Charles R. Bowser v. Commonwealth of Virginia ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and Alston
Argued at Chesapeake, Virginia
CHARLES E. BOWSER
MEMORANDUM OPINION * BY
v. Record No. 2778-09-1 JUDGE LARRY G. ELDER
MAY 3, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Westbrook J. Parker, Judge
Varinder S. Dhillon (Thomas L. Watkins, Public Defender; Paul A.
Fritzinger, Deputy Public Defender; Office of the Public Defender,
on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Charles E. Bowser (appellant) appeals from his bench trial conviction for assault and
battery of a correctional officer in violation of Code § 18.2-57(C). On appeal, he contends the
evidence was insufficient to prove he intended to use violence against the correctional officer or
that he “actual[ly] inflict[ed] . . . corporal injury” upon her. The Commonwealth contends
appellant failed to preserve this argument for appeal and that it lacks merit. We assume without
deciding that the issue was preserved and conclude the evidence was sufficient to support
appellant’s conviction. Thus, we affirm.
On appellate review, we consider the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party below, and “accord [it] the benefit of all
inferences fairly deducible from the evidence.” Riner v. Commonwealth, 268 Va. 296, 303, 601
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
S.E.2d 555, 558 (2004). Intent “may be proved by circumstantial evidence, as long as such
evidence excludes all reasonable hypotheses of innocence flowing from it.” Adams v.
Commonwealth, 33 Va. App. 463, 471, 534 S.E.2d 347, 351 (2000). “Circumstantial evidence
of intent may include the conduct and statements of the alleged offender, and ‘the finder of fact
may infer that [he] intends the natural and probable consequences of his acts.’” Id. (quoting
Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc)). When
reviewing the sufficiency of the evidence to support a conviction, the Court will affirm the
judgment unless it is plainly wrong or without evidence to support it. E.g., Coles v.
Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109, 110 (2005).
Code § 18.2-57(C) provides in relevant part 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, such person is
guilty of a Class 6 felony.” Because no dispute exists that appellant knew Officer Sandra Felton
was a law enforcement officer engaged in the performance of her public duties, we focus on the
elements of assault and battery.
“Assault and battery are common law crimes.” Montague v. Commonwealth, 278 Va.
532, 541, 684 S.E.2d 583, 589 (2009).
[A] common law assault . . . occurs when an assailant [either (1)]
engages in an overt act intended to inflict bodily harm and has the
present ability to inflict such harm or [(2)] engages in an overt act
intended to place the victim in fear or apprehension of bodily harm
and creates such reasonable fear or apprehension in the victim.
Carter v. Commonwealth, 269 Va. 44, 47, 606 S.E.2d 839, 841 (2005). “Assault and battery is
‘the least touching of another, willfully or in anger.’” Perkins v. Commonwealth, 31 Va. App.
326, 330, 523 S.E.2d 512, 513 (2000) (quoting Roger D. Groot, Criminal Offenses and Defenses
in Virginia 29 (4th ed. 1998)). “The defendant does not have to intend to do harm; a battery may
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also be ‘done in a spirit of rudeness or insult.’” Id. (quoting Groot, supra, at 29 (footnote
omitted)). The touching need not result in actual physical injury. Gnadt v. Commonwealth, 27
Va. App. 148, 151, 497 S.E.2d 887, 888 (1998). The “injury” component of the offense is met
by proof of “‘the least touching of another’s person[], willfully or in anger,’” Lynch v.
Commonwealth, 131 Va. 762, 766, 109 S.E. 427, 428 (1921) (quoting Minor, Synopsis of the
Law of Crime & Punishment 77), because such touching is presumed to inflict an injury “‘to the
feelings or mind,’” id. at 765, 109 S.E. at 428 (quoting 2 American & English Encyclopedia of
Law 959). See Adams, 33 Va. App. at 469, 534 S.E.2d at 351 (in a case in which the defendant
shined a laser light in the victim’s eye, noting that “[i]n Virginia, it is abundantly clear that a
perpetrator need not inflict a physical injury to commit a battery”); see also Gilbert v.
Commonwealth, 45 Va. App. 67, 71-72, 608 S.E.2d 509, 511-12 (2005) (upholding an assault
and battery conviction where the defendant spit on a law enforcement officer). “Willfully” in
this context means “‘designedly,’ ‘intentionally’ or ‘perversely.’” Lynch, 131 Va. at 765, 109
S.E. at 428 (quoting 4 Words & Phrases 1293 (2d ser.)) (upholding assault and battery conviction
where the defendant made an “insult[ing]” statement to the victim, placed his hand on the
victim’s shoulder and said, “‘I didn’t mean to insult you’”).
Here, the evidence, viewed in the light most favorable to the Commonwealth, established
a battery. It proved that, in spite of institutional rules prohibiting inmates from having physical
contact with guards, appellant intentionally touched Officer Felton when he pushed paper towels
between her forearm and breast as she stood beside the exit to the inmates’ dining hall. Although
appellant claimed he did not intend to offend her, he did not dispute that he intended to make
contact with her person, and the contact he made involved touching her breast and arm. Officer
Felton agreed she found this touching “bother[some]” and “offensive.” The Commonwealth was
not required to prove appellant inflicted a physical injury. The unsolicited, unwanted, rude
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touching of any part of Officer Felton’s body satisfied the intentional “injury” component
required to prove a battery. See Hardy v. Commonwealth, 58 Va. (17 Gratt.) 592, 601-02 (1867)
(“Battery is not an offence of a higher nature or degree than an assault, nor is it otherwise
punished, but is merely a name which the law has given to an assault after it has reached the
person at [whom] it is aimed.” (emphasis added)); see also Code § 18.2-57(C) (proscribing either
an assault or an assault and battery of a law enforcement officer as the same offense subject to
the same punishment).
For these reasons, we affirm appellant’s conviction for assault and battery of a law
enforcement officer.
Affirmed.
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