COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Ag ee 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, As sistant Attorn ey General (Jerry W. Kilg ore, Attorney General, on brief), for appellee.

Patrick C. English appeals his co nviction, af ter a bench trial, for assault and battery upon a police officer, in violation of Code § 18.2-57(C). 1 English cont ends 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 firefighterfinding the eviden ce sufficient to support the co nviction. For the following reas ons, we affirm the judgme nt of the tr ial court. English argues the Co mmonwealth failed to establish that he caused injury to Offi cer Casey H. Allen, of the Danville Police Department, by spitting on his face; and th at in doing so, he possessed the re quisite 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.

- 2 -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]ssaul t and battery, . . . re quires proof of 'an

overt act or an attempt . . . wi th force and vi olence, to do physical injury to the person of anothe r,' 'whether fr om malice or from wantonness,' together with 'the actual in fliction 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, 68 1-82, 36 S.E.2d 571, 572 (1946)). "One cannot be convicted of as sault and battery 'without an inte ntion to do bodily harm — eith er an actual intention or an intention impu ted by law,' but an intent to maim, disfigure or kill is unnecessary to the offense." Id. at 133, 415 S.E.2d at 25 1 (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

- 3 -at 572)). "[T]he slig htest touching of another . . . if done in a rude, insolent or angry manner, constitutes a battery for which the law afford s redress." Crosswhite v. Barnes , 139 Va. 471, 477, 124 S.E. 242, 244 (192 4) (citation om itted). Indeed, "[t]he law upon the subject is in tended primarily to pr otect the sa credness of the person, and, secondarily, to prevent brea ches of the peace." Banovitch v. Commonwealth , 196 Va. 210, 21 9, 83 S.E.2d 369, 374 (1954) (citations omitted). Thus, "[i]n Virgin ia, it is abundantly clear that a perpetrator ne ed not inflic t 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 "'with out an intention to do bo dily harm — either an actual intention or an intention impu ted 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 35 1 (quoting Campbell v. Commonwealth , 12 Va. App. 476, 484, 40 5 S.E.2d 1, 4 (1991) (en banc)) (other ci tations om itted).

- 4 -Here, when Officer Allen and his partner arri ved at the trailer home of Lisa Dabbs to invest igate a comp laint of a "disorderly subj ect," they found Engl ish inside the home, "intoxicated, disorderly," and "arguing with another subject that was inside the trailer." Engl ish was "very in toxicated" and "uncooperative ." When Officer Allen pl aced English under arrest for trespassin g, and escorted him to the patrol ca r, English turned back to Dabbs and her friend and told them that he was "gonna get'em," and th reatened to kill th em because they had called the police. Su bsequently, as they were driving to the police station, Englis h, who was sitting in the back seat of the car, remained "irate" and cursed at Officer Allen, who was driving the car. Englis h then spit at Allen thro ugh the "scree n," between the front and back seats, hitting Allen behind his right ear. The trial court, sitting as the fact fi nder, was en titled to reject English's testim ony denying that he spit on Allen. The court specific ally found that English's testimony in this regard was unbelievable and that, based upon English's de meanor on the witness stand, as well as how he conduc ted himself wh en he was arrested, Engl ish intended to spit on Officer Allen, thereby committing an as sault and battery. That decision was not plainly wrong or without supporti ng evidence and must be upheld on appeal. For the reasons stated, we affirm the judgment of the trial

court. Affirmed.

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