Bennett v. Commonwealth
546 S.E.2d 209, 2001 Va. App. LEXIS 262, 35 Va. App. 442 (2001)
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Rule of Law:
Under Virginia common law, a criminal assault requires an overt act or the unequivocal appearance of an attempt, with force and violence, to do physical injury to another, and therefore, words alone, however threatening, do not constitute an assault.
Facts:
- Around midnight on May 2, 1999, Stuart Dale Bennett approached Dinwiddie County Sheriff's Deputy Timothy Martin in a restaurant parking lot to report juveniles causing a disturbance near his home.
- Deputy Martin learned that Bennett had previously chased the juveniles at high speed and brandished a firearm.
- Approximately an hour later, Deputy Martin, accompanied by Deputy Robert Poarch, went to Bennett's home to investigate, and Bennett's 14-year-old daughter, Ann, allowed them to enter.
- Bennett, after ending a phone call, told the deputies to leave his house, then approached them, stood within inches, shouted profanities, and threatened an "F'ing blood bath" if they did not depart.
- Bennett was unarmed and made no physical gestures to harm the deputies, who departed after about ten minutes.
- Two days later, Bennett voluntarily arrived at the sheriff's office to have two felony assault arrest warrants served on him.
- While Deputy Poarch was processing Bennett, Bennett became upset, started to leave, ignored Poarch's request to stop, and had to be physically restrained and handcuffed.
- During his trial, Bennett was warned by the judge about using profanity, acknowledged he understood, but subsequently used prohibited language ("crap" and "hell, no") on two separate occasions.
Procedural Posture:
- Stuart Dale Bennett was charged with two counts of felonious assault against a law enforcement officer and one count of felony attempt to escape.
- Bennett represented himself during the trial in Dinwiddie County Circuit Court.
- During the trial, the court twice held Bennett in contempt for using inappropriate language.
- On January 10, 2000, a jury convicted Bennett on all counts and recommended a sentence of six months in jail for each assault count and a $1 fine for the attempted escape count.
- The Dinwiddie County Circuit Court imposed the jury's recommended sentences for the convictions and fined Bennett $50 for the first contempt charge and sentenced him to five days in jail for the second.
- Bennett appealed his convictions to the Court of Appeals of Virginia, raising several assignments of error.
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Issue:
Does verbal aggression and threats, without an accompanying overt physical act or attempt to inflict bodily harm, constitute felonious assault against a law enforcement officer under Virginia common law?
Opinions:
Majority - Judge Rosemarie Annunziata
No, verbal aggression and threats, without an accompanying overt physical act, do not constitute felonious assault against a law enforcement officer under Virginia common law. The court reversed Bennett's assault convictions, finding the evidence insufficient. The court invoked the "ends of justice" exception to Rule 5A:18 to address the unpreserved issue because Bennett was convicted for conduct that was not criminal. Citing Harper v. Commonwealth and Merritt v. Commonwealth, the court reiterated that common law assault requires an "overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do physical injury to the person of another." Despite Bennett's proximity to the officers and verbal threats, he was unarmed and made no threatening physical gestures, thus lacking the essential overt act for assault. Yes, the evidence was sufficient to support the attempted escape conviction. The court affirmed Bennett's attempted escape conviction, finding the "ends of justice" exception to Rule 5A:18 did not apply. Bennett had voluntarily come to the station to be served with felony arrest warrants, and Deputy Poarch testified that the warrants had been served by the time Bennett attempted to leave. Bennett ignored the deputy's order to stop and had to be physically restrained, allowing a jury to reasonably infer that he knew he was in custody and intended to escape. Yes, the evidence was sufficient to support the two contempt convictions. The court affirmed Bennett's two contempt convictions, finding no miscarriage of justice to warrant the Rule 5A:18 exception. Bennett had been directly ordered by the court to refrain from using profane and inappropriate language, and he subsequently disobeyed this order on two separate occasions during trial, which constituted misbehavior in the presence of the court and disobedience to a lawful order under Code § 18.2-456. The court declined to address Bennett's argument regarding the right to counsel for contempt charges, as he did not address this argument in his brief on appeal.
Analysis:
This case reaffirms the strict common law definition of assault in Virginia, emphasizing that a mere verbal threat, no matter how menacing, does not satisfy the requirement of an overt act or attempt to inflict bodily harm. This provides important clarity for law enforcement and legal professionals regarding the limits of assault charges, preventing the criminalization of purely verbal altercations under assault statutes. The application of the "ends of justice" exception to Rule 5A:18 underscores the court's commitment to correcting convictions for non-criminal conduct, even when procedural rules are not strictly followed, thereby acting as a safeguard against miscarriages of justice.
