Robert Michael Carfagno v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia
ROBERT MICHAEL CARFAGNO
OPINION BY
v. 	Record No. 3186-01-2 	JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 19, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Cynthia E. Payne, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General on
brief), for appellee.
Ronald Michael Carfagno was convicted of two counts of
felonious and unlawful assault and battery on victims selected
because of their race, in violation of Code § 18.2-57(B). 	On
appeal, he challenges the legal sufficiency of the evidence.
For the reasons that follow, we affirm.
Background
On appeal, we view the evidence in the light most favorable
to the Commonwealth, the party prevailing below, together with all
reasonable inferences that may be drawn. 	Ortega v. Commonwealth,
31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000). 	So viewed, the
record shows that on May 7, 2001, Eunice Wilson and her mother,
Gertrude Smith, stopped at a free-standing phone booth on West

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Cary Street in the City of Richmond to make a phone call.
Wilson saw Carfagno walking down the street pushing a child's
wheelchair filled with various items. 	Carfagno initially passed
the two women, then backed up and began to speak to them. 	He
asked, "You know why I'm backing the wheelchair up?" 	When
Wilson responded, "No," Carfagno replied, "I'm backing it up so
you all black bitches can see what I got."
Carfagno continued to make statements to the two women,
calling them "black bitches and niggers," and stating "I don't
like you all black bitches no way." 	Carfagno started hitting
both women at the same time, eventually pushing Smith to the
ground. 	After Carfagno pushed her mother to the ground, Wilson
began to hit him around his shoulder, face, and chest. 	The
fight ended when Carfagno pushed Wilson to the ground.
A witness to the incident, Alberto Sejas, was at his place
of employment about thirty-seven feet from the telephone booth,
when he heard the argument. 	He heard Carfagno use the racial
epithet, "black nigger bitch," when he referred to the two women
and saw Carfagno push Smith to the ground. 	He then saw Wilson
"jump in[to]" the fray.
Wilson suffered a knot on her elbow and a scraped pinky
finger. 	As a result of her fall, Smith chipped a bone in her
back that punctured her intestines.

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Analysis
Under Code § 18.2-57(B), punishment for assault and battery
is enhanced "if a person intentionally selects the person
against whom an assault and battery resulting in bodily injury
is committed because of his race."1 Carfagno contends the
Commonwealth failed to establish that the victims' race
motivated the assault and battery, arguing the words he used do
not establish beyond a reasonable doubt that race motivated the
assault on the victims.2
1 Code § 18.2-57 provides:
A. 	Any person who commits a simple assault
or assault and battery shall be guilty of a
Class 1 misdemeanor, and if the person
intentionally selects the person against
whom a simple assault is committed because
of his race, religious conviction, color or
national origin, the penalty upon conviction
shall include a mandatory, minimum term of
confinement of at least six months, thirty
days of which shall not be suspended, in
whole or in part.
B. 	However, if a person intentionally
selects the person against whom an assault
and battery resulting in bodily injury is
committed because of his race, religious
conviction, color or national origin, the
person shall be guilty of a Class 6 felony,
and the penalty upon conviction shall
include a mandatory, minimum term of
confinement of at least six months, thirty
days of which shall not be suspended, in
whole or in part.
2 Carfagno also contends that the Commonwealth failed to
establish the race of the parties involved. 	Carfagno failed to
preserve this argument at trial; therefore, his claim on appeal
is barred under Rule 5A:18. 	"The Court of Appeals will not

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Carfagno raises a question of first impression in Virginia.
However, we are guided by the reasoning of other state courts
that have found the use of racial epithets constitutes
sufficient evidence of the speaker's racial motivation in
committing the crime. 	In State v. Henke, 954 S.W.2d 685 (Mo.
App. 1997), the defendant argued on appeal that the trial court
erroneously denied his motion to exclude evidence of a statement
he made, in which he referred to the victim as "chink." 	The
Missouri appellate court upheld the defendant's conviction for
assault, stating the challenged evidence was relevant and
properly admitted on the question of motive:
There was no prior exchange between [the
victim] and these men. 	There was no
indication of any prior relationship.
Henke's statement could reasonably be
interpreted as evidence of motive, ie. that
the attack occurred because of Henke's
racial prejudice against the Chinese. 	Such
racial prejudice is demonstrated by the
derogatory term "chink" used by Henke to
describe the victim.
Id. at 687.
In People v. Pirozzi, 237 A.D.2d 628 (N.Y. App. 1997), the
New York appellate court found that racial epithets supported
the conviction of a police officer charged with a racially
motivated assault. 	Id. at 630. 	In that case, the victim
testified that "the defendant struck her and stated, '[t]hat's
consider an argument on appeal which was not presented to the
trial court." 	Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1998); see also Rule 5A:18.

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what happened [sic] when you assault a police officer, you
little black bitch.'" 	Id. at 629. 	The court found that, "where
the officer initially accosted [the victim] and her companion
for no apparent reason, the use of this racial epithet creates a
viable inference that the defendant's conduct was racially
motivated." 	Id. at 630.
In Sterry v. State, 959 S.W.2d 249 (Tex. App. 1997), the
Texas appellate court held that use of racial epithets
constituted sufficient evidence upon which the trier of fact
could find that the victim was selected primarily because of
bias or prejudice against the victim's race. 	Id. at 255. 	In
upholding the imposition of an enhanced penalty for the racially
motivated assault, the court noted "the record indicates that
appellant 1) initiated the confrontation, 2) used racial slurs
before, during and after the assault, and 3) called people who
came to the victim's aid 'nigger lovers.'" 	Id.
When reviewing a challenge to the legal sufficiency of the
evidence, we view the evidence in the light most favorable to
the Commonwealth, the party prevailing below. 	Ortega, 31
Va. App. at 786, 525 S.E.2d at 627. 	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 and all fair inferences that may
be drawn" from the credible evidence. 	Watkins v. Commonwealth,
26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998). 	The decision

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of the trial court will not be disturbed unless plainly wrong or
without evidence to support it. 	McGee v. Commonwealth, 25
Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). 	"If
there is evidence to support the conviction," this Court will
not substitute its judgment for that of the trier of fact, even
were our opinion to differ. 	Commonwealth v. Presley, 256 Va.
465, 466, 507 S.E.2d 72, 72 (1998).
Applying the standard of review applicable to cases before
us on appeal and bearing in mind the conclusions reached in
other jurisdictions regarding the use of racial epithets as
evidence of motivation, we find the evidence, although
circumstantial, was sufficient to support the trial court's
determination that Carfagno assaulted Smith and Wilson because
of their race. 	"Circumstantial evidence is sufficient to prove
guilt beyond a reasonable doubt so long as 'all necessary
circumstances proved . . . exclude every reasonable hypothesis
of innocence.'" 	McNair v. Commonwealth, 31 Va. App. 76, 86, 521
S.E.2d 303, 308 (1999) (quoting Bishop v. Commonwealth, 227 Va.
164, 169, 313 S.E.2d 390, 393 (1984)).
Carfagno made manifest, by word and deed, that racial bias
motivated his selection of the assault victims in this case.
See Adams v. Commonwealth, 33 Va. App. 463, 471, 534 S.E.2d 347,
351 (2000). 	Carfagno used the term "black bitches," "niggers,"
and "black nigger bitch" in addressing the two women, with whom
he had no prior relationship. 	After using a racial epithet to

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initiate a conversation with the women, Carfagno proceeded to
assault Smith and her daughter. 	Carfagno continued to hurl
racial epithets at the women during the assault, which was
unprovoked.
Although Carfagno denied that he used racial epithets in
addressing Smith and Wilson, both victims and an uninvolved
bystander testified to the contrary, stating that, before and
during the assaults, Carfagno employed language replete with
racial slurs. 	When a trial court sits as fact finder, it "must
evaluate the credibility of the witnesses, resolve the conflicts
in their testimony and weigh the evidence as a whole." 	Albert
v. Commonwealth, 2 Va. App. 734, 738, 347 S.E.2d 534, 536
(1986); see also Sandoval v. Commonwealth, 20 Va. App. 133, 138,
455 S.E.2d 730, 732 (1995) ("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."). 	The trial court resolved the
issue of credibility raised by the disputed evidence against
Carfagno. 	Moreover, having determined that Carfagno was lying
about his use of racial epithets to address the women, the trial
court could consider the testimony as evidence of Carfagno's
consciousness of guilt and, thus, of guilt itself. 	Rollston v.
Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991).
We find no error in the trial court's conlusion that Carfagno
assaulted Smith and Wilson because of their race.

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Carfagno also argues that the evidence was insufficient to
prove beyond a reasonable doubt that Wilson and Smith suffered
"bodily injury." 	We disagree.
Carfagno pushed Smith to the ground and, as a result, she
suffered a "chipped bone" in her back that "punctured [her]
intestines." 	She was hospitalized after the assault for "three
or four days" for treatment of her injuries.3 This evidence is
sufficient to support the trial court's judgment that Smith
suffered "bodily injury."
Carfagno further asserts that the Commonwealth failed to
establish that Wilson's injuries, a scraped pinky and a bump on
her elbow, were caused by his conduct, arguing that Wilson
incurred her injuries as a result of her own conduct in
attacking him. 	The argument is without merit.
Carfagno hit and pushed Wilson and eventually knocked her
to the ground, where he continued "hitting at [her]." 	Although
the Commonwealth provided no direct evidence that Wilson's
scraped pinky and bruised elbow came from one of Carfagno's
blows, the trial court could reasonably infer from the evidence
presented that Carfagno's actions caused the injuries.
3 Carfagno contends the Commonwealth failed to establish
that Smith suffered any injury at all, because the evidence of
her injury resulted from inadmissible hearsay evidence. 	He
conceded at oral argument that his hearsay claim is barred on
appeal under Rule 5A:18 because he failed to timely object to
the testimony at trial. 	See Newsome v. Newsome, 18 Va. App. 22,
24, 441 S.E.2d 346, 348 (1994).

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"'Inferences 	. 	. 	. 	are 	elemental 	ingredients 	of 	the 	fact 	finding
process.'" 	Morton 	v. 	Commonwealth, 	13 	Va. 	App. 	6, 	9, 	408 	S.E.2d
583, 	584 	(1991) 	(quoting 	County 	Court 	of 	Ulster 	v. 	Allen, 	442
U.S. 	140, 	156 	(1979)). 	"'An 	inference 	. 	. 	. 	permits 	a 	finder 	of
fact 	to 	conclude 	the 	existence 	of 	one 	fact 	from 	the 	proof 	of 	one
or 	more 	other 	facts.'" 	Id. 	(quoting 	Carter 	v. 	Hercules 	Powder
Co., 182 Va. 282, 292, 28 S.E.2d 736, 740 (1944)).
Accordingly, we affirm the judgment of the trial court.
Affirmed.