Joseph Stanley Monteiro v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued by teleconference
JOSEPH STANLEY MONTEIRO
MEMORANDUM OPINION * BY
v. Record No. 1842-98-1 JUDGE ROBERT P. FRANK
JANUARY 4, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
Frederick A. Reese (Horne, West & Luck, P.C.,
on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Joseph Stanley Monteiro (appellant) appeals his conviction
for assault pursuant to Code § 18.2-57 after a bench trial. On
appeal, he contends the evidence was insufficient to prove he
assaulted Elizabeth Morse. We disagree and affirm his conviction.
FACTS
On the evening of November 20, 1997, Elizabeth Morse returned
to her home to find a man in her bedroom. Her bedroom light was
on and the man, who had his back to Morse, was rummaging through
her jewelry box. When the man turned around, she recognized him
as someone she had seen walking through her neighborhood. Morse
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
testified that she had seen the man an average of twice a week
since April 1997.
When appellant saw Morse, he approached her at a quick rate
and raised his hands toward her. He pointed his finger to within
a few inches of her nose and stated "'Now, I'm going to kill
you.'" Appellant's face was within twelve to eighteen inches of
Morse's face. While appellant's hand was not "balled up in a
fist," Morse testified that she was horrified.
Appellant turned towards the back door and calmly left the
house. Morse went to her neighbor's, Sissy Wallace's, house
immediately after the incident. Wallace described Morse as "very
nervous" and "shaking."
Appellant denied breaking into Morse's house. He admitted
having been convicted of at least five felonies.
The trial judge overruled appellant's motion to strike,
noting that appellant, who is between 5'8" and 5'10" tall and
weighs approximately 150 pounds, is "substantially larger than the
victim."
ANALYSIS
In reviewing the sufficiency of evidence on appeal, "the
appellate court must examine the evidence and all inferences
reasonably deducible therefrom in the light most favorable to the
Commonwealth, the prevailing party in the trial court."
Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265
(1998) (citations omitted). "We may not disturb the trial court's
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judgment unless it is 'plainly wrong or without evidence to
support it.'" Barlow v. Commonwealth, 26 Va. App. 421, 429, 494
S.E.2d 901, 904 (1998) (quoting Beavers v. Commonwealth, 245 Va.
268, 282, 427 S.E.2d 411, 421 (1993)).
Furthermore, "[t]he credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as it
is presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138,
455 S.E.2d 730, 732 (1995) (citations omitted). "In its role of
judging witness credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt." Marable
v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998) (citation omitted).
"An assault is an attempt or offer, 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; as by striking at him
with a stick or other weapon, or without a
weapon, though he be not struck, or even by
raising up the arm or a cane in a menacing
manner, by throwing a bottle of glass with an
intent to strike, by levelling a gun at
another within a distance from which,
supposing it to be loaded, the contents might
injure, or any similar act accompanied with
circumstances denoting an intention coupled
with a present ability, of using actual
violence against the person of another. But
no words whatever, be they ever so provoking,
can amount to an assault."
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Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255
(1955) (citation omitted). Assault requires an overt act, which
puts the party assailed in well-founded fear of bodily harm. See
Burgess v. Commonwealth, 136 Va. 697, 708, 118 S.E. 273, 276
(1923) (citation omitted).
In a prosecution for assault, the Commonwealth is required to
prove that the defendant committed "'an overt act or an attempt,
or the unequivocal appearance of an attempt, with force and
violence, to do physical injury to the person of another.'"
Merritt v. Commonwealth, 164 Va. 653, 658, 180 S.E. 395, 397
(1935) (citation omitted). A victim need not be physically
touched to be assaulted. See Seegars v. Commonwealth, 18 Va. App.
641, 644, 445 S.E.2d 720, 722 (1994); Harper, 196 Va. at 733, 85
S.E.2d at 255 (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 constitute an
assault. See Harper, 196 Va. at 733, 85 S.E.2d at 255.
Appellant argues that there was no overt physical act that
put Morse in fear. We disagree.
In this case, the evidence viewed in the light most favorable
to the Commonwealth established that Morse surprised appellant as
he burglarized Morse's home. Appellant, upon seeing Morse,
rapidly advanced upon her, within twelve to eighteen inches of her
face. Appellant, in a menacing and threatening manner, pointed
his finger at Morse, within an inch of her face, and threatened to
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kill her. The fact finder could properly conclude that appellant
intended to do bodily harm to Morse to prevent her from
identifying appellant as the perpetrator of the burglary and
larceny.
For these reasons, we affirm appellant's conviction.
Affirmed.
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