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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Hey Judges! Here’s Some Advice: Si Tacuisses, Philosophus Mansisses

The maxim, Si Tacuisses, Philosophus Mansisses is often attributed to the Latin philosopher Boethius.  An exact translation is “If you had been silent, you would have remained a philosopher,” but more colloquially it has been rendered “If you’d kept your mouth shut, we might have thought you were clever.” The case of Troy McGowan v. Commonwealth of Virginia (11/24/2020), provides an example in how a judge can be completely wrong (or at least highly confuzzled) in stating the law in his summation, yet that is still not enough to overturn a conviction if the evidence is there to support it.

McGowan had a no contact protective order entered against him by L.M., a “family member.”  Nonetheless, he went to L.M.’s house one morning and when she denied him entry, he decided to enter anyway.  Clearly, McGowan was in violation of the protective order – indeed, had he chosen to walk away, he still would have been in violation merely by going to the house and seeking entry.

When McGowan entered the home, L.M. retreated to her bedroom with her child, lay on the floor, and wrapped her body around the child, apparently fearing that McGowan would harm the boy.  McGowan bit L.M. on the leg near her knee, then left when L.M. cried out in pain.  When police subsequently arrived, McGowan allowed them to photograph some discoloration on her leg, but she later told them this was cause by a skin condition.

McGowan was charged with violating a protective order by committing an assault and battery that resulted in bodily injury Code § 16.1-253.2(C), a felony, and assault and battery of a family member, Code § 18.2-57.2.  At trial, McGowan argued that while the evidence was sufficient to prove he assaulted L.M., the evidence did not show that the assault had resulted in bodily injury, thus he was at most guilty of a misdemeanor violation of the protective order.

In finding McGowan guilty under Code § 16.1-253.2(C), the trial judge did something that trial judges are wont to do, but probably shouldn’t – he tried to explain his decision from the bench.  The law does not require a trial judge to explain why s/he is ruling a particular way on a motion or a verdict except in the rare instance where a statute directs that this be done.  Often judges will issue trial memoranda or opinion letters after the fact, and these are generally well thought out and supported by citation to authority.  But when a judge rules from the bench, it will often result in an off-the cuff statement on the law that is not well considered.

Here is the full text of the judge’s summation as quoted by the Court of Appeals, with some emphasis added:

[t]he key issue here is whether or not there was an assault and battery on [L.M.], the witness, and whether or not he came in contact with her in violation of the protective order. . . . Not some scars on the knee or anything. The felony charge is grounded on did he violate the protective order by not having contact, one, and by not committing any injury to her.

. . . [T]he order provides that [appellant] shall not commit acts of family abuse or criminal offense that result[] in injury to person or property. And it goes on, that [appellant] shall have no contact of any kind with [L.M.].

So it doesn’t have to be injury to her at all. He wasn’t supposed to have any contact with her. . . . He comes into the house unauthorized, uninvited. He contacts her. . . . [H]e bites her—I believe that happened—and the rest speaks for itself.

The emphasized language in the first paragraph may simply be the result of the judge losing track of whether he was speaking in the affirmative or the negative, as clearly the charge is not founded on McGowan not having contact with L.M., but whether he violated the order by having contact with her.

In the second paragraph the judge indicates that the protective order provides that McGowan “shall not commit acts of family abuse or criminal offense that result[] in injury to person or property.”  While this may seem unusual language to include in an order, courts often will quote the statutory language to establish that the respondent understands (or at least has the opportunity to understand) the restrictions placed on him.  This is a correct statement of the law.

Where the summation goes off the rails is in paragraph three.  After just having stated that the order (and the statute) required there to be an “injury to [a] person,” the judge appears to say the opposite, “it doesn’t have to be [an] injury to her at all.”

It further appears that the judge equates the “no contact” provision of the protective order as being the equivalent of “no touching.”  This is, of course, not a proper interpretation of “no contact” in this context, yet it appears that the judge has based McGowan’s guilt on his having “contact” with L.M. by biting her, whether it caused injury or not.

Perhaps that is a somewhat strained reading of the last sentence, but even so we are left with the judge’s statement that there “doesn’t have to be [an] injury to her at all,” which simply is not what the statute says.  The enhancement of Code § 16.1-253.2(C) which raises the violation of the protective order from a misdemeanor to a felony is the occurrence of a bodily injury in the course of violating the protective order. [Editor’s note: An interesting hypothetical is whether the respondent to the protective order must inflict the injury or merely be the external cause of the protectee being injured; suppose, for example, L.M. had run to get away from McGowan and tripped, striking her knee on the floor; what if the injury occurs not to the protectee but to someone attempting to intervene or who is merely a bystander?]

The Court of Appeals first notes that, prior to 2016, the enhancement required a “serious bodily injury,” but following an amendment, now requires only bodily injury.  The Court does a fine job of explaining the difference between a bodily injury and a serious bodily injury, but suffice to say that the main difference is that without the “serious” requirement, just about any level of battery that causes even momentary physical discomfort will be sufficient to constitute an injury.  It is the difference between an unwanted tap on the shoulder (a battery), a painful poke on the shoulder that you rub away (an injury), and a wrenching of the shoulder that leaves bruises or worse (a serious injury). [Editor’s note: there are several additional levels of “injury” which constitute “woundings” of various degrees, but that is a discussion for another day.]

The Court of Appeals determined that because L.M. did not cry out until McGowan bit her, the scream was evidence that the bite caused pain, thus it was not merely a battery, but an injury.  As the trial court had found that McGowan bit L.M., whether the summation correctly stated the law or not was irrelevant, because the evidence was sufficient to sustain the finding of guilt.

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