Clark v. Commonwealth
676 S.E.2d 332, 2009 Va. App. LEXIS 225, 54 Va. App. 120 (2009)
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Rule of Law:
Under Virginia's assimilated tort law definition of assault, an 'overt act' is not limited to physical gestures, but can be established by the totality of the circumstances when an assailant's actions and words are intended to place the victim in reasonable fear or apprehension of bodily harm, and do so.
Facts:
- Carolyn Coleman was a bus driver for Lakeside Elementary School, and Genev Denise Clark was a food services employee at the same school whose children rode Coleman’s bus.
- On May 7, 2007, Coleman reported an issue with Clark’s son, leading to his temporary suspension from riding the bus.
- On the morning of May 8, 2007, Clark parked her car in the school's bus circle, a no-parking zone, in a manner that blocked Coleman’s bus and other buses.
- Clark approached Coleman's open bus door, standing about two feet away with her arms crossed and lips pursed, and verbally threatened Coleman, saying things like, 'I told you I'm going to get you, bitch,' and '[I'm going to] [f]uck you up.'
- Coleman immediately closed her bus door, called the school office for a supervisor and police officer, reporting that Clark was threatening to 'pull her off the bus and beat her up,' and Clark continued cursing until the principal arrived.
- Later that same day, in the afternoon, Clark reappeared outside Coleman's bus door as Coleman was preparing to disembark, and again said, 'Bitch, like I say, I'm going to get you.'
- Coleman immediately closed her bus door again and remained inside the bus instead of exiting as she had planned.
Procedural Posture:
- Genev Denise Clark was convicted of assault in a bench trial in a trial court.
- Clark appealed her conviction to the Court of Appeals of Virginia.
- A panel of the Court of Appeals of Virginia reversed Clark's conviction, holding by a two-to-one vote that the evidence was insufficient to prove an overt act.
- The Commonwealth (appellee) petitioned for a rehearing en banc by the Court of Appeals of Virginia, which was granted.
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Issue:
Does a defendant's conduct, including parking a car to block a victim, verbally threatening the victim from a close distance, and repeating these actions, constitute an 'overt act' sufficient to support a conviction for assault under the assimilated tort law definition, even if no direct physical violence is attempted?
Opinions:
Majority - Elder, Judge
Yes, a defendant's conduct, including blocking a victim's vehicle and verbally threatening them from a close distance, constitutes an 'overt act' sufficient for an assault conviction under the assimilated tort law definition. The court affirmed Clark's conviction, holding that the 'totality of the circumstances,' viewed in the light most favorable to the Commonwealth, established an overt act. Virginia law merges the common law crime and tort of assault, allowing for conviction if either set of elements is proved. The tort law definition requires an overt act intended to place the victim in fear or apprehension of bodily harm, creating such reasonable fear. While words alone are insufficient, they are highly relevant when combined with accompanying circumstances and past conduct to determine intent and the reasonableness of the victim's fear. The court distinguished this case from Bennett v. Commonwealth, where the threat was conditional and lacked other physical actions. Here, Clark's actions of parking to block Coleman's bus, approaching her bus door, her 'obviously unhappy' demeanor, explicit threats, and Coleman's immediate defensive reactions (closing door, calling police) constituted a present threat and a physical blockade of Coleman's means of escape. These actions, repeated later the same day, collectively formed a sufficient 'overt act' intended to cause reasonable fear, which was indeed created in Coleman.
Dissenting - Humphreys, J.
No, the evidence was insufficient to show that Clark committed an overt act as required for the common law offense of assault, and the majority's analysis effectively circumvents the rule that 'words alone do not constitute an assault.' The dissent argued that while both definitions of assault require an overt act, the majority’s interpretation expands the concept to the point where words, when coupled with a threatening attitude, become sufficient, especially if they cause a reasonable fear or interrupt business. Humphreys, J., contended there was no evidence that Clark parked her car with the specific intent to cause fear and apprehension of bodily harm by blocking the bus. Furthermore, the dissent highlighted the absence of evidence that Clark’s actions, as opposed to her words, placed Coleman in fear of imminent bodily harm, arguing that any such conclusion would be speculation. The dissent pointed to Bennett v. Commonwealth, where approaching within inches and shouting threats was deemed insufficient for an overt act, arguing that merely increasing the distance does not change the legal principle. Clark's conduct, while reprehensible, amounted to nothing more than waiting for Coleman and shouting threats, which should not be transformed into an overt act simply because it happened twice or interfered with Coleman's job.
Analysis:
This case significantly broadens the interpretation of what constitutes an 'overt act' for criminal assault under the assimilated tort definition in Virginia. It clarifies that such an act is not limited to traditional physical gestures like raising a fist or weapon, but can be a combination of words, menacing demeanor, and circumstantial physical actions (like blocking a vehicle) that, viewed holistically, are intended to and do create reasonable apprehension of harm. The ruling allows for greater prosecutorial flexibility in assault cases where direct physical violence is not attempted but the victim experiences credible fear due to a perpetrator's actions. This decision reinforces the principle that context matters significantly in determining the legal sufficiency of an overt act, particularly when assessing a perpetrator's intent to cause fear.
