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JANUARY 18, 2000

Record No. 2342-98-3





Present: Judges Benton, Bray and Bumgardner

Argued at Salem, Virginia

Charles B. Flannagan, II, Judge

Thomas R. Scott, Jr. (Street, Street, Street,
Scott & Bowman, on briefs), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.


Cary Randall Perkins was convicted of assault
and battery in violation of Code ? 18.2-57. On appeal he
challenges the sufficiency of the evidence. Finding the evidence
sufficient, we affirm.

Viewed in the light most favorable to the
Commonwealth, the evidence established that on November 19, 1997,
the defendant was a teacher and coach at Marion Senior High
School in Smyth County. The defendant is deaf and
speech-impaired, and he communicates primarily by lip reading. He
knew the fourteen-year-old victim through her boyfriend, but was
neither her teacher nor coach.

During a break from an algebra class, the
victim was in the hallway getting a drink of water when the
defendant asked her to come into his classroom. He inquired how
she was doing in her algebra class and offered her assistance if
she needed it. She returned to class, but about ten or fifteen
minutes later, the defendant asked her to step into the hall.
There, he showed her a picture of his former girlfriend and
stated "how much he missed her and wanted to be with
her." The victim returned to class.

When class was over, the victim again saw the
defendant in the hallway. He asked her how she did in algebra,
and she told him she got a "B." The defendant asked
where she was going and she said, "to the front of the
school." The defendant replied, "I am too, so I will
walk with you." As they walked down the hall, the victim
testified the defendant "put his hand up under my hair on
the back of my neck and started stroking it with his fingertips
and said, ‘It turns you on, don’t it?’" The victim
responded, "No, not by you" and jerked her head away.
The victim understood his comment to mean "something
sexual." She said the touching "scared" and
"upset" her. The defendant placed his hand on her neck
under her hair a second time and said, "Are you horny
yet?" The victim said no, jerked her head away, and told him
to stop.

The victim told her mother and boyfriend about
the incident the day after it happened. After the boyfriend
talked to the defendant, the defendant went to the victim’s class
and motioned for her to come to the door. The victim stood in the
doorframe. The defendant said that "he was sorry for what he
had done and he didn’t mean anything by it" and that he
considered her like a little sister. He also said that he knew
she would be at the school for three more years, her boyfriend
would not, and if she ever needed anyone to talk to or look up
to, "he would always be there. And he told me he was sorry

The defendant testified that on the date of the
offense the victim appeared "down." The victim was
walking ahead of him on his right side. In order to speak with
her, he placed his hand on her neck to get her to face him; he
said, "[t]he first time I grabbed her I was trying to get
her to look at me." The defendant testified that when he
asked the victim, "What is turning you on?," he meant,
"What is bothering you?" He touched her neck again when
she failed to turn around. He claims he did not hear her tell him
to stop and she never turned around. The defendant initially
denied saying anything about being "horny." He then
testified, however, that if he did say it, it would have related
to his former girlfriend, not the victim. He claims the incident
was a miscommunication or misunderstanding.

The defendant admits that he touched the
victim. He contends, however, that the evidence was insufficient
to prove that he intended to harm her. The defendant also argues
that the court erroneously relied on the tort definition of
assault and battery in concluding that a reasonable teacher would
have known that the second touching was unwanted. We disagree.

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
consents or if the touching is justified or excused. See id.;
Groot, supra, at 30 ("an intentional touching which
was not justified or excused is a battery").

The victim did not consent to the touchings.
She jerked her head away when the defendant first touched her on
the nape of her neck under her hair. No evidence suggested that
the victim consented to the first touching. Her reaction to that
touching removed any doubt that she consented to being touched.
The court found that the second touching was "unauthorized
and unwelcome and unwarranted."

Even though a victim does not consent to the
touching, it may be lawful if justified or excused. See
Groot, supra, at 30 (examples include public authority,
domestic authority, and crime prevention). The defendant claims
the court failed to consider that he needed to touch the victim
so she would turn to face him and he could read her lips. He
asserts that his disability justified touching her so he could
communicate with her.

The defendant said, "I usually just touch
someone’s shoulder to get them to make eye contact so I can
understand them." He claimed that he touched the nape of the
victim’s neck under her hair twice because she was walking fast.
The trial court found that the "touching of the neck was not
in the ordinary course for [the defendant] to get the attention
of someone that he wanted to communicate with." The trial
court also found that "[t]here was no need for disciplinary
or other control." Under the circumstances presented, the
defendant’s touching was neither excused nor justified.

The fact finder, who determines the credibility
of the witnesses and the weight accorded their testimony, may
accept or reject the testimony in whole or in part. See Bridgeman
v. Commonwealth
, 3 Va. App. 523, 528, 351 S.E.2d 598, 601
(1986). The defendant testified that he meant, "what is
bothering you?" when he asked the victim, "what is
turning you on?," that he was trying to get the victim’s
attention by touching her, and while he denies he used the word
"horny" when speaking to her, if he did, he was talking
about his former girlfriend. The trial court found the victim’s
testimony credible. It was entitled to disbelieve the defendant’s
self-serving testimony and to conclude that he was lying to
conceal his guilt. See Speight v. Commonwealth, 4
Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en banc).

For the foregoing reasons, we affirm the
conviction of assault and battery.


Benton, J., concurring.

I concur in affirming the conviction. I write
separately only to note my view that "the unlawful touching
of another," see Gnadt v. Commonwealth, 27 Va.
App. 148, 151, 497 S.E.2d 887, 888 (1998), does not completely
define the crime of "assault and battery." In affirming
a conviction for assault and battery, the Supreme Court long ago
held that "[a] battery consists of the willful or unlawful
touching of the person of another by the assailant, or by some
object set in motion by [the assailant]." Wood v.
, 149 Va. 401, 404, 140 S.E. 114, 115 (1927).

The trial judge found that the student’s
testimony was credible, that the second touching was willful and
not done in the ordinary course of the defendant’s need to
communicate or to discharge his duties as a teacher, and that
"it should have been clear to a reasonable teacher that
[this] type of touching was not welcomed." These findings
are based on credible evidence and are sufficient to prove the
offense beyond a reasonable doubt.