COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements Argued at Chesapeake, Virginia
HILBERT CHRISTOPHER WATFORD MEMORANDUM OPINION * BY v. Record No. 2724-99-1 JUDGE JAMES W. BENTON, JR. JANUARY 30, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH James A. Cales, Jr., Judge
Joseph R. Winston (S. Jane Chittom, Appellate Counsel; Public Defender Commission, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
The trial judge convicted Hilbert Christopher Watford of one
count of driving after having been adjudicated an habitual
offender, see Code § 46.2-357, and two counts of assault and
battery of a police officer, see Code § 18.2-57(C). Watford
contends the trial judge erred by refusing to suppress evidence
obtained during an investigative detention and by finding the
evidence sufficient to support each assault and battery
conviction. We affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.
At trial, Officer Ben Jones testified that on October 7,
1997, Watford drove a car past his police vehicle. Jones
recognized Watford because he had arrested Watford within the
previous month and a half and had learned, while preparing the
arrest warrant, that Watford was an habitual offender who could
not drive a car legally. Jones followed Watford's car and
activated his emergency lights. Jones testified that he did not
verify Watford's habitual offender status before pursuing him and
relied solely on his knowledge of Watford's status.
Watford stopped and exited his car. When Officer Michael
Hayes exited the police vehicle and approached Watford, Watford
attempted to flee. Hayes grabbed Watford's shirt. Hayes
testified that a struggle ensued and that Watford's "arms were
kind of flailing." Struggling to escape, Watford struck Hayes in
the arm with "very long fingernails" so that "a good chunk of skin
was taken out of [Hayes'] arm." Watford came out of his shirt and
freed himself from Hayes' grasp. Watford then ran past Jones,
pushed Jones in the chest, and briefly eluded the officers before
they captured him. The evidence proved Watford's status as an
habitual offender.
At the conclusion of the Commonwealth's evidence, Watford's
counsel made a motion "to strike and dismiss" and argued that the
officer had no reasonable basis to stop Watford. Rejecting that
argument, the trial judge ruled that the officer had a reasonable
- 2 - basis to make the stop and that the Commonwealth's evidence was
sufficient to survive the motion to strike. When Watford did not
offer evidence, the judge convicted him of driving after having
been adjudicated an habitual offender and of the two assault and
battery offenses.
II.
Challenging his conviction of driving while a declared
habitual offender, Watford argues that the evidence proved the
officers lacked a reasonable suspicion to stop his vehicle.
Thus, he contends "the information flowing from that unlawful
stop should have been suppressed."
"There is a general procedural requirement . . . that if a
defendant wishes to preserve his right to challenge on appeal the
constitutionality of a . . . seizure through which certain
evidence has been obtained, he must take timely steps in the lower
court, either through a motion to suppress the evidence before
trial or by sufficient objection to the use of the evidence when
offered at trial." Manley v. Commonwealth, 211 Va. 146, 149, 176
S.E.2d 309, 312 (1970). In pertinent part, Code § 19.2-266.2
provides as follows:
Defense motions or objections seeking (i) suppression of evidence on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia proscribing illegal searches and seizures and protecting rights against self-incrimination, or (ii)
- 3 - dismissal of a warrant, information, or indictment or any count or charge thereof on the ground that a statute upon which it was based is unconstitutional shall be raised by motion or objection, in writing, before trial. The motions or objections shall be filed and notice given to opposing counsel not later than seven days before trial. A hearing on all such motions or objections shall be held not later than three days prior to trial, unless such period is waived by the accused, as set by the trial judge. The court may, however, for good cause shown and in the interest of justice, permit the motions or objections to be raised at a later time.
The record does not contain a written motion to suppress
the evidence or an objection during the officer's testimony
concerning the detention of Watford. Instead, at the conclusion
of the Commonwealth's case-in-chief, Watford's trial counsel
made a motion to strike the evidence, which is the traditional
way of challenging the sufficiency of the evidence. See Gabbard
v. Knight, 202 Va. 40, 43, 116 S.E.2d 73, 75 (1960). Assuming
without deciding that, "for good cause shown and in the interest
of justice," the trial judge considered the motion to strike to
be a motion to suppress the evidence, and not just a challenge
to the sufficiency of the evidence, we hold that the trial judge
did not err in ruling that the officers lawfully stopped
Watford's car.
The Fourth Amendment requires police officers to have "a
reasonable suspicion supported by articulable facts that
criminal activity 'may be afoot'" before subjecting a person to
- 4 - a brief investigatory stop. United States v. Sokolow, 490 U.S.
1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
More specifically, prior to conducting an investigatory stop of
a motorist, a police officer must have an articulable and
reasonable suspicion that the motorist is unlicensed or that an
occupant of the vehicle is otherwise subject to seizure for a
violation of the law. Brown v. Commonwealth, 17 Va. App. 694,
697-98, 440 S.E.2d 619, 621 (1994).
Questions of reasonable suspicion involve issues of both
fact and law that we review de novo. McGee v. Commonwealth, 25
Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc). The
dispositive facts are not disputed. The record established that
Jones recognized Watford and knew from a recent encounter that
Watford was an habitual offender whose driving a motor vehicle
would violate Code § 46.2-357. Jones articulated this specific
reason for detaining Watford.
The elapse of time between Jones' first encounter with
Watford and this encounter does not negate the reasonableness of
the suspicion. In Glasco v. Commonwealth, 26 Va. App. 763, 497
S.E.2d 150 (1998), we analyzed the legality of a police
officer's stop of a motorist whom he had "arrested two weeks
earlier for law violations that often resulted in license
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements Argued at Chesapeake, Virginia
HILBERT CHRISTOPHER WATFORD MEMORANDUM OPINION * BY v. Record No. 2724-99-1 JUDGE JAMES W. BENTON, JR. JANUARY 30, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH James A. Cales, Jr., Judge
Joseph R. Winston (S. Jane Chittom, Appellate Counsel; Public Defender Commission, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
The trial judge convicted Hilbert Christopher Watford of one
count of driving after having been adjudicated an habitual
offender, see Code § 46.2-357, and two counts of assault and
battery of a police officer, see Code § 18.2-57(C). Watford
contends the trial judge erred by refusing to suppress evidence
obtained during an investigative detention and by finding the
evidence sufficient to support each assault and battery
conviction. We affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.
At trial, Officer Ben Jones testified that on October 7,
1997, Watford drove a car past his police vehicle. Jones
recognized Watford because he had arrested Watford within the
previous month and a half and had learned, while preparing the
arrest warrant, that Watford was an habitual offender who could
not drive a car legally. Jones followed Watford's car and
activated his emergency lights. Jones testified that he did not
verify Watford's habitual offender status before pursuing him and
relied solely on his knowledge of Watford's status.
Watford stopped and exited his car. When Officer Michael
Hayes exited the police vehicle and approached Watford, Watford
attempted to flee. Hayes grabbed Watford's shirt. Hayes
testified that a struggle ensued and that Watford's "arms were
kind of flailing." Struggling to escape, Watford struck Hayes in
the arm with "very long fingernails" so that "a good chunk of skin
was taken out of [Hayes'] arm." Watford came out of his shirt and
freed himself from Hayes' grasp. Watford then ran past Jones,
pushed Jones in the chest, and briefly eluded the officers before
they captured him. The evidence proved Watford's status as an
habitual offender.
At the conclusion of the Commonwealth's evidence, Watford's
counsel made a motion "to strike and dismiss" and argued that the
officer had no reasonable basis to stop Watford. Rejecting that
argument, the trial judge ruled that the officer had a reasonable
- 2 - basis to make the stop and that the Commonwealth's evidence was
sufficient to survive the motion to strike. When Watford did not
offer evidence, the judge convicted him of driving after having
been adjudicated an habitual offender and of the two assault and
battery offenses.
II.
Challenging his conviction of driving while a declared
habitual offender, Watford argues that the evidence proved the
officers lacked a reasonable suspicion to stop his vehicle.
Thus, he contends "the information flowing from that unlawful
stop should have been suppressed."
"There is a general procedural requirement . . . that if a
defendant wishes to preserve his right to challenge on appeal the
constitutionality of a . . . seizure through which certain
evidence has been obtained, he must take timely steps in the lower
court, either through a motion to suppress the evidence before
trial or by sufficient objection to the use of the evidence when
offered at trial." Manley v. Commonwealth, 211 Va. 146, 149, 176
S.E.2d 309, 312 (1970). In pertinent part, Code § 19.2-266.2
provides as follows:
Defense motions or objections seeking (i) suppression of evidence on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia proscribing illegal searches and seizures and protecting rights against self-incrimination, or (ii)
- 3 - dismissal of a warrant, information, or indictment or any count or charge thereof on the ground that a statute upon which it was based is unconstitutional shall be raised by motion or objection, in writing, before trial. The motions or objections shall be filed and notice given to opposing counsel not later than seven days before trial. A hearing on all such motions or objections shall be held not later than three days prior to trial, unless such period is waived by the accused, as set by the trial judge. The court may, however, for good cause shown and in the interest of justice, permit the motions or objections to be raised at a later time.
The record does not contain a written motion to suppress
the evidence or an objection during the officer's testimony
concerning the detention of Watford. Instead, at the conclusion
of the Commonwealth's case-in-chief, Watford's trial counsel
made a motion to strike the evidence, which is the traditional
way of challenging the sufficiency of the evidence. See Gabbard
v. Knight, 202 Va. 40, 43, 116 S.E.2d 73, 75 (1960). Assuming
without deciding that, "for good cause shown and in the interest
of justice," the trial judge considered the motion to strike to
be a motion to suppress the evidence, and not just a challenge
to the sufficiency of the evidence, we hold that the trial judge
did not err in ruling that the officers lawfully stopped
Watford's car.
The Fourth Amendment requires police officers to have "a
reasonable suspicion supported by articulable facts that
criminal activity 'may be afoot'" before subjecting a person to
- 4 - a brief investigatory stop. United States v. Sokolow, 490 U.S.
1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
More specifically, prior to conducting an investigatory stop of
a motorist, a police officer must have an articulable and
reasonable suspicion that the motorist is unlicensed or that an
occupant of the vehicle is otherwise subject to seizure for a
violation of the law. Brown v. Commonwealth, 17 Va. App. 694,
697-98, 440 S.E.2d 619, 621 (1994).
Questions of reasonable suspicion involve issues of both
fact and law that we review de novo. McGee v. Commonwealth, 25
Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc). The
dispositive facts are not disputed. The record established that
Jones recognized Watford and knew from a recent encounter that
Watford was an habitual offender whose driving a motor vehicle
would violate Code § 46.2-357. Jones articulated this specific
reason for detaining Watford.
The elapse of time between Jones' first encounter with
Watford and this encounter does not negate the reasonableness of
the suspicion. In Glasco v. Commonwealth, 26 Va. App. 763, 497
S.E.2d 150 (1998), we analyzed the legality of a police
officer's stop of a motorist whom he had "arrested two weeks
earlier for law violations that often resulted in license
suspension." Id. at 771, 497 S.E.2d at 154. Although the
officer did not know that a judge had suspended the motorist's
license, the officer detained the motorist and then contacted
- 5 - the Department of Motor Vehicles to confirm his suspicions. Id.
at 768, 497 S.E.2d at 152. We held that "[a]lthough [the
officer's] suspicion regarding the probable outcome of
proceedings against people who fail to pay fines was not
conclusive evidence that [the motorist] was driving without a
license, it nevertheless gave [the officer] reasonable suspicion
to detain and question [the motorist] briefly." Id. at 771, 497
S.E.2d at 154.
The officer in this case had a more reasonable suspicion to
stop Watford than did the officer in Glasco. Jones knew that
six weeks earlier Watford was an habitual offender, a person
whose status would remain unchanged for ten years or until
terminated by a court. See Code § 46.2-356. Thus, we hold that
given the brief lapse of time since Watford's prior arrest,
Jones had reasonable suspicion to detain Watford.
III.
Watford contends that the prosecution produced insufficient
evidence to convict him of both counts of assault and battery.
We disagree.
Assault and battery . . . 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 another . . . willfully 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."
- 6 - Boone v. Commonwealth, 14 Va. App. 130, 132-33, 414 S.E.2d 250,
251 (1992) (citations omitted).
"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). So viewed, the evidence proved that Watford
scratched Hayes while "flailing" at him and attempting to elude
his grasp. Watford contends that this evidence fails to prove
that he had the requisite intent to commit assault and battery.
The requisite intent, however, is malice or wantonness. "Malice
is evidenced either when the accused acted with a sedate,
deliberate mind, and formed design, or committed any purposeful
and cruel act without any or without great provocation." Branch
v. Commonwealth, 14 Va. App. 836, 841, 419 S.E.2d 422, 426
(1992). Wantonness imports premeditation or knowledge and
consciousness that injury is likely to result from the
commission of the act. Boward v. Leftwich, 197 Va. 227, 231, 89
S.E.2d 32, 35 (1955).
Watford deliberately and purposefully fought to escape
arrest. Upon the testimony that Watford consciously flailed his
arms to effect an escape, the trier of fact could have concluded
beyond a reasonable doubt that Watford's actions were purposeful
and cruel or committed knowing that an injury would likely
- 7 - occur. The trial judge was free to conclude that Watford's
strike was not an accidental bump, but was instead an
intentional act to harm Hayes and increase the likelihood of
escape.
Watford also contends that Jones did not suffer the
requisite injury. We disagree. Using a "stiff arm," Watford
hit Jones in the chest with his hand and shoved Jones into a
wall. This act of violence caused corporal hurt by a touching
of Jones' person. There is no requirement that the act cause
permanent injury. "When an injury is actually inflicted, a
battery has been committed regardless of how small the injury
might be." Seegars v. Commonwealth, 18 Va. App. 641, 644, 445
S.E.2d 720, 722 (1994). Watford committed an intentional,
violent hit upon Jones. Therefore, the trial judge was
justified in finding that Watford committed the offense of
assault and battery upon Jones.
For the reasons stated, we affirm the convictions.
Affirmed.
- 8 -