William Lee Rhodes v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
WILLIAM LEE RHODES
MEMORANDUM OPINION * BY
v. Record No. 0301-01-3 JUDGE LARRY G. ELDER
DECEMBER 4, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
H. David Natkin for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
William Lee Rhodes (appellant) appeals from his bench trial
conviction for assault on a law enforcement officer pursuant to
Code § 18.2-57(C), an offense which requires a mandatory minimum
sentence of six months. On appeal, appellant contends the
evidence was insufficient to support his conviction because it
failed to establish an imminent threat or danger to the officer.
We hold the evidence was sufficient to support appellant's
assault conviction, and we affirm.
When considering the sufficiency of the evidence on appeal
of a criminal conviction, we view the evidence in the light most
favorable to the Commonwealth, granting to its evidence all
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
reasonable inferences fairly deducible therefrom. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). The fact finder is not required to believe all
aspects of a witness' testimony; it may accept some parts as
believable and reject other parts as implausible. See Pugliese
v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).
Further, any element of a crime may be proved by circumstantial
evidence, Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988), such as a person's conduct and
statements, Long v. Commonwealth, 8 Va. App. 194, 198, 379
S.E.2d 473, 476 (1989). "Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
Code § 18.2-57(C) provides that "if any person commits an
assault . . . against another knowing or having reason to know
that such other person is a law enforcement officer . . .
engaged in the performance of his public duties as such, such
person shall be guilty of a Class 6 felony . . . ." A
conviction for assault requires proof of
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 . . . as by striking
at him in a threatening or insulting manner,
or with such other circumstances as denote
at the time an intention, coupled with a
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present ability, of actual violence against
his person, as by pointing a weapon at him
when he is within reach of it.
Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395,
397-98 (1935) (emphasis added) (citations and internal quotation
marks omitted).
Here, although the evidence established that appellant was
already carrying a knife when he first saw Officer Jonathan
Shenk, it also proved that, after looking directly at Officer
Shenk, who was standing only ten to fifteen feet away, appellant
unsheathed the knife and brandished it at Officer Shenk for a
period of "minutes." Shenk demonstrated repeatedly for the
trial court how appellant held the knife, and the trial court
found as a fact that appellant "very clearly [had] drawn" the
"substantial sized knife." During that time, appellant looked
at Officer Shenk, looked back down at the knife, "looked right
back at [Officer Shenk]" and "stood there" as if "he was
thinking about it." Finally, appellant continued to brandish
the knife despite the fact that Officer Shenk repeatedly
"holler[ed]" at appellant to put the knife down and started to
draw and aim his firearm in order to defend himself. Officer
Shenk testified he had learned while training to be a police
officer that a person standing within fifteen feet of him with a
knife could lunge at and injure him in less time than it would
take him to fire his gun in self-defense. Thus, the only
reasonable hypothesis flowing from the evidence, viewed in the
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light most favorable to the Commonwealth, was that appellant
assaulted Officer Shenk by placing him in reasonable fear of
immediate personal harm. See id. at 658, 180 S.E. at 397.
For these reasons, we hold the evidence was sufficient to
support appellant's conviction, and we affirm.
Affirmed.
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