Zimmerman v. Commonwealth
266 Va. 384, 585 S.E.2d 538, 2003 Va. LEXIS 89 (2003)
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Rule of Law:
An assault requires an overt act, or the unequivocal appearance of an attempt, with force and violence, to do physical injury to another, accompanied by an intention and present ability to use actual violence, even if no physical contact occurs.
Facts:
- On September 11, 2000, Augusta County Deputy Sheriff John M. Wieger, dressed in uniform, had just finished his shift and parked his police vehicle near his private driveway on Route 657.
- Officer Wieger walked across the public highway to check his mail at a mailbox adjacent to the road.
- While checking his mail, Officer Wieger heard an approaching vehicle's engine and observed a dark-colored vehicle, driven by Roy Wylie Zimmerman, illegally passing a pickup truck across dual yellow lines on a nearby curve.
- Officer Wieger then entered the middle of the road, waving his arms to flag Zimmerman's vehicle down.
- As Zimmerman's vehicle approached Officer Wieger, its engine "gunned" and "revved," increasing its speed directly towards the officer.
- Fearing for his safety, Officer Wieger moved off the road to the shoulder by the mailbox.
- Zimmerman's vehicle passed within five feet of Officer Wieger, with Zimmerman driving and a female passenger.
- Officer Wieger pursued Zimmerman's vehicle in his patrol car and eventually stopped it, finding the female now driving and Zimmerman as a passenger.
Procedural Posture:
- Roy Wylie Zimmerman was indicted for feloniously assaulting a law-enforcement officer and for operating a motor vehicle as an habitual offender, second or subsequent offense.
- Zimmerman was tried and convicted of both charges during a bench trial in the Circuit Court of Augusta County.
- Zimmerman filed a petition for appeal with the Court of Appeals of Virginia, challenging only the assault conviction.
- The Court of Appeals of Virginia, in an unpublished order, denied Zimmerman's petition for appeal, finding the Commonwealth's evidence sufficient to establish guilt of assault and that the officer was performing public duties.
- The Supreme Court of Virginia awarded Zimmerman this appeal, limited to the question of whether his guilt of assault had been sufficiently proved.
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Issue:
Was there sufficient evidence to support a conviction for assault upon a police officer when Roy Wylie Zimmerman accelerated his vehicle towards Officer Wieger, causing the officer to fear for his safety and move off the road, despite Zimmerman not swerving towards the officer or explicitly attempting to hit him?
Opinions:
Majority - Senior Justice A. Christian Compton
Yes, there was sufficient evidence to support a conviction for assault upon a police officer because Roy Wylie Zimmerman committed an overt act demonstrating an attempt to do bodily harm by accelerating his vehicle directly towards Officer Wieger, forcing the officer to move to ensure his safety. The Court adheres to the common law definition of assault, which requires "an attempt with force and violence, to do some bodily hurt to another...by means calculated to produce the end if carried into execution; it is any act accompanied with circumstances denoting an intention, coupled with a present ability, to use actual violence against another person." (citing Harper v. Commonwealth). An assault requires an overt act or the unequivocal appearance of an attempt to do physical injury, and physical contact is not necessary. Viewing the evidence in the light most favorable to the Commonwealth, Zimmerman, an habitual offender, was illegally operating his vehicle at a high rate of speed. Officer Wieger was in the center of the highway, in plain view, waving his arms. Zimmerman then "gunned and revved the vehicle's engine, increasing its speed at a point so near the officer that he was put in fear of his safety." The Court concluded that Zimmerman "attempted to strike the officer and do bodily harm to him" and committed the required overt act by "aiming and gunning a speeding vehicle at the officer" in an effort to escape apprehension. The Court distinguished Bennett v. Commonwealth, where no overt act or threatening gestures were made, by noting that Zimmerman's actions constituted a clear overt act.
Analysis:
This case provides crucial clarity on what constitutes an 'overt act' and intent in vehicular assault cases under Virginia's common law. It establishes that a defendant's act of accelerating a vehicle directly at a person, causing reasonable fear and the need for evasive action, can fulfill the elements of assault, even without physical contact, swerving, or a direct verbal threat. The decision reinforces that escape attempts do not negate the intent to assault if the actions taken to flee independently meet the criteria for assault. This ruling is significant for law enforcement and prosecutors, providing a precedent for charging individuals who use their vehicles in a threatening manner against officers or others.
