Gnadt v. Com., 1921-96-4

• Decision Date: 14 April 1998
• Docket Number: No. 1921-96-4,1921-96-4
• Citation: 27 Va.App. 148,497 S.E.2d 887
• Parties: Charlton E. GNADT, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 887

497 S.E.2d 887

27 Va.App. 148

Charlton E. GNADT, Jr. v. COMMONWEALTH of Virginia.

Record No. 1921-96-4.

Court of Appeals of Virginia Alexandria.

April 14, 1998.

Casey R. Stevens (Farmer & Stevens, on brief), Occoquan, for appellant.

Linwood T. Wells, Jr., Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: WILLIS, ANNUNZIATA and BUMGARDNER, JJ.

BUMGARDNER, Judge.

Charlton E. Gnadt, Jr. was charged with sexual battery in violation of Code § 18.2-67.4. At the conclusion of the Commonwealth's case-in-chief, the court granted a motion to strike the charge of sexual battery and amended the charge to simple assault. The defendant objected, contending that assault and battery was not a lesser-included offense of the original charge and that the evidence was insufficient to prove lack of consent. The court overruled the objection and convicted the defendant of assault and battery. Finding that assault and battery is a lesser-included offense of the original charge of sexual battery and that the touching was without consent, we affirm.

The victim, Pvt. Shawn A. Knowles, had been charged with driving under the influence. He appeared for the trial in the general district court. Charlton E. Gnadt, Jr. was the Assistant Commonwealth's attorney prosecuting Knowles. After discussing a plea agreement, Gnadt told Knowles to accompany him to his office. When they arrived, Gnadt told Knowles that he needed to search him for weapons. He had Knowles take off his military jacket and stand against the wall. After an initial pat-down search, Gnadt told Knowles to unfasten his pants. Knowles complied. Gnadt placed his hands inside Knowles' pants but outside his underwear. He rubbed his hands across Knowles' buttocks and then around front over his genitals. Gnadt then placed his hands inside Knowles' underwear and again moved them over his buttocks and around front, touching his genitals. Knowles said nothing and did not resist or protest in any way. He testified that he was nervous, scared, and felt he would be in more trouble if he resisted.

An assault and battery is an unlawful touching of another. It is not necessary that the touching result in injury to the person. Whether a touching is a battery depends on the intent of the actor, not on the force applied. Wood v. Commonwealth, 149 Va. 401, 140 S.E. 114 (1927). For a touching to be a crime, it must be unlawful. If the victim consents to the touching, the touching is not unlawful and therefore not a battery. If the touching exceeds the scope of the consent given, the touching is not consensual and thus is unlawful. If consent is coerced or obtained by fraud, the touching is unlawful. Banovitch v. Commonwealth, 196 Va. 210, 83 S.E.2d 369 (1954).

A touching may also be justified or excused. When it is, the touching is not unlawful and therefore not a battery. A police officer does not commit a battery when he touches someone appropriately to make an arrest. An unlawful arrest or an arrest utilizing excessive force is a battery because that...