COURT OF APPEALS OF VIRGINIA
Present: Judges Alsto n, Chafin and Decker Argued at Norfolk, Virginia

KARLIN MICHAEL JONES MEMORANDUM OPINION * BY v. Record No . 1079-16-1 JUDGE TERESA M. CHAFIN MAY 23, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF THE CITY OF VIRGINIA BEACH James C. Lewis, Judge Kristin L. Paulding ( 7 Cities Law, on briefs), for appellant. John I. Jones, IV, Assistant Atto rney General (Mark R. Herrin g, Attorney General, on bri ef), for appellee.

At the conclusion of a bench trial held in the Circuit Court of the City of Virginia Beach, Karlin Michael Jones was convict ed of assault and battery of a law enforcement officer in violation of Code § 18.2-57(C). 1 On appeal, Jones challenges th e sufficiency of the evidence supporting his conviction. Specifi cally, he contends that the evidence presented by the Commonwealth failed to establis h that he intended to harm the p olice officer he encountered on December 12, 2015. 2 For the reasons that follow, we conclude that the evidence pr esented at trial was sufficient to support Jones’s conviction and affirm t he circuit court’s decision.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Jones was also convicted of po ssession of marijuana in violati on of Code § 18.2-250.1, and providing a false identity t o a law enforcement officer in violation of Code § 19.2-82.1. Jones pled guilty to those offenses, and he does not challenge these convictions on appeal.

2 On appeal, the Commonwealth con tends that Jones did not preser ve this argument for appellate review. We disagree. J ones argued that the evidence presented failed to establish that he intended to harm the law enf orcement officer in the motion t o strike he made at the conclusion of the Commonwealth’s e vidence, and in the renewed m otion to strike he made at theUNPUBLISHED‐ 2 ‐ I. BACKGROUND “In accordance with established principles of appellate review, we state the facts in the light most favorable to the Commo nwealth, the prevailing party in the trial court[, and] accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). “V iewing the record through this evidentiary prism requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as t rue all the credible evidence favorable to the Commonwealth and all fair inferences to be dr awn therefrom.’” Cooper v. Com monwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Par ks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)). So viewed, the evidence of the presen t case is as follows. Officer Kevin Foxwell of the Vir ginia Beach Police Department w as on routine patrol on the evening of December 12, 2015. Around 10:30 p.m., he saw Jo nes and a woman sitting in a car parked in front of an apartme nt building. The woman was si tting in the driv er’s seat of the car, and Jones was sitting in the pa ssenger seat. Foxwell appr oached the car on foot wearing his badge and standard police uniform. As Foxwell approached the passe nger side of the car, he saw Jo nes pass an object that looked like a marijuana “blunt” to the woman. He then saw the woman lick and roll the “blunt.” Foxwell knocked on the passenger si de window of the car to make contact with its occupants, and Jones opened the door of the car. Jones only partially ope ned the door, however, because another car was parked in the adjacent parking space.

conclusion of his own evidence. J ones also incorporated the ar guments raised in his renewed motion to strike into his closi ng argument. Under these circum stances, we conclude that Jones adequately preserved the argum ent he presents on appeal, and we address that argument on its merits. See, e.g., Lee v. Lee, 12 Va. App. 512, 515, 404 S.E.2 d 736, 738 (1991) (“Counsel may meet the mandates of Rule 5A :18 . . . [by making] clear the gro und for his objection in a motion to strike the evidence or in closing argument.”).‐ 3 ‐ Foxwell asked Jones a question about the object resembling the marijuana “blunt” through the open door of the car as Jones remained seated in th e vehicle. At the time, Foxwell was behind the door standing next t o Jones. Foxwell noticed th at Jones seemed nervous. When Foxwell asked Jones for his id entification, Jones told him that his identification was in the trunk of the car and moved his legs out of the vehicle. Anticipating that Jones was attempting to flee, Foxwell told Jones to stop moving. 3 Jones did not comply with Foxw ell’s request. Instead, he quic kly stood up and “bum-rushed” Foxwell. Foxwell explained that Jones “lowered hi s shoulder [and] head” and attempted to push him out of the way so that he could get aroun d the open door of the car. After Jones pushed Foxwell, a brief str uggle ensued between the two m en. Foxwell grabbed Jones. 4 Jones then pushed Foxwell again, e scaped from his grip, and ran toward the apartment building. Notably, Jones did not punch or kick Foxwell during the alterca tion. Although Foxwell did not fall to the ground or lose his bala nce during the incident, he bumped into an unidentified object after he was pushed by Jones. Foxwell chased Jones for a short distance on foot, but he event ually stopped pursuing him and called for back-up. Ultimately, Jones surrendered to the police who arrived at the apartment building in response t o Foxwell’s call for assistance . Although Jones provided the police with false identification after he was tak en into custod y, he was otherwise respectful and compliant.

3 The record in this case does not affirmatively establish the e xact wording of Foxwell’s request. Foxwell testified that he told Jones to “basically re lax, you know,” and “stay still.” The female occupant of the car testif ied that Foxwell told Jones to “stop fidgeting.” Jones testified that Foxwell told him to “ha ng tight” and not “go rabid.”

4 While Jones testified that Foxw ell put him in a headlock or ch okehold, Foxwell testified that he grabbed Jones around his chest underneath his arms.‐ 4 ‐ Jones was charged with assault and battery of a law enforcemen t officer following the altercation with Foxw ell. At his trial, Jones explained that h e had pled guilty to a drug charge in 2011 and that he had been a fugitive for almost five years. He testified that he immediately decided to run away from Foxwell and that he would “take whatev er opportunity [he] could to get away from [him].” While J ones denied that he “bum-rushed” or pushed Foxwell, he admitted that he had physical cont act with the officer. He the n clarified that he did not intend to harm Foxwell and that he only m ade physical contact with him to enable his escape. Although Jones argued that the C ommonwealth had failed to esta blish that he intended to harm Foxwell, the circuit court disagreed and convicted Jones o f the charged offense. At Jones’s sentencing hearing, Jones reitera ted that he did not intend to harm Foxwell during the altercation and emphasized his general aversi on to violence. Before senten cing Jones, the circuit court commented: You know, I remember when we tried this case thinking a number of things. Number 1, the f act that Mr. Jones seems to b e a very nice fellow. And clearly thinking that there was no intent to assault [Officer] Foxwell in trying to get away. And as he was supposed to do, [Officer] Foxwe ll tried to get in his way. Tha t’s his job. That’s what he’s supposed to do. But I’ve got to tell you. Actions speak louder than words, and I have to agree with [the Commonwealth]. (Emphasis added). The circuit co urt then sentenced Jones to tw o years of active incarceration on his assault and batte ry conviction. This appeal followed.
II. ANALYSIS On appeal, Jones contends that the evidence presented by the C ommonwealth failed to establish that he intended to harm Foxwell. Jones argues that he only intended to escape from Foxwell and that any physical c ontact that he had with Foxwell was incidental to his attempt to get away from him. To support hi s argument, Jones points to th e statements made by the circuit court at the sentencing hearing regarding his lack of intent to harm Foxwell. He also notes that‐ 5 ‐ Foxwell did not suffer any physical injuries resulting from the altercation, and emphasizes that he did not punch or kick the offi cer. Based on his compliance with other police officers following his arrest, Jones also m aintains that he did not act in a rude or insolent manner on the night of the incident. We disagree with Jones’s argumen ts. After reviewing the record in this case, we conclude that the evidence pres ented by the Commonwealth was su fficient to establish that Jones intended to inflict bodily harm on Foxwell when he pushed him i n an offensive manner to enable his escape. When considering the sufficien cy of the evidence on appeal, we “presume the judgment of the trial court to be correct ” and reverse only if the trial court’s decision is “plainly wrong or without evidence to support it .” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also McG ee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) ( en banc ). Under this standard, “a revi ewing court does not ‘ask itsel f whether it believes that the evidence at the trial established guilt beyon d a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). It asks instead whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable d oubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (emphasis added) (quoting Jackson, 443 U.S. at 319). We do not “substit ute our judgment for that of the trier of fact” even if our opinion were to differ. Wact or v. Commonwealth, 38 Va. App. 37 5, 380, 564 S.E.2d 160, 162 (2002). “This familiar standard gives full play to the respons ibility of the trier of fact fairly to resolve conflicts in the tes timony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.‐ 6 ‐ Code § 18.2-57(C) prohibits the a ssault and battery of law enf orcement officers. That section of the statute sta tes, in pertinent part: [I]f any person commits an assaul t or an assault and battery ag ainst another knowing or having reason to know that such other person is . . . a law-enforcement officer . . . engaged in the perform ance of his public duties anywhere in the Commonwealth, such person is guilty of a Class 6 felony . . . . Code § 18.2-57(C). 5
“One cannot be convicted of assa ult and battery ‘without an in tention to do bodily harm – either an actual intention or an intention imputed by law.” Pa rish v. Commonwealth, 56 Va. App. 324, 330, 693 S.E.2d 315, 319 (2010) (quoting Adams v. Commonweatlth, 33 Va. App. 463, 468, 534 S.E.2d 347, 350 (2000)). However, “[i]n Virginia , it is abundantly clear that a perpetrator need not inflict a phy sical injury to commit a batt ery.” Adams, 33 Va. App. at 469, 534 S.E.2d at 351. “Battery is the actual infliction of corpor al hurt on another (e.g., the least touching of another’s person), wil lfully or in anger, whether b y the party’s own hand, or by some means set in motion by him.” Id. at 468, 534 S.E.2d at 350 (qu oting Seegars v. Commonwealth, 18 Va. App. 641, 644, 445 S.E.2d 720, 722 (1994)); see also Mon tague v. Commonwealth, 278 Va. 532, 541, 684 S.E.2d 583, 588 (2009) (“Battery is the actua l infliction of corporal hurt on another that is done wil lfully or in anger.”). “Whether a touching is a batte ry depends on the intent of the actor, not on the force applied.” Adams, 33 Va. App. at 468, 534 S.E.2d at 350. “The slightest touching of another . . . if done in a rude, insolent, or angr y manner, constitutes a bat tery for which the law affords redress.” Id. at 469, 534 S.E.2d a t 350 (alteration in origina l) (quoting Crosswhite v. Barnes, 139 Va. 471, 477, 124 S.E. 242, 244 (1924)). “The law upon the sub ject is intended primarily to

5 In the present appeal, Jones doe s not contest that Officer Fox well was a law enforcement officer engaged in the performance of his official duties as contemplated by Code § 18.2-57(C).‐ 7 ‐ protect the sacredness of t he person, and, secondarily, to prev ent breaches of the peace.” Id. (quoting Banovitch v. Commonwealth, 196 Va. 210, 219, 83 S.E.2d 369, 374 (1954)). Accordingly, “the reasonableness and offensiveness of the conta ct must be considered” when determining whether a touchi ng constitutes a battery. Id. at 4 70, 534 S.E.2d at 351. In the present case, Foxwell tes tified that Jones “bum-rushed” and pushed him in order to evade arrest. Although Jones de nied pushing Foxwell, he admitt ed that he made physical contact with him as he was attempting to escape. 6 Jones specifically testified that he immediately decided to escape and that he was willing to “take whatever opp ortunity [he] could to get away from [Foxwell].” Given Jones’s intent to evade arrest, the cir cuit court could infer that Jones intentionally pushed Foxwell out of his way in order to get awa y from him. Under the circumstances, Jones’s physical contact with Foxwell was both offensive and insolent. Despite being instr ucted to stop moving, Jones stood up from the car and pushed Foxwell in order to effectuate his escape. He intentionally pu shed Foxwell twice in an effort to interfere with his official dutie s and evade arrest. Jones’s a ctions were directly contradictory to the commands of a police officer investigating a crime, and the refore, the physical contact brought about by his actions was insolent. 7 At a minimum, Jones’s attempt to “bum-rush” Foxwell and the subsequent pushi ng involved in t he altercation were also rude.

6 We acknowledge that Jones’s te stimony concerning the altercati on differed from Foxwell’s description of the eve nts. As previously stated, how ever, we “discard the evidence of the accused in conflict with tha t of the Commonwealth, and rega rd as true all the credible evidence favorable to the Comm onwealth and all fair inferences to be drawn therefrom” when reviewing the sufficiency of t he evidence supporting a convicti on. Cooper, 54 Va. App. at 562, 680 S.E.2d at 363 (quoting Parks, 221 Va. at 498, 270 S.E.2d at 759 (emphasis omitted)). “Determining the credibility of w itnesses who give conflicting accounts is within the exclusive province of the [factfinder], w hich has the unique opportunity to observe the demeanor of the witnesses as they testify.” Lea v. Commonwealth, 16 Va. App. 3 00, 304, 429 S.E.2d 477, 479 (1993).

7 When used as an adjective, the t erm “insolent” means “lacking usual or proper respect for rank or position.” Webster’s T hird New International Dicti onary 1170 (2002).‐ 8 ‐ Furthermore, Jones’s actions i mplied that he intended to infli ct actual bodily harm on Foxwell. Proving intent by direct eviden ce often is impossible. Like any other element of a crime, it may be proved by circumstantia l evidence, as long as such evide nce excludes all reasonable hypotheses of innocence flowing fro m it. Circumstantial eviden ce of intent may include the conduct and statements of the alleged offender, and “the finder of fact m ay infer that [he] intends t he natural and probable cons equences of his acts.” Id. at 470-71, 534 S.E.2d at 351 (internal citations omitted) ( quoting Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) ( en banc )). In the present case, Jones att empted to push Foxwell out of hi s way in order to evade arrest. He “bum-rushed” Foxwell between the narrow confines of two parked vehicles. Although Foxwell did not lose his ba lance or fall during the al tercation, Jones pushed Foxwell with enough force to cause hi m to bump into an unknown object. Thus, Jones pushed Foxwell with a force great enough to destab ilize him and change his phy sical position. Foxwell could have fallen and incurred at lea st slight bodily harm, if not a more severe physical injury, as a natural consequence of Jones’s actions. Jones relies on the circuit court’ s statements at his sentenci ng hearing to support his argument on appeal. When read in i solation, we agree that thos e statements imply that the circuit court did not believe that Jones intended to harm Foxwell. Whe n those statements are read in the context of the entire recor d, however, they do not suggest that the circuit court believed that the evidence was insufficient to support Jones’s conviction. Absent clear evidence to the contrary in the record, the judgment of a trial court com es to us on appeal with a presumpt ion that the law was correctly app lied to the facts. Furthermore, we will not fix upon isolated stateme nts of the trial judge taken out of the full context in which the y were made, and use them as a predicate for holding the law has been misapplied. Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 2 91 (1977).‐ 9 ‐ First, we note that the statement s at issue were made at Jones ’s sentencing h earing rather than his trial. At th at time, the circuit court had already ov erruled two motions to strike in which Jones specifically argued that th e Commonwealth’s evidence fail ed to establish t hat he intended to harm Foxwell. Moreover, the circuit court had already concl uded that the evidence presented by the Commonwealth established that Jones committed the charge d offense. Second, we note that the circuit court expressly stated that it agreed with the Commonwealth’s theory of the cas e after making the statements a t issue. While the circuit court stated that it remembered “clearly thinking that there was no i ntent to assault [Officer] Foxwell in trying to get away,” it expl ained that “[a]ctions speak loud er than words,” and clarified that it agreed with the Commonwealth. T he circuit court then noted tha t Jones’s criminal record established that he was someone who “does not respect the law.” In conclusion, we hold that the evidence presented by the Comm onwealth supported Jones’s conviction for the assa ult and battery of a law enforce ment officer in violation of Code § 18.2-57(C). The evidence establ ished that Jones pushed Foxwe ll in an offensive and insolent manner in order to evade arrest . As Foxwell could have been in jured as a natural and probable consequence of Jones’s actions, w e also conclude that the evide nce was sufficient to establish that Jones intended to inflic t bodily harm on Foxwell when he p ushed him.
III. CONCLUSION As the evidence presented by the Commonwealth was sufficient t o support Jones’s conviction, we affirm the c ircuit court’s decision. Affirmed.