Tuesday 9th
February, 1999.
Mark Evans Epps, Appellant,
against Record No. 0665-97-2
Circuit Court No. CR-97-416-00-M
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Bray, Annunziata, Bumgardner, Lemons and Senior Judge Overton *
Anthony G.
Spencer (Morchower, Luxton & Whaley, on
briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
A divided panel of this Court affirmed the judgment of the
trial court. See Epps v. Commonwealth, 28 Va. App. 58, 502 S.E.2d 140
(1998). We stayed the mandate of that decision and granted rehearing
en banc.
Upon rehearing en banc, the judgment of the trial court is
affirmed without opinion by an evenly divided Court. Accordingly, the
opinion previously rendered by a panel of this Court on July 21, 1998
is withdrawn and the mandate entered on that date is vacated. Chief
Judge Fitzpatrick, Judges Benton, Coleman, Bray and Annunziata voted
to reverse the judgment of the trial court. Judges Willis, Elder,
*
Judge Overton participated in the hearing and decision of this
case prior to the effective date of his retirement on January 31, 1999
and thereafter by his designation as senior judge pursuant to Code
§ 17.1-401, recodifying Code § 17-116.01:1.
Overton, Bumgardner and Lemons voted to affirm said judgment.
This order shall be published and certified to the trial
court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
Tuesday 1st
September, 1998.
Mark Evans Epps, Appellant,
against Record No. 0665-97-2
Circuit Court No. CR-97-416-00-M
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On August 5, 1998 came the appellant, by counsel, and filed
a petition praying that the Court set aside the judgment rendered
herein on July 21, 1998, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on July 21, 1998 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellant shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia
MARK EVANS EPPS
OPINION BY
v. Record No. 0665-97-2 JUDGE RUDOLPH BUMGARDNER, III
JULY 21, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Buford M. Parsons, Judge
Anthony G. Spencer (Morchower, Luxton &
Whaley, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
The defendant was convicted of assault by threat of his
former wife, Paulette H. Epps. He was sentenced to sixty days in
jail suspended for three years. The defendant contends that the
evidence is insufficient to support the conviction because the
Commonwealth did not prove that he committed any act denoting an
intention of presently using actual violence. For the following
reasons, we affirm the conviction.
The defendant arranged to meet his former wife at a public
place so that he could return their children after visitation.
The children were six and eight years old at the time. The
defendant was late, and when he did arrive, a beer bottle fell
out of his car as he exited it. His wife berated him for having
alcohol in the car with the children. He responded with repeated
vile cursing of her. She stated again that he did not have to
drink and that she was going to take the children and leave. The
defendant continued to curse her and, as the victim described it,
"he was all up in my face." At that point the defendant
threatened to kill her. Douglas Hoover, the victim's fiancé who
was riding with her, got out of the car and stepped between the
two to prevent any violence. He told her to get the children out
of the defendant's car and put them in her car. The victim was
shaking, crying, and testified that she did think he was going to
kill her.
The defendant argues that he committed no act, such as
striking her with a weapon or raising his arm in a menacing
manner, that was associated with the verbal threat. Citing
Harper v. Commonwealth, 196 Va. 723, 85 S.E.2d 249 (1955), he
argues that some act must denote a present intent to use actual
force and that words alone can never amount to an assault.
"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; 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 any similar act accompanied with
circumstances denoting an intention coupled
with a present ability, of using actual
violence against the person of another. But
no words whatever, be they ever so provoking,
can amount to an assault; * * *". (Italics
supplied).
Id. at 733, 85 S.E.2d at 255 (quoting Davis, Criminal Law at
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353-54).
Harper was charged with violating the maiming statute, Code
§ 18.2-51 (formerly § 18-70). A jury convicted him of assault
and battery, and he appealed the conviction arguing that the
trial court had instructed erroneously. The Court ruled that the
instruction requested by the defense was not proper because it
would have permitted the defendant to strike another with a
deadly weapon when the provocation was only words. The Court
stated: "[I]n order to justify an accused in striking another
with a deadly weapon, as the accused admits he did in this case,
a threatening attitude alone affords no justification." Harper,
196 Va. at 733, 85 S.E.2d at 255. The Court cited two cases and
then made the quotation from Davis, supra.
At common law a criminal assault was an attempt to commit a
battery. As with any attempt, the law required an intention to
commit the act and a direct, ineffectual act toward its
commission. See Barrett v. Commonwealth, 210 Va. 153, 156, 169
S.E.2d 449, 451 (1969). The criminal definition, an attempted
battery, requires that at the time of the act there be a present
ability to complete the threatened battery. The defendant must
have the specific intent to commit the act and take some direct
and ineffectual action toward completion of the crime.
The common law tort definition of assault differed from the
criminal definition. The tort of assault was an intentional
offer to touch the person of another that created in the mind of
the victim a reasonable apprehension of an immediate battery.
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See Charles E. Friend, Personal Injury Law in Virginia § 6.3, at
214 (1990); W. Page Keeton et al., Keeton & Prosser on the Law of
Torts § 10 (5th ed. 1984). Present ability is not required for
the tort of assault. It requires only that the plaintiff
reasonably believe that the defendant had such ability. See
Friend, supra, § 6.3, at 214 n.4. "Any act of such a nature as
to excite an apprehension of a battery may constitute an
assault." Prosser, supra, § 10, at 43. "[T]he apprehension must
be one which would normally be aroused in the mind of a
reasonable person." Id. at 44. There must be an apparent
ability and opportunity to carry out the threat immediately.
There is no assault where the defendant is too far away to make
contact. See id.
The tort definition of assault has long been incorporated
into the definition of the crime of assault. See Roger D. Groot,
Criminal Offenses and Defenses in Virginia 28 (3d ed. 1994);
Rollin M. Perkins & Ronald N. Boyce, Criminal Law § 2, at 167 (3d
ed. 1982). Burgess v. Commonwealth, 136 Va. 697, 706-07, 118 S.E.
273, 275 (1923), held that criminal assault is committed when
(1) the defendant puts the victim in well-founded fear or
apprehension of bodily harm though the defendant has in fact no
intention to strike the victim and the victim is not in fact put
in actual peril; and (2) the act is done with the intent to put
the victim in fear or apprehension of bodily harm and the victim
is in fact put in well-founded fear or apprehension of bodily
harm. Burgess specifically rejected the argument that the victim
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must be put in actual peril or that the act must be done with the
intent to do bodily harm to the victim. "`The better rule is
that the defendant's intention" (to do actual bodily harm) `does
not enter into the case, for if reasonable fear of bodily harm
has been caused by the conduct of the defendant, this is an
assault, even though he disclaims any intention to do wrong.'"
Id. at 707, 118 S.E. at 276 (quoting 5 C.J. (5), 3, at 618).
The definition from Davis, Criminal Law, that the Court
quoted with approval in Harper traces to and is nearly a verbatim
quotation from 1 East, Pleas of the Crown 406 (1803). Jones v.
Commonwealth, 184 Va. 679, 36 S.E.2d 571 (1946), cites East as
well as 3 Blackstone, Commentaries 120, as authority for its
definition of criminal assault. Both of these venerable
authorities, East and Blackstone, have been suggested as the
genesis of the expansion of the criminal definition to
incorporate the tort definition. See Perkins, supra, § 2, at
165.
The defendant's argument that he is not guilty of assault
unless he committed some act denoting an intention of presently
using actual violence is correct under the original common law
definition of criminal assault. We will assume without deciding
that getting up in the victim's face to the point that someone
intervened between the parties and threatening to kill the victim
does not satisfy the common law criminal definition of assault.
However, those facts do satisfy the tort definition of assault.
The evidence is abundant that the defendant put the victim in
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fear of bodily harm, that he had the immediate ability to do
harm, and that the victim's apprehension of bodily harm was
reasonable. The trial court stated:
He threatened to do her bodily harm, and that
under the circumstances in which he did that,
he did it, he had the ability to carry out
that threat and he had, it's a case that he
had present ability of using actual violence
against the person, though he did not use the
actual violence.
The defendant's words and acts satisfy the common law tort
definition of assault that has long been a part of the present
definition of criminal assault. Accordingly, we affirm the
conviction.
Affirmed.
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Benton, J., dissenting.
Mark Evans Epps was convicted of violating Code § 18.2-57.2
("commit[ing] an assault and battery against a family or
household member"). The male friend of Epps' former wife
testified that Epps and Epps' former wife were standing "five
feet apart" and "were just screaming and hollering at each
other." The male friend moved between them as Epps and his
former wife screamed at each other. No evidence proved that Epps
touched his former wife. To convict an accused of an assault and
battery the evidence necessarily must prove beyond a reasonable
doubt an unlawful touching. See Jones v. Commonwealth, 184 Va.
679, 682, 36 S.E.2d 571, 572 (1946); Gnadt v. Commonwealth, 27
Va. App. 148, 151, 497 S.E.2d 887, 888 (1998). However, Epps was
convicted of assault and battery based solely on the words he
spoke.
Despite the lack of evidence of a touching, the only issue
raised on this appeal is whether in proving an assault the
evidence proved beyond a reasonable doubt an act denoting an
intention of presently using actual violence. The Commonwealth
argues that Epps' verbal threats proved the assault.
Although the offense of "assault" is regulated by statute,
see Code § 18.2-57, it continues to be defined by common law.
The common law definition of criminal assault is well established
in Virginia.
"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
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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 any similar act accompanied with
circumstances denoting an intention coupled
with a present ability, of using actual
violence against the person of another. But
no words whatever, be they ever so provoking,
can amount to an assault; . . .". (Italics
supplied).
Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255
(1955) (citation omitted) (second emphasis added). See e.g.,
Jones, 184 Va. at 681-82, 36 S.E.2d at 572; Merritt v.
Commonwealth, 164 Va. 653, 658, 180 S.E. 395, 397 (1935); Wood v.
Commonwealth, 149 Va. 401, 404, 140 S.E. 114, 115 (1927); Boone
v. Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250, 251
(1992); Johnson v. Commonwealth, 13 Va. App. 515, 517, 412 S.E.2d
731, 732 (1992).
The majority accepts defendant's argument that, when relying
solely on the common law criminal definition of assault, "there
is no assault unless an accused committed some act denoting an
intention of presently using actual violence." However, the
majority holds that the "defendant's words and acts satisfy the
common law tort definition of assault that has long been a part
of the definition of the present definition of criminal assault."
In affirming the conviction, the majority reasons that the
common law crime of assault has merged with the civil tort of
assault. See Roger D. Groot, Criminal Offenses and Defenses in
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Virginia 27-28 (3d ed. 1994). 1 But see Charles E. Friend,
Personal Injury Law in Virginia § 6.3, at 208-09 (1990) ("[T]he
criminal action for assault and the tort action for assault
involve different principles, purposes, and sanctions. The two
actions should not be confused, and rules applicable to one
should not be assumed to be applicable to the other.").
The principle is well established that the criminal offense
of assault requires proof beyond a reasonable doubt of some overt
physical act which proffers imminent unwanted force. See Burgess
v. Commonwealth, 136 Va. 697, 708, 118 S.E. 273, 276 (1923)
(assault requires an "overt act" which "puts the party assailed
1
Groot states, in pertinent part, the following:
At common law a criminal assault was an
attempted battery. It made no difference
whether the victim was put in fear or was
even aware of the assault. . . . At the same
time a civil assault was committed by putting
the victim in apprehension of a battery;
civil assault depended upon the apprehension
of the victim, but did not require an actual
overt attempt to batter.
These two forms of assault long ago
merged so that a criminal assault is "any
attempt or offer with force or violence to do
corporal hurt to another." An assault in the
ancient criminal form, or attempted battery,
requires proof that the accused intended a
battery and performed some direct,
ineffectual act towards its commission. An
assault in the ancient civil form, an offer
to batter, requires proof of a threat, actual
or implied, to batter and an apparent present
ability to do so. Actual ability to carry
out the threat is not required because this
form of assault turns on the victim's
apprehension of harm; apparent ability is
sufficient to create apprehension.
- 12 -
in well-founded fear of bodily harm"); Harper, 196 Va. at 725, 85
S.E.2d at 255; Jones, 184 Va. at 681-82, 36 S.E.2d at 572;
Merritt, 164 Va. at 658, 180 S.E. at 397. Mere words can never
amount to an assault in criminal law. See Harper, 196 Va. at
725, 85 S.E.2d at 255.
In this case, the Commonwealth proved no overt act by Epps
indicating an actual or apparent present ability to cause bodily
harm. There is simply no evidence of any physical act by Epps.
The record proved that Epps and his former wife were arguing and
that Epps threatened his former wife. The wife's male friend
testified that Epps and his former wife were standing five feet
away from each other and that they "were just screaming and
hollering at each other." No evidence proves that Epps committed
an overt act indicating an actual or apparent present intent and
ability to cause bodily harm. The evidence in the record proved
"mere words" of insult and threat, which are never enough, under
either theory, to constitute an assault.
In Virginia, a criminal assault is either (1) an attempt to
touch another person in an unprivileged way, see Harper, 196 Va.
at 725, 85 S.E.2d at 255, or (2) an intentional placing of
another in apprehension of receiving an immediate unprivileged
touching. See Burgess, 136 Va. at 707-08, 118 S.E. at 276.
"[B]oth will involve some physical act which proffers imminent
unwanted force." John L. Costello, Virginia Criminal Law and
Procedure § 4.2, at 70-71 (2d ed. 1995) (emphasis omitted).
Because the Commonwealth failed to prove the existence of any act
- 13 -
indicative of the present ability, either actual or apparent, of
inflicting immediate bodily harm, I would hold that the evidence
is insufficient to prove Epps committed an assault upon his
former wife.
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