Patrick Clay English v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia
PATRICK CLAY ENGLISH
MEMORANDUM OPINION * BY
v. Record No. 0675-02-3 JUDGE ROBERT J. HUMPHREYS
DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Gregory T. Casker for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Patrick C. English appeals his conviction, after a bench
trial, for assault and battery upon a police officer, in violation
of Code § 18.2-57(C). 1 English contends the trial court erred in
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
1
Code § 18.2-57(C) provides:
In addition, 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 as defined hereinafter, a
correctional officer as defined in § 53.1-1,
a person employed by the Department of
Corrections directly involved in the care,
treatment or supervision of inmates in the
custody of the Department or a firefighter
finding the evidence sufficient to support the conviction. For
the following reasons, we affirm the judgment of the trial court.
English argues the Commonwealth failed to establish that he
caused injury to Officer Casey H. Allen, of the Danville Police
Department, by spitting on his face; and that in doing so, he
possessed the requisite intent to do bodily harm. We disagree.
The circuit court sitting without a jury in
this case acted as the fact finder; hence,
the court's judgment is accorded the same
weight as a jury verdict. As the fact
finder, the court "need not believe the
accused's explanation and may infer that he
is trying to conceal his guilt."
Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907
(2001) (citation omitted).
An assault and battery is the unlawful
touching of another. See Gnadt v.
Commonwealth, 27 Va. App. 148, 151, 497
S.E.2d 887, 888 (1998). Assault and battery
is "the least touching of another, willfully
or in anger." 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 also be
"done in a spirit of rudeness or insult."
Id. (footnote omitted). The touching need
not result in injury. See Gnadt, 27
Va. App. at 151, 497 S.E.2d at 888. A
touching is not unlawful if the person
as defined in § 65.2-102, engaged in the
performance of his public duties as such,
such person shall be guilty of a Class 6
felony, and, upon conviction, the sentence
of such person shall include a mandatory,
minimum term of confinement for six months
which mandatory, minimum term shall not be
suspended, in whole or in part.
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consents or if the touching is justified or
excused.
Perkins v. Commonwealth, 31 Va. App. 326, 330, 523 S.E.2d 512,
513 (2000) (other citations omitted).
Thus, "'[a]ssault 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 . . . wilfully or in anger.'" Boone v.
Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250, 251 (1992)
(quoting Jones v. Commonwealth, 184 Va. 679, 681-82, 36 S.E.2d
571, 572 (1946)). "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,' but an intent to maim,
disfigure or kill is unnecessary to the offense." Id. at 133, 415
S.E.2d at 251 (quoting Davis v. Commonwealth, 150 Va. 611, 617,
143 S.E. 641, 643 (1928)).
However,
"[w]hen [an] injury is actually inflicted, a
battery has been committed regardless of how
small the injury might be. 'Battery is the
actual infliction of corporal hurt on
another (e.g., the least touching of
another's person), willfully or in anger,
whether by the party's own hand, or by some
means set in motion by him.'"
Adams v. Commonwealth, 33 Va. App. 463, 468, 534 S.E.2d 347, 350
(2000) (quoting Seegars v. Commonwealth, 18 Va. App. 641, 644, 445
S.E.2d 720, 722 (1994) (quoting Jones, 184 Va. at 682, 36 S.E.2d
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at 572)). "[T]he slightest touching of another . . . if done in a
rude, insolent or angry manner, constitutes a battery for which
the law affords redress." Crosswhite v. Barnes, 139 Va. 471, 477,
124 S.E. 242, 244 (1924) (citation omitted). Indeed, "[t]he law
upon the subject is intended primarily to protect the sacredness
of the person, and, secondarily, to prevent breaches of the
peace." Banovitch v. Commonwealth, 196 Va. 210, 219, 83 S.E.2d
369, 374 (1954) (citations omitted). Thus, "[i]n Virginia, it is
abundantly clear that a perpetrator need not inflict a physical
injury to commit a battery." Adams, 33 Va. App. at 469, 534
S.E.2d at 351.
Nevertheless, an individual cannot be convicted of assault
and battery "'without an intention to do bodily harm — either an
actual intention or an intention imputed by law.'" Davis, 150 Va.
at 617, 143 S.E. at 643. However,
[p]roving intent by direct evidence often is
impossible. Like any other element of a
crime, it may be proved by circumstantial
evidence, as long as such evidence excludes
all reasonable hypotheses of innocence
flowing from it. Circumstantial evidence of
intent may include the conduct and
statements of the alleged offender, and
"[t]he finder of fact may infer that [he]
intends the natural and probable
consequences of his acts."
Adams, 33 Va. App. at 470-71, 534 S.E.2d at 351 (quoting Campbell
v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en
banc)) (other citations omitted).
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Here, when Officer Allen and his partner arrived at the
trailer home of Lisa Dabbs to investigate a complaint of a
"disorderly subject," they found English inside the home,
"intoxicated, disorderly," and "arguing with another subject that
was inside the trailer." English was "very intoxicated" and
"uncooperative." When Officer Allen placed English under arrest
for trespassing, and escorted him to the patrol car, English
turned back to Dabbs and her friend and told them that he was
"gonna get'em," and threatened to kill them because they had
called the police. Subsequently, as they were driving to the
police station, English, who was sitting in the back seat of the
car, remained "irate" and cursed at Officer Allen, who was driving
the car. English then spit at Allen through the "screen," between
the front and back seats, hitting Allen behind his right ear.
The trial court, sitting as the fact finder, was entitled to
reject English's testimony denying that he spit on Allen. The
court specifically found that English's testimony in this regard
was unbelievable and that, based upon English's demeanor on the
witness stand, as well as how he conducted himself when he was
arrested, English intended to spit on Officer Allen, thereby
committing an assault and battery. That decision was not plainly
wrong or without supporting evidence and must be upheld on appeal.
For the reasons stated, we affirm the judgment of the trial
court.
Affirmed.
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