COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Bray 

Argued at Richmond, Virginia 

DANIEL STITH 

 MEMORANDUM OPINION* BY 

v. Record No. 1210-00-2 JUDGE LARRY G. ELDER 

 MAY 8, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

James F. D'Alton, Jr., Judge 

 Robert L. Lichtenstein for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Daniel Stith (appellant) appeals from his bench trial 

conviction for assault on a police officer pursuant to Code 

§ 18.2-57.1 On appeal, he contends the evidence failed to prove 

he knew or had reason to know that the individuals were police 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

1

 Although the transcript and sentencing order indicate that 

appellant was convicted of assaulting a police officer, a 

violation of Code § 18.2-57, the sentencing order incorrectly 

cites Code § 18.2-57.1. Prior to 1997, Code § 18.2-57.1 

proscribed assault on a police officer. However, in 1997, the 

General Assembly repealed Code § 18.2-57.1 and reenacted the 

offense formerly proscribed therein as subsection (C) of Code 

§ 18.2-57. See 1997 Va. Acts, ch. 833. Thus, when appellant 

committed the instant offense on April 10, 1999, it was a 

violation of Code § 18.2-57(C) rather than Code § 18.2-57.1, and 

we remand to the trial court for the sole purpose of correcting 

the clerical error in the sentencing order. See Tatum v. 

Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 138 (1994). 
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officers.2 We hold the evidence, viewed in the light most 

favorable to the Commonwealth, supports the trial court's 

finding that appellant acted with the requisite knowledge. 

Therefore, we affirm his conviction, subject to remand solely 

for the correction of a clerical error. 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, we view the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The 

conclusions of the fact finder on issues of witness credibility 

may be disturbed on appeal only if this Court finds that the 

witness' testimony was "inherently incredible, or so contrary to 

human experience as to render it unworthy of belief." Fisher v. 

Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984). 

In all other cases, we must defer to the conclusions of "the 

fact finder[,] who has the opportunity of seeing and hearing the 

witnesses." Schneider v. Commonwealth, 230 Va. 379, 382, 337 

S.E.2d 735, 736-37 (1985). The fact finder is not required to 

believe all aspects of a witness' testimony; it may accept some 

 2

 Appellant makes passing mention on brief that he "lacked 

the requisite knowledge that the individuals were Police 

Officers in the performance of their duties." (Emphasis added). 

He did not make this argument at trial, however, and his brief 

focuses on whether he knew the individuals were police officers, 

not whether he knew they were in the performance of their 

duties. Thus, we do not consider this argument separately. 
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parts as believable and reject other parts as implausible. See

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 

(1993). 

 Intent or knowledge, like any element of a crime, may be 

proved by circumstantial evidence, see Servis v. Commonwealth, 6 

Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), such as a 

person's conduct and statements, see Long v. Commonwealth, 8 Va. 

App. 194, 198, 379 S.E.2d 473, 476 (1989). "Circumstantial 

evidence is as competent and is entitled to as much weight as 

direct evidence, provided it is sufficiently convincing to 

exclude every reasonable hypothesis except that of guilt." 

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 

(1983). "[T]he Commonwealth need only exclude reasonable 

hypotheses of innocence that flow from the evidence, not those 

that spring from the imagination of the defendant." Hamilton v. 

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). 

 Code § 18.2-57(C) provides that "if any person commits an 

assault . . . against another knowing or having reason to know 

that such other person is a law-enforcement officer . . . 

engaged in the performance of his public duties as such, such 

person shall be guilty of a Class 6 felony . . . ." What 

constitutes an assault is defined by common law: 

An assault is an attempt or offer, with 

force and violence, to do some bodily hurt 

to another . . . by means calculated to 

produce the end if carried into execution; 
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as . . . by levelling a gun at another 

within a distance from which, supposing it 

to be loaded, the contents might injure, or 

any similar act accompanied with 

circumstances denoting an intention coupled 

with a present ability, of using actual 

violence against the person of another. 

Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 

(1955) (emphasis added; citation and emphasis omitted). One may 

commit an assault even though the victim is not aware of or 

frightened by any acts directed at him, provided the perpetrator 

has the specific intent to commit a battery and commits an overt 

act in furtherance of that intent. Adams v. Commonwealth, 33 

Va. App. 463, 469, 534 S.E.2d 347, 350 (2000); Park Oil Co. v. 

Parham, 1 Va. App. 166, 170, 336 S.E.2d 531, 534 (1985). 

 The evidence, viewed in the light most favorable to the 

Commonwealth, supports the trial court's finding that appellant 

intentionally shot at a group of people whom he knew or had 

reason to know were police officers engaged in the performance 

of their duties. When appellant testified at trial, he admitted 

firing the gun. Although appellant claimed to have fired it 

into the air to scare two would-be robbers, witness Linda Pace 

saw appellant pointing the gun "straight out" toward Winston 

Churchill Drive in the direction of 1204 Liberty Avenue 

immediately after she heard the gunshot. At that same instant, 

a bullet passed so close to Officer Bayes' position at the edge 

of the yard at 1204 Liberty that he heard the bullet as it 
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traveled through the trees overhead. Bayes was an experienced 

hunter and said that the sound and motion of the leaves 

indicated to him the path of a bullet. 

 Shortly before appellant fired the shot, the police 

officers had walked up Liberty Street to the residence at 1204, 

and at least six of the seven were in uniforms indicating in 

various ways that they were police officers. All the uniforms 

were dark blue or black. Some of the uniforms bore the word, 

"Police," in large white letters, while others contained large 

patches denoting the men were police officers. All wore gun 

belts. The location on Liberty Street where the officers parked 

their unmarked vehicles was visible from the intersection of 

Liberty and Granby Avenue, where appellant stood when he fired 

the shot, and the driveway of 1204 Liberty Street, where the 

officers were gathered, was only 144 feet from that same 

intersection. Finally, when appellant was apprehended 

immediately after the shooting, he admitted at various times to 

Detectives McQuage and Hartman and Officer Dean that "[he] knew 

[they] were there" and knew they were police officers. 

 Detective McQuage's testimony about appellant's admission 

stood unimpeached. That Hartman and Dean gave conflicting 

testimony at the preliminary hearing about whether appellant 

made such statements was not dispositive; the trial court was 

free to assess the officers' credibility and to conclude they 
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were testifying truthfully at appellant's trial. In addition, 

the trial court specifically concluded, as it was entitled to 

do, that appellant's testimony about an attempted robbery was 

incredible. Appellant did not report the attempted robbery when 

he was arrested, and the police officers did not see anyone pass 

them as they proceeded to the intersection, despite appellant's 

claim at trial that the would-be robbers fled in the same 

direction from which the officers had come. 

 Once the trial court resolved these credibility questions 

against appellant, the only reasonable hypothesis flowing from 

the circumstantial and direct evidence was that appellant knew 

the men were police officers engaged in the performance of their 

duties and that he intentionally shot at them on the afternoon 

of April 10, 1999. 

 For these reasons, we affirm appellant's conviction for 

assaulting a police officer in the performance of his duties in 

violation of Code § 18.2-57. However, due to the clerical error 

in the sentencing order regarding the statute under which 

appellant was convicted, see supra note 1, we remand this matter 

to the trial court for the sole purpose of correcting the 
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sentencing order to reflect that appellant was convicted under 

Code § 18.2-57 rather than Code § 18.2-57.1. 

 Affirmed on the merits 

and remanded with 

 instructions.