Clark v. Commonwealth, Record No. 2656-07-2 (Va. App. 12/23/2008)

• Decision Date: 23 December 2008
• Docket Number: Record No. 2656-07-2.
• Court: Virginia Court of Appeals
• Parties: GENEV DENISE CLARK, S/K/A GENEVA DENISE CLARK v. COMMONWEALTH OF VIRGINIA

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Unpublished Opinion

GENEV DENISE CLARK, S/K/A GENEVA DENISE CLARK v. COMMONWEALTH OF VIRGINIA

Record No. 2656-07-2.

Court of Appeals of Virginia, Richmond.

December 23, 2008.

Appeal from the Circuit Court of Henrico County, Burnett Miller, III, Judge.

John W. Parsons for appellant.

Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Elder, Humphreys and Powell

MEMORANDUM OPINION^*

JUDGE ROBERT J. HUMPHREYS

Genev Denise Clark ("Clark") appeals her conviction for assault, arguing that the evidence was insufficient as a matter of law to convict her. For the following reasons, we agree and reverse the decision of the trial court.

ANALYSIS

"When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008). We will affirm the judgment unless it is "plainly wrong or without evidence to support it." Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008).

Clark argues that the evidence was insufficient to prove assault because the Commonwealth failed to prove that she committed an overt act.

[C]ommon 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.

Carter v. Commonwealth, 269 Va. 44, 47, 606 S.E.2d 839, 841 (2005). Overt acts include

"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 leveling [sic] a gun at another within a distance from which, supposing it to be loaded, the contents might injure, or any similar act."

Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955) (quoting J.A.G. Davis, Criminal Law 353-54 (1838)). "[W]ords and a `threatening attitude' are not, by themselves, enough" to constitute an overt act. Carter v. Commonwealth, 42 Va. App. 681, 694, 594 S.E.2d 284, 291 (2004) (en banc), aff'd, 269 Va. 44, 606 S.E.2d 839 (2005).

This Court addressed the overt act requirement in Bennett v. Commonwealth, 35 Va. App. 442, 546 S.E.2d 209 (2001). In that case, Bennett confronted two deputies. He "approached the deputies, from approximately twenty feet away, until he was standing within inches of the two deputies." Id. at 446, 546 S.E.2d at 211. Bennett stood there "shouting profanities and stating that `if [the deputies] didn't leave, it would be an "F"ing blood bath.'" Id. at 446-47, 546 S.E.2d at 211. Bennett "gestured with his hands while speaking to the deputies, [but] he never raised his hands to them or physically threatened them." Id. The deputies later testified that they felt "concerned" and "threatened." Id. This Court reversed Bennett's conviction for assault, holding that he had not committed an overt act. The Court reasoned that "[a]lthough Bennett stood within inches of the officers, he made no overt act or attempt to physically harm either officer" and he "was not armed and made no threatening gestures with his hands." Id. at 449, 546 S.E.2d at 212.

Here, Clark parked her car in a school's parking lot that was reserved for school buses. When Carolyn Coleman ("Coleman"), a bus driver, drove up and parked behind Clark's car, Clark approached Coleman's bus. Clark stood approximately two feet from the bus, with her arms crossed and yelled threats at Coleman who was sitting in the driver's seat. Coleman closed the bus' door, but Clark stood and continued yelling and cursing until the principal escorted her away. Later that same day, Coleman returned to the school in her bus. While Coleman was sitting in her bus, Clark approached to within four to five feet of the bus door and yelled "Bitch, like I say, I'm going to get you." Clark did not say anything else and never approached closer than four to five feet from the bus door.

Here, as in Bennett, the alleged assailant did nothing more than approach someone and shout threats. Clark, like Bennett, made no threatening gestures and did not attempt to harm the target of her threats. Clark's actions were actually less menacing than Bennett's. Bennett approached within two inches of the deputies and made gestures with his hands while shouting threats. Here, Clark was never within striking distance of Coleman and the only testimony regarding Clark's hands is that her hands were crossed across her chest.

The dissent contends that Clark committed an "overt threat" by returning to Coleman's bus a second time and renewing her threats. The dissent, however, fails to cite any authority that renewing a previous threat, without more, constitutes an overt act. When Clark approached Coleman's bus for a second time, she did not attempt to strike or grab Coleman. She made no threatening gestures with her hands. She was not wielding a weapon or something to throw at Coleman. She never came closer than four feet to the door of the bus. She merely stood near the bus and yelled a single threatening sentence.

While Clark's conduct is reprehensible and worthy of condemnation, it is insufficient as a matter of law to constitute an assault. "[W]ords and a `threatening attitude'" are not sufficient to sustain a conviction for assault. Carter, 42 Va. App. at 694, 594 S.E.2d at 291. Clark did nothing more than stand outside Coleman's bus and shout verbal threats. The fact that she did it twice on the same day does not transform those purely verbal threats into an assault.

CONCLUSION

For the foregoing reasons, we hold that the evidence was insufficient to prove that Clark committed assault. Therefore, we reverse her conviction.

Reversed and dismissed.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

Elder, J., dissenting.

I believe the majority misapplies the law relevant to determining whether the evidence supported a finding that appellant engaged in an overt act sufficient to support her conviction for assault in violation of Code § 18.2-57. Therefore, I respectfully dissent.

As the majority recognizes, Virginia, like many jurisdictions, "has merged the common law crime and tort of assault so that today, a common law assault occurs when either set of elements is proved." Carter v. Commonwealth, 269 Va. 44, 46, 606 S.E.2d 839, 841 (2005) (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)). 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." Id. 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.'" Carter v. Commonwealth, 42 Va. App. 681, 687-88, 594 S.E.2d 284, 288 (2004) (en banc) (quoting 3 William Blackstone, Commentaries *120 (emphasis added in Carter), and indicating that although this language originated in Blackstone's discussion of "private wrongs," he also incorporated it into his subsequent discussion of "public wrongs"), aff'd, 269 Va. 44, 606 S.E.2d 839 (2005). 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 criminal definition). However, a defendant's words may be highly relevant under both definitions of assault to determining whether the defendant committed the required overt act with the necessary intent. See, e.g., Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc) (noting that intent may and often must be proved with circumstantial evidence, such as "the conduct and statements of the alleged offender"). Additionally, the defendant's words may be highly relevant under the tort law definition of assault to determining whether the "fear or apprehension in the victim" was "reasonable." Carter, 269 Va. at 47, 606 S.E.2d at 841.

Although an overt act must be proved to support a conviction under either definition of assault, the intent with which the overt act must have been committed is different under the two definitions of assault. Id. Under the criminal definition of assault, the overt act must have been committed with the actual "inten[t] to inflict bodily harm" and the perpetrator must have a present ability to inflict such harm, whereas under the tort law definition, the overt act may be committed merely with the "inten[t] to place the victim in fear or apprehension of bodily harm" where the act "creates such reasonable fear or apprehension in the victim." Id.

The majority compares the facts in Bennett v. Commonwealth, 35 Va. App....