Clark v. Com., Record No. 091305.

Docket NºRecord No. 091305.
Citation691 S.E.2d 786
Case DateApril 15, 2010
CourtSupreme Court of Virginia

691 S.E.2d 786

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

Record No. 091305.

Supreme Court of Virginia.

April 15, 2010.


691 S.E.2d 787

John W. Parsons, Independence, for appellant.

Benjamin H. Katz, Asst. Atty. Gen. (Williams C. Mims, Atty. Gen., on brief), for appellee.

Present: HASSELL, C.J., KEENAN,1 KOONTZ, LEMONS, GOODWYN, and MILLETTE, JJ., and RUSSELL, S.J.

OPINION BY Justice S. BERNARD GOODWYN.

In this appeal we consider whether a defendant's actions constitute an overt act intended to place a victim in fear or apprehension of bodily harm, and thus whether there was sufficient evidence to find the defendant guilty of assault.

Background

Genev Denise Clark (Clark) was convicted in a bench trial in the Circuit Court of Henrico County of assaulting Carolyn M. Coleman (Coleman) in violation of Code § 18.2-57. In a published opinion, the Court of Appeals affirmed the judgment of the circuit court. Clark v. Commonwealth, 54 Va.App. 120, 676 S.E.2d 332 (2009) (en banc). Clark appeals.

Coleman was, at the time of these events, a school bus driver for Lakeside Elementary School. On May 7, 2007, Clark's son caused a problem while riding on Coleman's bus. As a result, Coleman asked the school administrators to prohibit Clark's son from riding the school bus for a period of time and they did so.

The next day, at approximately 7 a.m., Coleman arrived at Lakeside Elementary School to "drop off" children at the school. As on other mornings, Coleman's school bus was the first to arrive. Coleman drove the school bus into the bus circle and, seeing a brown automobile parked in the circle, Coleman stopped directly behind it. Other school buses came in behind her bus. Susan Bernstein, who also serves as a bus driver for Lakeside Elementary School, testified that the parked vehicle, which was later identified as Clark's vehicle, "was blocking all of us from moving." The bus circle is posted with signs indicating that the circle is reserved exclusively for buses.

As Coleman waited in the bus circle for someone from the school to meet the children she was "dropping off," she saw Clark and her son standing in the vicinity of the parked vehicle. Coleman opened the bus door to let in a student who was waiting for the school to open and, while the bus door was still open, Clark approached the bus. Bernstein testified that Clark came within two feet of the bus. Clark said to Coleman, "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 fuck you up." Clark had her arms crossed and her lips pursed. Coleman shut the bus door and "called" for a supervisor and a police officer. Clark continued to stand outside the school bus and to curse, but left when the principal arrived.

Late in the afternoon of that same day, at approximately 4:20 p.m., Coleman drove her bus into the bus circle to pick up children participating in after-school activities at the elementary school. As Coleman opened the bus door, preparing to disembark, Clark approached the bus door and said, "Bitch, like I say, I'm going to get you." Coleman immediately shut the bus door, instead of exiting as planned. After Coleman shut the bus door, Clark stood outside the bus.

691 S.E.2d 788

Clark was charged with assaulting Coleman in violation of Code § 18.2-57. At the close of the Commonwealth's evidence at trial, and again at the close of the defense's evidence, Clark moved to strike, contending that Clark's words were insufficient to constitute an assault and there was "no real physical action" by Clark. The circuit court overruled the motions, finding Clark guilty of assault. Clark appealed to the Court of Appeals.

In an unpublished opinion, the Court of Appeals reversed the judgment of the circuit court, concluding that the evidence was not sufficient to find Clark guilty of assault because her behavior did not constitute an overt act in furtherance of an assault. Clark v. Commonwealth, Record No. 2656-07-2, 2008 WL 5330518 (Va.App. Dec. 23, 2008). Upon rehearing en banc, however, the Court of Appeals affirmed the circuit court's judgment. The Court of Appeals stated that Clark's behavior, when viewed in its totality, "constituted an overt act which was committed with the requisite intent and put Coleman in reasonable fear or apprehension of bodily harm," and held that the evidence was therefore sufficient to find Clark guilty of assault. Clark, 54 Va.App. at 134-35 & n. 5, 676 S.E.2d at 339-40 & n. 5.

Analysis

Clark argues that the Court of Appeals erred in holding that the evidence was sufficient to find her guilty of assault. She argues that her actions in approaching Coleman's school bus, verbally threatening Coleman and returning to the bus later that day to deliver another threat did not constitute an overt act in furtherance of an assault. Clark argues that this Court has consistently held that words alone are insufficient to constitute an assault. Contending that her sole physical action was walking towards the school bus, Clark...

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53 practice notes
  • Pleasants v. Town of Louisa, Case No. 3:11–cv–00032.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • March 12, 2012
    ...the common law crime of “assault and battery” without statutory modification or restriction. See Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786, 788 (2010) (explaining that “because the elements of assault are not statutorily defined, this Court must apply the common law definition......
  • Harley v. Wilkinson, No. 19-1632
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 22, 2021
    ...also criminalizes both the intentional use of force and the reckless use of 988 F.3d 779 force. See Clark v. Commonwealth , 279 Va. 636, 691 S.E.2d 786, 788–89 (2010) (stating that a common-law definition of assault and battery applies to § 18.2-57.2 ); see also Trent v. Commonwealth , No. ......
  • Kelley v. Commonwealth, Record No. 1063-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • January 8, 2019
    ...822 S.E.2d 379 Parish v. Commonwealth, 56 Va. App. 324, 330-31, 693 S.E.2d 315 (2010) ; see also Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786 (2010) (defining the common law offense of assault as also including an "overt act intended to inflict bodily harm" when the assailant "ha......
  • Guerrero v. Deane, No. 1:09cv1313 (JCC).
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 27, 2010
    ...or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim.” Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786, 789 (2010). “To sustain a conviction for battery, the Commonwealth must prove a ‘wil[l]ful or unlawful touching’ of another.” Parish v. Co......
  • Request a trial to view additional results
53 cases
  • Pleasants v. Town of Louisa, Case No. 3:11–cv–00032.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • March 12, 2012
    ...the common law crime of “assault and battery” without statutory modification or restriction. See Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786, 788 (2010) (explaining that “because the elements of assault are not statutorily defined, this Court must apply the common law definition......
  • Harley v. Wilkinson, No. 19-1632
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 22, 2021
    ...also criminalizes both the intentional use of force and the reckless use of 988 F.3d 779 force. See Clark v. Commonwealth , 279 Va. 636, 691 S.E.2d 786, 788–89 (2010) (stating that a common-law definition of assault and battery applies to § 18.2-57.2 ); see also Trent v. Commonwealth , No. ......
  • Kelley v. Commonwealth, Record No. 1063-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • January 8, 2019
    ...822 S.E.2d 379 Parish v. Commonwealth, 56 Va. App. 324, 330-31, 693 S.E.2d 315 (2010) ; see also Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786 (2010) (defining the common law offense of assault as also including an "overt act intended to inflict bodily harm" when the assailant "ha......
  • Guerrero v. Deane, No. 1:09cv1313 (JCC).
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 27, 2010
    ...or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim.” Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786, 789 (2010). “To sustain a conviction for battery, the Commonwealth must prove a ‘wil[l]ful or unlawful touching’ of another.” Parish v. Co......
  • Request a trial to view additional results

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