COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia
JOHN HENRY AGEE
OPINION BY
v. Record No. 1710-01-2 JUDGE ROSEMARIE ANNUNZIATA
MARCH 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
Vanessa E. Hicks, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
John Henry Agee, appellant, contends on appeal that the
trial court, in a bench trial, erred in finding the evidence
sufficient beyond a reasonable doubt to convict him of assault
on a law enforcement officer in violation of Code § 18.2-57(C).
For the reasons that follow, we affirm the decision of the trial
court.
Background
When the sufficiency of the evidence is challenged on
appeal, "[w]e view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible from the evidence." Cooper v. Commonwealth, 31
Va. App. 643, 646, 525 S.E.2d 72, 73 (2000). So viewed, the
evidence establishes that on October 27, 2000, Agee was involved
in several verbal exchanges with James Herndon on Cherry Street
in Charlottesville. During one of the encounters, Agee had his
hands in the waistband of his pants and threatened to shoot
Herndon.
Officer David Heyden, of the Charlottesville Police,
responded to two or three calls from Cherry Street on the
evening in question. Each time Officer Heyden and several other
officers arrived on the scene in response to the calls, they
were unable to locate Agee. On the last occasion, they
dispersed through the neighborhood to look for Agee. Officer
Heyden discovered Agee lying beneath a bush at the side of a
house. He shined his flashlight on Agee and asked him to come
out from under the bushes with his hands up. 1
Agee crawled from the bushes and fled, running towards the
rear of the house, and Heyden gave chase. Heyden rounded the
corner of the building and saw Agee kneel on one knee. The
officer recognized Agee's stance as one used when preparing to
fire a weapon. As Heyden "took cover," he slipped in the mud
and fell on his back. At that moment, he heard "the racking of
a weapon - a semi-automatic weapon of a slide." Heyden is
1
Agee stipulated at trial that he knew Officer Heyden was a
law enforcement officer.
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familiar with semi-automatic weapons and the sounds made when
the weapon is "racked." However, he was unable to see the
firearm. When he heard the sound of a gun being "racked,"
Heyden was "in fear of [his] life" and he took immediate cover
to wait for other officers to arrive.
After Agee was apprehended by other officers, a search of
his person, the area in which he was apprehended, and the area
of the pursuit, yielded no weapon. He testified at trial that
he did not have a firearm during his confrontation with Officer
Heyden and denied kneeling on the ground during the chase. He
also testified that he was not under a bush when Officer Heyden
found him and that he never threatened to shoot anyone that
evening.
Analysis
On appeal, the judgment of a trial court sitting without a
jury is afforded the same weight as a jury verdict, King v.
Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1975), and
we will "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)). We view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Cooper, 31 Va. App. at
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646, 525 S.E.2d at 73. Moreover, "the 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) states: "any person [who] commits an
assault or an assault and battery against . . . a law
enforcement officer . . . shall be guilty of a Class 6 felony."
As defined by common law, an assault is
"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; . . . accompanied with
circumstances denoting an intention coupled
with a present ability, of using actual
violence against the person of another."
Bennett v. Commonwealth, 35 Va. App. 442, 449, 546 S.E.2d 209,
212 (2001) (quoting Harper v. Commonwealth, 196 Va. 723, 733, 85
S.E.2d 249, 255 (1955) (citation omitted)). Furthermore, "there
must be an overt act or an attempt, or the unequivocal
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appearance of an attempt, with force or violence, to do physical
injury to the person of another." Merritt v. Commonwealth, 164
Va. 653, 658, 180 S.E. 395, 397 (1935).
Agee contends the assault elements were not established
because Officer Heyden never saw a weapon and no weapon was
recovered. In the absence of a weapon, Agee argues he did not
have the "present ability" to use violence against the officer.
The circumstantial evidence, however, establishes that Agee was
carrying a weapon and, therefore, had the "present ability" to
harm Officer Heyden.
"Circumstantial evidence is sufficient to prove guilt
beyond a reasonable doubt so long as 'all necessary
circumstances proved . . . exclude every reasonable hypothesis
of innocence.'" McNair v. Commonwealth, 31 Va. App. 76, 86, 521
S.E.2d 303, 308 (1999) (quoting Bishop v. Commonwealth, 227 Va.
164, 169, 313 S.E.2d 390, 393 (1984)). "Circumstantial evidence
is as competent and is entitled to as much weight as direct
evidence, provided it is sufficiently convincing to exclude
every reasonable hypothesis except that of guilt." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
However, "the Commonwealth need only exclude reasonable
hypotheses that flow from the evidence, not those that spring
from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
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In the case at bar, the chase occurred on a rainy evening,
after midnight. As Heyden rounded the corner of the building,
Agee assumed a stance the officer knew to be used by persons
preparing to fire a weapon. The position in which Officer
Heyden observed Agee was demonstrated to the court. Officer
Heyden heard a "racking" sound made by a semi-automatic weapon,
a sound with which he was familiar. Officer Heyden retreated to
cover and radioed the other officers that Agee was armed. From
this evidence, the trial court could reasonably infer that Agee
made an "attempt" to do bodily harm to the officer and that he
possessed a gun, giving him the "present ability" to do so.
"Inferences . . . are elemental ingredients of the fact finding
process." Morton v. Commonwealth, 13 Va. App. 6, 9, 408 S.E.2d
583, 584 (1991). "An inference . . . permits a finder of fact
to conclude the existence of one fact from the proof of one or
more other facts." Id.
Agee further contends that no overt act was proven and
relies on our decision in Bennett, 35 Va. App. 442, 546 S.E.2d
209, to support his argument. In Bennett, the defendant
threatened the officers verbally. The officers testified that
Bennett was not armed and made no threatening gestures with his
hands. The officers further saw no weapons inside his house.
Based on the officers' testimony, there was no overt act or
appearance of an attempt to physically harm them. Id. at 450,
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546 S.E.2d at 212. Conversely, in this case, Agee made a
threatening gesture, kneeling on one knee in a stance Officer
Heyden recognized as one used in firing a weapon, and had a gun
in his possession as established by the sounds of a
semi-automatic weapon "racking."
We find all the elements of the offense were proven and,
accordingly, affirm the decision of the trial court.
Affirmed.
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