Yellock v. Commonwealth

896 S.E.2d 802

79 Va.App. 627

Jaquantis Daeshon YELLOCK

v.COMMONWEALTH of Virginia

Record No. 1936-22-3

Court of Appeals of Virginia, Christiansburg.

January 30, 2024

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE, G. Carter Greer, Judge

Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.

Sheri H. Kelly, Assistant Attorney General (Jason S. Miyares, Attorney General; Tanner M. Russo, Assistant Attorney General, on brief), for appellee.

Present: Judges Humphreys,^* Friedman and White

OPINION BY JUDGE FRANK K. FRIEDMAN

₆₃₂Following a bench trial, Jaquantis Daeshon Yellock was convicted of domestic assault and battery in violation of Code § 18.2-57.2. Yellock challenges the sufficiency of the evidence on two grounds. First, he contends that the evidence failed to prove that the victim was "a family or household member," as required to sustain a conviction for domestic assault and battery pursuant to Code § 18.2-57.2. Second, he asserts that the evidence failed to establish that he touched the victim with the requisite intent to sustain a conviction for simple assault and battery pursuant to Code § 18.2-57. We agree with the former contention but not the latter; therefore, we reverse ₆₃₃Yellock’s conviction for domestic assault and battery and remand for further proceedings.

BACKGROUND

On appeal, we recite the facts "in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va. App. 225, 231, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329, 863 S.E.2d 858 (2021)). Doing so requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady, 300 Va. at 329, 863 S.E.2d 858 (quoting Commonwealth v. Perkins, 295 Va. 323, 324, 812 S.E.2d 212 (2018)).

It is undisputed that Destiny Thomas and her boyfriend, Yellock, were in a heated argument as they sat in her car at a gas station. Specifically, Thomas testified that she and Yellock "got into an altercation." Thomas told Yellock to "get out of [her] car." When Yellock ignored her request, Thomas "beep[ed] [her] horn" to draw attention and to get Yellock away from her. Instead of exiting the vehicle, Yellock "put his hand" on Thomas’s head. Thomas "jerked [her] head back" and told Yellock to remove his hand. According to Thomas, Yellock complied and removed his hand, at which point Yellock grabbed Thomas’s wallet without permission. He then left the car, dropped the wallet on the pavement, and ran into a nearby grocery store, taking one of Thomas’s credit cards with him.

The altercation was sufficiently notable that a concerned bystander called police to report a "domestic" incident. When Officer Harmon arrived at the gas station, "people were pointing at" Yellock, who was running across the parking lot toward a grocery store. Harmon spoke with a "frantic" and "upset" Thomas, and then followed Yellock into the store. Yellock ran from the officer and ignored his command to stop. Eventually, Harmon confronted Yellock in the back of the ₆₃₄store and directed him to "come outside and … talk." When Yellock refused, Harmon detained him. Harmon found Thomas’s credit card in Yellock’s possession, arrested him, and returned the credit card to Thomas. When Harmon "interacted" with Thomas again, he noticed a "red mark" on the "back of her neck."

At trial, Thomas denied that she had any marks on her "related to" Yellock placing his hand on her head. Thomas stated that they were "in a relationship … [that] involve[d] touching each other," including "touching] each other’s hair." Thomas also testified that they touched each other’s hair without expressly obtaining advance permission and that there was nothing "unusual" about Yellock touching her hair "on that day." Nevertheless, she told him to stop because she did not want him to touch her at that time. Thomas testified that Yellock stopped touching her and did not touch her again. Instead, he grabbed her wallet without permission, exited Thomas’s vehicle with it, removed a credit card prior to dropping the wallet in the parking lot, and fled into a nearby grocery store.

At the conclusion of the evidence, Yellock moved to strike. First, he asserted that the evidence failed to prove domestic assault and battery because it did not establish that he and Thomas were "cohabitants or … family member[s]," as required by Code § 18.2-57.2. Yellock stressed that dating alone did not prove cohabitation. Second, he maintained that the evidence did not prove "harmful or unwanted touching" and, therefore, it was insufficient to sustain a conviction for assault and battery. Yellock argued that he had implicit permission to touch Thomas’s hair by virtue of their relationship and that, once she withdrew that permission, he stopped touching her. He noted the absence of any evidence establishing that the red mark on Thomas’s neck resulted from his touching her. Yellock argued that the mark could have resulted from Thomas "jerking her head back or … by something else altogether."

The trial court found that Yellock committed an "offensive touching." It noted that the couple was "still arguing" when ₆₃₅Yellock touched Thomas. In the context of their ongoing quarrel, the court found Yellock touched Thomas in a "rude" and "offensive" manner:

Clearly, this was an offensive or rude touching…. They had just been arguing. They were still arguing. That’s when he reached over and touched her head…. We can also infer, and the Court does infer, that the defendant had a consciousness of guilt because he fled the scene. Not only did he flee the scene, but he also left with Ms. Thomas’s wallet and one of her bank cards, both of which she ultimately retrieved.

The trial court also made credibility findings; the judge concluded that Thomas at- tempted to lessen the gravity of the incident at the trial, stating her testimony "tried to minimize [the incident]." The court further discredited Yellock’s suggestion that his touching of Thomas was an attempt to calm her: "[t]his was not an intimate instance of trying to make up." The court flatly rejected Yellock’s suggestion that he was attempting to de-escalate the altercation by touching Thomas during the argument. Without addressing Yellock’s position that the evidence failed to prove a "domestic" assault and battery, the trial court denied the motion to strike and found Yellock guilty of violating Code § 18.2-57.2. Yellock appeals.

ANALYSIS

[1–3] "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, 850 S.E.2d 376 (2020) (quoting Smith v. Commonwealth, 296 Va. 450, 460, 821 S.E.2d 543 (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. (quoting Secret v. Commonwealth, 296 Va. 204, 228, 819 S.E.2d 234 (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,₆₃₆ 291 Va. 232, 248, 781 S.E.2d 920 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280 (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, 850 S.E.2d 376 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161, 817 S.E.2d 330 (2018)).

A. Domestic Assault and Battery

Yellock challenges his conviction for domestic assault and battery in violation of Code § 18.2-57.2. That statute states in pertinent part that "[a]ny person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor." Code § 18.2-57.2. Code § 18.2- 57.2(D) incorporates the definition of "family or household member" as defined in Code § 16.1-228. As relevant to this case, Code § 16.1-228 defines "[f]amily or household member" as "any individual who cohabits or who, within the previous 12 months, cohabited with the person" who was attacked. Yellock maintains that the evidence failed to prove that he and Thomas were family members or cohabited.¹ We agree.

In Rickman v. Commonwealth, 33 Va. App. 550, 555, 535 S.E.2d 187 (2000), a case of first impression, this Court determined "[w]hat constitutes cohabiting under Code § 18.2-57.2." The Rickman Court observed that " ‘[c]ohabitation’ takes on different meanings in different contexts." Id. at 556, 535 S.E.2d 187 (quoting State v. Yaden, 118 Ohio App.3d 410, 692 N.E.2d 1097, 1100 (1997)). Further, the Court determined that Virginia, like other states, "has concluded that assault on a family or household member is more serious than assault on a stranger." Id. The Court noted that "[o]ur prior consideration of the meaning of the term ‘cohabitation’ has been ₆₃₇limited mainly to the civil arena in the context of divorce and spousal support." Id. at 555, 535 S.E.2d 187. Rickman found that prior caselaw on the issue in the civil and divorce context was "instructive" but not "control[ling]" in the context of Code § 18.2-57.2.² Id. at 556, 535 S.E.2d 187.

Rickman made clear that "a totality-of- the-circumstances analysis" applies in determining whether there is cohabitation under Code § 18.2-57.2, and "[t]he factors to be applied ‘are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the trier of fact.’" Id. at 557, 535 S.E.2d 187 (quoting State v. Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126, 1130 (1997))....