Epps v. Commonwealth

BUMGARDNER, Judge.

The defendant was convicted of assault by threat of his former wife, Paulette H. Epps. He was sentenced to sixty days in jail suspended for three years. The defendant contends that the evidence is insufficient to support the conviction because the Commonwealth did not prove that he committed any act denoting an intention of presently using actual violence. For the following reasons, we affirm the conviction.

The defendant arranged to meet his former wife at a public place so that he could return their children after visitation. The children were six and eight years old at the time. The defendant was late, and when he did arrive, a beer bottle fell out of his car as he exited it. His wife berated him for having alcohol in the car with the children. He responded with repeated vile cursing of her. She stated again that he did not have to drink and that she was going to take the children and leave. The defendant continued to curse her and, as the victim described it, “he was all up in my face.” At that point the defendant threatened to kill her. Douglas Hoover, the victim’s fiancé who was riding with her, got out of the car and stepped between the two to prevent any violence. He told her to get the children out of the defendant’s car and put them in her car. The victim was shaking, crying, and testified that she did think he was going to kill her.

The defendant argues that he committed no act, such as striking her with a weapon or raising his arm in a menacing manner, that was associated with the verbal threat. Citing Harper v. Commonwealth, 196 Va. 723, 85 S.E.2d 249 (1955), he argues that some act must denote a present intent to use actual force and that words alone can never amount to an assault.

“An assault is 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 levelling a gun at another within a distance from which, supposing it to be loaded, the contents might injure, or any similar act accompanied with circumstances denoting an intention coupled mth a present ability, of using actual violence against the person of another. But no words whatever, be they ever so provoking, can amount to an assault; * * * ”. (Italics supplied).

Id. at 733, 85 S.E.2d at 255 (quoting Davis, Criminal Law at 353-54).

Harper was charged with violating the maiming statute, Code § 18.2-51 (formerly § 18-70). A jury convicted him of assault and battery, and he appealed the conviction arguing that the trial court had instructed erroneously. The Court ruled that the instruction requested by the defense was not proper because it would have permitted the defendant to strike another with a deadly weapon when the provocation was only words. The Court stated: “[I]n order to justify an accused in striking another with a deadly weapon, as the accused admits he did in this case, a threatening attitude alone affords no justification.” Harper, 196 Va. at 733, 85 S.E.2d at 255. The Court cited two cases and then made the quotation from Davis, supra.

At common law a criminal assault was an attempt to commit a battery. As with any attempt, the law required an intention to commit the act and a direct, ineffectual act toward its commission. See Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969). The criminal definition, an attempted battery, requires that at the time of the act there be a present ability to complete the threatened battery. The defendant must have the specific intent to commit the act and take some direct and ineffectual action toward completion of the crime.

The common law tort definition of assault differed from the criminal definition. The tort of assault was an intentional offer to touch the person of another that created in the mind of the victim a reasonable apprehension of an immediate battery. See Charles E. Friend, Personal Injury Law in Virginia § 6.3, at 214 (1990); W. Page Keeton et al., Keeton & Prosser on the Law of Torts § 10 (5th ed.1984). Present ability is not required for the tort of assault. It requires only that the plaintiff reasonably believe that the defendant had such ability. See Friend, supra, § 6.3, at 214 n. 4. “Any act of such a nature as to excite an apprehension of a battery may constitute an assault.” Prosser, supra, § 10, at 43. “[T]he apprehension must be one which would normally be aroused in the mind of a reasonable person.” Id. at 44. There must be an apparent ability and opportunity to carry out the threat immediately. There is no assault where the defendant is too far away to make contact. See id.

The tort definition of assault has long been incorporated into the definition of the crime of assault. See Roger D. Groot, Criminal Offenses and Defenses in Virginia 28 (3d ed.1994); Rollin M. Perkins & Ronald N. Boyce, Criminal Law § 2, at 167 (3d ed.1982). Burgess v. Commonwealth, 136 Va. 697, 706-07, 118 S.E. 273, 275 (1923), held that criminal assault is committed when (1) the defendant puts the victim in well-founded fear or apprehension of bodily harm though the defendant has in fact no intention to strike the victim and the victim is not in fact put in actual peril; and (2) the act is done with the intent to put the victim in fear or apprehension of bodily harm and the victim is in fact put in well-founded fear or apprehension of bodily harm. Burgess specifically rejected the argument that the victim must be put in actual peril or that the act must be done with the intent to do bodily harm to the victim. “ ‘The better rule is that the defendant’s intention’ (to do actual bodily harm) ‘does not enter into the case, for if reasonable fear of bodily harm has been caused by the conduct of the defendant, this is an assault, even though he disclaims any intention to do wrong.’ ” Id. at 707, 118 S.E. at 276 (quoting 5 C.J. (5), 3, at 618).

The definition from Davis, Criminal Law, that the Court quoted with approval in Harper traces to and is nearly a verbatim quotation from 1 East, Pleas of the Crown 406 (1803). Jones v. Commonwealth, 184 Va. 679, 36 S.E.2d 571 (1946), cites East as well as 3 Blaekstone, Commentaries 120, as authority for its definition of criminal assault. Both of these venerable authorities, East and Blaekstone, have been suggested as the genesis of the expansion of the criminal definition to incorporate the tort definition. See Perkins, supra, § 2, at 165.

The defendant’s argument that he is not guilty of assault unless he committed some act denoting an intention of presently using actual violence is correct under the original common law definition of criminal assault. We will assume without deciding that getting up in the victim’s face to the point that someone intervened between the parties and threatening to kill the victim does not satisfy the common law criminal definition of assault. However, those facts do satisfy the tort definition of assault. The evidence is abundant that the defendant put the victim in fear of bodily harm, that he had the immediate ability to do harm, and that the victim’s apprehension of bodily harm was reasonable. The trial court stated:

He threatened to do her bodily harm, and that under the circumstances in which he did that, he did it, he had the ability to carry out that threat and he had, it’s a case that he had present ability of using actual violence against the person, though he did not use the actual violence.

The defendant’s words and acts satisfy the common law tort definition of assault that has long been a part of the present definition of criminal assault. Accordingly, we affirm the conviction.

Affirmed.