Clark v. Com.

• Decision Date: 12 May 2009
• Docket Number: Record No. 2656-07-2.
• Citation: 676 S.E.2d 332,54 Va. App. 120
• Parties: Genev Denise CLARK, s/k/a Geneva Denise Clark v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

676 S.E.2d 332

54 Va. App. 120

Genev Denise CLARK, s/k/a Geneva Denise Clark v. COMMONWEALTH of Virginia.

Record No. 2656-07-2.

Court of Appeals of Virginia, Richmond.

May 12, 2009.

John W. Parsons, Independence, for appellant.

Benjamin H. Katz, Assistant Attorney General (William C. Mims, Acting Attorney General, on brief), for appellee.

Present: FELTON, C.J., ELDER, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

UPON A REHEARING EN BANC.

ELDER, Judge.

Genev Denise Clark (appellant) appeals from her bench trial conviction for assault in violation of Code § 18.2-57. On appeal, she contends the evidence was insufficient to support her conviction because it failed to prove "an overt act or attempt to physically harm" the alleged victim. A panel of this Court agreed, holding by a vote of two to one that the evidence was insufficient to prove the necessary overt act. See Clark v. Commonwealth, No. 2656-07-2, 2008 WL 5330518 (Va.Ct.App. Dec. 23, 2008). Pursuant to the Commonwealth's petition for a rehearing en banc, we stayed the mandate of that decision and granted a rehearing en banc. On rehearing en banc, we hold the totality of the circumstances, viewed in the light most favorable to the Commonwealth, establishes appellant committed an overt act sufficient to support her conviction for assault under the tort law definition of that offense, as assimilated into Virginia's criminal law.¹ Thus, we affirm appellant's conviction for assault in violation of Code § 18.2-57.

I. BACKGROUND

Under settled principles, we recite the facts in the light most favorable to the Commonwealth, the party prevailing in the trial court, as required by our standard of review on appeal. See, e.g., Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003).

As of Monday, May 7, 2007, Carolyn Coleman was a bus driver for students at Lakeside Elementary School in Henrico County. Appellant was a food services employee at that school, and her children attended school there and rode Coleman's bus to and from school. On that date, Coleman had "some type of problem [on the bus] with [appellant's] son," and, as a result, Coleman "ask[ed] the school administrators to not allow [appellant's] son to ride the bus for a period of time." The principal called appellant that afternoon and told her that her son "[could not] ride the bus until Thursday when we had [a] school meeting with Ms. Coleman and her supervisor."

Around 7:00 a.m. the next day, Tuesday, May 8, 2007, Coleman arrived at the school in her bus to drop off her riders, but she had to wait for the school to open and for someone to come out to meet them. Coleman drove into the bus circle to the location in front of the school where she was required to park to drop off the students. The bus circle was "reserved exclusively for ... buses ... dropping [off] and picking up children," and "a lot" of signs so indicating were posted in the bus circle. An employee parking lot was on the school grounds "about maybe 50 feet" from the bus circle.

Coleman's bus was the first to arrive that morning, as it was every morning. When Coleman pulled her bus into the bus circle, she saw an automobile parked at the head of the circle; Coleman pulled in directly behind the car in order to "pull right up in front of the door" of the school as she was required to do. Other buses pulled into the bus circle behind her. Coleman testified without objection that the car "was parked to [block] her in so that she could not get out." Another bus driver, Susan Bernstein, confirmed that appellant's vehicle was "parked directly in front" of Coleman's bus. Bernstein testified that the way appellant parked both "block[ed]" in Coleman's bus and also "block[ed] all of us [bus drivers] from moving."²

Coleman saw appellant and her son, the student who had been temporarily banned from riding Coleman's bus, standing in the vicinity of the car. Coleman then opened her bus door to allow a student to get on the bus to wait because the school was not yet open. As Coleman did so, appellant approached the open bus door. While standing within "about ... two feet of the bus," appellant said, "I told you I'm going to get you, bitch, don't care, I don't care where you at, if you're on the school ground, if you're in the school, or you're in the grocery store," "[I'm going to] [f]uck you up." Appellant had "her arms across ... her chest[] and her lips pursed," and "[s]he was obviously unhappy." Coleman shut the door of her bus, called the north office, and told them she needed a supervisor and a police officer. Coleman reported that appellant was "harassing her saying that she's going to pull her off the bus and beat her up." Appellant remained standing a few feet from the bus door cursing at Coleman until "[the] principal came up."

Around 4:20 p.m. that same day, Coleman again pulled her bus into the bus circle for "after school activity pick-up." When Coleman first pulled in, she did not see appellant, and she opened the bus door "so [she could] step off to go around the other side." Before Coleman could get off the bus, however, appellant again appeared outside her bus door and said, "Bitch, like I say, I'm going to get you." Coleman immediately closed her bus door and remained inside instead of exiting as she had planned. Appellant remained standing outside the bus.³

Appellant was charged with assault, and at her trial for that offense, the Commonwealth offered evidence of these events in keeping with the above. At the close of the Commonwealth's evidence and again at the close of all the evidence, appellant moved to strike, contending her words alone were insufficient to constitute an assault. The Commonwealth responded that the evidence proved "much more than her words alone." It pointed to appellant's parking her vehicle, despite no parking signs, in a location calculated to block the bus; "[appellant's] physically coming toward the bus" and confronting Coleman; and appellant's "coming back" later the same day and again confronting Coleman "with the same language and the same threats." It argued that all of appellant's actions, viewed in their totality and in light of her threats, constituted the overt act necessary to prove assault.

The trial court convicted appellant for the charged offense, noting the "confrontation" and appellant's "[putting] her car in front of this bus where it's not supposed to be during the day. [Appellant] has confronted the bus driver twice with the language, which I would find from the evidence, can be considered a present threat."

Appellant noted this appeal.

II. ANALYSIS

"On appeal, `we review the evidence in the light most favorable to the Commonwealth, granting to [the evidence] all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). The trier of fact is free to believe or disbelieve in part or in whole the testimony of any witness. E.g. Rollston v. Commonwealth, 11 Va.App. 535, 547, 399 S.E.2d 823, 830 (1991).

Appellant was convicted for misdemeanor assault in violation of Code § 18.2-57. "Because [Code § 18.2-57] does not define assault, we [must] look to the common law definition of the term." Carter v. Commonwealth, 269 Va. 44, 47, 606 S.E.2d 839, 841 (2005). Virginia, like many jurisdictions, "has merged the common law crime and tort of assault so that today, a common law assault [punishable as a criminal offense] occurs when either set of elements is proved." Id. at 46, 606 S.E.2d at 841 (noting that this dual definition has been the law in Virginia since at least the Court's decision in Burgess v. Commonwealth, 136 Va. 697, 706-08, 118 S.E. 273, 275-76 (1923)); see Lamb v. State, 93 Md.App. 422, 613 A.2d 402, 408, 409 (1992) (recognizing "`a majority of the jurisdictions'" have assimilated the tort theory into the crime of assault and opining that the assimilated part of the offense "mirrors the tort precisely in terms of its character and its necessary elements" (quoting Rollin M. Perkins & Ronald N. Boyce, Criminal Law 161-62 (3d ed.1982))). An assault occurs under the traditional criminal definition "when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm." Carter, 269 Va. at 47, 606 S.E.2d at 841. An assault occurs under the merged tort law definition when an assailant "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." Id. As we elaborated in our en banc decision in Carter, "`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[—an overt act both intended to cause and actually causing a reasonable fear of bodily harm in the victim].'" Carter v. Commonwealth, 42 Va.App. 681, 687-88, 594 S.E.2d 284, 288 (2004) (en banc) (indicating that although this language originated in Blackstone's discussion of "private wrongs," he also incorporated it into his subsequent discussion of "public wrongs") (quoting 3 William Blackstone, Commentaries *120 (emphasis added in Carter)), aff'd, 269 Va. 44, 606 S.E.2d 839 (2005). Under either definition, the bodily harm threatened need not be serious or deadly harm. See id. at 693-94, 594 S.E.2d at 291.

Our case law is clear that words alone are never sufficient to constitute an assault under either the traditional criminal definition of assault or the assimilated tort definition. See, e.g., Bennett v. Commonwealth, 35 Va.App. 442, 449, 546 S.E.2d 209, 212 (2001) (decided under the criminal definition). However, "[w]ords are never spoken in a vacuum, and they cannot be utterly...