Carter v. Com.

Decision Date30 March 2004
Docket NumberRecord No. 2563-02-2.
Citation42 Va. App. 681,594 S.E.2d 284
CourtVirginia Court of Appeals
PartiesMichael Anthony CARTER v. COMMONWEALTH of Virginia.

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

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

Present: FITZPATRICK, C.J., and BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON and KELSEY, JJ.

UPON A REHEARING EN BANC

JEAN HARRISON CLEMENTS, Judge.

Michael Anthony Carter was convicted in a bench trial of assaulting a police officer, in violation of Code § 18.2-57(C). On appeal, he contends the evidence presented at trial was insufficient to support his conviction because the Commonwealth did not prove he had the present ability to inflict actual violence upon the officer. On September 9, 2003, a divided panel of this Court affirmed Carter's conviction, holding the evidence was sufficient to convict Carter of assaulting a police officer because Carter's conduct "reasonably and unequivocally" indicated to the officer that Carter had "an intention and the present ability to harm the officer." Carter v. Commonwealth, 41 Va.App. 448, 451, 585 S.E.2d 848, 851 (2003). On October 14, 2003, we granted Carter's petition for a rehearing en banc, stayed the mandate of the panel decision, and reinstated the appeal. Upon rehearing en banc, we affirm Carter's conviction.

I. BACKGROUND

"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence presented to the trial court established that, on December 29, 1998, around 11:00 p.m., Officer B.N. O'Donnell of the City of Charlottesville Police Department observed a speeding ear and, activating his vehicle's overhead flashing blue emergency lights, initiated a traffic stop. O'Donnell, who was on routine patrol at the time in a high crime area of the city, was driving a marked police vehicle and wearing his police uniform and badge. After the car pulled over, O'Donnell shone his vehicle's "take down" lights and spotlight onto the car and approached it on foot.

Two people were inside the car, the driver and Carter, who was seated in the front passenger seat. O'Donnell initiated a conversation with the driver, asking for his driver's license and registration and informing him why he had been stopped. The driver responded to O'Donnell in a "hostile" tone of voice. "While conversing with the driver, O'Donnell used his flashlight to conduct a "plain view search" of the car to make sure there were no visible weapons or drugs in it. O'Donnell noticed that Carter had his right hand out of sight "down by his right leg." Carter then suddenly brought his right hand up and across his body. Extending the index finger on his right hand straight out and the thumb straight up, he pointed his index finger at the officer and said, "Pow." Thinking Carter "had a weapon and was going to shoot" him, O'Donnell "began to move backwards" and went for his weapon. A "split second" later, O'Donnell realized "it was only [Carter's] finger." O'Donnell testified: "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." Immediately after the incident, O'Donnell, who was "visibly shaken," asked Carter "if he thought it was funny," and Carter responded, "Yes, I think it is funny."

At the conclusion of the Commonwealth's evidence at trial and at the close of all the evidence, Carter moved to strike the evidence, arguing the Commonwealth's evidence was insufficient to prove assault because it failed to prove Carter had the present ability to inflict actual violence upon the officer. The Commonwealth responded that proof of such ability was unnecessary as long as the evidence proved the officer reasonably believed Carter had the present ability to inflict actual bodily harm upon him.

The trial court agreed with the Commonwealth. Finding Carter's "act of pointing what the officer believed at the time to be a weapon at him" did, "in fact, place Officer O'Donnell in reasonable apprehension or fear," the trial court found the evidence sufficient to prove beyond a reasonable doubt that Carter was guilty of assault. Thus, the trial court denied Carter's motion to strike the evidence and subsequently convicted him of assaulting a police officer, in violation of Code § 18.2-57(C). At sentencing, the court imposed a sentence of three years, suspending two years and six months.

This appeal followed.

II. ANALYSIS

Code § 18.2-57(C) provides, in pertinent part, that "any person [who] commits an assault . . . against . . . a law-enforcement officer . . . engaged in the performance of his public duties as such . . . shall be guilty of a Class 6 felony."

On appeal, Carter asserts the Commonwealth failed to prove his conduct constituted an assault of a law-enforcement officer because, in pointing his finger at the officer and saying "pow," he did not have the present ability to inflict harm upon the officer, as required under the common law definition of assault. Thus, he contends, the trial court erred, as a matter of law, in finding the evidence sufficient to sustain a conviction for assault.

In response, the Commonwealth contends that, under long-established Virginia case law, a defendant need not have had the present ability to inflict harm at the time of the offense to be guilty of assault. It is enough, the Commonwealth argues, that, as in this case, the defendant's conduct created in the mind of the victim a reasonable fear or apprehension of bodily harm. Accordingly, the Commonwealth concludes, the trial court properly found the evidence sufficient to convict Carter of assaulting a police officer.

In determining whether the trial court correctly ruled that Carter's conduct constituted an assault, we are faced with a mixed question of law and fact. We review the trial court's legal conclusions de novo while giving deference to the trial court's findings of fact unless the findings are "plainly wrong or without evidence to support them." Timbers v. Commonwealth, 28 Va.App. 187, 193, 503 S.E.2d 233, 235-36 (1998). Moreover, as previously stated, we consider the evidence in the light most favorable to the Commonwealth. See Banks, 41 Va.App. at 543,

586 S.E.2d at 877.

While statutorily proscribed and regulated, see Code § 18.2-57, the offense of assault is defined by common law in Virginia. See Zimmerman v. Commonwealth, 266 Va. 384, 387, 585 S.E.2d 538, 539 (2003)

("In this jurisdiction, we adhere to the common law definition of assault, there having been no statutory change to the crime."). At common law, the term "assault" originally had two distinct meanings, one when used in the context of criminal law and another when used in the context of torts law. See Rollin M. Perkins, Perkins on Criminal Law 114 (2d ed. 1969). A criminal assault was "an attempt to commit a battery." Id. Under this definition of assault, it did not matter "whether the victim was put in fear or was even aware of the assault." Roger D. Groot, Criminal Offenses and Defenses in Virginia 48 (2004). It mattered only that the accused had the specific intent and present ability to commit the battery and "performed some direct, ineffectual act towards its commission." Id.

Conversely, a tortious assault was an overt, intentional act that placed another in reasonable apprehension of immediate bodily harm. Perkins, supra. Under this definition, an assault was "an offer to batter" and did not require proof of an "actual, overt attempt to batter." Groot, supra. Instead, it required "proof of a threat, actual or implied, to batter and an apparent present ability to do so." Id. at 48-49 (footnote omitted). "Actual ability to carry out the threat [was] not required because this form of assault turn[ed] on the victim's apprehension of harm; apparent ability [was] sufficient to create apprehension." Id. at 49; see also Wayne R. LaFave, Criminal Law § 7.16, at 746 (3d ed. 2000) (observing that proof of a present ability to batter was "clearly unnecessary" for this type of assault). It did require, though, "some physical act which proffer[ed] imminent unwanted force." John L. Costello, Virginia Criminal Law and Procedure § 4.2 (3d ed. 2002) (emphasis omitted). Additionally, absent an intention to batter, there must have been "an actual intention to cause apprehension." LaFave, supra, § 7.16, at 747 (citing W. Page Keeton et al., Keeton & Prosser on the Law of Torts § 10 (5th ed. 1984)). "The apprehension must [have been] one which would normally be aroused in the mind of a reasonable person." Keeton, supra; see also LaFave, supra (noting that "conduct of the sort to arouse a reasonable apprehension of bodily harm" was required).

In time, however, the tort type of assault, putting the victim in reasonable apprehension of bodily harm, became recognized, "in addition to (not as an alternative to) the attempted-battery type of assault," as a criminal assault at common law. LaFave, supra, § 7.16, at 746 (emphasis omitted); see also Groot, supra, at 48; Perkins, supra, at 116. Indeed, Blackstone observed in his discussion regarding "private wrongs" that a tortious injury may be committed

by threats and menaces of bodily hurt, through fear of which a man's business is interrupted. A menace alone, without a consequent inconvenience, makes not the injury, but to complete the wrong there must be both of them together. The remedy for this is in pecuniary damages, this being inchoate, though not an absolute violence.

3 William Blackstone, Commentaries *120 (emphasis added). He then noted in his subsequent discussion...

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    ...have normally adopted specific intent requirements rooted in the offense's history as an intentional tort. Carter v. Commonwealth , 42 Va.App. 681, 594 S.E.2d 284, 287-88 (2004) ; see, e.g. , Robinson v. United States , 506 A.2d 572, 575 (D.C. 1986) ("An intent to frighten is sufficient[.]"......
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