COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bumgardner 

Argued by teleconference 

CHARLES E. WILSON 

 MEMORANDUM OPINION* BY 

v. Record No. 0017-01-3 JUDGE JAMES W. BENTON, JR. 

 JANUARY 29, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL 

A. Dow Owens, Judge 

 J. Douglas Fleenor for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Randolph A. Beales, Attorney General, on 

brief), for appellee. 

 

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

designated for publication.

 The trial judge convicted Charles E. Wilson of the felony of 

assault and battery against a law-enforcement officer in violation 

of Code § 18.2-57(C). Wilson contends the trial judge erred by 

ruling that the Commonwealth did not have to prove intent and that 

the evidence was sufficient to prove Wilson intended to assault 

the officer. For the reasons that follow, we affirm the 

conviction. 

I. 

 The evidence proved that a police officer arrested Wilson 

for public drunkenness and transported him to the local jail. 

When Wilson arrived at the jail, he was "threatening, verbally 
abusive, lot[s] of cussing" and angry. He directed his profane 

comments at the officers and threatened to kill them. 

 A deputy sheriff searched Wilson's clothing and directed 

Wilson to sit and remove his shoes for a search. Wilson kicked 

one shoe across the room. The deputy sheriff retrieved the 

shoe, searched it, and searched Wilson's other shoe. He then 

put both shoes next to Wilson. Wilson kicked or threw his shoes 

across the room a second time, but retrieved the shoes himself. 

The deputy sheriff did not recall whether Wilson put his shoes 

on his feet. 

 The deputy sheriff left Wilson alone and walked to another 

area of the room. Other officers were in the area; however, 

none were closely monitoring Wilson. When the deputy sheriff 

returned to the area where Wilson was sitting, he saw movement 

"peripherally" and was struck on the jaw by Wilson's shoe. 

Although none of the officers actually saw Wilson throw or kick 

the shoe, all saw the shoe come from Wilson's direction. Wilson 

was sitting ten feet from the deputy sheriff and was the only 

person in that part of the room. 

 Wilson testified that he has an alcohol problem, that he 

was intoxicated in the jail, and that he did not recall the 

incident. He testified that, if he threw the shoe, it was not 

intended to hit anyone. 

 At the conclusion of the evidence, Wilson's attorney made a 

motion to strike the evidence. After the arguments by the 

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prosecutor and the defense attorney, the trial judge convicted 

Wilson of assault and battery of a law-enforcement officer in 

violation of Code § 18.2-57(C). 

II. 

 Wilson contends the trial judge erred in ruling that intent 

is not an element of the crime of assault and battery. The 

Commonwealth argues, however, that Wilson's attorney failed to 

object to the trial judge's comment concerning intent and that 

the record proves Wilson's attorney "agreed with the comment." 

 The record indicates that at the conclusion of the 

Commonwealth's case-in-chief, Wilson's attorney argued that "the 

concern here is . . . its one thing if he threw it. It's 

another thing if he was kicking his shoe as he'd done previously 

with no intent to cause injury." He repeated the crux of that 

argument at the close of all the evidence. He argued that the 

evidence did not prove "the shoe [left] the person of . . . 

Wilson" and that the evidence did not prove who propelled the 

shoe across the room or how it was propelled. He also presented 

the hypothesis that the evidence supported two equally likely 

inferences -- that Wilson either threw or kicked his shoe –- 

which created a conflict on the issue of intent. In response, 

the trial judge first said, "[i]ntent is not a factor under this 

code section," and then, in response to the attorney's further 

argument, said, "[i]ntent under this code section of injury of a 

police officer is not a factor as . . . in malicious wounding." 

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 We have specifically held as follows: 

[W]here an issue of sufficiency of evidence 

is presented to a trial court, sitting 

without a jury, in a motion to strike at the 

conclusion of the Commonwealth's evidence 

and, upon its denial and upon conclusion of 

the defendant's evidence, the same issue is 

presented in the defendant's final argument 

to the court, the defendant has preserved 

his right to appeal this issue, even though 

he did not make a motion to strike at the 

conclusion of his own evidence. 

Campbell v. Commonwealth, 12 Va. App. 476, 478, 405 S.E.2d 1, 1 

(1991) (en banc). The transcript clearly establishes that 

Wilson's attorney argued the issue of intent and that the trial 

judge commented on that argument. Because the trial judge 

"specifically addressed and ruled on these issues . . . , we 

conclude that the purpose of the contemporaneous objection rule 

. . . is satisfied." Morris v. Commonwealth, 13 Va. App. 77, 84 

n.2, 408 S.E.2d 588, 592 n.2 (1991). 

 III. 

 In pertinent part, Code § 18.2-57(C) provides as follows: 

[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 as 

defined hereinafter . . . 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. 

"Assault and battery, . . . requires proof of 'an overt act or 

an attempt . . . with force and violence, to do physical injury 

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

wantonness,' together with 'the actual infliction of corporal 

hurt on another . . . wil[l]fully or in anger.'" Boone v. 

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

(1992) (citations omitted). The principle is well established 

in Virginia that "[a]ny touching by one of the person . . . of 

another in rudeness or in anger is an assault and battery." 

Lynch v. Commonwealth, 131 Va. 762, 765, 109 S.E. 427, 428 

(1921). 

 We conclude from the trial judge's comments and his ruling 

that the trial judge was merely indicating that a specific 

intent was not needed in order to prove beyond a reasonable 

doubt the elements of assault and battery. Indeed, the judge 

stated, "[i]ntent under this code section . . . is not a factor 

as it . . . is in malicious wounding." Without further 

elaboration, Wilson's counsel said, "I understand," and moved 

onto an argument about the absence of injury. From the context 

of the exchange, we believe it is reasonable to conclude that 

the trial judge was merely expressing in a short handed manner 

the view we have stated more expansively as follows: 

An element necessary to . . . malicious 

. . . wounding is the "intent to maim, 

disfigure, disable, or kill" the victim. 

Assault and battery, however, 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 

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another . . . wil[l]fully or in anger." 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. 

Boone, 14 Va. App. at 132-33, 415 S.E.2d at 251 (citations 

omitted; emphasis removed). 

 In convicting Wilson, the trial judge referred to proof 

"beyond a reasonable doubt" that Wilson acted in a "rude manner" 

while propelling his shoe. See Lynch, 131 Va. at 765, 109 S.E. 

at 428 (holding that touching "another in rudeness or in anger 

is an assault and battery"). The evidence proved that Wilson 

was abusive, threatened to kill the officer, and generally was 

belligerent during the incident in which he propelled his shoe 

across the room striking the officer's face. This evidence was 

sufficient for the trial judge to find that Wilson's conduct was 

so wanton and flagrant as to prove beyond a reasonable doubt the 

elements of assault and battery. 

 Accordingly, we affirm the conviction. 

 Affirmed.

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