Carter v. Com.

• Decision Date: 09 September 2003
• Docket Number: Record No. 2563-02-2.
• Citation: 41 Va. App. 448,585 S.E.2d 848
• Parties: Michael Anthony CARTER, v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

585 S.E.2d 848

41 Va. App. 448

Michael Anthony CARTER, v. COMMONWEALTH of Virginia.

Record No. 2563-02-2.

Court of Appeals of Virginia, Richmond.

September 9, 2003.

Rhonda Quagliana (St. John, Bowling & Lawrence, LLP, on briefs), Charlottesville, for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BENTON, CLEMENTS, JJ., and WILLIS, Senior Judge.

WILLIS, Judge.

On appeal from his conviction of assault on a police officer, Michael Anthony Carter contends that the evidence was insufficient to support his conviction. He argues that he committed no overt act or attempt to injure the officer and that the evidence proved no unequivocal appearance of an attempt because he had no present ability to inflict actual violence upon the officer. Finding no error, we affirm the judgment of the trial court.

"On appeal, `we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). So viewed, the evidence disclosed that Officer Brian O'Donnell, wearing his uniform, displaying his badge, and operating a marked police vehicle while patrolling in a high crime and drug area, noticed a speeding vehicle and conducted a traffic stop. Carter was the front seat passenger in the stopped vehicle. As O'Donnell asked the driver of the vehicle for his driver's license and registration, he shined his flashlight into the vehicle to check for visible weapons or drug paraphernalia. The driver responded to O'Donnell's requests in a hostile tone of voice. O'Donnell noticed that Carter had his right hand beside his right leg. As O'Donnell spoke to the driver, Carter suddenly raised his arm and arced it across his body. He pointed his finger at O'Donnell and said, "Pow." O'Donnell was terrified and began to move backwards. He testified,

I believed it to be a firearm. I believed he had a weapon and was going to shoot me at that point, until he said, `Pow,' and then I realized that it was only his finger.... The first thing I thought was that I was going to get shot. I—it's a terrifying experience, and if I could have gotten my weapon, I would have shot him.

Seeing that O'Donnell was visibly shaken, Carter laughed.

Later, when Officer S.J. Upman served a warrant on him, Carter said he had played a joke on an officer by "going `Pow'" and asked if this was an assault.

Robert Carter, the driver of the vehicle, testified that he had been the driver of the vehicle and that Carter did not point his finger at O'Donnell or say "Pow."

Assault is defined at common law as:

[A]n attempt or offer, with force and violence, to do some bodily harm to another, whether from wantonness or malice, by means calculated to produce the end if carried into execution; as by striking at him with a stick or other weapon, or without a weapon, though he be not struck, or even by raising up the arm or a cane in a menacing manner, by throwing a bottle of glass with an intent to strike, by levelling a gun at another within a distance from which, supposing it to be loaded, the contents might injure, or any similar act accompanied with circumstances denoting an intention coupled with a present ability, of using actual violence against the person of another.

Bennett v. Commonwealth, 35 Va.App. 442, 449, 546 S.E.2d 209, 212 (2001) (citations omitted). "In order to constitute an assault there must be an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do physical injury to the person of another." Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398 (1935) (citation omitted). Under Bennett, a wanton or malicious act accompanied by circumstances denoting both an intention and the present ability to inflict actual violence upon another constitutes an assault.

The trial court, as fact finder, believed the Commonwealth's evidence, and rejected Carter's evidence. "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." Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995). Carter's conduct, as described by O'Donnell, and O'Donnell's reasonable perception of the situation support the trial court's finding that Carter's conduct was a wanton or malicious act and constituted an assault. His conduct presented the unequivocal appearance of an attempt, with force and violence, to do physical injury to O'Donnell. Although he did not possess a gun and had no actual ability to harm the officer with a gun, his conduct reasonably and unequivocally denoted an intention and the present ability to harm the officer. This evidence was competent and was not inherently incredible.

We affirm the judgment of the trial court.

Affirmed.

BENTON, J., dissenting.

"[I]n the early law a criminal assault was an attempt to commit a battery and that only." R. Perkins, Criminal Law at 159 (3d ed.1982). Consistent with that view, the common law of assault has long been defined in Virginia as follows:

"An assault is an attempt or offer, with force and violence, to do some bodily hurt to another, whether from wantonness or malice, by means calculated to produce the end if carried into execution; as by striking at him with a stick or other weapon, or without a weapon, though he be not struck, or even by raising up the arm or a cane in a menacing manner, by throwing a bottle of glass with an intent to strike, by levelling a gun at another within a distance from which, supposing it to be loaded, the contents might injure, or any similar act accompanied with circumstances denoting an intention coupled with a present ability, of using actual violence against the person of another. But no words whatever, be they ever so provoking, can amount to an assault; * * * ". (Italics supplied).

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