Ingrid Everette, s/k/a Ingrid A. Everette v. CW

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia
INGRID EVERETTE, S/K/A
INGRID A. EVERETTE
MEMORANDUM OPINION * BY
v. Record No. 0633-00-1 JUDGE RICHARD S. BRAY
MARCH 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
(Lynn A. Sugg; Sugg & Scott, P.C., on brief),
for appellant. Appellant submitting on
brief.
(Mark L. Earley, Attorney General; H.
Elizabeth Shaffer, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.
Ingrid A. Everette (defendant) was convicted in a bench trial
of assault and battery upon a law enforcement officer engaged in
performance of her public duties, a violation of Code
§ 18.2-57(C). 1 On appeal, defendant challenges the sufficiency of
the evidence to support the conviction, complaining the trial
court "failed to credit" her testimony "that she did not remember"
the incident as proof that she lacked "the requisite intent" to
commit the offense. However, because defendant did not properly
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Defendant was indicted for malicious wounding of a law
enforcement officer engaged in the performance of her duties in
articulate her argument before the trial court, we decline to
consider the merits of the appeal.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
The Commonwealth's evidence was uncontroverted. Following a
disagreement with her boyfriend, defendant summoned Suffolk police
and reported "that [her] daughter was kidnapped, and [she] was
beaten up, and wanted to take out a warrant on [him]." As a
result of the ensuing investigation, a temporary detention order
against defendant was obtained, and she was transported by
Officers Tyrell Champagne and J.L. Naylor to a local hospital for
observation and treatment.
En route, defendant, "very drunk," "hostile and
uncooperative," was placed in handcuffs. On arrival, she was "out
of control," "very loud and obnoxious[,] cursing and
uncooperative," and hospital staff requested Officer Naylor to
assist undressing defendant and "getting her into hospital
clothes." When Officer Naylor removed the handcuffs, defendant
began "flaying her arms," Naylor "grabbed hold of one of [her]
arms," and defendant "bit" her on the hand, breaking the skin and
leaving a scar, the injury that prompted the instant prosecution.
violation of Code § 18.2-51.1.
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At the close of the Commonwealth's case-in-chief, counsel for
defendant argued simply, "I would submit that the Commonwealth has
not met its burden of proof in this case." The court overruled
the "motion," defendant presented evidence in her defense and
rested, without moving the court to strike the Commonwealth's
evidence.
In closing argument, her counsel contended that, at the time
of the offense, defendant was "suicidal[,] . . . used poor
judgment[,] . . . apparently lost it" and was in a "mental state"
that "could not give rise to a malicious wounding." The court
agreed, but reminded defense counsel of the remaining "assault and
battery issue." Counsel then acknowledged the incident "did
happen," "can't excuse it," but contended misdemeanor "assault and
battery would be enough . . . to punish [defendant] for the
incident." The court, however, found her guilty of "assault and
battery of a police officer in the performance of her duties," a
felony proscribed by Code § 18.2-57(C), and this appeal followed.
II.
"No ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling, except for good
cause shown or to enable the Court of Appeals to attain the ends
of justice." Rule 5A:18. In furtherance of Rule 5A:18, this
Court has oftentimes instructed "that in a bench trial, where a
defendant wishes to preserve a sufficiency motion after
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presenting evidence, the defendant must make a motion to strike
at the conclusion of all the evidence, present an appropriate
argument in summation, or make a motion to set aside the
verdict." Howard v. Commonwealth, 21 Va. App. 473, 478, 465
S.E.2d 142, 144 (1995).
Thus, assuming, without deciding, that defendant's remarks at
the conclusion of the Commonwealth's evidence constituted a motion
to strike, she waived her right to stand on such motion by
subsequently presenting defense evidence. White v. Commonwealth,
3 Va. App. 231, 234, 348 S.E.2d 866, 868 (1986). When defendant
failed to either renew her motion at the close of all the
evidence, or make a motion to set aside the verdict, the remaining
avenue available for preservation of the sufficiency issue was
closing argument. However, "[n]ot every closing argument
accomplishes this objective. A closing argument may address other
issues." Campbell v. Commonwealth, 12 Va. App. 476, 481, 405
S.E.2d 1, 3 (1991).
Defendant maintains before us that the court erroneously
"fail[ed] to credit [her] testimony" that she "did not remember"
the incident, as proof she lacked the requisite intent to commit
the offense. However, a review of defendant's closing argument
does not disclose a sufficiency challenge to proof of intent based
upon her evidence of memory loss, the sole issue on appeal. To
the contrary, defendant acknowledged an assault and battery of
Officer Naylor but urged the court to convict her of a
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misdemeanor. Defendant, therefore, defaulted her appellate
argument by not properly raising and preserving the issue before
the trial court.
Defendant's assertion of the "ends of justice" exception to
Rule 5A:18 to justify review of her appeal is without merit. To
successfully invoke the exception in the context of a challenge to
the sufficiency of the evidence, "the appellant must demonstrate
that he or she was convicted for conduct that was not a criminal
offense or the record must affirmatively prove that an element of
the offense did not occur," circumstances clearly not present on
the instant record. Redman v. Commonwealth, 25 Va. App. 215, 222,
487 S.E.2d 269, 272 (1997).
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Accordingly, we affirm the conviction.
Affirmed.
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Benton, J., dissenting.
I believe that at the conclusion of the trial evidence
Ingrid Everette's trial counsel made a minimal but sufficient
argument to preserve the appeal issue. To put this matter in
perspective, a fuller recitation of the evidence and incidents
of trial is needed.
I.
Everette was indicted and tried for malicious wounding of a
police officer in violation of Code § 18.2-51.1. The
Commonwealth's evidence proved that police officers were
dispatched to the Western Tidewater Mental Health Center to
transport Everette to Obici Hospital in the City of Suffolk. A
magistrate had issued an emergency civil custody order, which
was replaced by a temporary detention order for mental health
treatment. See Code §§ 37.1-67.01 through 37.1-67.3. The
Commonwealth's evidence did not prove in any detail the
circumstances that led to Everette's detention for mental health
treatment.
The record, however, contains a trial exhibit, which
consists of the various mental health reports prepared the night
Everette was detained and involuntarily committed for mental
health treatment. The pre-admission screening form, which was
prepared prior to the events at the hospital, reports that
Everette "was assaulted by boyfriend," that "[t]his evening her
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boyfriend tried to choke her [and] dragged her out of car," and
that Everette "verbalized suicidal" intentions and "is
depressed." The detention order, which formed the basis of
Everette's referral to the hospital, recites that Everette is
"mentally depressed and danger to self."
A nurse, who testified for the Commonwealth, indicated that
after the police brought Everette to the hospital, Everette
mentioned that she was concerned about the welfare of her child
and that Everette was hysterical and abusive. She testified
that Everette was in need of mental and physical attention and
that she wanted to medicate Everette as soon as possible. She
also testified that they needed "to get [Everette] to change
[into hospital] clothes." Everette was in handcuffs, and she
refused to remove her clothes.
One of the officers testified that "after she was given the
shot [of a sedative,] the nurse asked all the males in the room
to leave because they wanted to get the young lady undressed."
He further testified that when Everette "went to the back room
she had to be unhandcuffed in order to be strapped down to the
bed." Everette "had one [injection of a sedative] prior to
[their] taking her clothes."
The female officer who was to assist in undressing Everette
testified she was injured as follows:
She started flaying her arms and kicking her
arms, and she wouldn't let us get her
clothing off to get her into hospital
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clothes. So in an attempt to help the
nurses get her clothing off, I grabbed hold
of one of her arms. And when I did she
brought my hand down to her mouth and bit
me.
The officers and hospital personnel again injected Everette with
a sedative and strapped her in restraints.
Following these events at the hospital, Everette was
evaluated by a physician who found "sufficient cause to believe
that [she is] mentally ill; . . . presents an imminent danger to
[herself]; . . . and . . . require[s] involuntary
hospitalization." As a consequence, Everette was committed to
Eastern State Hospital upon the finding that she "presents an
imminent danger to [her]self as a result of mental illness."
Everette testified in her defense that she and her
seven-year-old daughter had spent the day at the waterfront in
Norfolk with Everette's male friend. As they were driving back
to Everette's home in North Carolina, an argument ensued between
Everette and her friend. After she convinced him to stop for
water for her daughter, Everette became "very scared," refused
to return to the car, and "was trying to think of a way to get
[her] daughter out of the car." When she refused her friend's
demand that she return to the car, he beat her. She testified
that he choked her, pushed her to the ground, kicked her,
dragged her over the parking lot, and then drove away with her
daughter. She heard him say he was "going to kidnap" her
daughter, and she saw her daughter's hands at the window as the
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car left. The police arrived after Everette went into the store
and asked for help. Everette testified that she related these
events to the police before the paramedics treated her and took
her to the mental health center.
Everette also testified concerning the following events:
I was taken to the building and there was a
person out there that was asking me
questions. I was telling her I was beaten
and my daughter was kidnapped. Was anyone
getting my daughter back? He had threatened
me before that he was going to take my
daughter. That's all I have is my daughter.
I didn't know what he was going to do to
her, you know, and I wanted them -- I wanted
my daughter back. And she told me she was
going to send me to the hospital. I asked
her why do I need to go to the hospital for?
She said because I told her I was going to
kill myself. I didn't have anything else to
live for without my daughter. And she said
yes, we're going to help you because you
didn't deserve this. And the next thing I
know I was taken away. I was handcuffed. I
asked them why were they handcuffing me?
And the officers held me down because I
didn't want to be handcuffed. I didn't know
what was going to happen to me. And then
they took me out of the car and took me into
the hospital. And all I remember is being
at the hospital, and I remember getting a
shot, and I don't remember anything after
that. I woke up the next morning and I was
like in a daze. I was asking what I was
doing here. I stayed like that all day. My
head was light and then I was transported to
another hospital, Williamsburg Mental
Hospital. And I stayed there either eight
or nine days.
II.
At the close of the evidence, Everette's trial counsel
first argued as follows:
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If Your Honor please, in noting the report
from Western Tidewater Mental health on that
night it's noted in there that this offense
of where she was assaulted by her boyfriend
that was taken approximately at 11:30 on
that night that she says she was assaulted
by her boyfriend. They say basically in the
report that she was suicidal. She used poor
judgment. Her insight was limited, and she
apparently just lost it.
How does that answer to the charge in
this case? The answer to the charge is in
this report, Your Honor. I think based on
her mental state that night, I'm not sure
that can give rise to a malicious wounding.
The trial judge ruled that the evidence did not prove
malice but "[w]e've got unlawful and we've got this assault and
battery issue." In response, trial counsel further argued as
follows:
And, of course, I would argue to the Court
that this lady is out here at night. Her
boyfriend kicks her out and beats her up and
runs out with the child. She gets
committed. I might come in and argue that
while she was mentally off and maybe that
would secure it, but based on her own
testimony that it would not elevate to a
felony because of an incident that happened
when she was obviously not in her total
right mind. It happened that fast. It
shouldn't have happened. She could be
punished for a misdemeanor assault and
battery with a year hanging over her, and
whatever is enough length of treatment.
She's an emotional girl, which I was
hoping that the Court would not elevate it
to a felony because of the one little
incident. After that incident she was
medicated, but I can't excuse it. It did
happen. I'd say she ought to be found not
guilty. But I think assault and battery
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would be enough on her record to punish her
for the incident.
III.
Rule 5A:18 is designed to allow the trial judge an
opportunity to correct any error that is noted by a party at
trial and to allow the opposing party the opportunity to offer
an alternative to an objectionable ruling. Lee v. Lee, 12 Va.
App. 512, 514, 404 S.E.2d 736, 737 (1991). The rule, thus,
promotes judicial efficiency by reducing the necessity for new
trials and protects against the costs of unnecessary litigation.
Id. While a general objection does not satisfy the rule, a
"simple statement that embodies the objection and reason
therefor" does suffice. Id. at 515, 404 S.E.2d at 738.
Furthermore, counsel may make this statement during closing
argument provided that he or she directly addresses the argument
to the judge and "expressly raise[s] the issue." Campbell v.
Commonwealth, 12 Va. App. 476, 480-81, 405 S.E.2d 1, 2-3 (1991).
In this case, Everette's trial counsel clearly argued that
"she ought to be found not guilty." Trial counsel's argument
alternatively suggested that at best the evidence established
only a misdemeanor offense. He raised the issue of intent by
stating that Everette "was suicidal. She used poor judgment.
Her insight was limited." He continued that argument by
contending that Everette's mental state could not "give rise to
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a malicious wounding." He argued that she was medicated and the
evidence could lead to no more than a misdemeanor.
The record indicates the trial judge knew what issue they
were discussing. Despite the fact that Everette's trial counsel
did not specifically mention Everette's loss of memory, he did
assert her suicidal state of mind, lack of insight, and the
injection she was given. Clearly, the trial judge understood
the argument concerning intent because he reduced the offense
from malicious wounding to the lesser offense of felony assault
and battery of a law enforcement officer. See Code
§ 18.2-57(C). The judge sentenced her to two years in prison,
suspended one year and six months of that sentence, and imposed
the mandatory minimum sentence of six months in prison.
On this record, there is no question that
the trial court was adequately advised of
the defendant's position, that it did
consider the issue raised, and that it had
the opportunity to take corrective action.
Therefore, the purpose underlying the
contemporaneous objection rule was
fulfilled, and it would be a useless
technicality [to reject this appeal under
Rule 5A:18].
Campbell, 12 Va. App. at 480, 405 S.E.2d at 2. I would hold
that trial counsel's argument in its totality was sufficient to
alert the trial judge to the issue that the evidence was
insufficient to prove Everette acted with criminal intent and,
therefore, she was not guilty of an offense.
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IV.
Everette contends on appeal that the evidence proved she
"did not intend to bite [the] officer." The following
principles are applicable here:
Assault and battery . . . requires proof of
"an overt act or an attempt . . . with force
and violence, to do physical injury to the
person of another," "whether from malice or
from wantonness," together with "the actual
infliction of corporal hurt on another . . .
willfully or in anger." 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."
Boone v. Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250,
251 (1992). Like any other element of an offense, criminal
intent may be proved by circumstantial evidence, as long as such
evidence excludes all reasonable hypotheses of innocence flowing
from it. See Rice v. Commonwealth, 16 Va. App. 370, 372, 429
S.E.2d 879, 880 (1993). Thus, intent must be proved beyond a
reasonable doubt. See Martin v. Commonwealth, 13 Va. App. 524,
529, 414 S.E.2d 401, 403 (1992) (en banc).
The evidence proved that immediately prior to the incident
Everette had been beaten by her male friend. When Everette
arrived at the hospital, she was concerned about the welfare of
her child, and she was suicidal, hysterical, and suffering from
a mental illness. In this state, she was handcuffed, given a
sedative by injection, and told to disrobe. She was then
forcibly disrobed by several people.
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Although the evidence proved Everette was hysterical,
suicidal, and abrasive, no evidence proved beyond a reasonable
doubt that she acted with criminal intent when, in her struggle
to keep her clothing and in a state of severe mental anxiety,
she bit the officer. The reports prepared immediately prior to
this incident noted that Everette was suicidal, "mentally
depressed and [a] danger to [her]self." This evidence provides
a reasonable hypothesis that Everette lacked the intent required
to sustain this conviction.
For these reasons, I would reverse the conviction.
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