COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick Argued at Salem, Virginia
DAVID ALLEN TAYLOR, S/K/A DAVID ALAN TAYLOR MEMORANDUM OPINION * BY v. Record No. 0665-96-3 JUDGE LARRY G. ELDER APRIL 22, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA Thomas H. Wood, Judge
Ross S. Haine, Assistant Public Defender (Haine & Murtagh, on brief), for appellant.
Thomas D. Bagwell, Assistant Attorney General (James S. Gilmore, III, Attorney General; Leah A. Darron, Assistant Attorney General, on brief), for appellee.
David Allen Taylor (appellant) appeals his conviction of
assault. He contends (1) that the trial court abused its
discretion when it admitted evidence of his conduct that occurred
nearly two weeks after the date of the charged offense and (2)
that the evidence was insufficient to support his conviction.
For the reasons that follow, we reverse.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.
FACTS
Appellant was charged with assaulting Officer A. J.
Panebianco of the Buena Vista Police on December 8. 1 At trial,
the evidence established that appellant approached Officer
Hollins on December 8 and asked that Officer Panebianco give him
a ride home. Appellant was extremely intoxicated, and Officer
Hollins took him to a holding cell at the Buena Vista Police
Department. While in the holding cell, appellant saw Officer
Panebianco walk by and told him that he was going to break a
window at a tatoo parlor owned by Officer Panebianco and that he
was going to kill the officer. Appellant told Officer Panebianco
that he "would not live to see a new year." The record does not
indicate that appellant made any physical movements at the time
he spoke to Officer Panebianco. The evidence also established that appellant was arrested on
December 21 after "kicking out" a window at Officer Panebianco's
business. Officer Daniel Coleman testified that after appellant
was brought to the police department, appellant looked at a
picture of Officer Panebianco on the wall and threatened to kill
him. Officer Coleman testified that appellant also said that he
"had something" for Officer Panebianco and then removed a shotgun
shell from his pocket that had Officer Panebianco's name
1 Appellant was also charged with and convicted of three other offenses that are not the subject of this appeal.
-2- displayed on it. Officer Panebianco was not present when these
events occurred.
Appellant's counsel objected to the admission of Officer
Coleman's testimony on the grounds that it was irrelevant to
proving that appellant assaulted Officer Panebianco on December 8
and that its admission prejudiced appellant. The trial court
overruled appellant's objection. Appellant's subsequent motion
for a mistrial was also denied. Appellant did not make a motion
to strike. The trial court convicted appellant of assault. II.
ADMISSIBILITY OF OFFICER COLEMAN'S TESTIMONY
Appellant contends that the trial court erred when it
admitted Officer Coleman's testimony regarding appellant's
conduct on December 21. He argues that this evidence was not
relevant to the charge that he assaulted Officer Panebianco on
December 8 and that, even if relevant, its prejudicial effect
outweighed its probative value. We disagree.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
Generally, evidence of other bad acts committed by a criminal
defendant is not admissible to prove that he or she committed the
charged offense. Lafon v. Commonwealth, 17 Va. App. 411, 417,
438 S.E.2d 279, 283 (1993) (citing Kirkpatrick v. Commonwealth,
-3- 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)). However, "other
bad acts" evidence is admissible if relevant to some element or
issue in the present case, such as the defendant's intent, and
its probative value outweighs its prejudicial effect. Id. at
417-18, 438 S.E.2d at 283-84; see also Charles E. Friend, The Law
of Evidence in Virginia § 12-14(a) (4th ed. 1993).
We hold that the trial court did not abuse its discretion
when it admitted Officer Coleman's testimony regarding
appellant's conduct on December 21. The trial court correctly
concluded that the evidence of appellant's conduct on this date
was relevant to the issue of his intent on December 8. "Evidence
is relevant if it has any logical tendency to prove an issue in a
case." Goins v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114,
127, cert. denied, U.S. , 117 S. Ct. 222, 136 L.Ed.2d 154
(1996). The intent of the accused to cause bodily harm is always
an issue in a prosecution for assault. See Boone v.
Commonwealth, 14 Va. App. 130, 133, 415 S.E.2d 250, 251 (1992).
The evidence of appellant's actions on December 21 -- his renewed
threat to kill Officer Panebianco and his display of a shotgun
shell with the officer's name on it -- had the requisite tendency
to prove that appellant intended to cause bodily harm to the
officer on December 8. In addition, we find no clear abuse of
discretion in the trial court's determination that the probative
value of Officer Coleman's testimony outweighed its prejudicial
effect. See Wise v. Commonwealth, 6 Va. App. 178, 188, 367
-4- S.E.2d 197, 203 (1988) (stating that trial court's balancing of
the probative value and prejudicial effect of evidence will not
be disturbed on appeal absent a clear abuse of discretion).
III.
SUFFICIENCY OF THE EVIDENCE
Appellant argues for the first time on appeal that the
evidence was insufficient to support his conviction of assaulting
Officer Panebianco on December 8. It is well established that a ruling of a trial court cannot be a basis for reversal unless an objection is stated "together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice."
Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2
(1991) (quoting Rule 5A:18). In order to determine whether to
invoke the ends of justice exception, "we must evaluate the
nature and effect of the error to determine whether a clear
miscarriage of justice occurred." Brown v. Commonwealth, 8 Va.
App. 126, 131, 380 S.E.2d 8, 10 (1989). When a criminal
defendant has not challenged the sufficiency of the evidence
before the trial court, this Court may consider this issue under
the ends of justice exception "only when the record affirmatively
shows that a criminal defendant 'has been convicted of a crime of
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick Argued at Salem, Virginia
DAVID ALLEN TAYLOR, S/K/A DAVID ALAN TAYLOR MEMORANDUM OPINION * BY v. Record No. 0665-96-3 JUDGE LARRY G. ELDER APRIL 22, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA Thomas H. Wood, Judge
Ross S. Haine, Assistant Public Defender (Haine & Murtagh, on brief), for appellant.
Thomas D. Bagwell, Assistant Attorney General (James S. Gilmore, III, Attorney General; Leah A. Darron, Assistant Attorney General, on brief), for appellee.
David Allen Taylor (appellant) appeals his conviction of
assault. He contends (1) that the trial court abused its
discretion when it admitted evidence of his conduct that occurred
nearly two weeks after the date of the charged offense and (2)
that the evidence was insufficient to support his conviction.
For the reasons that follow, we reverse.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.
FACTS
Appellant was charged with assaulting Officer A. J.
Panebianco of the Buena Vista Police on December 8. 1 At trial,
the evidence established that appellant approached Officer
Hollins on December 8 and asked that Officer Panebianco give him
a ride home. Appellant was extremely intoxicated, and Officer
Hollins took him to a holding cell at the Buena Vista Police
Department. While in the holding cell, appellant saw Officer
Panebianco walk by and told him that he was going to break a
window at a tatoo parlor owned by Officer Panebianco and that he
was going to kill the officer. Appellant told Officer Panebianco
that he "would not live to see a new year." The record does not
indicate that appellant made any physical movements at the time
he spoke to Officer Panebianco. The evidence also established that appellant was arrested on
December 21 after "kicking out" a window at Officer Panebianco's
business. Officer Daniel Coleman testified that after appellant
was brought to the police department, appellant looked at a
picture of Officer Panebianco on the wall and threatened to kill
him. Officer Coleman testified that appellant also said that he
"had something" for Officer Panebianco and then removed a shotgun
shell from his pocket that had Officer Panebianco's name
1 Appellant was also charged with and convicted of three other offenses that are not the subject of this appeal.
-2- displayed on it. Officer Panebianco was not present when these
events occurred.
Appellant's counsel objected to the admission of Officer
Coleman's testimony on the grounds that it was irrelevant to
proving that appellant assaulted Officer Panebianco on December 8
and that its admission prejudiced appellant. The trial court
overruled appellant's objection. Appellant's subsequent motion
for a mistrial was also denied. Appellant did not make a motion
to strike. The trial court convicted appellant of assault. II.
ADMISSIBILITY OF OFFICER COLEMAN'S TESTIMONY
Appellant contends that the trial court erred when it
admitted Officer Coleman's testimony regarding appellant's
conduct on December 21. He argues that this evidence was not
relevant to the charge that he assaulted Officer Panebianco on
December 8 and that, even if relevant, its prejudicial effect
outweighed its probative value. We disagree.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
Generally, evidence of other bad acts committed by a criminal
defendant is not admissible to prove that he or she committed the
charged offense. Lafon v. Commonwealth, 17 Va. App. 411, 417,
438 S.E.2d 279, 283 (1993) (citing Kirkpatrick v. Commonwealth,
-3- 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)). However, "other
bad acts" evidence is admissible if relevant to some element or
issue in the present case, such as the defendant's intent, and
its probative value outweighs its prejudicial effect. Id. at
417-18, 438 S.E.2d at 283-84; see also Charles E. Friend, The Law
of Evidence in Virginia § 12-14(a) (4th ed. 1993).
We hold that the trial court did not abuse its discretion
when it admitted Officer Coleman's testimony regarding
appellant's conduct on December 21. The trial court correctly
concluded that the evidence of appellant's conduct on this date
was relevant to the issue of his intent on December 8. "Evidence
is relevant if it has any logical tendency to prove an issue in a
case." Goins v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114,
127, cert. denied, U.S. , 117 S. Ct. 222, 136 L.Ed.2d 154
(1996). The intent of the accused to cause bodily harm is always
an issue in a prosecution for assault. See Boone v.
Commonwealth, 14 Va. App. 130, 133, 415 S.E.2d 250, 251 (1992).
The evidence of appellant's actions on December 21 -- his renewed
threat to kill Officer Panebianco and his display of a shotgun
shell with the officer's name on it -- had the requisite tendency
to prove that appellant intended to cause bodily harm to the
officer on December 8. In addition, we find no clear abuse of
discretion in the trial court's determination that the probative
value of Officer Coleman's testimony outweighed its prejudicial
effect. See Wise v. Commonwealth, 6 Va. App. 178, 188, 367
-4- S.E.2d 197, 203 (1988) (stating that trial court's balancing of
the probative value and prejudicial effect of evidence will not
be disturbed on appeal absent a clear abuse of discretion).
III.
SUFFICIENCY OF THE EVIDENCE
Appellant argues for the first time on appeal that the
evidence was insufficient to support his conviction of assaulting
Officer Panebianco on December 8. It is well established that a ruling of a trial court cannot be a basis for reversal unless an objection is stated "together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice."
Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2
(1991) (quoting Rule 5A:18). In order to determine whether to
invoke the ends of justice exception, "we must evaluate the
nature and effect of the error to determine whether a clear
miscarriage of justice occurred." Brown v. Commonwealth, 8 Va.
App. 126, 131, 380 S.E.2d 8, 10 (1989). When a criminal
defendant has not challenged the sufficiency of the evidence
before the trial court, this Court may consider this issue under
the ends of justice exception "only when the record affirmatively
shows that a criminal defendant 'has been convicted of a crime of
which under the evidence he could not properly be found guilty.'"
Campbell v. Commonwealth, 14 Va. App. 988, 997, 421 S.E.2d 652,
-5- 657 (1992) (Barrow, J., concurring) (citation omitted). After
reviewing the record, we invoke the "ends of justice" exception
and consider the merits of appellant's argument regarding the
sufficiency of the evidence.
"When considering the sufficiency of the evidence on appeal
of a criminal conviction, we must view all the evidence in the
light most favorable to the Commonwealth and accord to the
evidence all reasonable inferences fairly deducible therefrom."
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,
721 (1988). "The judgment of a trial court sitting without a
jury . . . will not be set aside unless it appears from the
evidence that the judgment is plainly wrong or without evidence
to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
In a prosecution for assault, the Commonwealth is required
to prove that the defendant committed "[a]n overt act or an
attempt, or the unequivocal appearance of an attempt, with force
or violence, to do physical injury to the person of another." Merritt v. Commonwealth, 164 Va. 653, 658, 180 S.E. 395, 397
(1935). A victim need not be physically touched to be assaulted.
See Seegars v. Commonwealth, 18 Va. App. 641, 645, 445 S.E.2d
720, 722 (1994); Harper v. Commonwealth, 196 Va. 723, 733, 85
S.E.2d 249, 255 (1955) (stating that an assault occurs "though
[the victim] be not struck . . . ."). However, a purely verbal
threat with no appearance of an overt physical act does not
-6- constitute an assault. See Harper, 196 Va. at 733, 85 S.E.2d at
255 (stating that "no words whatever, be they ever so provoking,
can amount to an assault . . . ." (citation omitted)).
We hold that the evidence was insufficient to support
appellant's conviction of assault. The summary of the evidence
in the written statement of facts, which appears to contain a
complete account of defendant's actions on December 8, does not
establish that appellant either attempted or appeared to attempt
to cause physical injury to Officer Panebianco. The written
statement of facts only indicates that appellant "stated" to
Officer Panebianco from his jail cell that he was going to kill
him before the new year. The only evidence in the record of any
overt physical acts by appellant was the evidence that appellant
damaged a window at Officer Panebianco's tatoo parlor on December
21. Although the trial court found this evidence "persuasive" to
prove the charge that appellant assaulted Officer Panebianco,
this evidence does not establish that appellant made any physical
movements while Officer Panebianco was in his presence on
December 8. Because the evidence only proved that appellant
verbally threatened Officer Panebianco on December 8, appellant
could not properly be found guilty of assault. For the foregoing reasons, we reverse the conviction of
assault.
Reversed and dismissed.
-7-