Carter v. Com.
2005 Va. LEXIS 5, 606 S.E.2d 839, 269 Va. 44 (2005)
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Rule of Law:
For a common law assault, the actual present ability to inflict bodily harm is not a prerequisite for conviction when an assailant engages in an overt act intended to place the victim in reasonable fear or apprehension of bodily harm, and such fear is created in the victim.
Facts:
- On December 29, 1998, at approximately 11:00 p.m., Officer Brian N. O'Donnell conducted a routine traffic stop for speeding in Charlottesville.
- Officer O'Donnell approached the driver's side of the vehicle and observed the passenger, Michael Anthony Carter, with his right hand down by his right leg.
- Carter made a sudden arcing movement with his right arm across his body, forming a fist with his index finger pointing out and thumb pointing up, resembling a gun.
- Officer O'Donnell, believing Carter had a weapon and was about to shoot him, backed away from the vehicle.
- Carter then said, 'Pow,' causing Officer O'Donnell to realize it was only Carter's finger, but he testified he was terrified and would have shot Carter if he could have reached his weapon.
- A few days later, Officer O'Donnell obtained a warrant for Carter's arrest for assaulting a police officer.
Procedural Posture:
- Michael Anthony Carter was indicted for assaulting a police officer in violation of Code § 18.2-57(C).
- Following a bench trial, the trial court found Carter guilty of the charge and sentenced him to three years in prison.
- Carter appealed his conviction to the Court of Appeals of Virginia, where a divided panel affirmed the conviction (Carter v. Commonwealth, 41 Va. App. 448, 585 S.E.2d 848 (2003)).
- Carter was granted a rehearing en banc by the Court of Appeals, which also affirmed the conviction (Carter v. Commonwealth, 42 Va. App. 681, 594 S.E.2d. 284 (2004) (en banc)).
- Carter timely appealed to the Supreme Court of Virginia.
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Issue:
Does common law criminal assault, as applied under Code § 18.2-57(C), require that the assailant have the present ability to inflict bodily injury?
Opinions:
Majority - Justice Elizabeth B. Lacy
No, the present ability to inflict bodily harm is not an essential element of common law assault, as applied under Code § 18.2-57(C), when the assailant's actions create a well-founded apprehension of harm in the victim. The Supreme Court of Virginia determined that because Code § 18.2-57(C) does not define assault, the common law definition applies. At common law, assault was both a crime and a tort. While criminal assault traditionally required present ability, tort assault focused on creating a well-founded fear. Over time, many jurisdictions, including Virginia through its precedents, merged these definitions. The Court affirmed that a common law assault occurs when an assailant either intends to inflict bodily harm and has the present ability, OR engages in an overt act intended to place the victim in fear of bodily harm and creates such reasonable fear. Citing Lynch v. Commonwealth and Burgess v. Commonwealth, the Court emphasized that 'apparent power is sufficient' and 'no need for the assailed party to be put in actual peril, if only a well founded apprehension is created.' The Court distinguished other cases cited by Carter (Zimmerman, Harper, Merritt) as not directly addressing the 'present ability' issue and therefore not overriding the broader analysis established in Burgess. Since Carter did not challenge the reasonableness of Officer O'Donnell's fear, and Carter's actions were intended to instill fear and succeeded, his conviction for assault on a police officer was affirmed.
Analysis:
This case significantly clarifies the definition of common law assault in Virginia, firmly establishing that the victim's reasonable apprehension of harm is paramount over the assailant's actual present ability to inflict harm. By merging the criminal and tort definitions of assault, the court broadens the scope of what constitutes an assault, allowing for convictions in situations where a credible threat or a convincing simulation of danger causes fear, even if the means to execute the harm are absent. This precedent provides a stronger legal framework for prosecuting individuals who use gestures or fake weapons to instill fear, potentially impacting future cases involving threats, intimidation, and simulated violence, especially against law enforcement officers.
