GENEV DENISE CLARK, s/k/a GENEVA DENISE CLARK v. COMMONWEALTH OF VIRGINIA
Record No. 091305
Supreme Court of Virginia
April 15, 2010
OPINION BY JUSTICE S. BERNARD GOODWYN
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we consider whether a defendant‘s actions constitute an overt act intended to place a victim in fear or apprehension of bodily harm, and thus whether there was sufficient evidence to find the defendant guilty of assault.
Background
Genev Denise Clark (Clark) was convicted in a bench trial in the Circuit Court of Henrico County of assaulting Carolyn M. Coleman (Coleman) in violation of
Coleman was, at the time of these events, a school bus driver for Lakeside Elementary School. On May 7, 2007, Clark‘s son caused a problem while riding on Coleman‘s bus. As a result, Coleman asked the school administrators to prohibit Clark‘s son from riding the school bus for a period of time and
The next day, at approximately 7 a.m., Coleman arrived at Lakeside Elementary School to “drop off” children at the school. As on other mornings, Coleman‘s school bus was the first to arrive. Coleman drove the school bus into the bus circle and, seeing a brown automobile parked in the circle, Coleman stopped directly behind it. Other school buses came in behind her bus. Susan Bernstein, who also serves as a bus driver for Lakeside Elementary School, testified that the parked vehicle, which was later identified as Clark‘s vehicle, “was blocking all of us from moving.” The bus circle is posted with signs indicating that the circle is reserved exclusively for buses.
As Coleman waited in the bus circle for someone from the school to meet the children she was “dropping off,” she saw Clark and her son standing in the vicinity of the parked vehicle. Coleman opened the bus door to let in a student who was waiting for the school to open and, while the bus door was still open, Clark approached the bus. Bernstein testified that Clark came within two feet of the bus. Clark said to Coleman, “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]
Late in the afternoon of that same day, at approximately 4:20 p.m., Coleman drove her bus into the bus circle to pick up children participating in after-school activities at the elementary school. As Coleman opened the bus door, preparing to disembark, Clark approached the bus door and said, “Bitch, like I say, I‘m going to get you.” Coleman immediately shut the bus door, instead of exiting as planned. After Coleman shut the bus door, Clark stood outside the bus.
Clark was charged with assaulting Coleman in violation of
In an unpublished opinion, the Court of Appeals reversed the judgment of the circuit court, concluding that the evidence was not sufficient to find Clark guilty of assault because her
Analysis
Clark argues that the Court of Appeals erred in holding that the evidence was sufficient to find her guilty of assault. She argues that her actions in approaching Coleman‘s school bus, verbally threatening Coleman and returning to the bus later that day to deliver another threat did not constitute an overt act in furtherance of an assault. Clark argues that this Court has consistently held that words alone are insufficient to constitute an assault. Contending that her sole physical action was walking towards the school bus, Clark relies on Bennett v. Commonwealth, 35 Va. App. 442, 546 S.E.2d 209 (2001), to argue that threatening words coupled with the act of
Responding, the Commonwealth contends that Clark, in relying on Bennett, fails to distinguish the conditional threats asserted in Bennett from Clark‘s unconditional threat and “the totality of the acts in which she engaged in this case.” The Commonwealth urges this Court to view Clark‘s verbal threats in the context in which they were uttered and the actions associated with them. The Commonwealth claims that Clark‘s reappearance outside of Coleman‘s bus demonstrated Clark‘s intent to act on her earlier threat, and that there was sufficient evidence to find her guilty of assault.
When considering a challenge to the sufficiency of the evidence to sustain a conviction, this Court reviews “the evidence in the light most favorable to the prevailing party at trial and consider[s] all inferences fairly deducible from that evidence.” Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008). This Court will only reverse the judgment of the trial court if the judgment “is plainly wrong or without evidence to support it.” Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330 (2006) (quoting
The penalty for assault is set forth in
[t]he common law crime of assault required an attempt or offer committed with an intent to inflict bodily harm coupled with the present ability to inflict such harm. The common law tort of assault could be completed if the tortfeasor engaged in actions intended to place the victim in fear of bodily harm and created a well-founded fear in the victim.
Id. (citation omitted).
Like many jurisdictions, Virginia has merged the common law crime with the common law tort of assault. Id. at 47, 606 S.E.2d at 841. Combining the criminal and tort elements, this Court has held that a common law assault “occurs when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm or
Clark relies heavily on the Court of Appeals’ rationale in Bennett to support her position that she did not commit an assault. In Bennett, the police officers entered the defendant‘s home to investigate a “criminal complaint.” 35 Va. App. at 446, 546 S.E.2d at 211. Upon seeing the officers, the defendant approached within inches of them, shouted profanities and stated that if they did not leave “it would be an ‘F‘ing blood bath.” Id. at 446-47, 546 S.E.2d at 211. The defendant gestured with his hands while speaking, but did not physically threaten the officers. Id. at 447, 546 S.E.2d at 211. The Court of Appeals held that the evidence was insufficient to sustain a conviction for assault because the defendant, although he approached from 20 feet to within inches of two police officers, shouting profanities and insisting that they leave his house, “made no overt act or attempt to physically harm either officer.” Id. at 449, 546 S.E.2d at 212.
We must interpret Clark‘s reappearance outside of Coleman‘s school bus and her renewed threat, on the afternoon of May 8, in the context of Clark‘s previous statements and actions. Clark threatened to harm Coleman anywhere she could be found. Later, that same day, as Coleman was about to exit the school bus, Clark appeared outside of Coleman‘s opened bus door, saying, “I‘m going to get you.” Given Clark‘s previous threat to inflict bodily harm upon Coleman, her reappearance at a place where she had no explained reason for being, and her blocking Coleman‘s path of exit and her unconditional threat to “get” Coleman, Clark‘s act of approaching the bus could be understood as indicating a purpose to inflict bodily contact or injury upon Coleman. Therefore, there is sufficient evidence that Clark engaged in an overt act intended to place Coleman in fear or apprehension of bodily harm by approaching Coleman‘s bus that afternoon.
Thus, we hold that the Court of Appeals did not err when it held that there was sufficient evidence to support the circuit court‘s conviction of Clark for the crime of assault.
Conclusion
Accordingly, we will affirm the judgment of the Court of Appeals.
Affirmed.