a forum’s exercise of jurisdiction on the basis of the priority principle may be waived”).
IV.
For these reasons, we conclude the court did not erroneously exclude evidence of the
victim’s bias against appellant, exercise jurisdiction over the charged criminal offenses, or hold the
evidence was sufficient to convict him. Thus, we affirm the challenged convictions.
Affirmed.
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