PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Compton, S.J.
ROY WYLIE ZIMMERMAN OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 022359 September 12, 2003
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The sole question in this criminal appeal is whether the
evidence was sufficient to support a conviction for assault upon
a police officer.
Defendant Roy Wylie Zimmerman was indicted for feloniously
assaulting a law-enforcement officer, knowing or having reason
to know that he was engaged in the performance of his public
duties, in violation of Code § 18.2-57(C), and for operating a
motor vehicle as an habitual offender, second or subsequent
offense. The accused was tried and convicted of both charges
during a bench trial in the Circuit Court of Augusta County.
Subsequently, the court sentenced defendant to incarceration on
each charge.
The Court of Appeals of Virginia, in an unpublished order,
denied defendant's petition for appeal in which he challenged
only the assault conviction. Zimmerman v. Commonwealth, Record
No. 2908-01-3 (September 16, 2002). The court determined the
Commonwealth's evidence sufficiently established that defendant
was guilty of assault, and that the officer was engaged in the
performance of his public duties at the time of the offense.
We awarded the defendant this appeal, limited to the
question whether his guilt of assault has been sufficiently
proved.
According to settled principles of appellate review, we
shall consider "the evidence in the light most favorable to the
Commonwealth, the prevailing party in the trial court, and will
accord the Commonwealth the benefit of all reasonable inferences
fairly deducible from that evidence." Commonwealth v. Hill, 264
Va. 541, 543, 570 S.E.2d 805, 806 (2002).
Viewed in this manner, the following facts were established
by the evidence. On September 11, 2000 during daylight hours,
John M. Wieger, an Augusta County Deputy Sheriff, had "just
marked off duty" and had parked his police vehicle at the foot
of his private driveway "a couple of feet off . . . Route 657,"
a public highway in the county. Wieger, "dressed in a duty
uniform," but without a hat, walked across the two-lane road to
"check" his mail at a mailbox adjacent to the highway.
As he was "checking" his mail, the officer heard the "roar"
of a vehicle's engine approaching him from his "right side." He
"looked up" and "observed a dark-colored vehicle passing . . . a
beige pickup truck" illegally across "dual yellow lines" on a
nearby curve in the highway.
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Wieger "went out into the middle of the road then and tried
to flag [the vehicle] down," waving his arms and trying "to get
it stopped." He testified that "it was coming at me, and the
engine started to gun and revved its engine, and it was coming
at me at a high rate of speed." At that point, feeling that his
"safety was more paramount than trying to get this vehicle
stopped," the officer "went off to the shoulder of the road, by
the mailbox."
As the speeding vehicle passed within five feet of the
officer, he observed a male (later identified as the defendant)
driving it, accompanied by a female passenger. The officer in
his patrol car pursued defendant's vehicle and, after losing
sight of it for several minutes, finally "got the vehicle
stopped" some distance away from the scene of the incident. At
that time, the female was operating the vehicle and the
defendant was the passenger.
An eyewitness, the operator of the pickup truck, testified
that "after [the defendant] passed me, I saw the Deputy come out
in . . . the road and tried to flag him down, but he went on
around him."
There is no dispute regarding the law applicable here.
Code § 18.2-57(C) provides, as pertinent, that "if any person
commits an assault" against another knowing or having reason to
know that such other person is a law-enforcement officer engaged
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in the performance of his public duties, the accused shall be
guilty of a Class 6 felony.
In this jurisdiction, we adhere to the common law
definition of assault, there having been no statutory change to
the crime. In order to constitute an assault, there must be an
attempt 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; it is any act
accompanied with circumstances denoting an intention, coupled
with a present ability, to use actual violence against another
person. Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d
249, 255 (1955). See Commonwealth v. Vaughn, 263 Va. 31, 35,
557 S.E.2d 220, 222 (2002) ("intent to put another in fear of
bodily harm with a threat to use bodily force . . . is an
assault").
An assault requires an overt act or an attempt, or the
unequivocal appearance of an attempt, with force and violence,
to do physical injury to the person of another. Merritt v.
Commonwealth, 164 Va. 653, 658, 180 S.E. 395, 397 (1935). There
is no requirement that a victim be physically touched to be
assaulted. Harper, 196 Va. at 733, 85 S.E.2d at 255 (assault
occurs "though [the victim] be not struck").
On appeal, the defendant says the evidence merely shows
that he "drove his car past an off-duty deputy sheriff who was
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trying to get him to stop by means of waving his arms." The
defendant's sole contention is: "There was no evidence that
[he] swerved toward the police officer or did anything to try to
hit the police officer. In fact, the testimony of . . . the
driver of the pickup truck following the defendant, indicates
that the car was trying to avoid the deputy in that he says, 'he
went on around him.'"
Continuing, the defendant argues, "It is clear that [he]
did not intend to stop for the police officer, but there is no
evidence that he had any intent to do bodily harm to the
officer. There was no overt act by the defendant to show an
attempt to do physical injury to Mr. Wieger."
We do not agree with the defendant. His contention ignores
the evidence when it is viewed in the light most favorable to
the Commonwealth, and when the Commonwealth is accorded the
benefit of all reasonable inferences flowing from that evidence.
The police officer was standing in the center of the
highway in plain view of approaching motorists waving his arms.
The defendant, an habitual offender, operated his vehicle
unlawfully past another vehicle in a no-passing zone at a high
rate of speed. As the officer was standing there, the defendant
gunned and revved the vehicle's engine, increasing its speed at
a point so near the officer that he was put in fear of his
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safety if he remained in the highway. Manifestly, the defendant
attempted to strike the officer and do bodily harm to him.
The facts clearly establish a malicious attempt, with force
and violence, to harm the officer by means calculated to produce
that end if carried into execution. The defendant committed the
required overt act (aiming and gunning a speeding vehicle at the
officer) in the course of his effort to escape apprehension as a
repeat habitual offender.
We are not persuaded by Bennett v. Commonwealth, 35 Va.
App. 442, 546 S.E.2d 209 (2001), relied upon by the defendant.
There, the Court of Appeals ruled the evidence was insufficient
to support a conviction for assaulting two police officers.
During a confrontation within a private residence, the accused,
shouting profanities at the officers, was not armed and made no
threatening gestures.
The appellate court determined that, although the defendant
"stood within inches of the officers, he made no overt act or
attempt to physically harm either officer." Id. at 449, 546
S.E.2d at 212. Here, in contrast, defendant committed the
required overt act.
Consequently, we hold the Court of Appeals in the present
case did not err and its judgment confirming the conviction will
be
Affirmed.
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