COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Decker and AtLee
PUBLISHED
Argued at Salem, Virginia
KELAND ONEAL SHELTON, S/K/A
KELAND O’NEAL SHELTON
OPINION BY
v. Record No. 0327-15-3 JUDGE RANDOLPH A. BEALES
FEBRUARY 9, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
Martin F. Clark, Jr., Judge
(Kimberly R. Belongia, on brief), for appellant. Appellant
submitting on brief.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Keland Shelton (appellant) was convicted following a bench trial of assault and battery of
a law-enforcement officer in violation of Code § 18.2-57(C) and escape from custody by force or
violence in violation of Code § 18.2-478. The trial court sentenced appellant to a total of ten
years in prison, with eight years and one month suspended. The trial court also ordered appellant
to “make restitution in the amount of $9,281.72 to the victim” for injuries sustained by
Lieutenant Davis. Appellant contests the trial court’s order of restitution, arguing that the court
erred in finding that the restitution amount of $9,281.72 is causally connected to the assault and
battery of a law enforcement officer. For the following reasons, we affirm the trial court.
I. BACKGROUND
We consider the evidence on appeal “in the light most favorable to the Commonwealth, as
we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60
Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,
330, 601 S.E.2d 555, 574 (2004)). So viewed, the evidence at trial was that on September 8, 2013,
Investigator Travis Hambrick, Lieutenant Wayne Davis, and a Deputy Stone of the Henry
County Sheriff’s Office went to appellant’s home on Rock Hill Community Road to serve an
arrest warrant on appellant. As Investigator Hambrick knocked on the side door of the residence,
the officers heard movements inside the house. After approximately two minutes, appellant’s
brother answered the door. Appellant’s brother told the officers that he had not seen appellant,
but he allowed the officers to come inside to look around. Once inside the residence,
Investigator Hambrick located an attic access cover that was partially open. At that time,
Investigator Hambrick announced to appellant that he knew appellant was hiding in the attic and
told him that he needed to come down. Appellant – who was hiding in the attic – responded to
Investigator Hambrick by stating, “Okay. You got me. I’m coming down.”
Appellant jumped down through the wood cover on the attic, broke it, and landed on his
feet between Investigator Hambrick and Lieutenant Davis. Appellant saw that Investigator
Hambrick had his weapon drawn, so he put his hands in the air and said, “You’ve got me.”
Investigator Hambrick holstered his weapon and grabbed appellant’s right arm. He informed
appellant he was under arrest and attempted to handcuff him. At that moment, appellant pushed
Investigator Hambrick away with a “stiff arm” like motion, and ran out of the residence.
Investigator Hambrick testified that appellant was wearing nothing but his underwear and socks
and had been sweating profusely. Investigator Hambrick stated that the push, as well as the fact
that appellant was “sweating so bad,” caused him to lose his grip on appellant’s arm.
Lieutenant Davis pursued appellant on foot as he ran out of the residence into a
neighbor’s yard and towards the woods. Appellant jumped over a brush pile during his escape.
As Lieutenant Davis jumped over that same pile, his right foot landed on a large rock that was
concealed by high weeds and he fell to the ground injured. Lieutenant Davis suffered a stress
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fracture of his ankle, a tear of his Achilles tendon, a fracture of his right hand, and a sprain of his
hip. The medical expenses for the injuries he sustained totaled $9,281.72.
After a bench trial, appellant was convicted of assault and battery of a law enforcement
officer in violation of Code § 18.2-57(C) and escape from custody by force or violence in
violation of Code § 18.2-478. The trial court sentenced appellant to a total of ten years in prison,
with eight years and one month suspended – and also ordered appellant to “make restitution in
the amount of $9,281.72 to the victim” for the injuries sustained by Lieutenant Davis. In
announcing its ruling, the trial court stated:
The escape was just so foolish and let me address the restitution
issue, in conjunction with that. I think restitution is appropriate.
There is no temporal break; if you apply a but-for test, it certainly
works. But for his fleeing, this officer would not have been
chasing him and would not have – I think it was his knee he tore
all up. It wouldn’t have happened. More importantly, if you read
the restitution cases and I didn’t know this issue was coming up
today, but I think that it’s reasonable relationship between the
offense and the remedy and restitution sought. Yeah; you don’t get
to pay – if somebody breaks in your house there is a case that says
you don’t get to put up video cameras. But, I mean, I think if you
look at this in a civil standard and in the standard for restitution,
you know, his flight caused this problem and it is certainly
reasonably related and it is certainly a but-for test. It certainly fits
that, so I think restitution is appropriate, with interest.
(Emphasis added). This appeal followed.
II. ANALYSIS
A. Standard of Review
Appellant argues that the trial court erred when it found that the restitution amount of
$9,281.72 was causally connected to the assault and battery on a law enforcement officer. We
review a trial court’s decisions on restitution and other sentencing matters under an abuse of
discretion standard. See Burriesci v. Commonwealth, 59 Va. App. 50, 55, 717 S.E.2d 140, 143
(2011); Alger v. Commonwealth, 19 Va. App. 252, 257, 450 S.E.2d 765, 768 (1994). Although
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it is within the trial court’s discretion, the scope of restitution is limited “to payments for
‘damages or losses caused by the offense.’” Howell v. Commonwealth, 274 Va. 737, 740, 652
S.E.2d 107, 108 (2007) (citing Code §§ 19.2-303, -305(B)). The Supreme Court stated, “Costs
that result only indirectly from the offense, that are a step removed from the defendant’s conduct,
are too remote and are inappropriate for a restitution payment.” Id. at 741, 652 S.E.2d at 109.
B. The Restitution Award was the Result of the Escape Conviction
When this Court granted appellant’s petition for appeal, the order of the Court instructed the
parties “to address (1) whether the restitution was the result of the assault and battery conviction, the
escape conviction, or both and (2) the effect of the answer to that question on the appeal.”
Appellant argues in his brief that the “restitution amount of $9,281.72 is causally connected to the
assault and battery on a law enforcement officer.” We find that, contrary to the assertions of
appellant, the trial court awarded restitution in this matter as a result of injuries that were caused to
the pursuing officer by appellant’s escape from the custody of law enforcement.
A trial court “speaks through its orders and those orders are presumed to accurately reflect
what transpired.” McBride v. Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997).
“However, in construing an order of a lower court that does not conflict with the transcript, a
reviewing court may consider the lower court’s statements from the bench to determine what
construction a lower court has placed on its own order.” Anonymous B v. Anonymous C, 51
Va. App. 657, 672, 660 S.E.2d 307, 314 (2008) (citing Fredericksburg Constr. Co. v. J.W. Wyne
Excavating, Inc., 260 Va. 137, 144 , 530 S.E.2d 148, 152 (2000)). While the sentencing order does
not expressly state that the restitution award was specific to one offense, our review of the transcript
of the sentencing hearing reveals that the trial court clearly awarded restitution as a result of
appellant’s escape offense.
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Our conclusion that the trial court judge awarded restitution for the escape conviction is
supported by numerous statements made by the trial judge at the sentencing hearing. First, the trial
judge states, “The escape was just so foolish and let me address the restitution issue, in conjunction
with that. I think restitution is·appropriate.” The court goes on to state, “But for his fleeing, this
officer would not have been chasing him and would not have – I think it was his knee he tore all up.
It wouldn’t have happened.” Finally, the trial judge concludes, “If you look at this in a civil
standard and in the standard for restitution, you know, his flight caused this problem and it is
certainly reasonably related and it is certainly a but-for test.” From the trial court record, we
conclude that the only reasonable interpretation of the trial court’s statements is that the trial court
awarded restitution for injuries caused by appellant’s unlawful escape from custody.
C. Appellant’s Escape was the Direct Cause of the Officer’s Injuries
Reviewing the evidence before the trial court, we agree with the trial judge that
appellant’s escape from custody was the direct cause of Lieutenant Davis’s injuries. The court
has authority under the Virginia Code to order that the defendant “make at least partial
restitution” to an “aggrieved party or parties for damages or loss caused by” the offense or
offenses for which the defendant was convicted. Code §§ 19.2-303 and 19.2-305(B); see also
Code § 19.2-305.1(A). According to the Supreme Court in Howell, these sentencing statutes
have “limited the scope of restitution a court may order to payments for ‘damages or losses
caused by the offense.’” Howell, 274 Va. at 740, 652 S.E.2d at 108. In short, the Supreme
Court, in interpreting the scope of restitution allowed by these statutes, has held that restitution is
proper only when a victim’s financial loss is actually “caused by the offense” – not when the
financial loss is only “related to” the offense. Id. at 741, 652 S.E.2d at 109.
In Howell, the defendant burglarized the victims’ business. After the burglary, the
owners said they “felt forced to install a new security system at their business” because one of
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the owners no longer felt comfortable being alone in the building. Id. at 740, 652 S.E.2d at 108.
The cost of this security system was included in the amount of restitution ordered by the trial
court. Id. at 739, 652 S.E.2d at 108. This Court affirmed the restitution order, holding that it
“was reasonably related to Howell’s criminal activities,” but the Supreme Court subsequently
reversed the restitution order, holding that “the installation of a security system, while related to
Howell’s burglary, was not caused by the offense as required by Code §§ 19.2-303, -305(B), -
305.1(A).” Id. at 739, 741, 652 S.E.2d at 108, 109. The Court explained that the “attenuation”
was “too great” to warrant ordering restitution for the cost of installing the security system,
which included the first eight months of premiums for the company’s monitoring of the security
system. Id. at 741, 652 S.E.2d at 109.
The relevant holding of the Supreme Court in Howell states, “Costs that result only
indirectly from the offense, that are a step removed from the defendant’s conduct, are too remote
and are inappropriate for a restitution payment.” Id. Unlike the award of restitution for the cost
of a security system in Howell, the evidence in this case is undisputed1 that appellant’s escape
from custody was a “but for” cause of Lieutenant Davis’s injuries. Appellant was convicted of
escape from police custody by force and violence. When appellant broke free from police
custody by shoving Investigator Hambrick, Lieutenant Davis pursued appellant on foot as he ran
out of his residence toward the woods. During his escape, appellant jumped over a brush pile as
Davis followed. When Lieutenant Davis jumped over that same pile, his right foot landed on a
large rock that was concealed by high weeds, and he sustained serious injuries – including a
1
Even appellant generally recognized that restitution was proper in this case, having
stated at the sentencing hearing that “I would reiterate my apology to [the officers] and also kind
of extend my hand, as far as I want to pay the restitution, based on the fact that even though I
didn’t directly have nothing to do with the fall, per se; but it still was a result of my actions.”
(Emphasis added).
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stress fracture of his ankle, a tear of his Achilles tendon, a fracture of his right hand, and a sprain
of his hip. His medical expenses from these injuries totaled $9,281.72.
As required by the Supreme Court in Howell, the restitution ordered in this case was
directly caused by appellant’s criminal conduct of escaping from police custody. In Howell, the
loss suffered was the cost of a security system installed well after the defendant had committed
the burglary that served as the basis for the award of restitution. In the present case, the injuries
suffered by Lieutenant Davis occurred during the actual commission of appellant’s criminal
escape from custody. Therefore, we conclude that appellant’s escape was a “but for” cause of
Lieutenant Davis’s injuries that served as the basis for the restitution award. As such, there are
no issues of remoteness or attenuation that would otherwise limit the discretion of the trial court
to award restitution based on these facts. For those reasons, the trial court did not abuse its
discretion by awarding restitution in this case.
III. CONCLUSION
Pursuant to the Supreme Court’s decision in Howell, we conclude that the trial court did
not abuse its discretion when it ordered restitution for the financial loss suffered as a result of the
officer’s injuries. Accordingly, for the foregoing reasons, we affirm the trial court.
Affirmed.
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