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Sufficient evidence of unlawful touching

Virginia Lawyers Weekly//October 16, 2022

Sufficient evidence of unlawful touching

Virginia Lawyers Weekly//October 16, 2022

Where appellant’s touching of the victim was “done in a rude, insolent, or angry manner,” there was sufficient evidence to convict appellant of assault and battery.


Rogers approached Thurman in a bar and attempted to strike up a relationship with her. Thurman resisted and made it clear she was not interested. Rogers persisted and began touching her in an inappropriate manner.

Rogers was convicted of assault and battery.

Argument on appeal

“Rogers argues that the evidence was insufficient to convict him of assault and battery because the evidence did not prove that he committed unlawful touching. He maintains that he ‘engaged in an effort to start a romantic relationship with’ Thurman without the intent to cause bodily harm and his ‘touching was neither rude, insolent or angry’; thus, Rogers argues, the circuit court erred by convicting him.”

Legal standards

“‘Assault and battery are common law crimes. … The touching does not need to cause physical injury – an “injury to the [victim’s] mind or feelings”’ is sufficient. …

“‘If the victim consents to the touching, the touching is not unlawful and therefore not a battery. … If the touching exceeds the scope of the consent given, the touching is not consensual and thus is unlawful.’ …

“Furthermore, it is ‘the intent of the actor, not … the force applied’ that determines whether a battery has occurred. … Unlawful intent ‘may be imputed if the touching is “done in a rude, insolent, or angry manner.”’ …

“Moreover, ‘intent may be inferred from the nature of the overt act and the surrounding circumstances.’ … Whether an act is done in a ‘rude, insolent, or angry manner’ is a finding of fact that this Court will not disturb on appeal unless the finding is plainly wrong or no evidence supports it.”


“[T]he evidence showed that after Thurman refused Rogers’ first two requests to have a drink, Rogers grabbed her wrist, pulled her close, and whispered in her ear that they ‘should go fuck after this.’ Thurman unequivocally told him no and walked away. … Thurman explicitly refused Rogers’ requests to spend time together and then ignored him altogether, establishing that she did not consent to his advances.

“Undeterred, Rogers again asked Thurman to have a drink with him as she was preparing to leave; she again told him no. In response, Rogers began caressing Thurman’s buttocks, touching her back, and kissing her neck and cheek – while Thurman continued to tell Rogers no, to stop, and tried to push him away.

“Thurman’s testimony was that Rogers touched – and continued touching – her over her repeated objections and requests for him to stop and despite her discomfort being evident to other patrons. …

“The evidence supports the circuit court’s conclusion that Rogers intended to act in a rude manner by touching Thurman despite her multiple requests that he not do so. The court found that Thurman was a credible witness and thus that Rogers had indeed touched her as she described despite her demonstrated lack of consent.

“It is well-established that ‘[d]etermining the credibility of witnesses … is within the exclusive province of the [fact finder], which has the unique opportunity to observe the demeanor of the witnesses as they testify.’”


Rogers v. Commonwealth, Record No. 1001-21-3, Aug. 9, 2022. CAV (Humphreys) From the Circuit Court of the City of Roanoke (Ware) Jason S. Eisner for appellant. Ken J. Baldassari, Jason S. Miyares for appellee. VLW 022-7-315, 6 pp. Unpublished opinion.

VLW 022-7-315

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