COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Willis and 

 Senior Judge Overton 

Argued at Alexandria, Virginia 

MARY O'CONNELL, S/K/A 

 MARY KELLY O'CONNELL 

 MEMORANDUM OPINION* BY 

v. Record No. 0286-00-4 JUDGE NELSON T. OVERTON 

 JANUARY 30, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

R. Terrence Ney, Judge 

 Jonathan P. Sheldon (James G. Connell, III, 

Assistant Public Defender, on brief), for 

appellant. 

 Richard B. Smith, Senior Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

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

designated for publication.

 Mary O'Connell (appellant) appeals her conviction for assault 

on a police officer in violation of Code § 18.2-57(C). She argues 

on appeal that the trial judge erred in giving his response to a 

jury question. Finding no error, we affirm her conviction. 

BACKGROUND

 Several police officers investigated a report of a 

"suspicious" event. When Officer Michael Spillars arrested 

appellant's companion for being drunk in public, appellant tried 

to intervene in the arrest. Spillars then arrested appellant 
for being drunk in public. As the officers tried to handcuff 

appellant, she became combative, swung her arms, and tried to 

avoid their attempts to hold her. While sitting in a police 

car, appellant struck her head on the barrier in the car, 

lacerating her head. 

 At the hospital, appellant had "violent outbursts" and 

fought medical personnel who attempted to assist her. As 

Spillars tried to restrain appellant so she could get medical 

treatment, she attempted to bite him. Appellant also kicked 

Spillars in the leg. Officer James Nida testified that 

appellant fought and resisted the arresting officers and that 

she kicked Spillars while she was in the hospital. Nida 

testified appellant "attack[ed] the closest person" to her while 

in the hospital. 

 Appellant testified she did not remember whether she fought 

the police officers as they tried to put her in the police car. 

Appellant acknowledged that the officers were present when she 

was treated at the hospital. Appellant testified she asked the 

officers to have the nurse stop hurting her during the 

treatment. Appellant also testified that, while she was in the 

hospital, she was trying "to get away from" the medical 

personnel because they were hurting her with their medical 

treatment. She stated she did not intend to assault a police 

officer, and she did not recall kicking an officer. 

- 2 -
 After the jury deliberated for about twenty minutes, it 

asked the following question: 

Does her striking out in general mitigate 

the charge of assaulting an officer, or does 

it have to be deliberate singling out of an 

officer? 

 Appellant's counsel requested that the trial judge respond 

to the question with "a general answer of '[Y]ou've been 

presented with the evidence, you must rely on your collective 

understanding.'" She also asserted that the jury had been 

instructed on the statute, and it was within the jury's "purview 

to determine what exactly that means." 

 The trial judge concluded that telling the jurors to rely 

on their collective recollection of the evidence would not 

answer the question. The judge stated that "under the language 

of the statute," the answer to the first part of the question 

was "No." The trial judge found that Code § 18.2-57(C) does not 

provide for mitigation or require a "deliberate singling out." 

He stated, "What the statute requires is the language contained 

in [Jury Instruction] 1 . . . that the defendant knew or had 

reason to know." The trial judge answered the jury question, 

"No." 

ANALYSIS

 Code § 18.2-57(C) provides in pertinent part: 

[I]f any person commits an assault or an 

assault and battery against another knowing 

or having reason to know that such other 

person is a law-enforcement officer 

- 3 -
. . . engaged in the performance of his 

public duties as such, such person shall be 

guilty of a Class 6 felony . . . . 

 Jury Instruction 1 stated, in pertinent part: 

The Court instructs the jury that the 

defendant is charged with the crime of 

assault on a police officer. The 

Commonwealth must prove beyond a reasonable 

doubt each of the following elements of that 

crime: 

(1) That the defendant inflicted some 

bodily hurt on Officer Michael Spillars; 

(2) That the act was done in an angry, 

rude, or vengeful manner; and 

(3) That the defendant knew or had reason 

to know that Michael Spillars was a law 

enforcement officer who was engaged in the 

performance of his public duties as a law 

enforcement officer. 

If you find from the evidence that the 

Commonwealth has proved beyond a reasonable 

doubt each of the above elements of the 

offense as charged, then you shall find the 

defendant guilty of assaulting a police 

officer . . . . 

 Appellant does not contend that the trial judge improperly 

instructed the jury on the elements of the offense. Rather, 

appellant contends the trial judge should have answered the 

jury's question by referring it to the jury instructions instead 

of answering the question "directly." She contends the trial 

judge's answer was "misleading" and "injected an interpretation 

of" Instruction 1. She also asserts that Code § 18.2-57(C) 

requires proof of specific intent and that the trial judge's 

- 4 -
answer was "legally incorrect" because "striking out in general" 

is inconsistent with the intent requirement of the statute. 

 "It is proper for a trial court to fully and completely 

respond to a jury's inquiry concerning its duties." Marlowe v. 

Commonwealth, 2 Va. App. 619, 625, 347 S.E.2d 167, 171 (1986) 

(citation omitted). Indeed, it is error not to instruct the 

jury when the jury may make findings based upon a mistaken 

belief of the law. See Martin v. Commonwealth, 218 Va. 4, 7, 

235 S.E.2d 304, 305 (1977) (per curiam). The trial court must 

"give a direct and correct response to an inquiry by the jury 

and its failure to do so is ground for reversal." Shepperson v. 

Commonwealth, 19 Va. App. 586, 591, 454 S.E.2d 5, 8 (1995). 

 Code § 18.2-57(C) does not require proof that the accused 

"intentionally select[ed]" the victim as does a violation of 

Code § 18.2-57(A) and Code § 18.2-57(B).1 A person violates 

Code § 18.2-57(C) if she commits an assault or an assault and 

 1

 Code § 18.2-57(A) provides: 

Any person 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 origin, the penalty upon conviction 

shall include a mandatory, minimum term of 

confinement of at least six months, thirty 

days of which shall not be suspended, in 

whole or in part. 

- 5 -
battery against another person, knowing or having reason to know 

that the other person is a law enforcement officer engaged in 

the performance of his public duties. Nothing in the language 

of the statute indicates a desire by the legislature to mitigate 

the offense if an officer is accidentally assaulted by the 

accused "striking out in general." Accordingly, the trial 

judge's response clearly and correctly addressed the jury 

question. Furthermore, the trial judge did not provide a 

legally incorrect answer to the jury question or mislead the 

jury with his answer. 

 For these reasons, appellant's conviction is affirmed. 

 Affirmed.

 

 Code § 18.2-57(B) provides, in part: 

However, if a person intentionally selects 

the person against whom an assault and 

battery resulting in bodily injury is 

committed because of his race, religious 

conviction, color or national origin, the 

person shall be guilty of a Class 6 felony 

. . . . 

- 6 -