Adams v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Lemons ∗ and Frank

Argued at Chesapeake, Virginia

JEREMY BRITT ADAMS

OPINION BY

v. Record No. 0654-99-1 JUDGE ROBERT P. FRANK

SEPTEMBER 26, 2000

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY

William H. Shaw, III, Judge

Joseph R. Caprio for appellant.

Kathleen B. Martin, Assistant Attorney

General (Mark L. Earley, Attorney General, on

brief), for appellee.

Jeremy Britt Adams (appellant) appeals his bench trial

conviction of an assault and battery on a law enforcement officer

in violation of Code § 18.2-57(C). On appeal, appellant contends

the evidence was insufficient to prove: 1) a touching and (2)

that he had the requisite intent to commit the offense. We

disagree and affirm the conviction.

I. BACKGROUND

On September 22, 1998, while on duty at the Gloucester

County High School, Sergeant Steven Giles of the Gloucester

County Sheriff's Department was struck in his right eye by a

laser light owned by appellant, who was a twelfth-grade student

∗

Justice Lemons participated in the hearing and decision of

this case prior to his investiture as a Justice of the Supreme

Court of Virginia.

at the school. Giles had been talking with another officer,

Sergeant Adams, and the school nurse when he felt a "stinging

sensation" in his eye. Sergeant Adams told Giles that appellant

had "just lit [him] up," as there was "a red dot" on him.

Giles approached appellant and asked what he had. Appellant

said, "It can't hurt you," and handed over the laser light, which

was attached to his key chain. Giles gave the laser light to the

assistant principal and told appellant he could retrieve it

later.

Giles said he "felt a burning sensation" in his eye and "saw

red" before looking away, but he did not know how long the laser

had been pointed at him. Giles had his eye checked the next

morning by a local doctor who found "heavy irritation" but no

other injury.

Appellant moved to strike the evidence at the conclusion of

the Commonwealth's case-in-chief. He argued that the

Commonwealth had not proved the laser light was capable of

causing injury, had injured Giles, or appellant knew or should

have known the laser was dangerous. The trial court overruled

the motion.

Appellant then presented his case. Sergeant Adams testified

that appellant was approximately 150 feet from Giles and the

laser light had "jump[ed] all around his upper torso and head."

Adams did not "actually see the thing strike [Giles'] eye," but

he saw Giles flinch when he was hit.

James Brown and Jessica Hubbard, both students, testified

that they did not see the laser strike Giles in the face or eyes.

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They also said they had not been hurt when similarly hit in the

eye with a laser light.

Appellant testified that he purchased the laser light for

six dollars at a convenience store two days before the offense.

He said it had no warning on it regarding use and that he had not

been hurt when hit in the eye by the light. Appellant denied

hitting Giles in the face or eye and claimed he had not intended

to strike Giles with the light but, instead, was "just goofing

off" to get Adams' attention by waving the laser around. Adams

previously had been the school's resource officer, and appellant

had a friendly relationship with him. Appellant, however, did

not get along well with Sergeant Giles. He stated that Giles had

previously given him a hard time. Appellant acknowledged he had

pled guilty to three felonies.

The trial court again overruled appellant's motion to strike

the evidence and convicted appellant of assault and battery on a

law enforcement officer.

II. ANALYSIS

In reviewing the sufficiency of evidence on appeal, "the

appellate court must examine the evidence and all inferences

reasonably deducible therefrom in the light most favorable to the

Commonwealth, the prevailing party in the trial court."

Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265

(1998) (citations omitted). "We may not disturb the trial

court's judgment unless it is 'plainly wrong or without evidence

to support it.'" Barlow v. Commonwealth, 26 Va. App. 421, 429,

494 S.E.2d 901, 904 (1998) (quoting Beavers v. Commonwealth, 245

Va. 268, 282, 427 S.E.2d 411, 421 (1993)).

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Furthermore, "[t]he credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,

138, 455 S.E.2d 730, 732 (1995) (citations omitted). "In its

role of judging witness credibility, the fact finder is entitled

to disbelieve the self-serving testimony of the accused and to

conclude that the accused is lying to conceal his guilt."

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233,

235 (1998) (citation omitted).

Code § 18.2-57(C) provides that "any person [who] commits an

assault or an assault and battery against . . . a law enforcement

officer . . . shall be guilty of a Class 6 felony," and shall be

sentenced to a mandatory, minimum term of six months in jail.

To sustain a conviction for assault, the evidence need only

prove "'an attempt or offer, with force and violence, to do some

bodily hurt to another.'" Harper v. Commonwealth, 196 Va. 723,

733, 85 S.E.2d 249, 255 (1955) (citation omitted).

When the injury is actually inflicted, a

battery has been committed regardless of how

small the injury might be. "'Battery is the

actual infliction of corporal hurt on another

(e.g., the least touching of another's

person), willfully or in anger, whether by

the party's own hand, or by some means set in

motion by him.'"

Seegars v. Commonwealth, 18 Va. App. 641, 644, 445 S.E.2d 720,

722 (1994) (quoting Jones v. Commonwealth, 184 Va. 679, 682, 36

S.E.2d 571, 572 (1946)).

One cannot be convicted of assault and battery "'without an

intention to do bodily harm -- either an actual intention or an

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intention imputed by law.'" Davis v. Commonwealth, 150 Va. 611,

617, 143 S.E. 641, 643 (1928).

A battery is an unlawful touching of another. It is not

necessary that the touching result in injury to the person.

Whether a touching is a battery depends on the intent of the

actor, not on the force applied. See Wood v. Commonwealth, 149

Va. 401, 405, 140 S.E. 114, 115 (1927). An assault may occur

even though the victim is not aware of any acts directed at him,

provided the actor intends to touch offensively rather than

accidentally or negligently. See Park Oil Co., Inc. v. Parham, 1

Va. App. 166, 170, 336 S.E.2d 531, 534 (1985).

"[T]he slightest touching of another . . . if done in a

rude, insolent, or angry manner, constitutes a battery for which

the law affords redress." Crosswhite v. Barnes, 139 Va. 471,

477, 124 S.E. 242, 244 (1924) (citation omitted).

"[W]here there is physical injury to another

person, it is sufficient that the cause is

set in motion by the defendant, or that the

[victim] is subjected to its operation by

means of any act or control which the

defendant exerts." "The law upon the subject

is intended primarily to protect the

sacredness of the person, and, secondarily,

to prevent breaches of the peace."

Banovitch v. Commonwealth, 196 Va. 210, 219, 83 S.E.2d 369, 374

(1954) (citations omitted).

A. Touching

Adams contends that shining the laser on Sergeant Giles was

insufficient to constitute a touching for the purposes of assault

and battery. Touch is defined as to be in contact or to cause to

be in contact. See Merriam-Webster's Desk Dictionary 573 (1995).

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In Virginia, it is abundantly clear that a perpetrator need

not inflict a physical injury to commit a battery. See, e.g.,

Crosswhite, 139 Va. at 477, 124 S.E. at 244; Lynch v.

Commonwealth, 131 Va. 762, 765, 109 S.E. 427, 428 (1921). The

cases that guide our analysis, however, have not addressed

circumstances where contact with the corporeal person was

accomplished by directing a beam of light at the victim. Because

substances such as light or sound become elusive when considered

in terms of battery, contact by means of such substances must be

examined further in determining whether a touching has occurred.

Such a test is necessary due to the intangible nature of those

substances and the need to limit application of such a principle

(touching by intangible substances) to reasonable cases. Because

the underlying concerns of battery law are breach of the peace

and sacredness of the person, the dignity of the victim is

implicated and the reasonableness and offensiveness of the

contact must be considered. Otherwise, criminal convictions

could result from the routine and insignificant exposure to

concentrated energy that inevitably results from living in

populated society.

Accordingly, we hold that for purposes of determining

whether a battery has occurred, contact by an intangible

substance such as light must be considered in terms of its effect

on the victim. There need be no actual injury for a touching to

have occurred. However, to prove a touching, the evidence must

prove that the substance made objectively offensive or forcible

contact with the victim's person resulting in some manifestation

of a physical consequence or corporeal hurt.

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Here, the evidence established that appellant hit Sergeant

Giles in the eye with a laser light. Giles felt a stinging

sensation in his eye as a "red dot" hit him. Appellant admitted

he did not get along with Giles and that he had been waving the

laser in the area where the two officers were standing.

Appellant, by aiming the laser at the officers, effected a

contact that caused bodily harm to Sergeant Giles. Appellant

argued there was no touching because the laser has no mass and,

therefore, cannot physically touch Sergeant Giles. This argument

is misplaced. The laser, directed by appellant, came into

contact with Sergeant Giles' eye and, as a result, there was an

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unlawful touching.

B. Intent

Proving intent by direct evidence often is impossible. See

Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165

(1988). Like any other element of a crime, it may be proved by

circumstantial evidence, as long as such evidence excludes all

reasonable hypotheses of innocence flowing from it. See Rice v.

Commonwealth, 16 Va. App. 370, 372, 429 S.E.2d 879, 880 (1993)

(citations omitted). Circumstantial evidence of intent may

include the conduct and statements of the alleged offender, and

"[t]he finder of fact may infer that [he] intends the natural and

probable consequences of his acts." Campbell v. Commonwealth, 12

Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc) (citation

omitted).

1

Appellant further argued that this holding could cause the

statute to be void for vagueness. Because the latter argument

was not raised in the trial court, it is barred under Rule

5A:18.

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The trial court, sitting as the fact finder, was entitled to

reject appellant's testimony that he was "just goofing off" to

attract Sergeant Adams' attention. The court specifically found

that appellant intended to hit Giles with the laser and that an

assault and battery occurred. That decision is not plainly wrong

or without supporting evidence and must be upheld on appeal.

For the reasons stated, we affirm the judgment of the trial

court.

Affirmed.

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Lemons, J., dissenting.

This case was not prosecuted as an assault; rather, the

evidence and the argument of counsel confined the prosecution to

a battery. An assault occurs where "the overt act done puts the

party assailed in well founded fear of bodily harm." Burgess v.

Commonwealth, 136 Va. 697, 708, 118 S.E. 273, 276 (1923). There

was no evidence and no contention that shining the low intensity

laser light on Sergeant Giles caused him to experience

reasonable apprehension of bodily harm. Sergeant Giles

testified that he did not see the light beam and did not know

how long it had been focused upon him. He did not react until

the light beam shined in his eye. Sergeant Adams became aware

of the light beam only after Sergeant Giles reacted to the light

beam. Apparently still uncertain of exactly what had occurred,

Sergeant Giles approached Adams and asked him what he had.

Adams gave the laser light device which was attached to his key

chain to Giles and said, "It can't hurt you."

It is entirely possible that the appearance of a red dot on

a person could cause reasonable apprehension that they had been

targeted by a laser-sighting device attached to a firearm.

However, the allegations and proof offered in this case clearly

demonstrate that prosecution of Adams was based upon alleged

battery and not assault.

Whether a touching is a battery depends upon the intent of

the actor, not upon the force applied. See Woods v.

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Commonwealth, 149 Va. 401, 405, 140 S.E. 114, 115 (1927). Here,

the evidence does not support beyond a reasonable doubt that

Adams had the intent to offensively touch Sergeant Giles. In

order to have such intent, Adams would have to know or be

reasonably charged with knowledge that a six-dollar novelty item

attached to his key chain had the potential for offensive

touching. It is not within common knowledge that such a device

has such capacity. There is no evidence that Adams had specific

knowledge of such capacity. That Adams had a bad relationship

with Giles may explain his motive, but it does not prove intent

to offensively touch. A finder of fact may infer that an actor

intends the natural and probable consequences of his acts. See

Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4

(1991). In the absence of common knowledge of the capacity of

this device, no inference may be drawn. Without inference or

specific knowledge, there is no proof that Adams intended to

offensively touch Giles.

Additionally, the majority redefines "touching" for the

purpose of common law battery. Although the reasoning is

logical, it is unwise, because the unintended consequences may

reach too far. Will the next prosecution for battery be based

upon failure to dim high beams in traffic, flash photography too

close to the subject, high intensity flashlight beams or sonic

waves from a teenager's car stereo? Rather than stretch the

boundaries of the common law understanding of what is necessary

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for a "touching" to occur, criminalizing conduct that involves

intangible objects put in motion should be left to specific

legislative action rather than generalized redefinition that may

sweep into the ambit of criminal behavior conduct that is not

intended. See, e.g., 720 Ill. Comp. Stat. 5/2-10.2, 2-10.3,

5-12-2, 12-4 (West. 2000) (shining or flashing a laser gunsight

near or on a person constitutes aggravated assault or aggravated

battery); 720 Ill. Comp. Stat. 5/24.6.5 (West 2000) (aiming a

laser pointer at a police officer is a misdemeanor); Wash. Rev.

Code § 9A-49.020 (1999) (felony to discharge a laser beam at

various peace officers or pilots, bus drivers or transit

operators in the commission of their respective duties).

I respectfully dissent.

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