Kenneth Neil Barnett v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
KENNETH NEIL BARNETT MEMORANDUM OPINION* BY
v. 	Record No. 2622-95-1 	JUDGE JOSEPH E. BAKER
SEPTEMBER 24, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert P. Frank, Judge
R. L. Shrecengost for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Kenneth Neil Barnett (defendant) was convicted of assault
and battery, a violation of Code § 18.2-57, on an indictment
charging felony child abuse. 	He complains on appeal that the
misdemeanor is not a lesser-included offense of the felony
originally subject of the indictment. 	Finding no error, we
affirm the conviction.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal.
Upon well established principles, we view the evidence in
the light most favorable to the Commonwealth. 	Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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On June 3, 1995, Jay Michael Kerivan, then three years of age,
was entrusted to defendant's care for several days by the child's
mother, Jennifer Miller. 	When Jay was returned to Miller, she
noted numerous bruises about his body. 	The child was immediately
taken to the hospital, and his injuries were determined to be
consistent with abuse. 	Defendant subsequently admitted to
"los[ing] his temper," "smacking" and "slapp[ing]" the child in
the face, hitting him in the stomach "about six times,"
"pinch[ing] his nose, and "grabb[ing] him by his neck."1
At the conclusion of the Commonwealth's evidence, defendant
moved the trial court to "reduc[e]" the "felony abuse to assault
and battery," arguing that the Commonwealth had failed to
establish conduct "so gross, wanton and culpable as to show a
reckless disregard for human life," a necessary element of the
offense. 	See Code § 18.2-371.1(B). 	Defendant's motion prompted
the following colloquy between the court and his counsel.
The Court: 	Are you suggesting that there's a lessor
[sic] included offense?
Counsel: 	Yes, I would suggest that there is. 	If not,
we would certainly have no--quite frankly, we
would have no objection at this point to
amend 	the charge and plead guilty to assault
and battery, waive any defense that might
come from to eliminate the Court--the Appeals
1Defendant was indicted for a "willful act or omission in
the care of the child . . . so gross, wanton and culpable as to
show a reckless disregard for the life of Jay Michael Kerivan" in
violation of Code § 18.2-371.1(B).

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Court finding that it's not lessor [sic]
included.
The Court: 	Well, my question to you is are you
suggesting that assault and battery is a
lessor [sic] included in this offense?
Counsel: 	I believe that it's implicit in that charge.
The Court: 	All right, sir. I'm going to grant your
motion. 	What this man did was reprehensible
of a three-year-old child who was
defenseless. . . . The evidence before me
does not indicate that there's a reckless
disregard for human life; clearly there's a
willful act of assault and battery.
(Emphasis added).
Nevertheless, defendant later requested the court to "set
aside the conviction of assault and battery," contending that the
offense is not "lesser included . . . in the abuse or neglect
charged in the indictment." 	The trial court denied this motion
and defendant appeals.
It is well established that a "'defendant, having agreed
upon the action taken by the trial court, should not be allowed
to assume an inconsistent position.'" 	Manns v. Commonwealth, 13
Va. App. 677, 679, 414 S.E.2d 613, 615 (1992) (citation omitted).
"'No litigant, even a defendant in a criminal case, will be
permitted to approbate and reprobate--to invite error . . . and
then to take advantage of the situation created by his own
wrong.'" 	Id. at 680, 414 S.E.2d at 615 (citation omitted).
Moreover, assuming, without deciding, that assault and
battery is not lesser included within the indicted offense, the
order of conviction in this instance clearly reflects that the

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court "reduce[d] the . . . indictment to [a]ssault and [b]attery"
on defendant's motion. 	Code § 19.2-231 provides that "if there
shall appear to be any variance between the allegations therein
and the evidence offered in proof thereof, the court may permit
amendment of such indictment . . . at any time before the jury
returns a verdict or the court finds the accused guilty or not
guilty, provided the amendment does not change the nature or
character of the offense charged."2 Any objection to
deficiencies in arraignment on the amended indictment was not
presented to the trial court and, therefore, is not before this
Court on appeal. 	See Rule 5A:18; Jacques v. Commonwealth, 12 Va.
App. 591, 593, 405 S.E.2d 630, 631 (1991).
Accordingly, we affirm defendant's conviction.
Affirmed.
2Defendant concedes that the Commonwealth's evidence was
sufficient to prove assault and battery.