COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia
GARY SANTOS GUZMAN
MEMORANDUM OPINION * BY
v. Record No. 2329-01-2 JUDGE RICHARD S. BRAY
JUNE 25, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Christopher C. Booberg (Theodore Tondrowski;
Thorsen & Scher L.L.P., on brief), for
appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Gary Santos Guzman (defendant) was convicted in a bench trial
for assault and battery of his son, F.G., a violation of Code
§ 18.2-57.2. On appeal, he challenges the sufficiency of the
evidence to prove the offense, arguing he acted with reason and
moderation to "prevent a dangerous situation" and "punish [F.G.]
for ignoring his directives." Finding no error, we affirm the
conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
In reviewing the sufficiency of the evidence, we consider the
record "'in the light most favorable to the Commonwealth, giving
it all reasonable inferences fairly deducible therefrom. In so
doing, we must 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 . . . .'" Watkins v.
Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)
(citation omitted). The credibility of the witnesses, the weight
accorded testimony, and the inferences drawn from the proven facts
are matters to be determined by the fact finder. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
The judgment of the trial court will not be disturbed unless
plainly wrong or unsupported by evidence. See Code § 8.01-680.
Viewed accordingly, the record discloses that, on the evening
of November 24, 2000, defendant's daughter, A.G., age twelve, was
"[l]aying down with [her baby sister] on the couch" when the
infant began "crying." While defendant was "telling [the baby] to
be quiet," A.G. "told him to stop," and he "hit" A.G. "[o]nce"
"[o]n the face" with his "[o]pen" "hand." Defendant then turned
his attention to F.G., his ten-year-old son "sitting by the
fireplace," "wrestling with [the fire]." Defendant "told him to
stop" and, when F.G. didn't comply, "started hitting him," "once
or twice," "[o]n his face" with a "closed" "hand."
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Chesterfield County Police Officer J.A. Blankenship
responded to the Guzman residence on the evening of the
incidents. Investigating, Blankenship noticed "a small
laceration in the corner of [F.G.'s] right eye, sort of upon his
nose area" and "a scrape on his right shin" and arrested
defendant for the instant offense.
Recalling the events in issue, defendant testified his
infant had begun to cry, and, as he "tried to tell her to be
quiet," A.G. "reacted to [him] yelling" at the child. Defendant
admitted "[he] was just frustrated," because "it was really hard
enough with the two-year-old," without A.G. "trying to talk back
at [him]." However, defendant claimed he "did not smack" A.G.,
but "gently put [his] hand on the side of her face and rubbed it
as an insinuation that [he] [would] smack her if she [didn't]
stop."
Defendant further testified that F.G. then "started playing
with [the] fire," using "a stick" to "go[] up inside the fire"
and "mov[e] the charcoal around." When defendant "told him to
quit it," F.G. "took [the stick] out," "put it on the rug, and
it started burning the rug." Defendant then "grabbed [F.G.] on
the shoulder," "shoved him on the floor," "moved him away from
the fire," "took the stick away and put [the fire] out."
Defendant admitted he "may have smacked [F.G.] on the face," but
denied "punch[ing] him twice," adding, "if I had . . . , there'd
be a bruise on his face, not a scratch."
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On cross-examination, defendant initially testified that he
"may have had one beer" during the evening, but later admitted
he "[couldn't] recall how many [he] may have had." Asked by the
prosecutor, "[h]ow exactly did you put [F.G.] on the floor,"
defendant responded:
I grabbed his arm and pulled him away from
the fire. In the meantime, he was falling
down off of the log, and he fell onto the
floor. That's when I got on him, and I put
my arm on him and smacked his butt and then
smacked him on the face and told him, I told
you to get away from there. I don't have to
tell you ten times to get away from the
fire.
At the conclusion of all the evidence, defendant moved to
strike the Commonwealth's argument, characterizing his conduct
as "well within the bounds of . . . what courts are going to say
is allowable, given personal viewpoints on what discipline is
supposed to be." The trial court, however, disagreed, overruled
the motion and convicted defendant of the subject offense,
resulting in this appeal.
II.
[W]hile parents or persons standing in loco
parentis may administer such reasonable and
timely punishment as may be necessary to
correct faults in a growing child, the right
cannot be used as a cloak for the exercise
of uncontrolled passion, and [a parent] may
be criminally liable for assault and battery
if he inflicts corporal punishment which
exceeds the bounds of due moderation.
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Harbaugh v. Commonwealth, 209 Va. 695, 697-98, 167 S.E.2d 329, 332
(1969); see also Carpenter v. Commonwealth, 186 Va. 851, 860-61,
44 S.E.2d 419, 420-21 (1947).
[W]here a question is raised as to whether
punishment had been moderate or excessive,
the fact is one for the [fact finder] to
determine from the attending circumstances,
considering the age, size and conduct of the
child, the nature of the misconduct, and the
kind of marks or wounds inflicted on the
body of the child.
Harbaugh, 209 Va. at 698, 167 S.E.2d at 332.
Here, defendant, consuming alcohol and admittedly
"frustrated" by his children's behavior, "smacked [his son] on the
face," "once or twice," with a "closed" "hand." As a result,
F.G., age ten, suffered a "laceration in the corner of his right
eye," "upon his nose area," and "a scrape on his right shin."
Such circumstances support the finding that defendant committed an
assault and battery upon F.G., notwithstanding his testimony to
the contrary. See Marable v. Commonwealth, 27 Va. App. 505,
509-10, 500 S.E.2d 233, 235 (1998) ("In its role of judging
witness credibility, the fact finder is entitled to disbelieve the
self-serving testimony of the accused and to conclude that [he] is
lying to conceal his guilt.").
Accordingly, we find the evidence sufficient to support the
conviction and affirm the trial court.
Affirmed.
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