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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
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
to support his conviction. He argues that he committed no overt
act or attempt to injure the officer and that the evidence
no unequivocal appearance of an attempt because he had no
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,
O’Donnell was terrified and began to move backwards. He
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
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.
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
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.
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
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
performed either "by means calculated to produce the end if
carried into execution" or "with a present ability of
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
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
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
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
which may or may not be accomplished by a specific intent to
injure"); Barrios v. State, 702 A.2d 961, 970 (Md. App.
(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,
(Vt. 1982) (noting that Vermont’s assault statute, which is
patterned on the Model Penal Code, permits prosecution
a person who places another in fear of bodily injury, even if
the alleged assailant acts without purpose to carry out the
I, therefore, disagree with the majority opinion’s holding
that although Carter "had no actual ability to harm the
with a gun, his conduct . . . denoted an intention and the
present ability to harm the officer." I would hold that
committed an "act accompanied with circumstances denoting
intention" to menace but it was not "coupled with a
ability of using actual violence" or "calculated to
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
be predicted upon an intent only to frighten"); People v.
52 Cal. Rptr. 733, 735 (Cal. App. 1966) (holding that "[i]f
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
857 (Ga. App. 1981) (holding that the evidence failed to
establish "the present ability to inflict a violent
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
apparent ability to execute the act constituting the
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
means calculated to produce the end if carried into
Harper, 196 Va. at 733, 85 S.E.2d at 255.