COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia
JAMES RICHARD FLIPPEN, JR.
MEMORANDUM OPINION * BY
v. Record No. 1944-01-3 JUDGE LARRY G. ELDER
APRIL 2, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
James Richard Flippen, Jr., (appellant) appeals from his
two bench trial convictions for assaulting a police officer in
violation of Code § 18.2-57(C). On appeal, he contends the
trial court erroneously convicted him of assault and battery
rather than assault, as charged in the amended indictments. In
addition, he contends that a conviction for assault required
proof of a specific intent rather than recklessness and that the
evidence was insufficient to prove the required intent. We hold
the record reflects that appellant was convicted for assault
rather than assault and battery. Further, we assume without
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
deciding that a conviction for assault requires proof of a
specific intent, but we hold the circumstantial evidence was
sufficient to prove a specific intent. Thus, we affirm
appellant's convictions, subject to remand solely for the
correction of clerical errors.
A.
PROCEDURAL BAR
Appellant contends first that he was convicted for assault
and battery rather than assault as charged in the amended
indictments. The Commonwealth argues that appellant waived this
argument by failing to raise it in the trial court. We hold
that the argument was not waived but that the record reflects a
conviction for assault rather than assault and battery.
"The lack of authority of the trial court to render the
judgment that it did may be raised at any time and by this Court
on its own motion." Fontaine v. Commonwealth, 25 Va. App. 156,
165, 487 S.E.2d 241, 244 (1997) (noting such lack of authority
is an absence of jurisdiction).
The fact that the defendant did not object
to . . . the conviction on the ground that
he was convicted for an offense with which
he was not charged is of no moment. Unless
an indictment is amended to conform to the
proof or an accused acquiesces in being
found guilty of an offense other than the
one charged, a trial court lacks the
authority to find an accused guilty of an
offense other than the one charged or a
lesser included offense.
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Id. Further, "[a]cquiescence requires something more than a
mere failure to object." Lowe v. Commonwealth, 33 Va. App. 583,
589, 535 S.E.2d 689, 692 (2000). Where a defendant is convicted
of the charged felony and "implore[s]" the court to set aside
the felony conviction and find him guilty instead of a
misdemeanor not lesser included in the charged felony, the
defendant may not be heard to object. Manns v. Commonwealth, 13
Va. App. 677, 679, 414 S.E.2d 613, 614-15 (1992). Such an
action constitutes, in essence, the defendant's request to the
trial court to amend the indictment, thereby permitting
conviction for the unrelated misdemeanor. However, a mere
statement to the judge seeking to clarify that one's ultimate
conviction was for a misdemeanor rather than the felony for
which he was indicted does not constitute acquiescence. See
Fontaine, 25 Va. App. at 165, 487 S.E.2d at 244. Similarly,
here, a mere question to the judge as to the number of counts
for which appellant was convicted did not constitute
acquiescence. Appellant's counsel's question, "Were there two
charges of assault?" did not constitute acquiescence to his
conviction for two counts of assault and battery.
Thus, we may consider on appeal appellant's contention that
the trial court erroneously convicted him for assault and
battery on indictments that charged only assault. In doing so,
we adhere to the principle that "[a] court speaks only through
its orders." Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d
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770, 773 (1964). "Where a defendant does not object to the
accuracy of an order within 21 days after its entry, an
appellate court may 'presume that the order, as the final
pronouncement on the subject, rather than a transcript that may
be flawed by omissions, accurately reflects what transpired.'"
Kern v. Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400
(1986) (quoting Stamper v. Commonwealth, 220 Va. 260, 280-81, 57
S.E.2d 808, 822 (1979)).
Here, although the trial transcript indicates the trial
court said it found appellant "guilty of two counts of assault
and battery on a law enforcement officer," the sentencing order
reflects that the trial court convicted appellant for two counts
of assault on a police officer, the same offenses charged in the
amended indictments. 1 Thus, under the principles set forth
above, we presume that the sentencing order rather than the
transcript "'accurately reflects what transpired.'" Id. at 88,
341 S.E.2d at 400 (quoting Stamper, 220 Va. at 281, 257 S.E.2d
at 822).
1
The parties agree that the conviction order incorrectly
indicates appellant was convicted for two counts of attempted
malicious wounding of a law enforcement officer. They also
agree that the sentencing order erroneously cites Code § 18.2-26
as the statute appellant was convicted of violating. Thus, we
remand the matter to the trial court for the sole purpose of
correcting the clerical errors in those orders to reflect that
appellant was convicted for two counts of assaulting a police
officer in violation of Code § 18.2-57(C). See Tatum v.
Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 138 (1994);
see also Code § 8.01-428(B).
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Further, appellant argued to the trial court that he was
trying to get away and that the evidence established only that
he operated his vehicle recklessly. We hold this argument was
sufficient to preserve his contention that the evidence did not
establish the intent necessary to support his convictions.
B.
SUFFICIENCY OF EVIDENCE TO PROVE ASSAULT
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to the evidence all
reasonable inferences fairly deducible therefrom. Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Code § 18.2-57(C) provides that "if any person commits an
assault or an assault and battery against another knowing or
having reason to know that such other person is a
law-enforcement officer . . . engaged in the performance of his
public duties as such, such person shall be guilty of a Class 6
felony . . . ." As defined by common law, an assault occurs
when the perpetrator either (1) attempts to commit a battery or
(2) puts another person in reasonable fear of receiving bodily
hurt. Merritt v. Commonwealth, 164 Va. 653, 658, 180 S.E. 395,
397 (1935); see Park Oil Co. v. Parham, 1 Va. App. 166, 170, 336
S.E.2d 531, 534 (1985).
A battery is "an unlawful touching." Adams v.
Commonwealth, 33 Va. App. 463, 468, 534 S.E.2d 347, 350 (2000).
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The touching need not result in injury to be a battery. Id.
"'[T]he slightest touching of another . . . if done in a rude,
insolent, or angry manner, constitutes a battery . . . .'" Id.
at 469, 534 S.E.2d at 350 (quoting Crosswhite v. Barnes, 139 Va.
471, 477, 124 S.E. 242, 244 (1924)) (citation omitted). Thus,
under the definition of an assault as an attempted battery, an
assault is (1) an intent to touch another, even if only slightly
and without causing any injury, if done rudely, insolently or
angrily, and (2) a direct, ineffectual act toward such a
touching. Under this definition, one may commit an assault even
though the victim is not aware of or frightened by any acts
directed at him, provided the perpetrator has the specific
intent to commit a battery and commits an overt act in
furtherance of that intent. Id.; Parham, 1 Va. App. at 170, 336
S.E.2d at 534.
Under the second definition of assault above, an assault is
"an offer to batter" and "requires proof of a threat, actual or
implied, to batter and an apparent present ability to do so."
Roger D. Groot, Criminal Offenses and Defenses in Virginia, at
31 (4th ed. 1998) (footnote omitted). The perpetrator need not
put the victim "in actual peril" as long as he "put[s] [the
victim] in well-founded fear or apprehension of bodily harm."
Burgess v. Commonwealth, 136 Va. 697, 706-07, 118 S.E. 273,
275-76 (1923).
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Whether the perpetrator must intend to put the victim in
fear or apprehension or whether recklessness or criminal
negligence will suffice is not clear. Compare id. (noting in
dicta that perpetrator must commit the act "with the intent to
put the party assailed in fear or apprehension of bodily harm"),
with Commonwealth v. Alexander, 260 Va. 238, 241-42, 531 S.E.2d
567, 568-69 (2000) (indicating in dicta that requisite mental
state for assault may be either malice or wantonness (citing
Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398
(1935)); Jones v. Commonwealth, 184 Va. 679, 681, 36 S.E. 571,
572 (1946); and Bennett v. Commonwealth, 35 Va. App. 442, 449,
546 S.E.2d 209, 212 (2001). Appellant contends proof of
specific intent is required, whereas the Commonwealth argues
criminal negligence will suffice. We need not resolve that
dispute here because we conclude the evidence supports
appellant's conviction under the higher standard, which requires
proof that appellant intended to put the law enforcement
officers pursuing him "in well-founded fear or apprehension of
bodily harm." Burgess, 136 Va. at 706-07, 118 S.E. at 275-76.
"Intent is the purpose formed in a person's mind which may,
and often must, be inferred from the facts and circumstances in
a particular case." Ridley v. Commonwealth, 219 Va. 834, 836,
252 S.E.2d 313, 314 (1979). "Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
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reasonable hypothesis except that of guilt." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
When facts are equally susceptible to more
than one interpretation, one which is
consistent with the innocence of the
accused, the trier of fact cannot
arbitrarily adopt an inculpatory
interpretation. The fact finder, however,
is entitled to draw inferences from proved
facts, so long as the inferences are
reasonable and justified. Furthermore, the
fact finder may infer that a person intends
the immediate, direct, and necessary
consequences of his voluntary acts. Thus,
when the fact finder draws such inferences
reasonably, not arbitrarily, they will be
upheld.
Moody v. Commonwealth, 28 Va. App. 702, 706-07, 508 S.E.2d 354,
356 (1998) (citations omitted).
The evidence established that, prior to the specific events
supporting his assault convictions, appellant was measured
driving eighty miles per hour in a fifty-five-mile-per-hour
zone. To avoid being stopped, appellant led police through two
counties on a chase more than twenty-five miles long, speeding
and ignoring traffic signs, placing any other occupants of the
road in danger of harm. When appellant began his flight, only
one officer was pursuing him, but he continued to flee after two
other officers joined the chase. Even after appellant ran off
the road at a T intersection and the three law enforcement
vehicles came to a stop at the edge of the pavement, appellant
refused to yield to the officers' authority. Instead, after
bouncing over a log and making a u-turn in a cloud of dust,
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appellant drove directly toward the stationary line of law
enforcement vehicles without "miss[ing] a beat." All three
vehicles were occupied, and their lights and sirens remained
activated. Appellant made no effort to go around the cars and
instead drove between them, colliding with two and causing about
$3,000 of damage to one of those two. Both of the officers
whose vehicles were struck testified that they were scared or in
fear immediately prior to the impact with appellant's truck.
The only reasonable hypothesis flowing from the evidence is
that appellant intended to place all three law enforcement
officers pursuing him in fear of receiving bodily hurt. See
Haywood v. Commonwealth, 20 Va. App. 562, 567, 458 S.E.2d 606,
608 (1995) (holding accused's separate acts of driving directly
toward three different law enforcement vehicles as each
attempted to stop his flight were insufficient to prove an
intent to kill each officer because acts also supported
hypotheses that "[accused] believed that he could crash through
any vehicle in his way or that the police would move out of his
way, which they did"). That appellant acted with an intent to
escape does not prevent a finding that he also acted with a
second intent, to assault and, if necessary, to batter the
officers in order to effect that escape. See Moody, 28 Va. App.
at 707-08, 508 S.E.2d at 356-57 (holding fact that perpetrator
in stolen car was attempting to escape parking lot and motioned
pedestrian out of his way did not preclude finding that
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perpetrator, who accelerated and did not swerve as he approached
pedestrian, formed specific intent to run over pedestrian if he
did not move). The fact finder was entitled to "infer that
[appellant] intend[ed] the immediate, direct, and necessary
consequences of his voluntary acts." Id. A direct consequence
of appellant's voluntary act of driving directly toward the
officers rather than around the line of vehicles was to place
the officers in reasonable fear of receiving a bodily hurt.
Thus, assuming without deciding that assault requires proof of a
specific intent, the circumstantial evidence was sufficient to
prove appellant acted with that intent.
For these reasons, we affirm appellant's convictions.
However, due to clerical errors in the conviction and sentencing
orders, see supra note 1, we remand to the trial court for the
sole purpose of correcting the conviction and sentencing orders
to reflect that appellant was convicted for two counts of
assaulting a police officer in violation of Code § 18.2-57(C).
Affirmed on the merits and remanded with instructions.
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James Richard Flippen, Jr. v. Commonwealth of VA
Combined Opinion