822 S.E.2d 375
Va. Ct. App.2019Background
- On April 3, 2016, coworker interaction at a veterinary clinic: Kelley (facilities manager) approached Jasmin Hester (administrative staff) on a porch, leaned forward, grabbed her chin, turned her face, and attempted to kiss her while she said “no, no, no” and pulled away.
- Hester reported the incident to law enforcement the same day, gave a statement to Deputy Bauer, and filed a criminal complaint the next day; a summons for misdemeanor assault and battery (Va. Code § 18.2-57) issued.
- At the bench trial the court credited Hester’s testimony that Kelley touched her and attempted a kiss despite her verbal and physical resistance; Kelley offered statements characterizing the contact as a cheek kiss or a handshake and claimed gratitude as motive.
- The trial court found Kelley guilty, concluding the touching—grabbing Hester’s face while she said “no”—constituted a battery because it was done in a rude, offensive manner; Kelley was fined $100.
- On appeal Kelley challenged (1) whether a touching occurred, (2) whether the touching was done with the requisite rude/insolent intent, and (3) whether the touching was justified or consented to as workplace gratitude.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Kelley) | Held |
|---|---|---|---|
| Whether a touching/battery occurred | Hester testified Kelley grabbed her chin and turned her face, constituting a touching even if no injury occurred | Kelley argued he only leaned in for a cheek kiss/handshake and that Hester had previously said he only “tried” to touch her; suggested motives to exaggerate | Court credited Hester, found the touching occurred; appellate court will not disturb credibility findings |
| Whether touching was done in a rude/insolent/angry manner (intent) | Circumstantial evidence (her verbal “no,” withdrawal, his admission he knew she was uncomfortable, his comments after) supports imputed unlawful intent | Kelley argued the contact was benign gratitude and not rude; challenged application of the civil standard for rude touching | Court held intent may be inferred; grabbing her face against her will while attempting a kiss supports finding of rude/insolent intent |
| Whether any legal justification or consent defeated battery | Commonwealth: no evidence of consent or lawful justification; victim rebuffed and did not consent | Kelley claimed implied consent as coworkers and that the act expressed gratitude | Court rejected justification/consent defenses—victim expressly said “no” and tried to pull away |
| Sufficiency of evidence overall | Evidence and reasonable inferences support each element beyond reasonable doubt | Kelley argued inconsistencies and motives undermined proof | Appellate court affirmed: viewing evidence in light most favorable to Commonwealth, conviction supported |
Key Cases Cited
- Hamilton v. Commonwealth, 279 Va. 94 (appellate review standard; view evidence for prosecution)
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- Adams v. Commonwealth, 33 Va. App. 463 (slightest touching in rude, insolent, or angry manner constitutes battery)
- Parish v. Commonwealth, 56 Va. App. 324 (battery elements; intent may be imputed)
- Marquardt v. State, 882 A.2d 900 (kissing without consent can constitute battery)
- Pijor v. Commonwealth, 294 Va. 502 (circumstantial evidence and reasonable-hypothesis-of-innocence rule)
- Perkins v. Commonwealth, 295 Va. 323 (bench-trial factfinder weight; touching not unlawful if justified or excused)
- Crosswhite v. Barnes, 139 Va. 471 (articulating rule that slightest rude touching gives redress)