COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Clements 

Argued at Richmond, Virginia 

JOHN HENRY AGEE 

 OPINION BY 

v. Record No. 1710-01-2 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 25, 2003 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Edward L. Hogshire, Judge 

 Vanessa E. Hicks, Assistant Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

 Jennifer R. Franklin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 John Henry Agee, appellant, contends on appeal that the 

trial court, in a bench trial, erred in finding the evidence 

sufficient beyond a reasonable doubt to convict him of assault 

on a law enforcement officer in violation of Code § 18.2-57(C). 

For the reasons that follow, we affirm the decision of the trial 

court. 

Background

 When the sufficiency of the evidence is challenged on 

appeal, "[w]e view the evidence in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences 

fairly deducible from the evidence." Cooper v. Commonwealth, 31 
Va. App. 643, 646, 525 S.E.2d 72, 73 (2000). So viewed, the 

evidence establishes that on October 27, 2000, Agee was involved 

in several verbal exchanges with James Herndon on Cherry Street 

in Charlottesville. During one of the encounters, Agee had his 

hands in the waistband of his pants and threatened to shoot 

Herndon. 

 Officer David Heyden, of the Charlottesville Police, 

responded to two or three calls from Cherry Street on the 

evening in question. Each time Officer Heyden and several other 

officers arrived on the scene in response to the calls, they 

were unable to locate Agee. On the last occasion, they 

dispersed through the neighborhood to look for Agee. Officer 

Heyden discovered Agee lying beneath a bush at the side of a 

house. He shined his flashlight on Agee and asked him to come 

out from under the bushes with his hands up.1 

 Agee crawled from the bushes and fled, running towards the 

rear of the house, and Heyden gave chase. Heyden rounded the 

corner of the building and saw Agee kneel on one knee. The 

officer recognized Agee's stance as one used when preparing to 

fire a weapon. As Heyden "took cover," he slipped in the mud 

and fell on his back. At that moment, he heard "the racking of 

a weapon - a semi-automatic weapon of a slide." Heyden is 

 

 1 Agee stipulated at trial that he knew Officer Heyden was a 

law enforcement officer. 

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familiar with semi-automatic weapons and the sounds made when 

the weapon is "racked." However, he was unable to see the 

firearm. When he heard the sound of a gun being "racked," 

Heyden was "in fear of [his] life" and he took immediate cover 

to wait for other officers to arrive. 

 After Agee was apprehended by other officers, a search of 

his person, the area in which he was apprehended, and the area 

of the pursuit, yielded no weapon. He testified at trial that 

he did not have a firearm during his confrontation with Officer 

Heyden and denied kneeling on the ground during the chase. He 

also testified that he was not under a bush when Officer Heyden 

found him and that he never threatened to shoot anyone that 

evening. 

Analysis

 On appeal, the judgment of a trial court sitting without a 

jury is afforded the same weight as a jury verdict, King v. 

Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1975), and 

we will "not disturb the trial court's judgment unless it is 

'plainly wrong or without evidence to support it.'" Barlow v. 

Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 904 (1998) 

(quoting Beavers v. Commonwealth, 245 Va. 268, 282, 427 S.E.2d 

411, 421 (1993)). We view the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Cooper, 31 Va. App. at 

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646, 525 S.E.2d at 73. Moreover, "the credibility of the 

witnesses and the weight accorded the evidence are matters 

solely for the fact finder who has the opportunity to see and 

hear that evidence as it is presented." Sandoval v. 

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) 

(citations omitted). "In its role of judging witness 

credibility, the fact finder is entitled to disbelieve the 

self-serving testimony of the accused and to conclude that the 

accused is lying to conceal his guilt." Marable v. 

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 

(1998) (citation omitted). 

Code § 18.2-57(C) states: "any person [who] commits an 

assault or an assault and battery against . . . a law 

enforcement officer . . . shall be guilty of a Class 6 felony." 

As defined by common law, an assault is 

"an attempt or offer, with force and 

violence, to do some bodily hurt to another, 

whether from wantonness or malice, by means 

calculated to produce the end if carried 

into execution; . . . accompanied with 

circumstances denoting an intention coupled 

with a present ability, of using actual 

violence against the person of another." 

Bennett v. Commonwealth, 35 Va. App. 442, 449, 546 S.E.2d 209, 

212 (2001) (quoting Harper v. Commonwealth, 196 Va. 723, 733, 85 

S.E.2d 249, 255 (1955) (citation omitted)). Furthermore, "there 

must be an overt act or an attempt, or the unequivocal 

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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). 

 Agee contends the assault elements were not established 

because Officer Heyden never saw a weapon and no weapon was 

recovered. In the absence of a weapon, Agee argues he did not 

have the "present ability" to use violence against the officer. 

The circumstantial evidence, however, establishes that Agee was 

carrying a weapon and, therefore, had the "present ability" to 

harm Officer Heyden. 

 "Circumstantial evidence is sufficient to prove guilt 

beyond a reasonable doubt so long as 'all necessary 

circumstances proved . . . exclude every reasonable hypothesis 

of innocence.'" McNair v. Commonwealth, 31 Va. App. 76, 86, 521 

S.E.2d 303, 308 (1999) (quoting Bishop v. Commonwealth, 227 Va. 

164, 169, 313 S.E.2d 390, 393 (1984)). "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). 

However, "the Commonwealth need only exclude reasonable 

hypotheses 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). 

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 In the case at bar, the chase occurred on a rainy evening, 

after midnight. As Heyden rounded the corner of the building, 

Agee assumed a stance the officer knew to be used by persons 

preparing to fire a weapon. The position in which Officer 

Heyden observed Agee was demonstrated to the court. Officer 

Heyden heard a "racking" sound made by a semi-automatic weapon, 

a sound with which he was familiar. Officer Heyden retreated to 

cover and radioed the other officers that Agee was armed. From 

this evidence, the trial court could reasonably infer that Agee 

made an "attempt" to do bodily harm to the officer and that he 

possessed a gun, giving him the "present ability" to do so. 

"Inferences . . . are elemental ingredients of the fact finding 

process." Morton v. Commonwealth, 13 Va. App. 6, 9, 408 S.E.2d 

583, 584 (1991). "An inference . . . permits a finder of fact 

to conclude the existence of one fact from the proof of one or 

more other facts." Id.

 Agee further contends that no overt act was proven and 

relies on our decision in Bennett, 35 Va. App. 442, 546 S.E.2d 

209, to support his argument. In Bennett, the defendant 

threatened the officers verbally. The officers testified that 

Bennett was not armed and made no threatening gestures with his 

hands. The officers further saw no weapons inside his house. 

Based on the officers' testimony, there was no overt act or 

appearance of an attempt to physically harm them. Id. at 450, 

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546 S.E.2d at 212. Conversely, in this case, Agee made a 

threatening gesture, kneeling on one knee in a stance Officer 

Heyden recognized as one used in firing a weapon, and had a gun 

in his possession as established by the sounds of a 

semi-automatic weapon "racking." 

 We find all the elements of the offense were proven and, 

accordingly, affirm the decision of the trial court. 

 Affirmed.

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