Carter v. Commonwealth
594 S.E.2d 284 (2004)
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Rule of Law:
Under Virginia common law, a criminal assault can be committed by an intentional act that places another person in reasonable apprehension of receiving an immediate battery. For this type of assault, an apparent present ability to inflict harm is sufficient; an actual present ability is not required.
Facts:
- Around 11:00 p.m. in a high-crime area, Officer B.N. O'Donnell initiated a traffic stop of a speeding car.
- Michael Anthony Carter was seated in the front passenger seat of the vehicle.
- The driver of the vehicle responded to Officer O'Donnell in a hostile manner.
- During the stop, Officer O'Donnell observed that Carter's right hand was out of sight, down by his right leg.
- Carter suddenly raised his right hand, which he had fashioned into the shape of a handgun, pointed his index finger at the officer, and said, "Pow."
- For a "split second," Officer O'Donnell believed Carter had a real weapon and was going to shoot him, causing the officer to move backwards and reach for his own firearm.
- Officer O'Donnell then immediately realized that Carter was only pointing his finger.
- When Officer O'Donnell asked Carter if he thought the act was funny, Carter responded, "Yes, I think it is funny."
Procedural Posture:
- Michael Anthony Carter was convicted of assaulting a police officer in violation of Code § 18.2-57(C) in a bench trial in a Virginia trial court.
- At trial, Carter's motions to strike the evidence for insufficiency were denied by the trial court.
- The trial court sentenced Carter to three years, with two years and six months suspended.
- Carter appealed his conviction to the Court of Appeals of Virginia.
- A divided panel of the Court of Appeals affirmed Carter's conviction on September 9, 2003.
- The Court of Appeals of Virginia granted Carter's petition for a rehearing en banc on October 14, 2003.
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Issue:
Does a person commit a criminal assault under Virginia common law by performing an act that creates a reasonable apprehension of bodily harm in the victim, even if the person lacks the actual present ability to inflict such harm?
Opinions:
Majority - Clements, J.
Yes. A person commits a criminal assault by performing an act that creates a reasonable apprehension of bodily harm, which requires only an apparent, not actual, present ability to inflict that harm. Virginia's common law recognizes two distinct types of criminal assault: (1) an attempted battery, which requires an actual present ability to inflict harm, and (2) an intentional act placing the victim in reasonable apprehension of bodily harm. The court held that the second, tort-based definition has long been incorporated into Virginia's criminal law, citing precedents like Lynch v. Commonwealth and Burgess v. Commonwealth. This type of assault turns on the victim's reasonable perception of a threat. Carter's act of pointing his finger like a gun at night, in a high-crime area, during a tense traffic stop, created a reasonable belief in Officer O'Donnell's mind that he was in imminent danger of being shot. Although Carter lacked the actual ability to shoot the officer, he possessed the apparent present ability to inflict harm, which was sufficient to sustain the assault conviction.
Dissenting - Benton, J.
No. A conviction for criminal assault in Virginia requires proof that the defendant possessed an actual present ability to inflict harm, not merely an apparent one. The dissent argues that the majority creates a new definition of assault based on tort principles and misinterprets precedent. It contends that the controlling Virginia Supreme Court cases, including the recent Zimmerman v. Commonwealth and the long-standing Harper v. Commonwealth, consistently define assault as an act 'coupled with a present ability' to use actual violence. The dissent dismisses the majority's reliance on cases like Lynch as non-binding dicta and argues that Carter's conduct, while intended to startle, did not meet the established common law elements because a finger is not a weapon and he had no actual ability to cause harm. It suggests that if Virginia wishes to criminalize such menacing behavior, the legislature must enact a statute, as other states have done.
Analysis:
This decision formally bifurcates the common law of criminal assault in Virginia into two distinct theories: attempted battery and reasonable apprehension. It clarifies that the 'apparent present ability' standard, traditionally rooted in tort law, is fully applicable in criminal cases, thereby broadening the scope of criminal liability. The ruling allows for assault convictions based on a successful bluff or simulation of a threat, shifting the legal focus from the defendant's actual capability to the victim's reasonable perception of danger. This precedent makes it easier for prosecutors to secure convictions in cases where a victim is terrorized by a threat that turns out to be fake, but it also creates a tension with prior case law that emphasized an 'actual present ability' to inflict harm.
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