Genev Denise CLARK, s/k/a Geneva Denise Clark v. COMMONWEALTH of Virginia.
Record No. 2656-07-2.
Court of Appeals of Virginia, Richmond.
May 12, 2009.
676 S.E.2d 332
Benjamin H. Katz, Assistant Attorney General (William C. Mims, Acting Attorney General, on brief), for appellee.
UPON A REHEARING EN BANC.
ELDER, Judge.
Genev Denise Clark (appellant) appeals from her bench trial conviction for assault in violation of
I.
BACKGROUND
Under settled principles, we recite the facts in the light most favorable to the Commonwealth, the party prevailing in the trial court, as required by our standard of review on appeal. See, e.g., Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003).
As of Monday, May 7, 2007, Carolyn Coleman was a bus driver for students at Lakeside Elementary School in Henrico County. Appellant was a food services employee at that school, and her children attended school there and rode Coleman‘s bus to and from school. On that date, Coleman had “some type of problem [on the bus] with [appellant‘s] son,” and, as a result, Coleman “ask[ed] the school administrators to not allow [appellant‘s] son to ride the bus for a period of time.” The principal called appellant that afternoon and told her that her son “[could not] ride the bus until Thursday when we had [a] school meeting with Ms. Coleman and her supervisor.”
Around 7:00 a.m. the next day, Tuesday, May 8, 2007, Coleman arrived at the school in her bus to drop off her riders, but she had to wait for the school to open and for someone to come out to meet them. Coleman drove into the bus circle to the location in front of the school where she was required to park to drop off the students. The bus circle was “reserved exclusively for . . . buses . . . dropping [off] and picking up children,” and “a lot” of signs so indicating were posted in the bus circle. An employee parking lot was on the school grounds “about maybe 50 feet” from the bus circle.
Coleman‘s bus was the first to arrive that morning, as it was every morning. When Coleman pulled her bus into the bus circle, she saw an automobile parked at the head of the circle; Coleman pulled in directly behind the car in order to “pull right up in front of the door” of the school as she was required to do. Other buses pulled into the bus circle behind her. Coleman testified without objection that the car “was parked to [block] her in so that she could not get out.” Another bus driver, Susan Bernstein, confirmed that appellant‘s vehicle was “parked directly in front” of Coleman‘s bus. Bernstein testified that the way appellant parked both “block[ed]” in Coleman‘s bus and also “block[ed] all of us [bus drivers] from moving.”2
Around 4:20 p.m. that same day, Coleman again pulled her bus into the bus circle for “after school activity pick-up.” When Coleman first pulled in, she did not see appellant, and she opened the bus door “so [she could] step off to go around the other side.” Before Coleman could get off the bus, however, appellant again appeared outside her bus door and said, “Bitch, like I say, I‘m going to get you.” Coleman immediately closed her bus door and remained inside instead of exiting as she had planned. Appellant remained standing outside the bus.3
Appellant was charged with assault, and at her trial for that offense, the Commonwealth offered evidence of these events in keeping with the above. At the close of the Commonwealth‘s evidence and again at the close of all the evidence, appellant moved to strike, contending her words alone were insufficient to constitute an assault. The Commonwealth responded that the evidence proved “much more than her words alone.” It pointed to appellant‘s parking her vehicle, despite no parking signs, in a location calculated
The trial court convicted appellant for the charged offense, noting the “confrontation” and appellant‘s “[putting] her car in front of this bus where it‘s not supposed to be during the day. [Appellant] has confronted the bus driver twice with the language, which I would find from the evidence, can be considered a present threat.”
Appellant noted this appeal.
II.
ANALYSIS
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to [the evidence] all reasonable inferences fairly deducible therefrom.‘” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). The trier of fact is free to believe or disbelieve in part or in whole the testimony of any witness. E.g. Rollston v. Commonwealth, 11 Va.App. 535, 547, 399 S.E.2d 823, 830 (1991).
Appellant was convicted for misdemeanor assault in violation of
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 the criminal definition). However, “[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 (1965). A defendant‘s words may be highly relevant
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; under the tort law definition, by contrast, 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. (emphasis added). Because, absent more direct evidence, the perpetrator‘s intent must be inferred from the nature of the overt act and surrounding circumstances, the nature of the overt act sufficient to prove assault under the criminal definition often will be different from the nature of the overt act sufficient to prove assault under the tort law definition.4 Cf. 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 16.3, at 569 (2d ed.2003) (recognizing that, although both are crimes, the “intention to cause bodily harm” required to prove assault under the traditional criminal “attempted battery” definition is more culpable than the “intention to cause apprehension” required to prove assault under the assimilated tort definition); Restatement, supra, § 31 cmt. d, illus. 4 (opining 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 may be held to have committed the tort of assault). Nevertheless, to prove assault under either definition, a sufficient causal nexus must exist among the elements of the offense—under the criminal definition, the perpetrator must commit the overt act with the intent to inflict bodily harm and have the present ability to inflict that harm; under the tort definition, the perpetrator must commit the overt act with the intent to place the victim in fear of bodily harm and the overt act must create reasonable fear in the victim.
Appellant 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 her case and concludes the evidence here is more deficient than in Bennett, necessitating the reversal of appellant‘s assault conviction, as well. Bennett is both factually and legally distinguishable, and 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. Id. 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 the deputies or physically threaten them before they left. Id.
In reversing the defendant‘s conviction in Bennett, which we did in a panel decision, we made no clear distinction between the criminal and tort law definitions of assault, and we analyzed the evidence only 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)). Further, although we did not specifically articulate it in our decision in Bennett, the evidence proved the threat the defendant made was a conditional one—“[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 totality of 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 the same 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 (i) prominently posted signs indicating cars were not allowed in the bus circle and (ii) 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. Coleman testified without objection that appellant‘s car “was parked to [block] her in so that she could not get out.” Fellow bus driver Susan Bernstein also testified that appellant parked “directly in front” of Coleman‘s bus, “blocking” both Coleman and “all of us [bus drivers] from moving.” Thus, the totality of the circumstances, viewed in the light most favorable to the Commonwealth, established that appellant‘s actions blocked the only means by which Coleman might have escaped by bus.
Appellant ceased both her verbal harassment and her physical blockade of Coleman that morning when the principal arrived on the scene, but appellant renewed these actions 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 said, “Bitch, like I say, I‘m going to get you.” 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 verbal and physical confrontation with Coleman, and the trial court specifically found appellant posed “a present threat” that afternoon, as distinguished from the conditional threat posed in Bennett. Coleman immediately closed her door instead of exiting the bus as she had planned, and appellant remained standing outside the bus.
The events of the morning and afternoon, viewed in their totality and specifically including appellant‘s physically blocking both Coleman‘s bus and Coleman herself from exiting the bus, indicated appellant‘s intent to make good on her threat. Because of appellant‘s reappearance that afternoon and Coleman‘s fear of appellant, Coleman hurriedly closed the door of her bus and remained inside. Appellant‘s reappearance and maintenance of a position outside Coleman‘s bus, just as Coleman was preparing to disembark, once again effectively blocked Coleman‘s exit from the bus. Appellant‘s direct physical blocking of Coleman‘s only reasonable means of escape, in combination with her earlier blocking of both Coleman‘s bus and her person and her renewed verbal attack—which the trial court expressly found posed “a present threat” rather than a conditional one—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.”5 Carter, 269 Va. at 47, 606 S.E.2d at 841.
See Id.;
III.
For these reasons, we hold the totality of the circumstances, viewed in the light most favorable to the Commonwealth, supported appellant‘s conviction for assault under the assimilated tort law definition, and we affirm that conviction.
Affirmed.
HUMPHREYS, J., with whom PETTY and POWELL, JJ., join, dissenting.
I respectfully disagree with the majority that the evidence was sufficient to convict Clark of assault under
In my view, the evidence was insufficient as a matter of law to show that Clark committed an overt act as required for the common law offense of assault. Therefore, I dissent from the analysis and judgment in this case.
My disagreement with the majority centers around the fundamental rule that “[w]ords alone [ ] do not constitute an assault.” Bennett v. Commonwealth, 35 Va.App. 442, 449, 546 S.E.2d 209, 212 (2001). Although the majority pays lip service to that rule, I believe that its analysis effectively circumvents it and for all practical purposes, finds that words alone can now constitute the crime of assault, so long as those words cause a “reasonable fear or apprehension” or interrupt a person‘s “business.” Indeed, the example given by the majority from the Restatement of Torts clearly suggests that words alone can constitute the tort of assault if they are threatening in nature and uttered on multiple occasions. The majority now makes it a crime as well.
As the majority notes, our Supreme Court has recognized the merger of “the crime and tort of common law assault.” Carter v. Commonwealth, 269 Va. 44, 47, 606 S.E.2d 839, 841 (2005). In Carter, the Supreme Court explained the two separate types of assault:
[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.
Id. (emphasis in original). Although the other elements are different, both definitions of assault require that the assailant commit an overt act.
Under the tort definition of assault, the overt act must be one that is “intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in that other person‘s mind a reasonable apprehension of an imminent battery.” Koffman v. Garnett, 265 Va. 12, 16, 574 S.E.2d 258, 261 (2003) (citing Restatement (Second) of Torts § 21 (1965); Charles E. Friend, Personal Injury Law in Virginia § 6.3.1, at 226 (2d ed.1998); Fowler V. Harper, et al., The Law of Torts § 3.5, at 3:18-:19 (3d ed. Cum.Supp.2003)) (emphasis added). Traditionally, overt acts include
“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)). Although it would be impossible to itemize all of the possible actions that can constitute an overt act in the context of an assault, the common law has continuously recognized one action that definitively will not support an assault: the speaking of words. “[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, 47, 606 S.E.2d 839, 841 (2005).
If words are not enough to constitute an overt act, it would seem to follow that the act of approaching within earshot of the purported victim, or waiting for the purported victim to approach within earshot, in order to make the threatening words heard is equally insufficient to constitute an overt act. To hold otherwise, as the majority implicitly does, would render meaningless the principle that words, even when coupled with a threatening attitude, are insufficient to constitute an assault. Yet that is all the evidence established in this case. On the morning of the incident, Clark parked her car in a driveway that was empty at the time, although it was reserved for school buses. Some time after that, while Clark was standing with her child outside of the locked school, Coleman pulled up in her bus and parked behind Clark‘s car. When Coleman arrived, Clark‘s car was not blocking the entire bus circle. Another bus driver specifically testified that the buses “could get around” Clark‘s car.6 When Coleman opened the door to her bus, Clark approached her. Coleman testified, and the trial court confirmed, that Clark never approached closer than ten feet from the bus. Later that same day, Clark approached the bus again. Clark repeated her threats to Coleman and, again, did not come closer than ten feet.
The majority finds evidence sufficient to constitute an overt act for the crime of assault from the fact that Clark‘s car “blocked” Coleman‘s bus and that Clark waited for Coleman in a place Clark knew she would be in order to threaten her when she arrived.7 However, there is no evidence that Clark parked her car with the specific intent to create fear and apprehension of bodily harm by blocking Coleman‘s bus. For an assault to occur, the overt act must be done with the specific intent to “cause either harmful or offensive contact with another person or apprehension of such contact.” Koffman, 265 Va. at 16, 574 S.E.2d at 261. There is no evidence in the record before us that by parking her car in the bus circle or by waiting for Coleman‘s bus to arrive, Clark intended to cause apprehension of imminent bodily harm to Coleman.8
In addition, the majority ignores the fact that the record is devoid of any evidence whatsoever that Clark‘s actions, as opposed to her words, placed Coleman “in fear or apprehension of bodily harm,” an element that is required to be proved to satisfy the tort definition of assault. Carter, 269 Va. at 47, 606 S.E.2d at 841. Coleman never testified
Indeed, our decision in Bennett is a clear example of the principle that merely approaching someone for the purpose of threatening them is not an overt act. 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. If approaching to within inches of someone and loudly proclaiming an imminent blood bath is not an overt act, there is no logical reason for concluding that an expansion of the distance from inches to feet for the purpose of shouting threats should change that result.10
Moreover, the majority claims that Clark committed 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 3 William Blackstone, Commentaries *120). However, it is unclear from the majority‘s opinion why it is relevant that Clark interrupted Coleman‘s work. The only
While Clark‘s conduct is reprehensible and worthy of condemnation and perhaps prosecution under a more appropriate statute,11 I conclude that it is insufficient as a matter of law to constitute a common law assault. Clark did nothing more than wait for Coleman to arrive at the school and stand outside her bus and shout epithets and threats. That Clark did so twice on the same day or that by doing so she interfered with Coleman‘s business does not transform those threats into an overt act sufficient to sustain a conviction for assault.
For these reasons, I would reverse the conviction, vacate the judgment below, and dismiss the warrant.
Notes
Thus, the record indicates the trial court made no express finding regarding the distance Clark stood from the bus when she twice confronted Coleman, and the applicable standard of review on appeal requires us to view the evidence on this point in the light most favorable to the Commonwealth. The evidence, so viewed, indicated that distance during the morning confrontation was “about two feet,” and Coleman testified Clark stood “[t]he same distance” from Coleman‘s bus in the afternoon as she had stood in the morning, supporting a finding that Clark stood “about two feet” from Coleman‘s bus during the afternoon, as well.
For these reasons, we do not accept the dissent‘s assertion that “the trial court found” Clark “never approached closer than ten feet from the bus.” See infra at 138, 676 S.E.2d at 341; cf. Clark v. Commonwealth, No. 2656-07-2, 2008 WL 5330518, at *2, 2008 Va.App. Lexis 560, at *4 (2008) (acknowledging that “Clark stood approximately two feet from the bus” during the morning encounter).
Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955) (quoting J.A.G. Davis, Criminal Law 353-54 (1838)).“striking at [the victim] 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.”
At oral argument on appeal, when asked whether Coleman was “in reasonable fear” of appellant, appellant‘s counsel responded, “I think the evidence was . . . that she was [in fear] or she wouldn‘t have closed the door [of the bus].” Although counsel vigorously disputed whether appellant engaged in the requisite overt act causing Coleman‘s fear, counsel also conceded that “[appellant‘s] words alone certainly were said with the intent [to cause such fear], I can‘t dispute that.”