COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Humphreys
Argued at Richmond, Virginia
STUART DALE BENNETT
OPINION BY
v. Record No. 0211-00-2 JUDGE ROSEMARIE ANNUNZIATA
MAY 15, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Thomas V. Warren, Judge
Neil Kuchinsky (Kuchinsky & Yeamans, P.C., on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Stuart Dale Bennett, appellant, was convicted in the
Dinwiddie County Circuit Court on January 10, 2000 on two counts
of felonious assault against a law enforcement officer, in
violation of Code § 18.2-57(c), and one count of felony attempt
to escape, in violation of Code §§ 18.2-479 and 18.2-26. The
jury recommended, and the court imposed, a sentence of six
months in jail for each assault count and a $1 fine for the
attempted escape count. Bennett represented himself during the
trial and was twice held in contempt for using inappropriate
language. The court imposed a $50 fine for the first contempt
charge and sentenced Bennett to five days in jail on the second
charge.
On appeal, Bennett contends: (1) his daughter, a minor,
had no authority to authorize a warrantless entry into his home;
(2) he had a legal right to threaten the use of force when the
deputies refused to leave his home; (3) the evidence was
insufficient, as a matter of law, to support the assault
convictions; (4) he could not be convicted of attempt to escape
absent evidence that he actually knew he was under arrest; (5)
the jury instructions pertaining to the assault offenses were
erroneous because they failed to accurately state the law as it
relates to a verbal assault and they failed to advise the jurors
of his right to repel trespassers; (6) the court abused its
discretion in finding him in contempt; and (7) the court erred
by not offering him the right to obtain counsel before
convicting him of the contempt charges.
For the following reasons, we affirm in part and reverse in
part.
I.
BACKGROUND
On appeal, we review the evidence and all reasonable
inferences that may be drawn from such evidence, in the light
most favorable to the Commonwealth, the party prevailing below.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). Around midnight on May 2, 1999, Bennett approached
Dinwiddie County Sheriff's Deputy Timothy Martin in the parking
lot of a restaurant and asked him to investigate an incident
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involving juveniles who had created a disturbance by shouting
obscenities and making threats while driving by Bennett's home.
In the course of investigating Bennett's complaint, Deputy
Martin learned that Bennett had chased the juveniles, driving
his vehicle at a high rate of speed, and that he had brandished
a firearm.
Approximately one hour after receiving Bennett's complaint,
Deputy Martin, accompanied by Deputy Robert Poarch, proceeded to
Bennett's home and knocked on the door. Bennett's
fourteen-year-old daughter, Ann, answered the door. When the
officers asked for Bennett, Ann "stepped to the side and pointed
back to the kitchen." The deputies "went in and stood between
the living room and the kitchen doorway."
Bennett was on the telephone when the officers entered the
home. When Bennett ended the call, he told the deputies "to get
out of the house." The officers attempted to explain that they
were there to investigate "a criminal complaint." Bennett
approached the deputies, from approximately twenty feet away,
until he was standing within inches of the two deputies.
Bennett continued to order the deputies out of the house,
shouting profanities and stating that "if [the deputies] didn't
leave, it would be an 'F'ing blood bath." Bennett then called
the state police to have them come and remove the deputies.
Both deputies testified that they felt "concerned" and
"threatened" by Bennett's conduct and requested that he "back
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off." Bennett was not armed, and the deputies did not see any
weapons inside the house. Although Bennett gestured with his
hands while speaking to the deputies, he never raised his hands
to them or physically threatened them. Although Bennett was a
suspect in the brandishing allegation made by the juveniles, the
deputies conceded they had no reason to arrest him when they
went to his home; they were merely "investigating" the
brandishing allegation.
After being in Bennett's home for approximately ten
minutes, the deputies departed. When the officers were outside,
preparing to leave, they observed Bennett and his son exit the
back door of Bennett's home, remove a rifle case and a pistol
bag from Bennett's car and re-enter the house.
Two days later, Bennett voluntarily arrived at the
sheriff's office to have two felony assault arrest warrants
served on him. While Deputy Poarch was in the process of
filling out a fingerprint card for Bennett, Bennett became upset
and started to leave. Bennett ignored Deputy Poarch's request
to stop, and several officers restrained Bennett and handcuffed
him. When asked whether Bennett was under arrest at the time he
tried to leave, Deputy Poarch responded, "[y]es sir, I had
served the warrant for him, so he was now under arrest."
Bennett represented himself at trial. The judge cautioned
Bennett during the trial about his use of inappropriate language
and profanity. The judge warned Bennett that the use of
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profanity or vulgar language, such as "fuck," "crap" and "pissed
off," was prohibited and that Bennett would be held in contempt
of court if he used such language again.
Bennett acknowledged that he "understood one hundred
percent." Within seconds, however, Bennett used the word "crap"
during his testimony and the court found him in contempt.
During his closing argument, Bennett used the words, "hell, no,"
and the court found him in contempt a second time.
At the end of the trial, the court fined Bennett $50 for
the first contempt charge and sentenced him to five days in jail
for the second charge.
II.
ANALYSIS
A.
Insufficiency of Evidence to Support Assault Convictions
Bennett contends the evidence produced by the Commonwealth
was insufficient, as a matter of law, to support the convictions
for assaulting the two officers. The Commonwealth contends that
because Bennett failed to preserve this issue for appeal at the
trial level, his claim is barred under Rule 5A:18. 1 Bennett
acknowledges he did not preserve the issue but asks us to invoke
1
Rule 5A:18 provides:
No ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling
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the ends of justice exception to Rule 5A:18 in order to consider
the merits of his claim.
"Under Rule 5A:18, we do not consider trial court error as
a basis for reversal where no timely objection was made except
in extraordinary circumstances to attain the ends of justice."
Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269,
272 (1997). "In order to show that a miscarriage of justice has
occurred, thereby invoking the ends of justice exception, the
appellant must demonstrate that he or she was convicted for
conduct that was not a criminal offense or the record must
affirmatively prove that an element of the offense did not
occur." Id. at 221-22, 487 S.E.2d at 273. Because we find that
Bennett was convicted for conduct that was not criminal, we
invoke the ends of justice exception to Rule 5A:18 and proceed
to the merits of Bennett's claim.
"Assault" is defined at common law as:
"[A]n 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 levelling a gun at another
within a distance from which, supposing it
to be loaded, the contents might injure, or
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
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any similar act accompanied with
circumstances denoting an intention coupled
with a present ability, of using actual
violence against the person of another."
Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255
(1955) (citation omitted); see also Jones v. Commonwealth, 184
Va. 679, 681, 36 S.E.2d 571, 572 (1946); Merritt v.
Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398 (1935).
Words alone, however, do not constitute an assault. Harper, 196
Va. at 733, 85 S.E.2d at 255. 2 "'In order to constitute an
assault there must be 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, 164
Va. at 658, 180 S.E. at 397 (citation omitted); see also Harper,
196 Va. at 733, 85 S.E.2d at 255; Burgess v. Commonwealth, 136
Va. 697, 708, 118 S.E. 273, 276 (1923); Am. Jur. Assault § 24
(2000).
In this case, both officers testified that Bennett was not
armed and made no threatening gestures with his hands. Although
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.
2
The Commonwealth cites Epps v. Commonwealth, 28 Va. App.
58, 502 S.E.2d 140 (1998), for the proposition that words alone
may be enough to constitute an assault. The Epps opinion was
withdrawn following a hearing en banc and is not binding on this
Court. Epps v. Commonwealth, 29 Va. App. 169, 510 S.E.2d 279
(1999) (en banc).
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Therefore, we find the evidence was insufficient, as a matter of
law, to prove Bennett assaulted the two officers. Accordingly,
we reverse the two assault convictions and dismiss the
indictments. 3
B.
Sufficiency of Evidence to Support Attempted Escape Conviction
Bennett contends the evidence was insufficient, as a matter
of law, to support a conviction for attempted escape, in
violation of Code §§ 18.2-479 and 18.2-26. The Commonwealth
contends that because Bennett failed to preserve this issue for
appeal at the trial level, his claim is barred under Rule 5A:18.
We review the record to determine whether, as Bennett claims, a
miscarriage of justice has occurred, warranting invocation of
the ends of justice exception to Rule 5A:18. Redman, 25 Va.
App. at 218, 487 S.E.2d at 271.
Code § 18.2-479(B) provides:
If any person lawfully confined in jail or
lawfully in the custody of any court or
officer thereof or of any law-enforcement
officer on a charge or conviction of a
felony escapes, otherwise than by force or
violence or by setting fire to the jail, he
shall be guilty of a Class 6 felony.
3
Because we find the evidence was insufficient, as a matter
of law, to support the assault convictions, we need not address
Bennett's claim that the jury instructions were erroneous
because they failed to include the defense of use of force in
repelling a trespasser.
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Attempted crimes are specific intent crimes; therefore, the
Commonwealth was required to prove: (1) Bennett intended to
escape from custody and (2) he engaged in some act in
furtherance of escaping. Brown v. Commonwealth, 33 Va. App.
296, 311, 533 S.E.2d 4, 11 (2000).
Bennett contends the Commonwealth failed to prove he knew
he was in custody and not free to leave at the time he attempted
to exit the police station and, therefore, the Commonwealth
failed to prove he intended to escape. Although Bennett arrived
at the police station voluntarily, he came there for the purpose
of having two felony arrest warrants served on him. Deputy
Poarch testified that by the time Bennett attempted to leave, he
had already served the warrants on Bennett. In addition, when
Bennett began to leave, Poarch ordered Bennett to stop. Bennett
ignored Poarch's request to stop, and Bennett had to be
physically restrained. From this evidence, the jury could have
found that Bennett knew he was in custody and not free to leave.
Therefore, we cannot find that Bennett "was convicted for
conduct that was not a criminal offense" or that the record
"affirmatively prove[s] that an element of the offense did not
occur." Redman, 25 Va. App. at 222, 487 S.E.2d at 273.
Accordingly, we find the sufficiency issue is barred under Rule
5A:18, and we affirm Bennett's conviction for attempted escape.
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C.
Contempt Convictions
1. Sufficiency of the Evidence
Bennett also claims the evidence was insufficient to
support the two contempt convictions. In response to the
Commonwealth's contention that this issue also is barred under
Rule 5A:18, we review the record to determine whether the
exception to Rule 5A:18 applies, as Bennett claims.
A trial court has the power to punish summarily for
contempt under Code § 18.2-456 for:
(1) Misbehavior in the presence of the
court, or so near thereto as to obstruct or
interrupt the administration of justice;
* * * * * * *
(3) Vile, contemptuous or insulting language
addressed to or published of a judge for or
in respect of any act or proceeding had, or
to be had, in such court, or like language
used in his presence and intended for his
hearing for or in respect of such act or
proceeding;
* * * * * * *
(5) Disobedience or resistance of an officer
of the court, juror, witness or other person
to any lawful process, judgment, decree or
order of the court.
In this case, the court ordered Bennett to refrain from
using profane and inappropriate "gutter" language. Bennett then
proceeded to use such language on two separate occasions during
the trial proceedings. Because Bennett disobeyed an order of
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the court and his misconduct interrupted the court proceedings,
we find that a miscarriage of justice did not occur with respect
to the court's summarily punishing Bennett for contempt. Code
§ 18.2-456. We, therefore, find this issue is barred under Rule
5A:18.
2. Right to an Attorney
Although Bennett alleged in his questions presented that he
should have been offered the option of obtaining counsel before
being convicted on the contempt charges, he did not address this
argument in his brief. Therefore, we will not consider the
issue. Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d
237, 239 (1992) ("Statements unsupported by argument, authority,
or citations to the record do not merit appellate
consideration.").
Accordingly, we affirm Bennett's two contempt convictions.
Affirmed in part,
reversed and
dismissed in part.
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