James Richard Flippen, Jr. v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: April 2, 2002
• Docket: 1944013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Agee Argued at Salem, Virginia

JAMES RICHARD FLIPPEN, JR. MEMORANDUM OPINION * BY v. Record No. 1944-01-3 JUDGE LARRY G. ELDER APRIL 2, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRY COUNTY David V. Williams, Judge

S. Jane Chittom, Appellate Defender (Public Defender Commission, on briefs), for appellant.

Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

James Richard Flippen, Jr., (appellant) appeals from his

two bench trial convictions for assaulting a police officer in

violation of Code § 18.2-57(C). On appeal, he contends the

trial court erroneously convicted him of assault and battery

rather than assault, as charged in the amended indictments. In

addition, he contends that a conviction for assault required

proof of a specific intent rather than recklessness and that the

evidence was insufficient to prove the required intent. We hold

the record reflects that appellant was convicted for assault

rather than assault and battery. Further, we assume without

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. deciding that a conviction for assault requires proof of a

specific intent, but we hold the circumstantial evidence was

sufficient to prove a specific intent. Thus, we affirm

appellant's convictions, subject to remand solely for the

correction of clerical errors.

A.

PROCEDURAL BAR

Appellant contends first that he was convicted for assault

and battery rather than assault as charged in the amended

indictments. The Commonwealth argues that appellant waived this

argument by failing to raise it in the trial court. We hold

that the argument was not waived but that the record reflects a

conviction for assault rather than assault and battery.

"The lack of authority of the trial court to render the

judgment that it did may be raised at any time and by this Court

on its own motion." Fontaine v. Commonwealth, 25 Va. App. 156,

165, 487 S.E.2d 241, 244 (1997) (noting such lack of authority

is an absence of jurisdiction).

The fact that the defendant did not object to . . . the conviction on the ground that he was convicted for an offense with which he was not charged is of no moment. Unless an indictment is amended to conform to the proof or an accused acquiesces in being found guilty of an offense other than the one charged, a trial court lacks the authority to find an accused guilty of an offense other than the one charged or a lesser included offense.

- 2 - Id. Further, "[a]cquiescence requires something more than a

mere failure to object." Lowe v. Commonwealth, 33 Va. App. 583,

589, 535 S.E.2d 689, 692 (2000). Where a defendant is convicted

of the charged felony and "implore[s]" the court to set aside

the felony conviction and find him guilty instead of a

misdemeanor not lesser included in the charged felony, the

defendant may not be heard to object. Manns v. Commonwealth, 13

Va. App. 677, 679, 414 S.E.2d 613, 614-15 (1992). Such an

action constitutes, in essence, the defendant's request to the

trial court to amend the indictment, thereby permitting

conviction for the unrelated misdemeanor. However, a mere

statement to the judge seeking to clarify that one's ultimate

conviction was for a misdemeanor rather than the felony for

which he was indicted does not constitute acquiescence. See

Fontaine, 25 Va. App. at 165, 487 S.E.2d at 244. Similarly,

here, a mere question to the judge as to the number of counts

for which appellant was convicted did not constitute

acquiescence. Appellant's counsel's question, "Were there two

charges of assault?" did not constitute acquiescence to his

conviction for two counts of assault and battery.

Thus, we may consider on appeal appellant's contention that

the trial court erroneously convicted him for assault and

battery on indictments that charged only assault. In doing so,

we adhere to the principle that "[a] court speaks only through

its orders." Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d

- 3 - 770, 773 (1964). "Where a defendant does not object to the

accuracy of an order within 21 days after its entry, an

appellate court may 'presume that the order, as the final

pronouncement on the subject, rather than a transcript that may

be flawed by omissions, accurately reflects what transpired.'"

Kern v. Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400

(1986) (quoting Stamper v. Commonwealth, 220 Va. 260, 280-81, 57

S.E.2d 808, 822 (1979)).

Here, although the trial transcript indicates the trial

court said it found appellant "guilty of two counts of assault

and battery on a law enforcement officer," the sentencing order

reflects that the trial court convicted appellant for two counts

of assault on a police officer, the same offenses charged in the

amended indictments. 1 Thus, under the principles set forth

above, we presume that the sentencing order rather than the

transcript "'accurately reflects what transpired.'" Id. at 88,

341 S.E.2d at 400 (quoting Stamper, 220 Va. at 281, 257 S.E.2d

at 822).

1 The parties agree that the conviction order incorrectly indicates appellant was convicted for two counts of attempted malicious wounding of a law enforcement officer. They also agree that the sentencing order erroneously cites Code § 18.2-26 as the statute appellant was convicted of violating. Thus, we remand the matter to the trial court for the sole purpose of correcting the clerical errors in those orders to reflect that appellant was convicted for two counts of assaulting a police officer in violation of Code § 18.2-57(C). See Tatum v. Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 138 (1994); see also Code § 8.01-428(B).

- 4 - Further, appellant argued to the trial court that he was

trying to get away and that the evidence established only that

he operated his vehicle recklessly. We hold this argument was

sufficient to preserve his contention that the evidence did not

establish the intent necessary to support his convictions.

B.

SUFFICIENCY OF EVIDENCE TO PROVE ASSAULT

When considering the sufficiency of the evidence on appeal

in a criminal case, we view the evidence in the light most

favorable to the Commonwealth, granting to the evidence all

reasonable inferences fairly deducible therefrom. Higginbotham

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Code § 18.2-57(C) provides that "if 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 . . . engaged in the performance of his

public duties as such, such person shall be guilty of a Class 6

felony . . . ." As defined by common law, an assault occurs

when the perpetrator either (1) attempts to commit a battery or

(2) puts another person in reasonable fear of receiving bodily

hurt. Merritt v. Commonwealth, 164 Va. 653, 658, 180 S.E. 395,

397 (1935); see Park Oil Co. v. Parham, 1 Va. App. 166, 170, 336

S.E.2d 531, 534 (1985).

A battery is "an unlawful touching." Adams v.

Commonwealth, 33 Va. App. 463, 468, 534 S.E.2d 347, 350 (2000).

- 5 - The touching need not result in injury to be a battery. Id.

"'[T]he slightest touching of another . . . if done in a rude,

insolent, or angry manner, constitutes a battery . . . .'" Id.

at 469, 534 S.E.2d at 350 (quoting Crosswhite v. Barnes, 139 Va.

471, 477, 124 S.E. 242, 244 (1924)) (citation omitted). Thus,

under the definition of an assault as an attempted battery, an

assault is (1) an intent to touch another, even if only slightly

and without causing any injury, if done rudely, insolently or

angrily, and (2) a direct, ineffectual act toward such a

touching. Under this definition, one may commit an assault even

though the victim is not aware of or frightened by any acts

directed at him, provided the perpetrator has the specific

intent to commit a battery and commits an overt act in

furtherance of that intent. Id.; Parham, 1 Va. App. at 170, 336

S.E.2d at 534.

Under the second definition of assault above, an assault is

"an offer to batter" and "requires proof of a threat, actual or

implied, to batter and an apparent present ability to do so."

Roger D. Groot, Criminal Offenses and Defenses in Virginia, at

31 (4th ed. 1998) (footnote omitted). The perpetrator need not

put the victim "in actual peril" as long as he "put[s] [the

victim] in well-founded fear or apprehension of bodily harm."

Burgess v. Commonwealth, 136 Va. 697, 706-07, 118 S.E. 273,

275-76 (1923).

- 6 - Whether the perpetrator must intend to put the victim in

fear or apprehension or whether recklessness or criminal

negligence will suffice is not clear. Compare id. (noting in

dicta that perpetrator must commit the act "with the intent to

put the party assailed in fear or apprehension of bodily harm"),

with Commonwealth v. Alexander, 260 Va. 238, 241-42, 531 S.E.2d

567, 568-69 (2000) (indicating in dicta that requisite mental

state for assault may be either malice or wantonness (citing

Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398

(1935)); Jones v. Commonwealth, 184 Va. 679, 681, 36 S.E. 571,

572 (1946); and Bennett v. Commonwealth, 35 Va. App. 442, 449,

546 S.E.2d 209, 212 (2001). Appellant contends proof of

specific intent is required, whereas the Commonwealth argues

criminal negligence will suffice. We need not resolve that

dispute here because we conclude the evidence supports

appellant's conviction under the higher standard, which requires

proof that appellant intended to put the law enforcement

officers pursuing him "in well-founded fear or apprehension of

bodily harm." Burgess, 136 Va. at 706-07, 118 S.E. at 275-76.

"Intent is the purpose formed in a person's mind which may,

and often must, be inferred from the facts and circumstances in

a particular case." Ridley v. Commonwealth, 219 Va. 834, 836,

252 S.E.2d 313, 314 (1979). "Circumstantial evidence is as

competent and is entitled to as much weight as direct evidence,

provided it is sufficiently convincing to exclude every

- 7 - reasonable hypothesis except that of guilt." Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

When facts are equally susceptible to more than one interpretation, one which is consistent with the innocence of the accused, the trier of fact cannot arbitrarily adopt an inculpatory interpretation. The fact finder, however, is entitled to draw inferences from proved facts, so long as the inferences are reasonable and justified. Furthermore, the fact finder may infer that a person intends the immediate, direct, and necessary consequences of his voluntary acts. Thus, when the fact finder draws such inferences reasonably, not arbitrarily, they will be upheld.

Moody v. Commonwealth, 28 Va. App. 702, 706-07, 508 S.E.2d 354,

356 (1998) (citations omitted).

The evidence established that, prior to the specific events

supporting his assault convictions, appellant was measured

driving eighty miles per hour in a fifty-five-mile-per-hour

zone. To avoid being stopped, appellant led police through two

counties on a chase more than twenty-five miles long, speeding

and ignoring traffic signs, placing any other occupants of the

road in danger of harm. When appellant began his flight, only

one officer was pursuing him, but he continued to flee after two

other officers joined the chase. Even after appellant ran off

the road at a T intersection and the three law enforcement

vehicles came to a stop at the edge of the pavement, appellant

refused to yield to the officers' authority. Instead, after

bouncing over a log and making a u-turn in a cloud of dust,

- 8 - appellant drove directly toward the stationary line of law

enforcement vehicles without "miss[ing] a beat." All three

vehicles were occupied, and their lights and sirens remained

activated. Appellant made no effort to go around the cars and

instead drove between them, colliding with two and causing about

$3,000 of damage to one of those two. Both of the officers

whose vehicles were struck testified that they were scared or in

fear immediately prior to the impact with appellant's truck.

The only reasonable hypothesis flowing from the evidence is

that appellant intended to place all three law enforcement

officers pursuing him in fear of receiving bodily hurt. See

Haywood v. Commonwealth, 20 Va. App. 562, 567, 458 S.E.2d 606,

608 (1995) (holding accused's separate acts of driving directly

toward three different law enforcement vehicles as each

attempted to stop his flight were insufficient to prove an

intent to kill each officer because acts also supported

hypotheses that "[accused] believed that he could crash through

any vehicle in his way or that the police would move out of his

way, which they did"). That appellant acted with an intent to

escape does not prevent a finding that he also acted with a

second intent, to assault and, if necessary, to batter the

officers in order to effect that escape. See Moody, 28 Va. App.

at 707-08, 508 S.E.2d at 356-57 (holding fact that perpetrator

in stolen car was attempting to escape parking lot and motioned

pedestrian out of his way did not preclude finding that

- 9 - perpetrator, who accelerated and did not swerve as he approached

pedestrian, formed specific intent to run over pedestrian if he

did not move). The fact finder was entitled to "infer that

[appellant] intend[ed] the immediate, direct, and necessary

consequences of his voluntary acts." Id. A direct consequence

of appellant's voluntary act of driving directly toward the

officers rather than around the line of vehicles was to place

the officers in reasonable fear of receiving a bodily hurt.

Thus, assuming without deciding that assault requires proof of a

specific intent, the circumstantial evidence was sufficient to

prove appellant acted with that intent.

For these reasons, we affirm appellant's convictions.

However, due to clerical errors in the conviction and sentencing

orders, see supra note 1, we remand to the trial court for the

sole purpose of correcting the conviction and sentencing orders

to reflect that appellant was convicted for two counts of

assaulting a police officer in violation of Code § 18.2-57(C).

Affirmed on the merits and remanded with instructions.

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