COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
CARY RANDALL PERKINS
OPINION BY
v. Record No. 2342-98-3 JUDGE RUDOLPH BUMGARDNER, III
JANUARY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SMYTH COUNTY
Charles B. Flannagan, II, Judge
Thomas R. Scott, Jr. (Street, Street, Street,
Scott & Bowman, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Cary Randall Perkins was convicted of assault and battery
in violation of Code § 18.2-57. On appeal he challenges the
sufficiency of the evidence. Finding the evidence sufficient,
we affirm.
Viewed in the light most favorable to the Commonwealth, the
evidence established that on November 19, 1997, the defendant
was a teacher and coach at Marion Senior High School in Smyth
County. The defendant is deaf and speech-impaired, and he
communicates primarily by lip reading. He knew the
fourteen-year-old victim through her boyfriend, but was neither
her teacher nor coach.
During a break from an algebra class, the victim was in the
hallway getting a drink of water when the defendant asked her to
come into his classroom. He inquired how she was doing in her
algebra class and offered her assistance if she needed it. She
returned to class, but about ten or fifteen minutes later, the
defendant asked her to step into the hall. There, he showed her
a picture of his former girlfriend and stated "how much he
missed her and wanted to be with her." The victim returned to
class.
When class was over, the victim again saw the defendant in
the hallway. He asked her how she did in algebra, and she told
him she got a "B." The defendant asked where she was going and
she said, "to the front of the school." The defendant replied,
"I am too, so I will walk with you." As they walked down the
hall, the victim testified the defendant "put his hand up under
my hair on the back of my neck and started stroking it with his
fingertips and said, 'It turns you on, don't it?'" The victim
responded, "No, not by you" and jerked her head away. The
victim understood his comment to mean "something sexual." She
said the touching "scared" and "upset" her. The defendant
placed his hand on her neck under her hair a second time and
said, "Are you horny yet?" The victim said no, jerked her head
away, and told him to stop.
The victim told her mother and boyfriend about the incident
the day after it happened. After the boyfriend talked to the
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defendant, the defendant went to the victim's class and motioned
for her to come to the door. The victim stood in the doorframe.
The defendant said that "he was sorry for what he had done and
he didn't mean anything by it" and that he considered her like a
little sister. He also said that he knew she would be at the
school for three more years, her boyfriend would not, and if she
ever needed anyone to talk to or look up to, "he would always be
there. And he told me he was sorry again."
The defendant testified that on the date of the offense the
victim appeared "down." The victim was walking ahead of him on
his right side. In order to speak with her, he placed his hand
on her neck to get her to face him; he said, "[t]he first time I
grabbed her I was trying to get her to look at me." The
defendant testified that when he asked the victim, "What is
turning you on?," he meant, "What is bothering you?" He touched
her neck again when she failed to turn around. He claims he did
not hear her tell him to stop and she never turned around. The
defendant initially denied saying anything about being "horny."
He then testified, however, that if he did say it, it would have
related to his former girlfriend, not the victim. He claims the
incident was a miscommunication or misunderstanding.
The defendant admits that he touched the victim. He
contends, however, that the evidence was insufficient to prove
that he intended to harm her. The defendant also argues that
the court erroneously relied on the tort definition of assault
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and battery in concluding that a reasonable teacher would have
known that the second touching was unwanted. We disagree.
An assault and battery is the unlawful touching of another.
See Gnadt v. Commonwealth, 27 Va. App. 148, 151, 497 S.E.2d 887,
888 (1998). Assault and battery is "the least touching of
another, willfully or in anger." Roger D. Groot, Criminal
Offenses and Defenses in Virginia 29 (4th. ed. 1998). The
defendant does not have to intend to do harm; a battery may also
be "done in a spirit of rudeness or insult." Id. (footnote
omitted). The touching need not result in injury. See Gnadt,
27 Va. App. at 151, 497 S.E.2d at 888. A touching is not
unlawful if the person consents or if the touching is justified
or excused. See id.; Groot, supra, at 30 ("an intentional
touching which was not justified or excused is a battery").
The victim did not consent to the touchings. She jerked
her head away when the defendant first touched her on the nape
of her neck under her hair. No evidence suggested that the
victim consented to the first touching. Her reaction to that
touching removed any doubt that she consented to being touched.
The court found that the second touching was "unauthorized and
unwelcome and unwarranted."
Even though a victim does not consent to the touching, it
may be lawful if justified or excused. See Groot, supra, at 30
(examples include public authority, domestic authority, and
crime prevention). The defendant claims the court failed to
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consider that he needed to touch the victim so she would turn to
face him and he could read her lips. He asserts that his
disability justified touching her so he could communicate with
her.
The defendant said, "I usually just touch someone's
shoulder to get them to make eye contact so I can understand
them." He claimed that he touched the nape of the victim's neck
under her hair twice because she was walking fast. The trial
court found that the "touching of the neck was not in the
ordinary course for [the defendant] to get the attention of
someone that he wanted to communicate with." The trial court
also found that "[t]here was no need for disciplinary or other
control." Under the circumstances presented, the defendant's
touching was neither excused nor justified.
The fact finder, who determines the credibility of the
witnesses and the weight accorded their testimony, may accept or
reject the testimony in whole or in part. See Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
The defendant testified that he meant, "what is bothering you?"
when he asked the victim, "what is turning you on?," that he was
trying to get the victim's attention by touching her, and while
he denies he used the word "horny" when speaking to her, if he
did, he was talking about his former girlfriend. The trial
court found the victim's testimony credible. It was entitled to
disbelieve the defendant's self-serving testimony and to
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conclude that he was lying to conceal his guilt. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en
banc).
For the foregoing reasons, we affirm the conviction of
assault and battery.
Affirmed.
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Benton, J., concurring.
I concur in affirming the conviction. I write separately
only to note my view that "the unlawful touching of another,"
see Gnadt v. Commonwealth, 27 Va. App. 148, 151, 497 S.E.2d 887,
888 (1998), does not completely define the crime of "assault and
battery." In affirming a conviction for assault and battery,
the Supreme Court long ago held that "[a] battery consists of
the willful or unlawful touching of the person of another by the
assailant, or by some object set in motion by [the assailant]."
Wood v. Commonwealth, 149 Va. 401, 404, 140 S.E. 114, 115
(1927).
The trial judge found that the student's testimony was
credible, that the second touching was willful and not done in
the ordinary course of the defendant's need to communicate or to
discharge his duties as a teacher, and that "it should have been
clear to a reasonable teacher that [this] type of touching was
not welcomed." These findings are based on credible evidence
and are sufficient to prove the offense beyond a reasonable
doubt.
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