COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner Argued by teleconference
CHARLES E. WILSON MEMORANDUM OPINION * BY v. Record No. 0017-01-3 JUDGE JAMES W. BENTON, JR. JANUARY 29, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL A. Dow Owens, Judge
J. Douglas Fleenor for appellant.
Michael T. Judge, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
The trial judge convicted Charles E. Wilson of the felony of
assault and battery against a law-enforcement officer in violation
of Code § 18.2-57(C). Wilson contends the trial judge erred by
ruling that the Commonwealth did not have to prove intent and that
the evidence was sufficient to prove Wilson intended to assault
the officer. For the reasons that follow, we affirm the
conviction.
I.
The evidence proved that a police officer arrested Wilson
for public drunkenness and transported him to the local jail.
When Wilson arrived at the jail, he was "threatening, verbally
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. abusive, lot[s] of cussing" and angry. He directed his profane
comments at the officers and threatened to kill them.
A deputy sheriff searched Wilson's clothing and directed
Wilson to sit and remove his shoes for a search. Wilson kicked
one shoe across the room. The deputy sheriff retrieved the
shoe, searched it, and searched Wilson's other shoe. He then
put both shoes next to Wilson. Wilson kicked or threw his shoes
across the room a second time, but retrieved the shoes himself.
The deputy sheriff did not recall whether Wilson put his shoes
on his feet.
The deputy sheriff left Wilson alone and walked to another
area of the room. Other officers were in the area; however,
none were closely monitoring Wilson. When the deputy sheriff
returned to the area where Wilson was sitting, he saw movement
"peripherally" and was struck on the jaw by Wilson's shoe.
Although none of the officers actually saw Wilson throw or kick
the shoe, all saw the shoe come from Wilson's direction. Wilson
was sitting ten feet from the deputy sheriff and was the only
person in that part of the room.
Wilson testified that he has an alcohol problem, that he
was intoxicated in the jail, and that he did not recall the
incident. He testified that, if he threw the shoe, it was not
intended to hit anyone.
At the conclusion of the evidence, Wilson's attorney made a
motion to strike the evidence. After the arguments by the
- 2 - prosecutor and the defense attorney, the trial judge convicted
Wilson of assault and battery of a law-enforcement officer in
violation of Code § 18.2-57(C).
II.
Wilson contends the trial judge erred in ruling that intent
is not an element of the crime of assault and battery. The
Commonwealth argues, however, that Wilson's attorney failed to
object to the trial judge's comment concerning intent and that
the record proves Wilson's attorney "agreed with the comment."
The record indicates that at the conclusion of the
Commonwealth's case-in-chief, Wilson's attorney argued that "the
concern here is . . . its one thing if he threw it. It's
another thing if he was kicking his shoe as he'd done previously
with no intent to cause injury." He repeated the crux of that
argument at the close of all the evidence. He argued that the
evidence did not prove "the shoe [left] the person of . . .
Wilson" and that the evidence did not prove who propelled the
shoe across the room or how it was propelled. He also presented
the hypothesis that the evidence supported two equally likely
inferences -- that Wilson either threw or kicked his shoe –-
which created a conflict on the issue of intent. In response,
the trial judge first said, "[i]ntent is not a factor under this
code section," and then, in response to the attorney's further
argument, said, "[i]ntent under this code section of injury of a
police officer is not a factor as . . . in malicious wounding."
- 3 - We have specifically held as follows:
[W]here an issue of sufficiency of evidence is presented to a trial court, sitting without a jury, in a motion to strike at the conclusion of the Commonwealth's evidence and, upon its denial and upon conclusion of the defendant's evidence, the same issue is presented in the defendant's final argument to the court, the defendant has preserved his right to appeal this issue, even though he did not make a motion to strike at the conclusion of his own evidence.
Campbell v. Commonwealth, 12 Va. App. 476, 478, 405 S.E.2d 1, 1
(1991) (en banc). The transcript clearly establishes that
Wilson's attorney argued the issue of intent and that the trial
judge commented on that argument. Because the trial judge
"specifically addressed and ruled on these issues . . . , we
conclude that the purpose of the contemporaneous objection rule
. . . is satisfied." Morris v. Commonwealth, 13 Va. App. 77, 84
n.2, 408 S.E.2d 588, 592 n.2 (1991).
III.
In pertinent part, Code § 18.2-57(C) provides as follows:
[I]f any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a law-enforcement officer as defined hereinafter . . . such person shall be guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory, minimum term of confinement for six months which mandatory, minimum term shall not be suspended, in whole or in part.
"Assault and battery, . . . requires proof of 'an overt act or
an attempt . . . with force and violence, to do physical injury
- 4 - to the person of another,' 'whether from malice or from
wantonness,' together with 'the actual infliction of corporal
hurt on another . . . wil[l]fully or in anger.'" Boone v.
Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250, 251
(1992) (citations omitted). The principle is well established
in Virginia that "[a]ny touching by one of the person . . . of
another in rudeness or in anger is an assault and battery."
Lynch v. Commonwealth, 131 Va. 762, 765, 109 S.E. 427, 428
(1921).
We conclude from the trial judge's comments and his ruling
that the trial judge was merely indicating that a specific
intent was not needed in order to prove beyond a reasonable
doubt the elements of assault and battery. Indeed, the judge
stated, "[i]ntent under this code section . . . is not a factor
as it . . . is in malicious wounding." Without further
elaboration, Wilson's counsel said, "I understand," and moved
onto an argument about the absence of injury. From the context
of the exchange, we believe it is reasonable to conclude that
the trial judge was merely expressing in a short handed manner
the view we have stated more expansively as follows:
An element necessary to . . . malicious . . . wounding is the "intent to maim, disfigure, disable, or kill" the victim.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner Argued by teleconference
CHARLES E. WILSON MEMORANDUM OPINION * BY v. Record No. 0017-01-3 JUDGE JAMES W. BENTON, JR. JANUARY 29, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL A. Dow Owens, Judge
J. Douglas Fleenor for appellant.
Michael T. Judge, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
The trial judge convicted Charles E. Wilson of the felony of
assault and battery against a law-enforcement officer in violation
of Code § 18.2-57(C). Wilson contends the trial judge erred by
ruling that the Commonwealth did not have to prove intent and that
the evidence was sufficient to prove Wilson intended to assault
the officer. For the reasons that follow, we affirm the
conviction.
I.
The evidence proved that a police officer arrested Wilson
for public drunkenness and transported him to the local jail.
When Wilson arrived at the jail, he was "threatening, verbally
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. abusive, lot[s] of cussing" and angry. He directed his profane
comments at the officers and threatened to kill them.
A deputy sheriff searched Wilson's clothing and directed
Wilson to sit and remove his shoes for a search. Wilson kicked
one shoe across the room. The deputy sheriff retrieved the
shoe, searched it, and searched Wilson's other shoe. He then
put both shoes next to Wilson. Wilson kicked or threw his shoes
across the room a second time, but retrieved the shoes himself.
The deputy sheriff did not recall whether Wilson put his shoes
on his feet.
The deputy sheriff left Wilson alone and walked to another
area of the room. Other officers were in the area; however,
none were closely monitoring Wilson. When the deputy sheriff
returned to the area where Wilson was sitting, he saw movement
"peripherally" and was struck on the jaw by Wilson's shoe.
Although none of the officers actually saw Wilson throw or kick
the shoe, all saw the shoe come from Wilson's direction. Wilson
was sitting ten feet from the deputy sheriff and was the only
person in that part of the room.
Wilson testified that he has an alcohol problem, that he
was intoxicated in the jail, and that he did not recall the
incident. He testified that, if he threw the shoe, it was not
intended to hit anyone.
At the conclusion of the evidence, Wilson's attorney made a
motion to strike the evidence. After the arguments by the
- 2 - prosecutor and the defense attorney, the trial judge convicted
Wilson of assault and battery of a law-enforcement officer in
violation of Code § 18.2-57(C).
II.
Wilson contends the trial judge erred in ruling that intent
is not an element of the crime of assault and battery. The
Commonwealth argues, however, that Wilson's attorney failed to
object to the trial judge's comment concerning intent and that
the record proves Wilson's attorney "agreed with the comment."
The record indicates that at the conclusion of the
Commonwealth's case-in-chief, Wilson's attorney argued that "the
concern here is . . . its one thing if he threw it. It's
another thing if he was kicking his shoe as he'd done previously
with no intent to cause injury." He repeated the crux of that
argument at the close of all the evidence. He argued that the
evidence did not prove "the shoe [left] the person of . . .
Wilson" and that the evidence did not prove who propelled the
shoe across the room or how it was propelled. He also presented
the hypothesis that the evidence supported two equally likely
inferences -- that Wilson either threw or kicked his shoe –-
which created a conflict on the issue of intent. In response,
the trial judge first said, "[i]ntent is not a factor under this
code section," and then, in response to the attorney's further
argument, said, "[i]ntent under this code section of injury of a
police officer is not a factor as . . . in malicious wounding."
- 3 - We have specifically held as follows:
[W]here an issue of sufficiency of evidence is presented to a trial court, sitting without a jury, in a motion to strike at the conclusion of the Commonwealth's evidence and, upon its denial and upon conclusion of the defendant's evidence, the same issue is presented in the defendant's final argument to the court, the defendant has preserved his right to appeal this issue, even though he did not make a motion to strike at the conclusion of his own evidence.
Campbell v. Commonwealth, 12 Va. App. 476, 478, 405 S.E.2d 1, 1
(1991) (en banc). The transcript clearly establishes that
Wilson's attorney argued the issue of intent and that the trial
judge commented on that argument. Because the trial judge
"specifically addressed and ruled on these issues . . . , we
conclude that the purpose of the contemporaneous objection rule
. . . is satisfied." Morris v. Commonwealth, 13 Va. App. 77, 84
n.2, 408 S.E.2d 588, 592 n.2 (1991).
III.
In pertinent part, Code § 18.2-57(C) provides as follows:
[I]f any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a law-enforcement officer as defined hereinafter . . . such person shall be guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory, minimum term of confinement for six months which mandatory, minimum term shall not be suspended, in whole or in part.
"Assault and battery, . . . requires proof of 'an overt act or
an attempt . . . with force and violence, to do physical injury
- 4 - to the person of another,' 'whether from malice or from
wantonness,' together with 'the actual infliction of corporal
hurt on another . . . wil[l]fully or in anger.'" Boone v.
Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250, 251
(1992) (citations omitted). The principle is well established
in Virginia that "[a]ny touching by one of the person . . . of
another in rudeness or in anger is an assault and battery."
Lynch v. Commonwealth, 131 Va. 762, 765, 109 S.E. 427, 428
(1921).
We conclude from the trial judge's comments and his ruling
that the trial judge was merely indicating that a specific
intent was not needed in order to prove beyond a reasonable
doubt the elements of assault and battery. Indeed, the judge
stated, "[i]ntent under this code section . . . is not a factor
as it . . . is in malicious wounding." Without further
elaboration, Wilson's counsel said, "I understand," and moved
onto an argument about the absence of injury. From the context
of the exchange, we believe it is reasonable to conclude that
the trial judge was merely expressing in a short handed manner
the view we have stated more expansively as follows:
An element necessary to . . . malicious . . . wounding is the "intent to maim, disfigure, disable, or kill" the victim. Assault and battery, however, requires proof of "an overt act or an attempt . . . with force and violence, to do physical injury to the person of another," "whether from malice or from wantonness," together with "the actual infliction of corporal hurt on
- 5 - another . . . wil[l]fully or in anger." One cannot be convicted of assault and battery "without an intention to do bodily harm – either an actual intention or an intention imputed by law," but an intent to maim, disfigure or kill is unnecessary to the offense.
Boone, 14 Va. App. at 132-33, 415 S.E.2d at 251 (citations
omitted; emphasis removed).
In convicting Wilson, the trial judge referred to proof
"beyond a reasonable doubt" that Wilson acted in a "rude manner"
while propelling his shoe. See Lynch, 131 Va. at 765, 109 S.E.
at 428 (holding that touching "another in rudeness or in anger
is an assault and battery"). The evidence proved that Wilson
was abusive, threatened to kill the officer, and generally was
belligerent during the incident in which he propelled his shoe
across the room striking the officer's face. This evidence was
sufficient for the trial judge to find that Wilson's conduct was
so wanton and flagrant as to prove beyond a reasonable doubt the
elements of assault and battery.
Accordingly, we affirm the conviction.
Affirmed.
- 6 -