Record No. 2656-07-2.
January 20, 2009.
Appeal from the Circuit Court of Henrico County Burnett Miller, III, Judge.
Upon a Petition for Rehearing En Banc, Circuit Court No. CR07-3303-00M.
John W. Parsons for appellant.
Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Elder, Humphreys and Powell.
Before the Full Court.
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On January 6, 2009 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on December 23, 2008, and grant a rehearing en banc on the issue(s) raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on December 23, 2008 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellee shall file an appellee's brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc within 14 days of the date on which the appellee's brief is filed. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix previously filed in this case. In addition, any party represented by counsel shall file four electronic copies of their brief (and the appendix, if appellant is represented by counsel) with the clerk of this Court. The electronic copies must be filed on four separate CDs or DVDs and must be filed in Adobe Acrobat Portable Document Format (PDF).
Genev Denise Clark ("Clark") appeals her conviction for assault, arguing that the evidence was insufficient as a matter of law to convict her. For the following reasons, we agree and reverse the decision of the trial court.
"When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008). We will affirm the judgment unless it is "plainly wrong or without evidence to support it." Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008).
Clark argues that the evidence was insufficient to prove assault because the Commonwealth failed to prove that she committed an overt act.
[C]ommon law assault, whether a crime or tort, 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.
"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 leveling [sic] a gun at another within a distance from which, supposing it to be loaded, the contents might injure, or any similar act."
Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955) (quoting J.A.G. Davis, Criminal Law 353-54 (1838)). "[W]ords and a `threatening attitude' are not, by themselves, enough" to constitute an overt act. Carter v. Commonwealth, 42 Va. App. 681, 694, 594 S.E.2d 284, 291 (2004) ( en banc), aff'd, 269 Va. 44, 606 S.E.2d 839 (2005).
This Court addressed the overt act requirement in Bennett v. Commonwealth, 35 Va. App. 442, 546 S.E.2d 209 (2001). In that case, Bennett confronted two deputies. He "approached the deputies, from approximately twenty feet away, until he was standing within inches of the two deputies." Id. at 446, 546 S.E.2d at 211. Bennett stood there "shouting profanities and stating that `if [the deputies] didn't leave, it would be an "F"ing blood bath.'" Id. at 446-47, 546 S.E.2d at 211. Bennett "gestured with his hands while speaking to the deputies, [but] he never raised his hands to them or physically threatened them."Id. The deputies later testified that they felt "concerned" and "threatened." Id. This Court reversed Bennett's conviction for assault, holding that he had not committed an overt act. The Court reasoned that "[a]lthough Bennett stood within inches of the officers, he made no overt act or attempt to physically harm either officer" and he "was not armed and made no threatening gestures with his hands." Id. at 449, 546 S.E.2d at 212.
Here, Clark parked her car in a school's parking lot that was reserved for school buses. When Carolyn Coleman ("Coleman"), a bus driver, drove up and parked behind Clark's car, Clark approached Coleman's bus. Clark stood approximately two feet from the bus, with her arms crossed and yelled threats at Coleman who was sitting in the driver's seat. Coleman closed the bus' door, but Clark stood and continued yelling and cursing until the principal escorted her away. Later that same day, Coleman returned to the school in her bus. While Coleman was sitting in her bus, Clark approached to within four to five feet of the bus door and yelled "Bitch, like I say, I'm going to get you." Clark did not say anything else and never approached closer than four to five feet from the bus door.
Here, as in Bennett, the alleged assailant did nothing more than approach someone and shout threats. Clark, like Bennett, made no threatening gestures and did not attempt to harm the target of her threats. Clark's actions were actually less menacing than Bennett's. Bennett approached within two inches of the deputies and made gestures with his hands while shouting threats. Here, Clark was never within striking distance of Coleman and the only testimony regarding Clark's hands is that her hands were crossed across her chest.
The dissent contends that Clark committed an "overt threat" by returning to Coleman's bus a second time and renewing her threats. The dissent, however, fails to cite any authority that renewing a previous threat, without more, constitutes an overt act. When Clark approached Coleman's bus for a second time, she did not attempt to strike or grab Coleman. She made no threatening gestures with her hands. She was not wielding a weapon or something to throw at Coleman. She never came closer than four feet to the door of the bus. She merely stood near the bus and yelled a single threatening sentence.
While Clark's conduct is reprehensible and worthy of condemnation, it is insufficient as a matter of law to constitute an assault. "[W]ords and a `threatening attitude'" are not sufficient to sustain a conviction for assault. Carter, 42 Va. App. at 694, 594 S.E.2d at 291. Clark did nothing more than stand outside Coleman's bus and shout verbal threats. The fact that she did it twice on the same day does not transform those purely verbal threats into an assault.
For the foregoing reasons, we hold that the evidence was insufficient to prove that Clark committed assault. Therefore, we reverse her conviction.
Reversed and dismissed.
I believe the majority misapplies the law relevant to determining whether the evidence supported a finding that appellant engaged in an overt act sufficient to support her conviction for assault in violation of Code § 18.2-57. Therefore, I respectfully dissent.
As the majority recognizes, Virginia, like many jurisdictions, "has merged the common law crime and tort of assault so that today, a common law assault occurs when either set of elements is proved." Carter v. Commonwealth, 269 Va. 44, 46, 606 S.E.2d 839, 841 (2005) (noting that this dual definition has been the law in Virginia since at least the Court's decision in Burgess v. Commonwealth, 136 Va. 697, 706-08, 118 S.E. 273, 275-76 (1923)). An assault occurs under the traditional criminal definition "when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm." Id. at 47, 606 S.E.2d at 841. An assault occurs under the merged tort law definition when an assailant "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." Id. As we elaborated in our en banc decision in Carter, "`a tortious injury may be committed by threats and menaces of bodily hurt, through fear of which a man's business is interrupted. A menace alone, without a consequent inconvenience, makes not the injury, but to complete the wrong there must be both of them together.'" Carter v. Commonwealth, 42 Va. App. 681, 687-88, 594 S.E.2d 284, 288 (2004) (en banc) (quoting 3 William Blackstone, Commentaries *120 (emphasis added in Carter), and indicating that although this language originated in Blackstone's discussion of "private wrongs," he also incorporated it into his subsequent discussion of "public wrongs"), aff'd, 269 Va. 44, 606 S.E.2d 839 (2005). The bodily harm threatened need not be serious or deadly harm. See id. at 693-94, 594 S.E.2d at 291.
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. See, e.g., Bennett v. Commonwealth, 35 Va. App. 442, 449, 546 S.E.2d 209, 212 (2001) (decided under criminal definition). However, a defendant's words may be highly relevant under both definitions of assault to determining whether the defendant committed the required overt act with the necessary intent.See, e.g., Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc) (noting that intent may and often must be proved with circumstantial evidence, such as "the conduct and statements of the alleged offender"). Additionally, the defendant's words may be highly relevant under the tort law definition of assault to determining whether the "fear or apprehension in the victim" was "reasonable."Carter, 269 Va. at 47, 606 S.E.2d at 841.
Although an overt act must be proved to support a conviction under either definition of assault, the intent with which the overt act must have been committed is different under the two definitions of assault.Id. Under the criminal definition of assault, the overt act must have been committed with the actual "inten[t] to inflict bodily harm" and the perpetrator must have a present ability to inflict such harm, whereas under the tort law definition, the overt act may be committed merely with the "inten[t] to place the victim in fear or apprehension of bodily harm" where the act "creates such reasonable fear or apprehension in the victim." Id.
The majority compares the facts in Bennett v. Commonwealth, 35 Va. App. 442, 546 S.E.2d 209 (2001), in which we reversed a defendant's assault conviction, to those in appellant's case and concludes the evidence here is more deficient than in Bennett, necessitating the reversal of appellant's assault conviction, as well. I believeBennett is both factually and legally distinguishable and that the facts in appellant's case, viewed in the light most favorable to the Commonwealth, are sufficient to support her conviction for assault under the assimilated tort law definition of the crime.
In Bennett, the defendant was in his own home on the telephone when his fourteen-year-old daughter allowed two police officers looking for him to enter the home. 35 Va. App. at 446, 546 S.E.2d at 211. Bennett told the officers to "`get out of the house.'" Id. When the officers began to explain they were present to investigate a complaint the man had made, he approached the officers from a distance of twenty feet, and when he was about two inches away, he repeated his order to them to get out of his house, yelled profanities, and made a conditional threat, stating that, "` if [the deputies] didn't leave, it would be an "F"ing blood bath.'" Id. at 446-47, 546 S.E.2d at 211 (emphasis added). The defendant then telephoned the state police and asked them to come remove the deputies. Id. at 447, 546 S.E.2d at 211. Although the deputies testified they felt threatened by Bennett's behavior and asked him to "`back off,'" Bennett was not armed, the deputies saw no weapons inside his house, and he did not raise his hands to them or physically threaten them before they left. Id.
In reversing the defendant's conviction, we made no clear distinction between the criminal and tort law definitions of assault and analyzed the evidence under the definition of assault requiring proof of an overt act "`accompanied with circumstances denoting an intention coupled with a present ability of using actual violence,'" language tracking the criminal definition. Id. at 449, 546 S.E.2d at 212 (quoting Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955)). Although we did not mention it in our decision in Bennett, the evidence proved the defendant made only a conditional threat — " [I]f [you don't] leave, it [will] be an `F'ing blood bath." Id. at 446-47, 546 S.E.2d at 211 (emphasis added). We noted "Bennett was not armed and made no threatening gestures with his hands" and that, "[a]lthough Bennett stood within inches of the officers, he made no overt act or attempt to physically harm either officer during the time the officers remained in his home after being asked to leave." Id. at 449-50, 546 S.E.2d at 212. Bennett's only act after making the conditional verbal threat to cause a "blood bath" was to telephone the state police and ask them to come remove the deputies. Thus, the circumstances failed to support a finding that Bennett had either an actual intention to batter or a present ability to do so in the fashion he had threatened.
In appellant's case, by contrast, the evidence, viewed in the light most favorable to the Commonwealth, supported a finding that appellant assaulted Coleman under the second definition of assault — the assimilated tort definition — by "engag[ing] in an overt act intended to place the victim in fear or apprehension of bodily harm and creat[ing] such reasonable fear or apprehension in the victim." See Carter, 269 Va. at 47, 606 S.E.2d at 841. As the holding in Carter made clear, in order to prove this type of assault, the Commonwealth was not required to establish that appellant had a present ability or intention to inflict harm because the evidence established that appellant "act[ed] in a manner intended to put the victim in reasonable fear or apprehension and cause[d] the victim such reasonable fear or apprehension." Id. at 49, 606 S.E.2d at 842.
In appellant's case, victim Coleman did not approach appellant, the perpetrator of the assault, as originally occurred in Bennett when the officers entered Bennett's home; rather, Coleman was performing her job as a school bus driver when appellant approached her, and appellant did so on not one but two different occasions in one day. On the first occasion, the morning after Coleman took action that resulted in appellant's son's being suspended from riding Coleman's school bus for a period of time, appellant parked her car in the bus circle at the school in such a manner that Coleman was forced to pull her bus up directly behind appellant's car. Appellant, a school employee as well as a parent, parked in this location despite the existence of both prominently posted signs indicating cars were not allowed in the bus circle and an on-premises employee parking lot located about fifty feet away from the bus circle. Coleman, always the first bus driver to enter the circle in the morning, pulled up in the bus circle as far as she could, as her job duties required her to do, and one or more buses pulled in behind Coleman's bus. Due to the presence of appellant's car, Coleman was unable to move her bus out of the circle, and Coleman testified without objection that appellant's car "was parked to [block] her in so that she could not get out."
When Coleman opened the door of her bus, the "obviously unhappy" appellant — with her arms "across . . . her chest" and "her lips pursed" — approached the open door and said, "I told you I'm going to get you, bitch, don't care, I don't care where you at, if you're on the school ground, if you're in the school, or you're in the grocery store," "[I'm going to] [f]uck you up." Coleman, reasonably fearing for her safety, immediately shut the door of her bus, phoned for a supervisor and a police officer, and reported that appellant was "harassing her saying that she's going to pull her off the bus and beat her up." Appellant stood only a few feet away from Coleman's closed bus door cursing at Coleman until "[the] principal came up."
Appellant ceased her harassment of Coleman when the principal arrived but renewed it later that same day. When Coleman pulled her bus into the bus circle again at about 4:30 p.m. that afternoon for "activity pick-up," appellant was not visible. However, as soon as Coleman opened the door to her bus, intending to disembark, appellant again appeared within a few feet of the bus door and threatened, "Bitch, like I say, I'm going to get you." Coleman immediately closed her door instead of exiting the bus as she had planned, and appellant remained standing outside the bus. No evidence indicated that appellant's children were with her at the time or that appellant was on school premises for any reason other than to renew her confrontation with Coleman.
I would hold that this evidence, viewed in combination, was sufficient to prove appellant assaulted Coleman by "engag[ing] in an overt act intended to place the victim in fear or apprehension of bodily harm and creat[ing] such reasonable fear or apprehension in the victim."Id. In Blackstone's words, it was an assault "`by threats and menaces of bodily hurt, through fear of which [Coleman's] business [was] interrupted.'" Carter, 42 Va. App. at 687, 594 S.E.2d at 288 (quoting Blackstone, supra, at *120). After appellant had threatened in the morning to pull Coleman from her bus and beat her up, ending her tirade only when the principal arrived, appellant returned that afternoon, appearing outside the door of Coleman's bus just as Coleman was preparing to disembark. Because of appellant's reappearance and Coleman's fear of appellant, Coleman hurriedly closed the door of her bus and remained inside rather than disembarking as she had planned. Appellant's reappearance, in combination with her renewed threats after all that she had said and done earlier, constituted an overt act that was "intended to place the victim in fear or apprehension of bodily harm" and that actually "create[d] such reasonable fear or apprehension in the victim." Carter, 269 Va. at 47, 606 S.E.2d at 841. Although words alone are not enough to prove assault, "[w]ords are never spoken in a vacuum, and they cannot be utterly divorced from past conduct, or from the accompanying circumstances." Restatement (Second) of Torts § 31 cmt. d, illus. 4 (1965) (recognizing that where A has made a previous threat to kill B, "B [later rounds a corner and] encounters A standing on the sidewalk," and A, "[w]ithout moving, . . . says to B, `Your time has come[,] A is subject to [civil] liability to B for an assault").
For these reasons, I would hold the Commonwealth's evidence was sufficient to support appellant's conviction for assault. Thus, I respectfully dissent.