COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judge Elder and Senior Judge Willis Argued at Chesapeake , Virginia

BRIAN PAUL ENGEL MEMORANDUM OPINION * BY v. Record No. 1659

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- 1 JUDGE LARRY G. ELDER OCTOBER 4, 2011 COMMONWEALTH OF VIRG INIA

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY Robert G. O’Hara , Jr. , Judge Paul A. Fritzinger, Deputy Public Defender (Office of the Public Defender, on brief) , for appellant. Josephine F. Whalen, Assistant Attorney General II (Kenneth T. Cucc inelli, II, Attorney General, on brief) , for appellee.
Brian Paul Engel (appellant) appeals his bench trial conviction for assault on a law enforcement officer, in violation of Code § 18.2

- 57(C). 1 H e contends that the Commonwealth failed to present suf ficient evidence to prove that he intended to assault a law enforcement officer

. Because the evidence support s the trial court’s finding of inten t , we affirm appellant’s conviction. When reviewing the sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless it is plainly wrong or without evidence to support it. E.g. , Coles v.
Commonwealth , 270 Va. 585, 5 87, 621 S.E.2d 109, 110 (2005). On appeal, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication.

1 Appellant does not appeal his conviction under Code § 18.2

- 57 for misdemeanor assault and battery.- 2

- below, and “accord [it] the benefit of all inferences fairly deducible from the evidence.” Riner v.
Commonwealth , 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). At trial, the Commonwealth introduced evidence th at appellant, a county inmate, threw a mixture of water, salt, hot sauce, and maple syrup on Deputy Vaugh a n and another inmate, Magruder. The incident happened as Deputy Vaugh a n escorted Magruder back from a haircut.
When the liquid hit Magruder, the two inmates exchan ged angry words. Appellant splashed Magruder from “head to toe” and Vaugh a n from head to knee level. When appellant sprayed Magruder , he stood approximately one foot from appellant. Vaugh a n followed Magrud er by approximately two feet, pla inly visible and wearing his deputy’s uniform. Hostility between Magruder and appellant pre

- exist ed this encounter. Appel lant testified in
his defense that he had not intended to hit Vaugh a n with the liquid

. Indeed, appellant testified there was “no way ” that h e could have splashed Vaugh a n. When asked if appellant had any reason to be unhappy with Vaugh a n, appellant answered, “Just denying my request to go work as hall and dining
and a lot o f other requests.” He stated that he did not hold any animosit y against Deputy Vaugh a n, and Vaugh a n likewise testified that he did not believe that appellant threw the liquid out of animosity against him. Code § 18.2

- 57(C) penalizes an assault or an assault and battery against a law

- enforcement
officer as a felo ny. “Assault and battery is ‘the least touching of another, willfully or in anger.’”
Perkins v. Commonwealth , 31 Va. App. 326, 330, 523 S.E.2d 512, 513 (2000) (quoting Roger D. Groot, Criminal Offenses and Defenses in Virginia 29 (4th ed. 1998)). “Willf ully” in this context means “‘designedly,’ ‘intentionally’ or ‘perversely.’” Lynch v. Commonwealth , 131 Va. 762, 766, 109 S.E. 427, 428 (1921) (quoting 4 Words & Phrases 1293 (2d ser.)). “‘The slightest touching of another . . . if done in a rude, insol ent, or angry manner, constitutes a battery for which the law affords redress.’” Adams v. Commonwealth , 33 Va. App.- 3

- 463, 469, 534 S.E.2d 347, 350 (2000) (quoting Crosswhite v. Barnes , 139 Va. 471, 477, 124 S.E. 242, 244 (1924 ) ) (alteration in original)

. T he law presumes such touching to inflict an injury “‘to the feelings or mind.’” Lynch , 131 Va. at 765, 109 S.E. at 428 ( quoting 2 American & English Encyclopedia of Law 95 5 (2d ed. 1896) ).
A necessary element of assault and battery is intent, either an actual intent to harm or an intent imputed by law. Davis v. Commonwealth , 150 Va. 611, 617, 620, 143 S.E. 641, 643, 644 (1928); see also Adams , 33 Va. App. at 468, 534 S.E.2d at 350 ( “Whether a touching is a battery depends on the intent of the actor, no t on the force applied.” )

. A battery may be inflicted “ ‘ i n a spirit of rudeness or insult , ’” without any intent to harm. Perkins , 31 Va. App. a t 330, 523 S.E.2d at
513 (quoting Groot, supra , at 29 (footnote omitted)). “‘A person may commit a crime with more than one purpose . . . .’” Herrel v. Commonwealth , 28 Va. App. 579, 588, 507 S.E.2d 633 , 637 (1998) (quoting Hughes v. Commonwealth , 18 Va. App. 510, 530

- 31, 446 S.E.2d 451, 463 (1994) (en banc) (Coleman, J., concurring)). Intent “may be proved by c ircumstantial evidence, as long as such evidence excludes all reasonable hypotheses of innocence flowing from it.” Adams , 33 Va. App. at 471, 534 S.E.2d at
351 . “Circumstantial evidence of intent may include the conduct and statements of the alleged
offe nder, and ‘the finder of fact may infer that [he] intends the natural and probable consequences of
his acts.’” Id. (quoting Campbell v. Commonwealth , 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc)) (alteration in original)

. Appellant threw the m ixture in the direction of both Magruder and Vaugh a n as Vaugh a n stood only three feet away; thus the natural and probable consequence of his action was to spray- 4

- b oth people. Appellant willfully struck out, regardless of who wa s at risk other than Mag ruder

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T he natural and probable consequence of appellant’s action was to spray Vaugh a n and he did so in a “spirit of rudeness or insult

. ” Therefore, the evidence was suffic ient to support his
conviction. For these reasons, we affirm appellant’s conviction f or assault and battery of a law
enforcement officer.

Affirmed

.

2 Subse ction (C) of Code § 18.2

- 57, prohibiting assault of a law enforcement officer , does not require that a person “intentionally select” the victim due to his or her status as such. In c ontrast, subsections (A) and (B) of Code § 18.2

- 57 provide: A. Any pers on who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national orig in, the penalty upon conviction shall include a term of confinement of at least six months . . . . B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, re ligious conviction, color or national origin, the person shall be guilty of a Class 6 felony . . . .