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
1
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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