Zimmerman v. Com., Record No. 022359.

• Decision Date: 12 September 2003
• Docket Number: Record No. 022359.
• Citation: 585 S.E.2d 538,266 Va. 384
• Court: Virginia Supreme Court
• Parties: Roy Wylie ZIMMERMAN, v. COMMONWEALTH of Virginia.

585 S.E.2d 538

266 Va. 384

Roy Wylie ZIMMERMAN, v. COMMONWEALTH of Virginia.

Record No. 022359.

Supreme Court of Virginia.

September 12, 2003.

William E. Bobbitt, Jr., Staunton, for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, LEMONS, and AGEE, JJ., and COMPTON, S.J.

OPINION BY Senior Justice A. CHRISTIAN COMPTON.

The sole question in this criminal appeal is whether the evidence was sufficient to support a conviction for assault upon a police officer.

Defendant Roy Wylie Zimmerman was indicted for feloniously assaulting a law-enforcement officer, knowing or having reason to know that he was engaged in the performance of his public duties, in violation of Code § 18.2-57(C), and for operating a motor vehicle as an habitual offender, second or subsequent offense. The accused was tried and convicted of both charges during a bench trial in the Circuit Court of Augusta County. Subsequently, the court sentenced defendant to incarceration on each charge.

The Court of Appeals of Virginia, in an unpublished order, denied defendant's petition for appeal in which he challenged only the assault conviction. Zimmerman v. Commonwealth, Record No. 2908-01-3 (September 16, 2002). The court determined the Commonwealth's evidence sufficiently established that defendant was guilty of assault, and that the officer was engaged in the performance of his public duties at the time of the offense.

We awarded the defendant this appeal, limited to the question whether his guilt of assault has been sufficiently proved. According to settled principles of appellate review, we shall consider "the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence." Commonwealth v. Hill, 264 Va. 541, 543, 570 S.E.2d 805, 806 (2002).

Viewed in this manner, the following facts were established by the evidence. On September 11, 2000 during daylight hours, John M. Wieger, an Augusta County Deputy Sheriff, had "just marked off duty" and had parked his police vehicle at the foot of his private driveway "a couple of feet off ... Route 657," a public highway in the county. Wieger, "dressed in a duty uniform," but without a hat, walked across the two-lane road to "check" his mail at a mailbox adjacent to the highway.

As he was "checking" his mail, the officer heard the "roar" of a vehicle's engine approaching him from his "right side." He "looked up" and "observed a dark-colored vehicle passing ... a beige pickup truck" illegally across "dual yellow lines" on a nearby curve in the highway.

Wieger "went out into the middle of the road then and tried to flag [the vehicle] down," waving his arms and trying "to get it stopped." He testified that "it was coming at me, and the engine started to gun and revved its engine, and it was coming at me at a high rate of speed." At that point, feeling that his "safety was more paramount than trying to get this vehicle stopped," the officer "went off to the shoulder of the road, by the mailbox."

As the speeding vehicle passed within five feet of the officer, he observed a male (later identified as the defendant) driving it, accompanied by a female passenger. The officer in his patrol car pursued defendant's vehicle and, after losing sight of it for several minutes, finally "got the vehicle stopped" some distance away from the scene of the incident. At that time, the female was operating the vehicle and the defendant was the passenger.

An eyewitness, the operator of the pickup truck, testified that "after [the defendant] passed me, I saw the Deputy come out in ... the road and tried to flag him down, but he went on around him."

There is no dispute regarding the law applicable here. Code § 18.2-57(C) provides, as pertinent, that "if any person commits an assault" against another knowing or having reason to know that such other person is a law-enforcement officer engaged in the performance of his public duties, the accused shall be guilty of a Class 6 felony.

In this jurisdiction, we adhere to the common law definition of assault, there having been no statutory change to the crime. In order to constitute an assault, there must be an attempt 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; it is any act accompanied with circumstances denoting an intention, coupled with a present ability, to use actual violence against another person. Harper v....