Mahoney v. Commonwealth

CLARENCE ALBERT MAHONEY v. COMMONWEALTH OF VIRGINIA

No. 0669-21-2

Court of Appeals of Virginia

April 26, 2022

FROM THE CIRCUIT COURT OF CAROLINE COUNTY SARAH L. DENEKE, JUDGE

Virginia F. Podboy (The Railside Law Group, PLLC, on brief) for appellant.

Rebecca M. Garcia, Assistant Attorney General (Mark R Herring, ^[1] Attorney General, on brief), for appellee.

Present: Judges Huff, Athey and Fulton Argued by videoconference

MEMORANDUM OPINION ^[*]

JUNIUS P. FULTON, III JUDGE

The trial court convicted appellant of strangulation and assault on a family member. He challenges the sufficiency of the evidence supporting his strangulation conviction.^[2] For the reasons that follow, we affirm the trial court's decision.

Background

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Gerald v. Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). In doing so, we discard any of appellant's conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Id. at 473.

On August 6, 2020, appellant and his wife, Pamela Mahoney, became embroiled in an argument as they drove home with their eight-year-old son. Upon their arrival, Pamela "quickly" exited the car, entered their house, and retreated to her home office, locking the door behind her. Appellant, who was "very angry," followed her and began "banging" on and "shaking" the office door violently. He demanded that Pamela open the door. When she refused, he punched the door so hard that he "split" it and left holes in it.

Only after Pamela heard her son screaming and crying did she open the door. Appellant immediately "grabbed [her] by the throat" and slammed her against the window so forcefully that the window blinds snapped. Appellant held her by the throat with his right hand as he used his free hand to assault her. Pamela testified that he gripped her throat so tightly that she could not breathe. When he finally released her, appellant walked across the hall to their bedroom and paced back and forth, swearing at Pamela. After a few minutes, he returned to the office and renewed his assault. Appellant "grabbed [Pamela] by the throat and threw [her] on the floor" before leaving again. Appellant repeated these assaults several times between 10:30 p.m. and 3:00 a.m. Pamela estimated that he choked her approximately seven times; "each time he choked [her]," she could not breathe. Some of the choking incidents lasted as long as thirty seconds. As he assaulted his wife, appellant screamed and cursed at her. Too frightened to leave the room or call the police, Pamela waited until appellant left the house the following morning before she called 911.

Deputy Daley responded at approximately 7:45 a.m. When he spoke with Pamela, she was crying, scared, and "very emotional." Daley noticed that an interior door bore a "large hole" and was "broken" near the doorknob, consistent with attempted forced entry. He also observed that the window blinds in that room were damaged. Daley photographed Pamela's injuries. The photographs, which were admitted at trial, depicted a large oval bruise on the right side of Pamela's throat; it also showed a small laceration above that bruise, immediately below her jawline. Pamela reported to Daley that she was experiencing "soreness."

Before Daley escorted Pamela from the scene, appellant returned home. Appellant admitted that he and Pamela had argued and that "things happened that shouldn't have." Later that day, Pamela sought medical attention at an urgent care facility. Her "chief complaints" included "jaw, face, and neck pain." She continued to experience pain "in those areas" and returned for further medical treatment on August 11, 2020.

At trial, Pamela testified that the bruise on her throat resulted "when [appellant] grabbed [her] around the neck," but she could not state whether a single choking incident caused the bruise, or whether it resulted from appellant grabbing her throat multiple times.^[3] Pamela demonstrated to the trial court how appellant squeezed her throat with his hand. She specifically recalled that appellant grabbed her throat as he "push[ed] [her] back," "pinn[ed] her against the wall," and "h[e]ld[] [her] on the floor."

At the conclusion of the evidence, the trial court found that the damage to the door reflected appellant's "rage" and that the bruise on Pamela's throat was "absolutely consistent with a thumb up by the neck and grabbing around the throat." It found Pamela's testimony credible that she could not breathe when appellant choked her. Accordingly, the trial court convicted appellant of one count of strangulation.^[4]

Analysis

"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.'" Smith v. Commonwealth, 296 Va. 450, 460 (2018) (quoting Commonwealth v Perkins, 295 Va. 323, 327 (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.'" Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). Instead, we ask "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. "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)).

"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[.]" Code § 18.2-51.6. The statute does not define "bodily injury." Wandemberg v. Commonwealth, 70 Va.App. 124, 133 (2019). The Supreme Court has defined "bodily injury" to include "an impairment of a function of a bodily member, organ, or mental faculty[, ] or . . . an act of impairment of a physical condition." Ricks v. Commonwealth, 290 Va. 470, 479 (2015). Thus, "[t]o 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. (quoting English v. Commonwealth, 58 Va.App. 711, 719 (2011)).

Here, appellant raises two challenges to the sufficiency of the evidence. First, he asserts that the evidence failed to prove that he "intentionally imped[ed]" his wife's breathing or blood flow by "applying pressure to her neck." Emphasizing that Pamela's testimony is the "only" evidence on this issue, he asserts that her testimony was not credible because she gave inconsistent accounts regarding the choking incidents. Appellant stresses that, contrary to Pamela's testimony that he choked her "seven times," Daley's report indicated only one choking incident that night. He also notes that Pamela's affidavit seeking a protective order did not allege that he had "grabbed her neck." Further, appellant maintains that Pamela's testimony that he "squeezed" her neck conflicted with her testimony that he "grabbed her throat and pushed her against the wall or held her on the floor" and that her testimony that he choked her with one hand conflicted with her preliminary hearing testimony that he choked her with two hands.

Appellant argues that Pamela never testified at trial that she experienced "difficulty breathing or any physical effects of impeded circulation" during the "grabbing" incidents, and to the extent that she testified to that effect, her testimony was uncorroborated. He emphasizes that her "chief complaint" when she sought medical attention related to "pain in her jaw and body aches and soreness." Appellant asserts that she did not complain about "ongoing neck pain" and that, despite recounting seven choking incidents, she bore only a single bruise on her neck. He contends that the bruise on Pamela's neck does not corroborate her testimony because "it is impossible . . . to determine" whether the bruise resulted from the assault and battery or from his "impeding" his wife's circulation or respiration.

In a second, related, argument, appellant contends that the evidence failed to prove that Pamela suffered a "bodily injury" as the result of the choking incidents. Citing our unpublished opinion in Chilton v. Commonwealth, No. 1531-13-3 (Va. Ct. App. Nov. 18, 2014), ^[5] he maintains that Pamela admitted she had "no idea if the bruise [on her throat] was from where [appellant] grabbed her neck seven times." Thus, appellant asserts that the evidence failed to prove beyond a reasonable doubt that the bruise resulted from intentional choking instead of the assault and battery.

To the extent that either of these arguments rests on the lack of evidence establishing the source of the neck bruise, we conclude that appellant has failed to preserve them. In his initial motion to strike at the conclusion of the Commonwealth's case, appellant asserted that a bruise and a scrape were not sufficiently serious injuries to support a felony strangulation conviction. In his combined closing argument and renewed motion to strike, appellant argued that the Commonwealth had failed to prove "the two elements" and that Pamela's testimony was...