COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Agee and Kelsey 

Argued at Salem, Virginia 

PATRICK CLAY ENGLISH 

 MEMORANDUM OPINION* BY 

v. Record No. 0675-02-3 JUDGE ROBERT J. HUMPHREYS 

DECEMBER 31, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

Joseph W. Milam, Jr., Judge 

 Gregory T. Casker for appellant. 

 Margaret W. Reed, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

Patrick C. English appeals his conviction, after a bench 

trial, for assault and battery upon a police officer, in violation 

of Code § 18.2-57(C).1 English contends the trial court erred in 

 

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

designated for publication. Further, because this opinion has 

no precedential value, we recite only those facts essential to 

our holding.

1

 Code § 18.2-57(C) provides: 

In addition, if 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 as defined hereinafter, a 

correctional officer as defined in § 53.1-1, 

a person employed by the Department of 

Corrections directly involved in the care, 

treatment or supervision of inmates in the 

custody of the Department or a firefighter 
finding the evidence sufficient to support the conviction. For 

the following reasons, we affirm the judgment of the trial court. 

English argues the Commonwealth failed to establish that he 

caused injury to Officer Casey H. Allen, of the Danville Police 

Department, by spitting on his face; and that in doing so, he 

possessed the requisite intent to do bodily harm. We disagree. 

The circuit court sitting without a jury in 

this case acted as the fact finder; hence, 

the court's judgment is accorded the same 

weight as a jury verdict. As the fact 

finder, the court "need not believe the 

accused's explanation and may infer that he 

is trying to conceal his guilt." 

Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907 

(2001) (citation omitted). 

An assault and battery is the unlawful 

touching of another. See Gnadt v. 

Commonwealth, 27 Va. App. 148, 151, 497 

S.E.2d 887, 888 (1998). Assault and battery 

is "the least touching of another, willfully 

or in anger." Roger D. Groot, Criminal 

Offenses and Defenses in Virginia 29 (4th 

ed. 1998). The defendant does not have to 

intend to do harm; a battery may also be 

"done in a spirit of rudeness or insult." 

Id. (footnote omitted). The touching need 

not result in injury. See Gnadt, 27 

Va. App. at 151, 497 S.E.2d at 888. A 

touching is not unlawful if the person 

 

as defined in § 65.2-102, engaged in the 

performance of his public duties as such, 

such person shall be guilty of a Class 6 

felony, and, upon conviction, the sentence 

of such person shall include a mandatory, 

minimum term of confinement for six months 

which mandatory, minimum term shall not be 

suspended, in whole or in part. 

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consents or if the touching is justified or 

excused. 

Perkins v. Commonwealth, 31 Va. App. 326, 330, 523 S.E.2d 512, 

513 (2000) (other citations omitted). 

Thus, "'[a]ssault and battery, . . . requires proof of 'an 

overt act or an attempt . . . with force and violence, to do 

physical injury to the person of another,' 'whether from malice or 

from wantonness,' together with 'the actual infliction of corporal 

hurt on another . . . wilfully or in anger.'" Boone v. 

Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250, 251 (1992) 

(quoting Jones v. Commonwealth, 184 Va. 679, 681-82, 36 S.E.2d 

571, 572 (1946)). "One cannot be convicted of assault and battery 

'without an intention to do bodily harm — either an actual 

intention or an intention imputed by law,' but an intent to maim, 

disfigure or kill is unnecessary to the offense." Id. at 133, 415 

S.E.2d at 251 (quoting Davis v. Commonwealth, 150 Va. 611, 617, 

143 S.E. 641, 643 (1928)). 

However, 

"[w]hen [an] injury is actually inflicted, a 

battery has been committed regardless of how 

small the injury might be. 'Battery is the 

actual infliction of corporal hurt on 

another (e.g., the least touching of 

another's person), willfully or in anger, 

whether by the party's own hand, or by some 

means set in motion by him.'" 

Adams v. Commonwealth, 33 Va. App. 463, 468, 534 S.E.2d 347, 350 

(2000) (quoting Seegars v. Commonwealth, 18 Va. App. 641, 644, 445 

S.E.2d 720, 722 (1994) (quoting Jones, 184 Va. at 682, 36 S.E.2d 

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at 572)). "[T]he slightest touching of another . . . if done in a 

rude, insolent or angry manner, constitutes a battery for which 

the law affords redress." Crosswhite v. Barnes, 139 Va. 471, 477, 

124 S.E. 242, 244 (1924) (citation omitted). Indeed, "[t]he law 

upon the subject is intended primarily to protect the sacredness 

of the person, and, secondarily, to prevent breaches of the 

peace." Banovitch v. Commonwealth, 196 Va. 210, 219, 83 S.E.2d 

369, 374 (1954) (citations omitted). Thus, "[i]n Virginia, it is 

abundantly clear that a perpetrator need not inflict a physical 

injury to commit a battery." Adams, 33 Va. App. at 469, 534 

S.E.2d at 351. 

Nevertheless, an individual cannot be convicted of assault 

and battery "'without an intention to do bodily harm — either an 

actual intention or an intention imputed by law.'" Davis, 150 Va. 

at 617, 143 S.E. at 643. However, 

[p]roving intent by direct evidence often is 

impossible. Like any other element of a 

crime, it may be proved by circumstantial 

evidence, as long as such evidence excludes 

all reasonable hypotheses of innocence 

flowing from it. Circumstantial evidence of 

intent may include the conduct and 

statements of the alleged offender, and 

"[t]he finder of fact may infer that [he] 

intends the natural and probable 

consequences of his acts." 

Adams, 33 Va. App. at 470-71, 534 S.E.2d at 351 (quoting Campbell 

v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en 

banc)) (other citations omitted). 

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Here, when Officer Allen and his partner arrived at the 

trailer home of Lisa Dabbs to investigate a complaint of a 

"disorderly subject," they found English inside the home, 

"intoxicated, disorderly," and "arguing with another subject that 

was inside the trailer." English was "very intoxicated" and 

"uncooperative." When Officer Allen placed English under arrest 

for trespassing, and escorted him to the patrol car, English 

turned back to Dabbs and her friend and told them that he was 

"gonna get'em," and threatened to kill them because they had 

called the police. Subsequently, as they were driving to the 

police station, English, who was sitting in the back seat of the 

car, remained "irate" and cursed at Officer Allen, who was driving 

the car. English then spit at Allen through the "screen," between 

the front and back seats, hitting Allen behind his right ear. 

The trial court, sitting as the fact finder, was entitled to 

reject English's testimony denying that he spit on Allen. The 

court specifically found that English's testimony in this regard 

was unbelievable and that, based upon English's demeanor on the 

witness stand, as well as how he conducted himself when he was 

arrested, English intended to spit on Officer Allen, thereby 

committing an assault and battery. That decision was not plainly 

wrong or without supporting evidence and must be upheld on appeal. 

For the reasons stated, we affirm the judgment of the trial 

court. 

 Affirmed. 

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