PRESENT: Hassell, C.J., Keenan, 1 Koontz, Lemons, Goodwyn, and
Millette, JJ., and Russell, S.J.
GENEV DENISE CLARK,
s/k/a GENEVA DENISE CLARK
OPINION BY
v. Record No. 091305 JUSTICE S. BERNARD GOODWYN
April 15, 2010
COMMONWEALTH OF VIRGINIA
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 Code § 18.2-57. In a
published opinion, the Court of Appeals affirmed the judgment
of the circuit court. Clark v. Commonwealth, 54 Va. App. 120,
676 S.E.2d 332 (2009) (en banc). Clark appeals.
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
1
Justice Keenan participated in the hearing and decision
of this case prior to her retirement from the Court on March
12, 2010.
Clark’s son from riding the school bus for a period of time and
they did so.
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]
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[f]uck you up.” Clark had her arms crossed and her lips
pursed. Coleman shut the bus door and ”called” for a
supervisor and a police officer. Clark continued to stand
outside the school bus and to curse, but left when the
principal arrived.
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
Code § 18.2-57. At the close of the Commonwealth’s evidence at
trial, and again at the close of the defense’s evidence, Clark
moved to strike, contending that Clark’s words were
insufficient to constitute an assault and there was “no real
physical action” by Clark. The circuit court overruled the
motions, finding Clark guilty of assault. Clark appealed to
the Court of Appeals.
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
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behavior did not constitute an overt act in furtherance of an
assault. Clark v. Commonwealth, Record No. 2656-07-2 (Dec. 23,
2008). Upon rehearing en banc, however, the Court of Appeals
affirmed the circuit court’s judgment. The Court of Appeals
stated that Clark’s behavior, when viewed in its totality,
“constituted an overt act which was committed with the
requisite intent and put Coleman in reasonable fear or
apprehension of bodily harm,” and held that the evidence was
therefore sufficient to find Clark guilty of assault. Clark,
54 Va. App. at 134-35 & n.5, 676 S.E.2d at 339-40 & n.5.
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
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walking towards the school bus do not support the holding that
Clark engaged in an overt act for purposes of an assault. 2
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 Code § 8.01-680). “If
2
Clark has not challenged whether the evidence
sufficiently proved that she created a “reasonable fear or
apprehension in the victim.” Carter v. Commonwealth, 269 Va.
5
there is evidence to support the convictions, the reviewing
court is not permitted to substitute its own judgment, even if
its opinion might differ from the conclusions reached by the
finder of fact at the trial.” Commonwealth v. Jenkins, 255 Va.
516, 520, 499 S.E.2d 263, 265 (1998).
The penalty for assault is set forth in Code § 18.2-57,
but because the elements of assault are not statutorily
defined, this Court must apply the common law definition. “At
common law, assault was both a crime and a tort.” Carter v.
Commonwealth, 269 Va. 44, 46, 606 S.E.2d 839, 841 (2005).
Specifically,
[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
44, 47, 606 S.E.2d 839, 841 (2005). Therefore, this Court will
not consider this issue on appeal. Rule 5:17; Rule 5:25.
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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. Regarding the common law
crime of assault, this Court has stated that because assault
requires an overt act, words alone are never sufficient to
constitute an assault. Harper v. Commonwealth, 196 Va. 723,
733, 85 S.E.2d 249, 255 (1955); see also Merritt v.
Commonwealth, 164 Va. 653, 658, 180 S.E. 395, 397 (1935).
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.
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The holding by the Court of Appeals in Bennett is not
applicable to the factual circumstances in the instant case and
it does not deal with the alternative recognized in Carter,
that an assault may be proven by a defendant’s actions that
were intended to place the victim in fear of bodily harm and
which created a well-founded fear in the victim. As stated by
the Court of Appeals in its opinion in this case, in Bennett
the Court of Appeals made no distinction between the criminal
and tort law definitions of assault and it 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.’” Clark, 54 Va. App. at 131, 676 S.E.2d at 338
(quoting Bennett, 35 Va. App. at 449, 546 S.E.2d at 212)
(internal quotation marks omitted). The Court of Appeals also
noted in its opinion in this case that the evidence in the
Bennett case proved that the threat Bennett made was a
conditional one, and that 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 threatened.
Id. at 131-32, 676 S.E.2d at 338. We agree with the Court of
Appeals that the circumstances in this case are legally and
factually distinguishable from those present in the Bennett
case.
8
The relevant question in this case is whether Clark
committed an overt act with the intent to place Coleman in fear
or apprehension of bodily harm. See Carter, 269 Va. at 46-47,
606 S.E.2d at 841. Words and prior conduct are highly
relevant in shedding light on intent and the context within
which certain actions transpired. A perpetrator’s intent may
be inferred from the nature of the overt act and the
surrounding circumstances.
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.
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Viewing Clark’s words and actions in the context of her
earlier threat to Coleman, Clark’s approach to the door of
Coleman’s bus on the afternoon of May 8 was an act sufficient
to create a reasonable apprehension on the part of Coleman that
she was about to be attacked. The verbal threat made by Clark
at that time was not an assault, but it is evidence of Clark’s
intent, by approaching her bus, to place Coleman in fear of
bodily harm.
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.
10