Words alone do not constitute assault

Where appellant, while seated in her car, told the man with whom she was arguing that “You live here. You’ll die here. I’ll burn this bitch down,” these words alone, unaccompanied with an overt act, are insufficient to support an assault conviction.

Trash talk

Harvey, the appellant in this case, was at the receiving end of Marshall’s profanity-laced speech concerning Harvey parking her car in front of the home of Marshall’s mother-in-law on trash day. Parked cars in front of trash cans, which prevented trash collection, was an ongoing problem.

Marshall had confronted other drivers on the morning of his encounter with Harvey. Harvey, who was inside her vehicle, told Marshall, “You live here. You’ll die here. I’ll burn this bitch down.”

Harvey parked down the street. Later, while Harvey was walking down the street, Marshall approached her and the two renewed their argument. Marshall said he was going to call the police. “Harvey responded, ‘Call the police. Call the FBI. I don’t care who you call[,] just leave me alone.’

“Marshall did call the police, and Harvey was subsequently prosecuted for assault. At no time was there any physical contact between Harvey and Marshall.”

During her trial, “Harvey moved to strike based on the insufficiency of the evidence, arguing that Marshall was the one who initiated contact with her on both occasions, that he had used profane language, and that she could not be convicted of assault based on words alone.

“The court denied the motion, which was renewed and denied again after the defense rested. Judge Migliozzi explained his ruling this way: ‘The uncontroverted testimony presented before me is that the Defendant, Jokita Harvey, was there. This was confirmed by the testimony of the Fire Marshal, the complainant and the Defendant herself, so I find her guilty.’”

Harvey appealed.

For the record

Harvey’s counsel prepared a statement of facts in lieu of filing a transcript of Harvey’s misdemeanor trial. The commonwealth has challenged the statement on technical grounds.

Rule 5A:8(c) governs when a written statement of facts becomes part of the record. The rule “codifies the obvious: where there are ‘facts necessary to permit resolution of appellate issues,’ we cannot consider assignments of error that require consideration of those facts if the facts are not presented to us.

“Here, we have a written statement of facts in lieu of a transcript, timely filed with Harvey’s appeal. The written statement was signed by counsel for Harvey, the Commonwealth (without objection), and the chief judge of the Norfolk circuit court.

The commonwealth argues that the written statement in noncompliant in two ways. First, the statement was signed by the circuit court’s chief judge but the rule specifies that the “trial” judge must sign.

Second, the commonwealth argues that the statement’s certification incorrectly calculated review dates. As a result, the statement was presented, and signed, earlier than what the rule provides.

The commonwealth’s first argument lacks merit. “Rule 5A:1(d)(7) defines ‘judge’ to mean ‘judge of the trial court, unless the context otherwise requires, or if that judge is not available, any judge authorized to act under Rule 5A:9.’

“Turning to Rule 5A:9, ‘[t]he judge authorized to act in all matters relating to the record on appeal is any judge having authority to enter orders in the case or in the court in which the case was heard or, in a case heard by three judges, any one of them.’ We have no trouble concluding that the chief judge of the Norfolk circuit court could enter an order here and sign the written statement.”

The commonwealth’s “too early” argument also lacks merit. “Rule 5A:8(c)(1) requires that the written statement be ‘accompanied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing.’

“The Commonwealth had the opportunity to review the written statement with this certification, and to note any objections. It failed to do so, and instead signed the written statement. Any matter of technical compliance with the certification was waived by the Commonwealth’s failure to object below.”

More than words needed

“Turning then to the merits, Harvey contends the evidence produced by the Commonwealth was insufficient, as a matter of law, to support the conviction of assault. …

“An assault ‘occurs when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm or 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.’ …

“Our case law is clear that words alone are never sufficient to constitute an assault under either the traditional criminal definition of assault or the assimilated tort definition. …

“[T]he Commonwealth failed to prove that Harvey made any overt act at all – let alone one intended to place Marshall in fear or apprehension of bodily harm.

“The record is unequivocal that Marshall instigated the first interaction with Harvey, when he used profanity to tell her she could not park in front of his mother-in-law’s house.

“It is also undisputed that Harvey remained in her vehicle when she said, ‘You live here. You’ll die here. I’ll burn this bitch down.’

“And, after the exchange, she parked elsewhere. It was again Marshall who instigated the second interaction, thirty minutes later, when he approached Harvey on the street and said he would call the police.”

Reversed.

Harvey v. Commonwealth, Record No. 1116-21-1, May 17, 2022. CAV (Lorish) from the Circuit Court of the City of Norfolk (Migliozzi). J. Barry McCracken for appellant. Jason D. Reed for appellee. VLW 022-7-140, 7 pp. Unpublished opinion.