Present: All the Justices
RALPH ALPHONSO ELLIOTT, JR.
OPINION BY
v. Record No. 081536 JUSTICE LAWRENCE L. KOONTZ, JR.
April 17, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal arises from the convictions of Ralph Alphonso
Elliott, Jr. for violating a protective order issued pursuant
to Code § 16.1-279.1. The issue we consider is the
sufficiency of the evidence to support these convictions.
BACKGROUND
The City of Lynchburg Juvenile and Domestic Relations
District Court issued a protective order on May 21, 2007
involving Elliott and Pamela Denise Harvey, who are the
parents of a minor child. The order provided that upon
“finding the need to protect the health and safety of [Harvey]
and family or household members of [Harvey], it is ORDERED
that [Elliott] is required to observe reasonable conditions of
behavior as set forth below.” The referenced conditions
required Elliott to “refrain from committing further acts of
family abuse,” and “have no further contact of any type with
[Harvey] or the named family or household members of [Harvey]
except . . . through 3rd party only to arrange visitation.”
The order concluded with a provision that it would “remain in
full force and effect” until May 8, 2009.
Pursuant to the provisions of Code § 16.1-253.2, which
among others establishes the criminal penalties for a
violation of a protective order issued under Code § 16.1-
279.1, Elliott was tried and convicted in the juvenile and
domestic relations district court on August 27, 2007 for
violations of the protective order occurring on July 6, 2007
and again on July 17, 2007. He appealed to the Circuit Court
of the City of Lynchburg and was tried in that court without a
jury on October 29, 2007.
The evidence presented in the circuit court is provided
in this appeal in an agreed statement of facts duly signed by
the trial judge. With regard to the occurrence on July 6,
2007, Harvey testified that Elliott called her on the
telephone and wanted to talk to their minor child. According
to Harvey, she informed Elliott that there was a protective
order in effect and that he could have no contact. Elliott
testified that he never called Harvey.
With regard to the occurrences on July 17, 2007, Elliott
and Harvey appeared at a court proceeding regarding a separate
protective order that Elliott had filed against Harvey. At
the conclusion of the hearing, Elliott confronted Donna
Harvey, Harvey’s mother, outside of the courthouse. Using
crude and vulgar language, Elliott told Harvey’s mother that
he would “beat [them] to their . . . house.” Elliott then got
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in his vehicle and passed them on the road. From Pamela
Harvey’s residence on Pansy Street, Donna Harvey, Pamela
Harvey, and a third witness, Linda Ellis Williams, observed
Elliott standing near his parked vehicle on Early Street, one
block from the Harvey residence. Though he remained at that
distance from the Harvey residence, the view between Elliott
and the witnesses was unobstructed. The witnesses observed
Elliott speaking on his mobile telephone and making various
gestures including pointing at the Harvey residence. Elliott
did not telephone Harvey or approach her residence. All three
witnesses stated that Elliott did not have any “direct
contact” with them.
At the conclusion of the evidence, Elliott contended that
the evidence was insufficient to convict him of violating the
protective order on July 6, 2007 because of the conflicting
testimony given by the parties. Elliott also contended that
the evidence was insufficient to convict him of violating the
protective order on July 17, 2007 because he made no direct
contact with Pamela Harvey on that date and the visual contact
was not a violation of the protective order. The circuit
court convicted Elliott of both violations and sentenced him
to 90 days incarceration on the first violation and 180 days
incarceration on the second violation, with the sentences to
run consecutively.
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Thereafter, Elliott appealed his convictions to the Court
of Appeals of Virginia. In an unpublished order, the court
denied his petition for appeal, holding that the evidence was
sufficient to support Elliott’s convictions. With regard to
the July 6, 2007 violation of the protective order, the court
reasoned that Harvey’s testimony was accepted by the circuit
court, was competent, not inherently incredible, and was
sufficient to prove beyond a reasonable doubt that Elliott
violated the order. With regard to the July 17, 2007
violation, the court reasoned that “no contact” encompasses
visual contact and thus, under the circumstances of the case,
Elliott had violated this term of the protective order. We
awarded Elliott this appeal.
DISCUSSION
Code § 16.1-279.1 authorizes a juvenile and domestic
relations district court to issue a protective order “[i]n
cases of family abuse . . . to protect the health and safety
of the petitioner and family or household members of the
petitioner.” In order to accomplish such protection, Code
§ 16.1-279.1(A) permits the court to impose one, several, or
all of a list of enumerated conditions upon the respondent.
The first two provisions listed under Code § 16.1-279.1(A)
specifically authorize a court to impose conditions on the
respondent “[p]rohibiting acts of family abuse,” and
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“[p]rohibiting such contacts by the respondent with the
petitioner or family or household members of the petitioner as
the court deems necessary for the health or safety of such
persons.” The two conditions in the May 21, 2007 protective
order prohibited Elliott from both “commiting further acts of
family abuse” and having “further contact of any type” with
Harvey. It is the second condition that is at issue in this
appeal.
The applicable principles of appellate review are well-
established. On appeal, the facts are viewed in the light
most favorable to the Commonwealth, the prevailing party at
trial. Porter v. Commonwealth, 276 Va. 203, 215-16, 661
S.E.2d 415, 419 (2008); Juniper v. Commonwealth, 271 Va. 362,
376, 626 S.E.2d 383, 393 (2006). This Court will reverse a
judgment of the circuit court that is plainly wrong or without
evidence to support it. Jay v. Commonwealth, 275 Va. 510,
524, 659 S.E.2d 311, 319 (2008); Viney v. Commonwealth, 269
Va. 296, 299, 609 S.E.2d 26, 28 (2005).
On appeal, as he did in the circuit court, Elliott
contends that the evidence was insufficient to establish his
guilt beyond a reasonable doubt of violating the conditions of
the protective order on either July 6, 2007 or July 17, 2007.
The Commonwealth asserts that both violations occurred when
Elliott failed to adhere to the condition that he have “no
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further contact of any type” with Harvey as provided in the
protective order. According to the Commonwealth, Elliott made
“contact” with Harvey during the July 6, 2007 telephone
conversation and when Elliott was viewed by Harvey while he
stood a block away from Harvey’s residence and made several
gestures toward the residence on July 17, 2007.
Elliott denies contacting Harvey by telephone on July 6,
2007 and so testified in his defense. He notes that no
telephone records were admitted at his trial. Elliott
maintains that the only evidence to establish a violation of
the protective order was Harvey’s uncorroborated testimony,
which he contends lacked credibility and ultimately was
insufficient to convict him of violating the protective order
on July 6, 2007. We disagree.
The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has
the opportunity to see and hear that evidence as it is
presented. Schneider v. Commonwealth, 230 Va. 379, 382, 337
S.E.2d 735, 736-37 (1985); Carter v. Commonwealth, 223 Va.
528, 532, 290 S.E.2d 865, 867 (1982). We give deference to
the fact finder who, having seen and heard the witnesses,
assesses their credibility and weighs their testimony. See
Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42
(1991). In this case, the circuit court was called upon to
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weigh Harvey’s testimony against Elliott’s testimony and to
make a credibility determination. The circuit court accepted
Harvey’s testimony as competent, not inherently incredible,
and sufficient to prove beyond a reasonable doubt that Elliott
violated the protective order on July 6, 2007. This judgment
of the circuit court is not plainly wrong or without evidence
to support it and, accordingly, we hold that the Court of
Appeals did not err in sustaining that judgment.
Regarding the conviction resulting from Elliott’s
presence near the Harvey residence on July 17, 2007, Elliott
asserts that while he may have been visible to Harvey, his
conduct did not result in “contact of any type” as proscribed
in the protective order. We agree.
As we have noted above, the May 21, 2007 protective order
imposed restrictive conditions upon Elliott after “finding the
need to protect the health and safety of [Harvey] and family
or household members of [Harvey].” This is identical language
adopted from Code § 16.1-279.1, which begins with the
statement, “[i]n cases of family abuse, the court may issue a
protective order to protect the health and safety of the
petitioner and family or household members of the petitioner.”
In reviewing the language of Code § 16.1-279.1, we adhere to
the familiar principle that under basic rules of statutory
construction, we determine the General Assembly's intent from
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the words contained in the statute. Alger v. Commonwealth,
267 Va. 255, 259, 590 S.E.2d 563, 565 (2004). When the
language of a statute is unambiguous, courts are bound by the
plain meaning of that language and may not assign a
construction that amounts to holding that the General Assembly
did not mean what it actually has stated. Id. Therefore,
given the unambiguous wording of Code § 16.1-279.1, the
General Assembly clearly intended protective orders to
safeguard the health and physical safety of a petitioner.
As relevant to this appeal, Code § 16.1-279.1(A)(2)
permits the court to issue a protective order that prohibits
“such contacts by the respondent with the petitioner . . . as
the court deems necessary for the health or safety” of the
petitioner. While “contacts” is not defined in the statute,
in essence, the statute permits the court to fashion
protective orders that create a persistent barrier between the
petitioner and the respondent so as to reasonably ensure the
health and physical safety of the petitioner.
In the present case, the protective order prohibited
“contact of any type” which obviously would encompass a broad
scope of actions and conduct, both intentional and
unintentional, if construed and applied literally. We are of
opinion, however, that “such contacts” contemplated by the
statute to be included as a condition in a protective order
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are intentional acts. In other words, contacts are those acts
by the respondent that intentionally pierce the protective
barrier between the petitioner and the respondent fashioned by
the protective order. The resolution of this appeal does not
require this Court to specify the bounds of “contacts” as
proscribed by Code § 16.1-279.1, and we decline to do so.
Plainly, the statute does not authorize a court to fashion a
protective order beyond the statute’s intended sweep. In that
context, we are further of opinion that the statute permits a
protective order that prohibits the respondent from entering a
reasonable distance-defined space around the petitioner and,
thus, intentionally making visual contact with the petitioner.
Elliott’s actions on July 17, 2007 do not constitute
contacts contemplated by Code § 16.1-279.1 and authorized to
be included in the court’s May 21, 2007 protective order.
While he may have intentionally placed himself where he was
openly visible to Harvey from her residence, it is undisputed
that at that place he was located a block away from Harvey’s
residence, on a different street, and posed no threat of harm
to the health and safety of Harvey. Accordingly, the evidence
does not establish beyond a reasonable doubt that Elliott
intentionally violated the condition of the protective order
because the evidence is insufficient to establish that Elliott
intended to visually communicate with Harvey, who was located
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at her residence one block away. Accordingly, we hold that
the Court of Appeals erred in finding that the evidence was
sufficient to support Elliott’s conviction for violating the
protective order on July 17, 2007.
CONCLUSION
For these reasons, we will affirm the judgment of the
Court of Appeals sustaining Elliott’s conviction of violating
the conditions of a protective order on July 6, 2007. We will
reverse the judgment of the Court of Appeals sustaining
Elliott’s conviction of violating the conditions of a
protective order on July 17, 2007, and dismiss the warrant
issued against Elliott on that charge.
Affirmed in part,
reversed in part,
and final judgment.
JUSTICE LEMONS, with whom JUSTICE KINSER and JUSTICE GOODWYN
join, concurring in part and dissenting in part.
While I agree with the majority opinion that the
conviction for the July 6, 2007 incident should be affirmed, I
disagree with the majority determination that Elliott did not
violate the terms of the protective order with regard to the
July 17, 2007 incident.
The majority holds that because Harvey was “a block away
from Harvey’s residence, on a different street,” he “posed no
threat of harm to the health and safety of Harvey.” If this
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reasoning is sound, then Elliott posed even less threat of
harm to the health and safety of Harvey when he was on the
telephone with her during the July 6, 2007 incident.
The majority apparently agrees that the July 17, 2007
incident constitutes a contact and that it was intentional but
rests its decision upon the conclusion that “the evidence is
insufficient to establish that Elliott intended to visually
communicate with Harvey.” This conclusion comes in the
sentence immediately following the declaration that Elliott
“may have intentionally placed himself where he was openly
visible to Harvey from her residence.” As the majority notes,
this encounter began outside the courthouse after a hearing on
a separate protective order that Elliott had filed against
Harvey. As the majority notes, “At the conclusion of the
hearing, Elliott confronted Donna Harvey, Harvey’s mother,
outside of the courthouse. Using crude and vulgar language,
Elliott told Harvey’s mother that he would ‘beat [them] to
their . . . house.’ ” Elliott did “beat them to their house”
and positioned himself, as the majority opinion acknowledges,
“intentionally . . . where he was openly visible to Harvey
from her residence.” Harvey did see him. As the Commonwealth
summarized in its brief,
By arriving before [Harvey] and positioning
himself with a clear view of her home, one
block distant, Elliott showed that his intent
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was to see Ms. Harvey and be seen by her as he
pointed and gestured. Taken in context, the
trier of fact could reasonably view Elliott’s
conduct as a direct method of communicating to
the victim that he was at hand, and that she
was not safe from him.
Indeed, such contact was more threatening than the phone call
which the majority finds sufficient to sustain the conviction
for the July 6, 2007 incident. The trial court was not plainly
wrong or without evidence to support the conviction.
I would affirm the judgment of the Court of Appeals in
its entirety. Accordingly, I dissent.
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