COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
EDWARD BLACKWELL KELLY
MEMORANDUM OPINION * BY
v. Record No. 0495-96-4 CHIEF JUDGE NORMAN K. MOON
FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
Jerry M. Phillips (Phillips, Beckwith & Hall,
on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Edward Blackwell Kelly appeals his conviction of assaulting
a correctional officer in violation of Code § 18.2-55. Kelly
argues that the trial court erred in refusing to instruct the
jury on the lesser included offense of assault and battery.
Finding evidence to support the granting of the lesser included
offense instruction, we reverse.
On June 4, 1995, Kelly was an inmate at the Adult Detention
Center for Prince William County. During the serving of meals,
Officer Santiago went to Kelly's cell to collect his food tray.
Kelly's tray was not in the food slot of the cell and when
Santiago asked for the tray, Kelly told him "[i]f you want my
tray, you come in and get my tray." Santiago summoned Officer
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mora and remained outside of the cell while Mora entered to
retrieve the tray.
Once inside, Mora asked for the tray and Kelly responded by
throwing the tray at Mora, covering him with food. Kelly then
stood up on his cell bed and, when Mora asked him to get down,
Mora testified that Kelly leapt onto Mora, tearing his shirt and
scratching his face. Mora freed himself from Kelly and fled the
cell. Kelly testified that he did not intentionally leap on
Mora, and stated that he slipped on the blanket on his cell bed
and fell accidentally, striking Mora and inadvertently scratching
his face. Kelly testified that it was not his intention to harm
Mora.
The trial court instructed the jury that they should find
Kelly violated Code § 18.2-55 if they found the evidence proved
beyond a reasonable doubt that "[Kelly] knowingly and willfully
caused bodily injury to an employee of the Prince William County
Adult Detention Center." Kelly argued that the court erred by
not instructing the jurors on the lesser included offence of
assault and battery. "An assault is any attempt or offer, with
force or violence, to do some bodily hurt to another, whether
from wantonness or malice, by means calculated to produce the end
if carried into execution." 2A Michie's Jur., Assault and
Battery § 2 (1992); see Johnson v. Commonwealth, 13 Va. App. 515,
517, 412 S.E.2d 731, 732 (1992). "Battery is the actual
infliction of corporal hurt on another . . . willfully or in
anger . . . ." Jones v. Commonwealth, 184 Va. 679, 681-82, 36
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S.E.2d 571, 572 (1946). Battery may be accomplished by any
touching in any angry, rude, or vengeful manner, although no
significant injury is inflicted. Seegars v. Commonwealth, 18 Va.
App. 641, 644, 445 S.E.2d 720, 722 (1994).
We find the trial court erred in refusing to give the
instruction. "On appeal, when we consider a trial court's
refusal to give a proffered instruction, `the appropriate
standard of review requires that we view the evidence with
respect to the refused instruction in the light most favorable to
the defendant.'" Id. at 643, 445 S.E.2d at 722 (quoting Boone v.
Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992)).
The facts of this case are indistinguishable from those of
Seegars v. Commonwealth, 18 Va. App. 641, 445 S.E.2d 720 (1994),
where this Court held that the trial court erred in refusing an
assault and battery instruction in a case also involving a charge
of violation of Code § 18.2-55. In Seegars the defendant argued
that although he had purposely pushed a locker at a group of
correctional officers, his intent was to distance himself from
them, not to injure them. 18 Va. at 643, 445 S.E.2d at 722.
Like Seegars, here the jury could have found that while Kelly
might not have had the specific intent to "knowingly and
willfully inflict bodily injury," he was nonetheless guilty of
the lesser included offense of misdemeanor assault and battery.
The jury should have been provided the opportunity to
"assess the evidence as it related to the lesser included offense
of assault and battery, and should not have been forced into
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making the impermissible choice of finding the defendant guilty
of the offense charged or not guilty of any offense." Id. at
645, 445 S.E.2d at 722-23.
Reversed and remanded.
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