COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Salem, Virginia 

DAVID ALLEN TAYLOR, S/K/A 

 DAVID ALAN TAYLOR 

 MEMORANDUM OPINION* BY 

v. Record No. 0665-96-3 JUDGE LARRY G. ELDER 

 APRIL 22, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA 

Thomas H. Wood, Judge 

 Ross S. Haine, Assistant Public Defender 

(Haine & Murtagh, on brief), for appellant. 

 Thomas D. Bagwell, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Leah A. Darron, Assistant Attorney General, 

on brief), for appellee. 

 David Allen Taylor (appellant) appeals his conviction of 

assault. He contends (1) that the trial court abused its 

discretion when it admitted evidence of his conduct that occurred 

nearly two weeks after the date of the charged offense and (2) 

that the evidence was insufficient to support his conviction. 

For the reasons that follow, we reverse. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 I. 

 FACTS 

 Appellant was charged with assaulting Officer A. J. 

Panebianco of the Buena Vista Police on December 8.1

 At trial, 

the evidence established that appellant approached Officer 

Hollins on December 8 and asked that Officer Panebianco give him 

a ride home. Appellant was extremely intoxicated, and Officer 

Hollins took him to a holding cell at the Buena Vista Police 

Department. While in the holding cell, appellant saw Officer 

Panebianco walk by and told him that he was going to break a 

window at a tatoo parlor owned by Officer Panebianco and that he 

was going to kill the officer. Appellant told Officer Panebianco 

that he "would not live to see a new year." The record does not 

indicate that appellant made any physical movements at the time 

he spoke to Officer Panebianco. 

 The evidence also established that appellant was arrested on 

December 21 after "kicking out" a window at Officer Panebianco's 

business. Officer Daniel Coleman testified that after appellant 

was brought to the police department, appellant looked at a 

picture of Officer Panebianco on the wall and threatened to kill 

him. Officer Coleman testified that appellant also said that he 

"had something" for Officer Panebianco and then removed a shotgun 

shell from his pocket that had Officer Panebianco's name 

 1 Appellant was also charged with and convicted of three 

other offenses that are not the subject of this appeal. 
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displayed on it. Officer Panebianco was not present when these 

events occurred. 

 Appellant's counsel objected to the admission of Officer 

Coleman's testimony on the grounds that it was irrelevant to 

proving that appellant assaulted Officer Panebianco on December 8 

and that its admission prejudiced appellant. The trial court 

overruled appellant's objection. Appellant's subsequent motion 

for a mistrial was also denied. Appellant did not make a motion 

to strike. The trial court convicted appellant of assault. 

 II. 

ADMISSIBILITY OF OFFICER COLEMAN'S TESTIMONY 

 Appellant contends that the trial court erred when it 

admitted Officer Coleman's testimony regarding appellant's 

conduct on December 21. He argues that this evidence was not 

relevant to the charge that he assaulted Officer Panebianco on 

December 8 and that, even if relevant, its prejudicial effect 

outweighed its probative value. We disagree. 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion." Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). 

Generally, evidence of other bad acts committed by a criminal 

defendant is not admissible to prove that he or she committed the 

charged offense. Lafon v. Commonwealth, 17 Va. App. 411, 417, 

438 S.E.2d 279, 283 (1993) (citing Kirkpatrick v. Commonwealth, 
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211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)). However, "other 

bad acts" evidence is admissible if relevant to some element or 

issue in the present case, such as the defendant's intent, and 

its probative value outweighs its prejudicial effect. Id. at 

417-18, 438 S.E.2d at 283-84; see also Charles E. Friend, The Law 

of Evidence in Virginia § 12-14(a) (4th ed. 1993). 

 We hold that the trial court did not abuse its discretion 

when it admitted Officer Coleman's testimony regarding 

appellant's conduct on December 21. The trial court correctly 

concluded that the evidence of appellant's conduct on this date 

was relevant to the issue of his intent on December 8. "Evidence 

is relevant if it has any logical tendency to prove an issue in a 

case." Goins v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114, 

127, cert. denied, U.S. , 117 S. Ct. 222, 136 L.Ed.2d 154 

(1996). The intent of the accused to cause bodily harm is always 

an issue in a prosecution for assault. See Boone v. 

Commonwealth, 14 Va. App. 130, 133, 415 S.E.2d 250, 251 (1992). 

The evidence of appellant's actions on December 21 -- his renewed 

threat to kill Officer Panebianco and his display of a shotgun 

shell with the officer's name on it -- had the requisite tendency 

to prove that appellant intended to cause bodily harm to the 

officer on December 8. In addition, we find no clear abuse of 

discretion in the trial court's determination that the probative 

value of Officer Coleman's testimony outweighed its prejudicial 

effect. See Wise v. Commonwealth, 6 Va. App. 178, 188, 367 
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S.E.2d 197, 203 (1988) (stating that trial court's balancing of 

the probative value and prejudicial effect of evidence will not 

be disturbed on appeal absent a clear abuse of discretion). 

 III. 

SUFFICIENCY OF THE EVIDENCE 

 Appellant argues for the first time on appeal that the 

evidence was insufficient to support his conviction of assaulting 

Officer Panebianco on December 8. 

 It is well established that 

 a ruling of a trial court cannot be a basis 

for reversal unless an objection is stated 

"together with the grounds therefor at the 

time of the ruling, except for good cause 

shown or to enable the Court of Appeals to 

attain the ends of justice." 

Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 

(1991) (quoting Rule 5A:18). In order to determine whether to 

invoke the ends of justice exception, "we must evaluate the 

nature and effect of the error to determine whether a clear 

miscarriage of justice occurred." Brown v. Commonwealth, 8 Va. 

App. 126, 131, 380 S.E.2d 8, 10 (1989). When a criminal 

defendant has not challenged the sufficiency of the evidence 

before the trial court, this Court may consider this issue under 

the ends of justice exception "only when the record affirmatively 

shows that a criminal defendant 'has been convicted of a crime of 

which under the evidence he could not properly be found guilty.'" 

Campbell v. Commonwealth, 14 Va. App. 988, 997, 421 S.E.2d 652, 
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657 (1992) (Barrow, J., concurring) (citation omitted). After 

reviewing the record, we invoke the "ends of justice" exception 

and consider the merits of appellant's argument regarding the 

sufficiency of the evidence. 

 "When considering the sufficiency of the evidence on appeal 

of a criminal conviction, we must view all the evidence in the 

light most favorable to the Commonwealth and accord to the 

evidence all reasonable inferences fairly deducible therefrom." 

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 

721 (1988). "The judgment of a trial court sitting without a 

jury . . . will not be set aside unless it appears from the 

evidence that the judgment is plainly wrong or without evidence 

to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). 

 In a prosecution for assault, the Commonwealth is required 

to prove that the defendant committed "[a]n overt act or an 

attempt, or the unequivocal appearance of an attempt, with force 

or violence, to do physical injury to the person of another." 

Merritt v. Commonwealth, 164 Va. 653, 658, 180 S.E. 395, 397 

(1935). A victim need not be physically touched to be assaulted. 

See Seegars v. Commonwealth, 18 Va. App. 641, 645, 445 S.E.2d 

720, 722 (1994); Harper v. Commonwealth, 196 Va. 723, 733, 85 

S.E.2d 249, 255 (1955) (stating that an assault occurs "though 

[the victim] be not struck . . . ."). However, a purely verbal 

threat with no appearance of an overt physical act does not 
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constitute an assault. See Harper, 196 Va. at 733, 85 S.E.2d at 

255 (stating that "no words whatever, be they ever so provoking, 

can amount to an assault . . . ." (citation omitted)). 

 We hold that the evidence was insufficient to support 

appellant's conviction of assault. The summary of the evidence 

in the written statement of facts, which appears to contain a 

complete account of defendant's actions on December 8, does not 

establish that appellant either attempted or appeared to attempt 

to cause physical injury to Officer Panebianco. The written 

statement of facts only indicates that appellant "stated" to 

Officer Panebianco from his jail cell that he was going to kill 

him before the new year. The only evidence in the record of any 

overt physical acts by appellant was the evidence that appellant 

damaged a window at Officer Panebianco's tatoo parlor on December 

21. Although the trial court found this evidence "persuasive" to 

prove the charge that appellant assaulted Officer Panebianco, 

this evidence does not establish that appellant made any physical 

movements while Officer Panebianco was in his presence on 

December 8. Because the evidence only proved that appellant 

verbally threatened Officer Panebianco on December 8, appellant 

could not properly be found guilty of assault. 

 For the foregoing reasons, we reverse the conviction of 

assault. 

Reversed and dismissed.