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CARTER v. COMMONWEALTH




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CARTER

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Clements and Senior Judge Willis

Argued at Richmond, Virginia

Record No. 2563-02-2

MICHAEL ANTHONY CARTER

v.

COMMONWEALTH OF VIRGINIA

 

OPINION BY JUDGE JERE M. H. WILLIS, JR.

SEPTEMBER 9, 2003

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE

James E. Kulp, Judge Designate

Rhonda Quagliana (St. John, Bowling &

Lawrence, LLP, on briefs), for appellant.

Stephen R. McCullough, Assistant Attorney

General (Jerry W. Kilgore, Attorney General,

on brief), for appellee.

On appeal from his conviction of assault on a police officer,

Michael Anthony Carter contends that the evidence was
insufficient

to support his conviction. He argues that he committed no overt

act or attempt to injure the officer and that the evidence
proved

no unequivocal appearance of an attempt because he had no
present

ability to inflict actual violence upon the officer. Finding no

error, we affirm the judgment of the trial court.

"On appeal, ‘we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.’" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted). So viewed, the evidence disclosed that

Officer Brian O’Donnell, wearing his uniform, displaying his

badge, and operating a marked police vehicle while patrolling in

a high crime and drug area, noticed a speeding vehicle and

conducted a traffic stop. Carter was the front seat passenger

in the stopped vehicle. As O’Donnell asked the driver of the

vehicle for his driver’s license and registration, he shined his

flashlight into the vehicle to check for visible weapons or drug

paraphernalia. The driver responded to O’Donnell’s requests in

a hostile tone of voice. O’Donnell noticed that Carter had his

right hand beside his right leg. As O’Donnell spoke to the

driver, Carter suddenly raised his arm and arced it across his

body. He pointed his finger at O’Donnell and said,
"Pow."

O’Donnell was terrified and began to move backwards. He

testified,

I believed it to be a firearm. I believed

he had a weapon and was going to shoot me at

that point, until he said, ‘Pow,’ and then I

realized that it was only his finger. . . .

The first thing I thought was that I was

going to get shot. I – it’s a terrifying

experience, and if I could have gotten my

weapon, I would have shot him.

Seeing that O’Donnell was visibly shaken, Carter laughed.

Later, when Officer S.J. Upman served a warrant on him,

Carter said he had played a joke on an officer by "going
‘Pow’"

and asked if this was an assault.

Robert Carter, the driver of the vehicle, testified that he

had been the driver of the vehicle and that Carter did not point

his finger at O’Donnell or say "Pow."

Assault is defined at common law as:

[A]n attempt or offer, with force and

violence, to do some bodily harm 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.

Bennett v. Commonwealth, 35 Va. App. 442, 449, 546 S.E.2d 209,

212 (2001) (citations omitted). "In order to constitute an

assault there must be 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, 658-59, 180 S.E. 395, 398 (1935)

(citation omitted). Under Bennett, a wanton or malicious act

accompanied by circumstances denoting both an intention and the

present ability to inflict actual violence upon another

constitutes an assault.

The trial court, as fact finder, believed the

Commonwealth’s evidence, and rejected Carter’s evidence.
"The

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). Carter’s conduct, as described by O’Donnell, and

O’Donnell’s reasonable perception of the situation support the

trial court’s finding that Carter’s conduct was a wanton or

malicious act and constituted an assault. His conduct presented

the unequivocal appearance of an attempt, with force and

violence, to do physical injury to O’Donnell. Although he did

not possess a gun and had no actual ability to harm the officer

with a gun, his conduct reasonably and unequivocally denoted an

intention and the present ability to harm the officer. This

evidence was competent and was not inherently incredible.

We affirm the judgment of the trial court.

Affirmed.

Benton, J., dissenting.

"[I]n the early law a criminal assault was an attempt to

commit a battery and that only." R. Perkins, Criminal Law
at

159 (3d ed. 1982). Consistent with that view, the common law of

assault has long been defined in Virginia as follows:

"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;

***". (Italics supplied).

Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255

(1955) (citation omitted). See also Berkeley v. Commonwealth,

88 Va. 1017, 1017-18, 14 S.E. 916, 916 (1892).

In the present case, the issue concerns whether the

pointing of a finger while uttering the word "pow" is
an act

performed either "by means calculated to produce the end if

carried into execution" or "with a present ability of
using

actual violence," which is an illustrative circumstance

contained in the definition of assault. Harper, 196 Va. at 733,

85 S.E.2d at 255. The common law definition of
"assault" as

contained in Harper does not encompass this type of intentional

conduct, which is intended to be frightening but is performed

without a present ability to produce the end if carried out.

Because of the limitations of this common law rule, "most
modern

codes either include physical menacing in the crime of assault

or else create a separate crime of ‘menacing’ or ‘threatening’

covering such conduct." 2 LaFave and Scott, Substantive

Criminal Law ? 7.16(b), at 315 n.27 (1986). When legislatures

statutorily define the crime in this manner "[f]or this
type of

assault, a present ability to inflict injury is clearly

unnecessary." Id. at 315. See e.g. Williamson v. United

States, 445 A.2d 975, 978 (D.C. App. 1982) (holding that by

statute an assault is established by proving "a menacing
threat,

which may or may not be accomplished by a specific intent to

injure"); Barrios v. State, 702 A.2d 961, 970 (Md. App.
1997)

(noting that by statute Maryland provides for alternative forms

of assault, one of which is "an assault of the intentional

frightening variety . . . [that only] required in terms of

perception . . . an apparent present ability from the viewpoint

of the threatened victim"); State v. Riley, 442 A.2d 1297,
1298

(Vt. 1982) (noting that Vermont’s assault statute, which is

patterned on the Model Penal Code, permits prosecution
"against

a person who places another in fear of bodily injury, even if

the alleged assailant acts without purpose to carry out the

threat").

I, therefore, disagree with the majority opinion’s holding

that although Carter "had no actual ability to harm the
officer

with a gun, his conduct . . . denoted an intention and the

present ability to harm the officer." I would hold that
Carter

committed an "act accompanied with circumstances denoting
an

intention" to menace but it was not "coupled with a
present

ability of using actual violence" or "calculated to
produce the

end if carried into execution." Harper, 196 Va. at 733, 85

S.E.2d at 255. See e.g. People v. Marceaux, 83 Cal. Rptr. 798,

803 (Cal. App. 1970) (holding that "an assault conviction
cannot

be predicted upon an intent only to frighten"); People v.
Vaiza,

52 Cal. Rptr. 733, 735 (Cal. App. 1966) (holding that "[i]f
a

person threatens to shoot another with . . . a chocolate candy

pistol, there is no ability to commit . . . any injury with it

on the person of another"); Johnson v. State, 280 S.E.2d
856,

857 (Ga. App. 1981) (holding that the evidence failed to

establish "the present ability to inflict a violent
injury"

where the evidence proved the accused shook his finger while

making a threat at persons in a car); Bacon v. Bacon, 567 N.W.2d

414, 418 (Iowa 1997) (holding that "[t]he offender must
have the

apparent ability to execute the act constituting the
assault").

Because Virginia continues to be guided by the common law

rule concerning assault, I would hold that the conviction is not

supported because the evidence failed to prove Carter acted
"by

means calculated to produce the end if carried into
execution."

Harper, 196 Va. at 733, 85 S.E.2d at 255.

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