Carter v. Com., Record No. 040939.

Docket NºRecord No. 040939.
Citation606 S.E.2d 839, 269 Va. 44
Case DateJanuary 14, 2005
CourtSupreme Court of Virginia

606 S.E.2d 839
269 Va. 44

Michael Anthony CARTER
v.
COMMONWEALTH of Virginia

Record No. 040939.

Supreme Court of Virginia.

January 14, 2005.


606 S.E.2d 840
Rhonda E. Quagliana (St. John, Bowling & Lawrence, on briefs), Charlottesville, for appellant

Stephen R. McCullough, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellee.

Present: All the Justices.

ELIZABETH B. LACY, Justice.

Michael Anthony Carter was convicted of assault on a police officer in violation of Code § 18.2-57(C). In this appeal, he challenges his conviction, asserting that an assault requires the present ability to inflict bodily injury and that no such ability existed in this case. We will affirm Carter's conviction because the applicable definition of assault does not require that an assailant have the actual ability to inflict bodily harm.

Facts

The facts are not in dispute. On December 29, 1998 at approximately 11:00 p.m. in an area of frequent drug activity in the City of Charlottesville, Officer Brian N. O'Donnell made a routine traffic stop of a car for speeding. Once the car was stopped, Officer O'Donnell saw two individuals in the car. He approached the driver's side of the vehicle with his weapon holstered but "unsnapped." He noticed that the passenger in the vehicle, Carter, had "his right hand down by his right leg." As Officer O'Donnell talked with the driver, Carter made a sudden movement with his right arm arcing it "up and across his body." Carter's hand was in a fist with his index finger pointing out and his thumb pointing up in the shape of a gun. Officer O'Donnell backed away from the vehicle because he believed Carter had a weapon and was going to shoot him until Carter said, "Pow." At that point, Officer O'Donnell realized "it was only his finger." Officer O'Donnell testified that he was terrified and that if he could have gotten to his weapon he would have shot Carter.

Because Officer O'Donnell did not know if he could charge Carter with any crime, he did not arrest Carter. A few days later, he obtained a warrant for Carter's arrest for assaulting a police officer.

Proceedings

Carter was indicted for assaulting a police officer in violation of Code § 18.2-57(C). Following a bench trial, the trial court found Carter guilty of the charge and sentenced him to three years in prison. A divided panel of the Court of Appeals affirmed the conviction. Carter v. Commonwealth, 41 Va.App. 448, 452, 585 S.E.2d 848, 851 (2003). Carter was granted a rehearing en banc. The Court of Appeals, sitting en banc, affirmed the conviction. Carter v. Commonwealth, 42 Va.App. 681, 696, 594 S.E.2d 284, 292 (2004) (en banc). Carter timely appealed to this Court.

Discussion

The issue in this case is whether the present ability to inflict bodily harm is an element of assault for purposes of Code § 18.2-57(C).

606 S.E.2d 841
Because the statute does not define assault, we look to the common law definition of the term. At common law, assault was both a crime and a tort. The common law crime of assault required an attempt or offer committed with an intent to inflict bodily harm coupled with the present ability to inflict such harm. Hardy v. Commonwealth, 58 Va. (17 Gratt.) 592, 600-01 (1867). The common law tort of assault could be completed if the tortfeasor engaged in actions intended to place the victim in fear of bodily harm and created a well-founded fear in the victim. Koffman v. Garnett, 265 Va. 12, 16, 574 S.E.2d 258, 261 (2003). Over the years, many jurisdictions have merged the common law crime and tort of assault so that today, a common law assault occurs when either set of elements is proved. See Wayne R. LaFave, Criminal Law § 16.3, at 823 (4th ed. 2003); Model Penal Code § 211.1 cmt. (1)(b), at 177-78 (1980); Rollin M. Perkins, An Analysis of Assault and Attempts to Assault, 47 Minn. L. Rev. 71, 74 (1962)

As the parties agree, this Court has not directly addressed the merger of the crime and tort of common law assault. Based on a review of our prior cases, we conclude that, like the majority of jurisdictions, our prior cases compel the conclusion that a common law assault, whether a crime or tort, occurs when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm or engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim.

In one of the earliest cases considering the crime of assault, Berkeley v. Commonwealth, 88 Va....

To continue reading

Request your trial
42 practice notes
  • Shoemaker v. Funkhouser, Record No. 191218
    • United States
    • Virginia Supreme Court of Virginia
    • March 25, 2021
    ...LanguageWhen a statute does not define a specific term, "we look to the common law definition of the term." Carter v. Commonwealth , 269 Va. 44, 46, 606 S.E.2d 839 (2005).8 "[A]s 856 S.E.2d 191 Justice Frankfurter colorfully put it, ‘if a word is obviously transplanted from another legal so......
  • Kelley v. Commonwealth, Record No. 1063-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • January 8, 2019
    ...act intended to inflict bodily harm" when the assailant "has the present ability to inflict such harm" (quoting Carter v. Commonwealth, 269 Va. 44, 47, 606 S.E.2d 839 (2005) ) ). "To sustain a conviction for battery, the Commonwealth must prove a ‘wil[l]ful or unlawful touching’ of another.......
  • Kalantar v. Lufthansa German Airlines, No. Civ.A. 01-00644(HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 16, 2005
    ...insofar as the required elements, there seems to be no salient difference between civil and criminal assaults. See Carter v. Commonwealth, 269 Va. 44, 606 S.E.2d 839, 841 (2005) (noting that prior authorities "compel the conclusion that a common law assault, whether a crime or a tort, occur......
  • Ware v. James City County, Virginia, Civil Action No. 4:08cv8.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • September 4, 2009
    ...that today, a common law assault [punishable as a criminal offense] occurs when either set of elements is proved." Carter v. Commonwealth, 269 Va. 44, 46, 606 S.E.2d 839 (2005) (noting that this dual definition has been the law in Virginia since at least the Court's decision in Burgess v. C......
  • Request a trial to view additional results
42 cases
  • Shoemaker v. Funkhouser, Record No. 191218
    • United States
    • Virginia Supreme Court of Virginia
    • March 25, 2021
    ...LanguageWhen a statute does not define a specific term, "we look to the common law definition of the term." Carter v. Commonwealth , 269 Va. 44, 46, 606 S.E.2d 839 (2005).8 "[A]s 856 S.E.2d 191 Justice Frankfurter colorfully put it, ‘if a word is obviously transplanted from another legal so......
  • Kelley v. Commonwealth, Record No. 1063-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • January 8, 2019
    ...act intended to inflict bodily harm" when the assailant "has the present ability to inflict such harm" (quoting Carter v. Commonwealth, 269 Va. 44, 47, 606 S.E.2d 839 (2005) ) ). "To sustain a conviction for battery, the Commonwealth must prove a ‘wil[l]ful or unlawful touching’ of another.......
  • Kalantar v. Lufthansa German Airlines, No. Civ.A. 01-00644(HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 16, 2005
    ...insofar as the required elements, there seems to be no salient difference between civil and criminal assaults. See Carter v. Commonwealth, 269 Va. 44, 606 S.E.2d 839, 841 (2005) (noting that prior authorities "compel the conclusion that a common law assault, whether a crime or a tort, occur......
  • Ware v. James City County, Virginia, Civil Action No. 4:08cv8.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • September 4, 2009
    ...that today, a common law assault [punishable as a criminal offense] occurs when either set of elements is proved." Carter v. Commonwealth, 269 Va. 44, 46, 606 S.E.2d 839 (2005) (noting that this dual definition has been the law in Virginia since at least the Court's decision in Burgess v. C......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT