COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, McClanahan and Senior Judge Willis
Argued at Salem, Virginia
RICKY NELSON GILBERT
OPINION BY
v. Record No. 1876-03-3 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 8, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Michael L. Moore, Judge
Nicholas Compton (Compton & Compton, P.C., on brief), for
appellant.
Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
On appeal from his conviction of assault and battery on a law enforcement officer in
violation of Code § 18.2-57(C), Ricky Nelson Gilbert contends the trial court erred in finding the
evidence sufficient to support the conviction. He argues the Commonwealth failed to prove that he
intended to harm the officer. We affirm the judgment of the trial court.
BACKGROUND
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
On July 25, 2002, Officer Tony Davis stopped a vehicle in which Gilbert was a
passenger. While Davis spoke with the driver outside the car, Gilbert exited the vehicle and
approached the officer. Davis observed that Gilbert was intoxicated and advised Gilbert he was
going to arrest him for public drunkenness. Gilbert cursed Davis and stated he would not go
with him. Officer James Fletcher arrived on the scene. Gilbert refused to go with Davis but
agreed to ride with Fletcher. Fletcher placed Gilbert in the front seat of his police cruiser and
began driving to the police station. Davis followed in his vehicle.
En route to the police station, Gilbert became unruly. Fletcher stopped the car, removed
Gilbert from the vehicle and placed shackles on his legs. Fletcher asked Davis to ride in the back
of the car. The officers returned Gilbert to the front seat of Fletcher’s car. As they proceeded,
Gilbert suddenly turned and spat on Fletcher’s head. Davis placed his hand over Gilbert’s
mouth. Gilbert attempted to bite or spit through Davis’s glove. He threatened to kill both
officers and their families. Fletcher testified that before Gilbert spat on him, he observed Gilbert
“working his mouth around like he was working slobber up in his mouth.”
ANALYSIS
Gilbert contends the Commonwealth failed to demonstrate he intended to inflict bodily
harm and that spitting on Officer Fletcher was merely his “way of showing his dissatisfaction
with the situation.”
In pertinent part, Code § 18.2-57(C) provides:
[I]f 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 . . . .
At common law, any touching “in anger, without lawful provocation,” however slight,
including “spitting in a man’s face,” was sufficient to support a battery conviction. Hardy v.
Commonwealth, 58 Va. (17 Gratt.) 592, 601 (1867).1 “[T]he slightest touching of another . . . if
1
Numerous jurisdictions have also concluded that spitting upon another, even without
inflicting an injury, constitutes an assault and battery. See, e.g., United States v. Masel, 563 F.2d
322 (7th Cir. 1977) (spitting on a senator constitutes a battery, no more severe injury need be
intended); United States v. Frizzi, 491 F.2d 1231 (1st Cir. 1974) (spitting in the face of a mail
carrier, without the infliction of a bodily injury, constitutes a “forcible assault”); Ray v. United
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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); see also
Adams v. Commonwealth, 33 Va. App. 463, 469, 534 S.E.2d 347, 350 (2000). The term
“battery” possesses “a long history of definition by” the courts, and therefore, it “carr[ies] [its]
historical construction” when used by the General Assembly in a statute. Quintana v.
Commonwealth, 224 Va. 127, 140, 295 S.E.2d 643, 649 (1982). “In Virginia, it is abundantly
clear that a perpetrator need not inflict a physical injury to commit a battery.” Adams, 33
Va. App. at 469, 534 S.E.2d at 351.
Gilbert correctly notes that a person cannot be convicted of assault and battery “‘without
an intention to do bodily harm — either an actual intention or an intention imputed by law.’”
Davis v. Commonwealth, 150 Va. 611, 617, 143 S.E. 641, 643 (1928). However,
[p]roving intent by direct evidence often is impossible. 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. 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.”
Adams, 33 Va. App. at 470-71, 534 S.E.2d at 351 (quoting Campbell v. Commonwealth, 12
Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc)) (other citations omitted).
In spitting on Officer Fletcher, Gilbert committed an act that involved physical contact
and was deeply offensive. Thus, it constituted an infliction of bodily harm. The circumstances
abundantly support the trial court’s finding that the act was committed in a rude, insolent or
angry manner.
States, 575 A.2d 1196 (D.C. App. 1990) (spitting in the face of a police officer is sufficient to
support a conviction, even though the act is merely offensive); People v. Peck, 633 N.E.2d 222
(Ill. App. 1994) (spitting in the face of a police officer constitutes aggravated battery); People v.
Terry, 553 N.W.2d 23 (Mich. App. 1996) (spitting on another, even without physical injury,
constitutes a battery).
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When Officer Davis first encountered Gilbert, Gilbert refused to comply with the
officer’s orders and cursed him. When Davis handcuffed Gilbert, Gilbert threatened to “stomp”
him. Gilbert became violent in Fletcher’s vehicle, kicking the dashboard and screaming. Before
spitting on Fletcher, Gilbert remarked that the officer “would never live to see another snowfall.”
Davis testified that Gilbert repeatedly threatened to kill the officers and their families. Fletcher
confirmed that Gilbert threatened to kill him before and after spitting on him.
The judgment of the trial court is affirmed.
Affirmed.
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