COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
NED JACOB GOODWIN
OPINION BY
v. Record No. 1701-95-2 JUDGE JAMES W. BENTON, JR.
NOVEMBER 19, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
John R. Cullen, Judge
Norman Lamson for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Ned Jacob Goodwin was convicted of assault and battery of
his former spouse in violation of Code § 18.2-57.2. On appeal,
Goodwin contends that (1) Code § 16.1-278.14 barred the trial
judge from sentencing him in a criminal proceeding after entering
a protective order based on the same conduct; (2) the Double
Jeopardy Clause barred the trial judge from sentencing him in a
criminal proceeding after having entered a protective order based
on the same conduct; and (3) the evidence was insufficient to
support the conviction. For the reasons that follow, we affirm
the conviction.
I.
On June 15, 1994, Goodwin encountered his former spouse,
Linda Samuel, outside the Fluvanna County courthouse. They were
going to a hearing on a contempt petition filed by Goodwin
against Samuel in a custody dispute. Goodwin approached Samuel,
asked her to speak with him, and handed her a business card
belonging to a detective employed in the vice and narcotics
section of the Chesterfield County Police Department. Samuel
read the card, did not understand why Goodwin had given the card
to her, and returned it to him. As she continued up the steps,
Goodwin told her that "this is not petty . . . and . . . I'll
probably go to jail for this."
Samuel testified that Goodwin had been hospitalized several
years earlier because of a bipolar disorder that caused him to
develop acute paranoia. She had detected a recurrence of
abnormal behavior when she took the child to visit with Goodwin
and Goodwin told her that his truck was bugged. Because Samuel
thought the information on the card might be pertinent to her
child's safety, she asked Goodwin if she could have the card.
Goodwin again handed her the card. After Samuel reread the card,
she continued walking toward the courthouse and began to place
the card into her purse.
Goodwin became angry and lunged at Samuel. He pushed Samuel
into a rail, twisted her arm, and demanded that she return the
card. Samuel testified that Goodwin was "growling" and making
other unusual sounds. She became frightened and repeatedly asked
Goodwin to let her go. A state trooper heard Samuel call for
help and ordered Goodwin to release Samuel.
Goodwin did not deny that an altercation occurred. He
testified, however, that he tried to explain to Samuel that he
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was having "problems . . . in another area" and that he wanted to
tell her not to interfere. He said that the problem occurred
because she snatched the card after she had returned it to him.
When she turned to run, he struggled with her to retrieve the
card.
After the altercation, Samuel filed a criminal complaint for
assault and battery and a petition for a protective order. A
judge of the juvenile and domestic relations district court heard
evidence on both matters. The judge found Goodwin guilty of
assault and battery and continued the sentencing until after a
psychiatric evaluation could be performed. In addition, the
judge granted Samuel's petition for a protective order and
prohibited Goodwin from having contact with Samuel for a period
of one year. At the sentencing hearing on the assault and
battery conviction, the judge imposed a sentence of thirty days
in jail, all of which was suspended. Goodwin appealed the
conviction.
Following a de novo hearing in the circuit court, the trial
judge found Goodwin guilty of assault and battery and imposed a
sentence of ten days in jail and a fine of $300. The trial judge
suspended the entire jail sentence and suspended $200 of the
fine.
II.
Goodwin argues that Code § 16.1-278.14 precluded the trial
judge from sentencing him in the criminal matter after a judge
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had issued a protective order based on the same act of assault
and battery. Goodwin misconstrues the meaning of Code
§ 16.1-278.14.
The judge's authority to issue the protective order derived
from Code §§ 16.1-278.14 and 16.1-279.1. The former states:
In cases involving . . . offenses committed
by one spouse against another, the juvenile
court or the circuit court may impose a
penalty prescribed by applicable sections of
the Code. However, in cases involving
offenses committed by one family or household
member against another, the court may impose
conditions and limitations upon the abusing
party . . . including, but not limited to, an
order of protection as provided in § 16.1-279.1
. . . .
Code § 16.1-278.14. The first sentence of Code § 16.1-278.14
does not apply to this case because Goodwin did not assault a
spouse; he assaulted his former spouse. The second sentence does
apply, however, because Code § 16.1-228 states that a family or
household member includes "the person's former spouse, whether or
not he or she resides in the same home with the person."
In pertinent part, Code § 16.1-279.1 states as follows:
A. In cases of family abuse, the court may
issue an order of protection to protect the
health and safety of the petitioner and to
effect the rehabilitation of the abusing
person and reconciliation of the parties as
the court deems appropriate. An order of
protection issued under this section may
include any one or more of the following
conditions to be imposed on the abusing
person:
1. Prohibition of further acts of
family abuse;
2. Prohibition of such contacts between
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the parties as the court deems
appropriate;
3. Granting the petitioner possession of
the residence occupied by the parties
to the exclusion of the abusing person;
however, no such grant of possession
shall affect title to any real or
personal property;
4. Requiring that the abusing person provide
suitable alternative housing for the
petitioner, and, if appropriate, any
other family or household member;
5. Ordering the petitioner, with his or her
consent, or the abusing person to
participate in treatment, counseling or
other programs designed for the
rehabilitation and reconciliation of the
parties; and
6. Any other relief necessary for the
protection of the petitioner and minor
children.
Based on the finding that Goodwin committed an act of abuse
against a family member, Code §§ 16.1-278.14 and 16.1-279.1
authorized the judge to issue an order to protect Samuel.
Code § 18.2-57.2(A) states that "[a]ny person who commits an
assault and battery against a family or household member shall be
guilty of a Class 1 misdemeanor." Code § 18.2-57.2(C) defines
family or household member to include "the defendant's former
spouse, whether or not he or she resides in the same home with
the defendant." Thus, Code § 18.2-57.2 clearly authorized the
prosecution of Goodwin for the assault and battery of Samuel.
Nothing in Code § 16.1-278.14 prevented the judge from
convicting Goodwin under Code § 18.2-57.2 after issuing a
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protective order under Code § 16.1-279.1. "The plain, obvious,
and rational meaning of a statute is always preferred to any
curious, narrow or strained construction . . . ." Branch v.
Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992).
The plain meaning of these provisions of the Code is that both
options are available to the judge when a spouse commits an act
of assault or battery against a former spouse. Goodwin's
interpretation of Code § 16.1-278.14 would force a judge to
choose between punishing past misconduct and preventing future
harm. Had the General Assembly intended to impose such a
limitation, it would have stated its intention expressly. We
hold that by separately setting forth two options, the General
Assembly intended to authorize judges both to impose criminal
sanctions punishing past misconduct and to issue orders
protecting family members from future harm.
III.
Goodwin next argues that under the Double Jeopardy Clause,
the judge's issuance of a protective order barred a prosecution
against him in the criminal matter based on the same conduct.
Goodwin asserts that he was wrongfully subjected to multiple
"punishments" for the same offense. We disagree.
One of the protections afforded by the Double Jeopardy
Clause is the prohibition "against multiple punishments for the
same offense." North Carolina v. Pearce, 395 U.S. 711, 717
(1969) (footnote omitted). "The double jeopardy clause becomes
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operative if one of the sanctions 'may not fairly be
characterized as remedial' . . . . A sanction is not 'remedial'
if it 'bears no rational relation' to [a remedial goal] . . . ."
Small v. Commonwealth, 12 Va. App. 314, 317, 398 S.E.2d 98, 100
(1991) (en banc) (quoting United States v. Halper, 490 U.S. 435,
449 (1989)). "[T]he determination whether a given . . . sanction
constitutes punishment in the relevant sense requires a
particularized assessment of the penalty imposed and the purposes
that the penalty may fairly be said to serve." Halper, 490 U.S.
at 448.
In this case, the Double Jeopardy Clause is not operative
because the protective order is remedial. Code § 16.1-279.1
states that "[i]n cases of family abuse, the court may issue an
order of protection to protect the health and safety of the
petitioner and to effect the rehabilitation of the abusing person
and reconciliation of the parties." The protective order issued
in this case serves the remedial goals of (1) protecting Samuel
from future abuse by prohibiting future contact between her and
Goodwin; (2) rehabilitating Goodwin by prohibiting him from
placing himself in a situation that could lead to abuse; and (3)
effecting a reconciliation of the parties by preventing further
conflict between them. These goals are not punitive.
In addition, the terms of the order are rationally related
to the advancement of the remedial goals. The order prohibited
Goodwin from having contact with his former spouse for a period
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of one year. The limited duration of the order supports an
inference that the purpose was not to punish, but rather, to
prevent abuse during a time when abuse was likely to occur.
Moreover, the Code states that "[e]ither party may at any time
file a written motion with the court requesting a hearing to
dissolve or modify the order." Code § 16.1-279.1(B). The
ability to modify or dissolve the order adds to its remedial
nature because it allows the judge to ensure that the order
remains rationally related to its remedial goals.
For these reasons, we hold that the protective order issued
pursuant to Code § 16.1-279.1 is remedial and did not constitute
punishment for double jeopardy purposes. Therefore, the sentence
imposed in the criminal proceeding did not violate the Double
Jeopardy Clause.
IV.
Goodwin also argues that the evidence was insufficient to
support a conviction of assault and battery. He contends that he
was privileged to use force to recover his property. We hold
that the evidence supported the judge's finding that Goodwin used
excessive force.
When one is privileged to use force, the amount of force
used must be reasonable in relation to the harm threatened. See
Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 26
(1989). The reasonableness of the force used is a factual issue.
See id. at 422, 382 S.E.2d at 26; Foster v. Commonwealth, 13 Va.
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App. 380, 384, 412 S.E.2d 198, 201 (1991). In considering the
sufficiency of the evidence, we apply the usual standards. "On
appeal, we review the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987).
The evidence proved that Goodwin pushed Samuel against a
rail, twisted her arm, and demanded that Samuel return the
business card. Although Goodwin partially disputed the testimony
regarding his actions, the trial judge found that Samuel's
testimony was more credible than Goodwin's testimony. "The
weight which should be given to evidence and whether the
testimony of a witness is credible are questions which the fact
finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523,
528, 351 S.E.2d 598, 601 (1986).
Samuel's testimony proved that Goodwin used excessive force.
Upon that evidence, the trial judge ruled that Goodwin's defense
of privilege was not viable under the facts of this case. The
Commonwealth's evidence was sufficient to prove Goodwin's guilt
beyond a reasonable doubt. Accordingly, we affirm the
conviction.
Affirmed.
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