COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Fitzpatrick 

Argued at Alexandria, Virginia 

EDWARD BLACKWELL KELLY 

 MEMORANDUM OPINION* BY 

v. Record No. 0495-96-4 CHIEF JUDGE NORMAN K. MOON 

 FEBRUARY 4, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Herman A. Whisenant, Jr., Judge 

 Jerry M. Phillips (Phillips, Beckwith & Hall, 

on brief), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Edward Blackwell Kelly appeals his conviction of assaulting 

a correctional officer in violation of Code § 18.2-55. Kelly 

argues that the trial court erred in refusing to instruct the 

jury on the lesser included offense of assault and battery. 

Finding evidence to support the granting of the lesser included 

offense instruction, we reverse. 

 On June 4, 1995, Kelly was an inmate at the Adult Detention 

Center for Prince William County. During the serving of meals, 

Officer Santiago went to Kelly's cell to collect his food tray. 

Kelly's tray was not in the food slot of the cell and when 

Santiago asked for the tray, Kelly told him "[i]f you want my 

tray, you come in and get my tray." Santiago summoned Officer 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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Mora and remained outside of the cell while Mora entered to 

retrieve the tray. 

 Once inside, Mora asked for the tray and Kelly responded by 

throwing the tray at Mora, covering him with food. Kelly then 

stood up on his cell bed and, when Mora asked him to get down, 

Mora testified that Kelly leapt onto Mora, tearing his shirt and 

scratching his face. Mora freed himself from Kelly and fled the 

cell. Kelly testified that he did not intentionally leap on 

Mora, and stated that he slipped on the blanket on his cell bed 

and fell accidentally, striking Mora and inadvertently scratching 

his face. Kelly testified that it was not his intention to harm 

Mora. 

 The trial court instructed the jury that they should find 

Kelly violated Code § 18.2-55 if they found the evidence proved 

beyond a reasonable doubt that "[Kelly] knowingly and willfully 

caused bodily injury to an employee of the Prince William County 

Adult Detention Center." Kelly argued that the court erred by 

not instructing the jurors on the lesser included offence of 

assault and battery. "An assault is any attempt or offer, with 

force or violence, to do some bodily hurt to another, whether 

from wantonness or malice, by means calculated to produce the end 

if carried into execution." 2A Michie's Jur., Assault and 

Battery § 2 (1992); see Johnson v. Commonwealth, 13 Va. App. 515, 

517, 412 S.E.2d 731, 732 (1992). "Battery is the actual 

infliction of corporal hurt on another . . . willfully or in 

anger . . . ." Jones v. Commonwealth, 184 Va. 679, 681-82, 36 
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S.E.2d 571, 572 (1946). Battery may be accomplished by any 

touching in any angry, rude, or vengeful manner, although no 

significant injury is inflicted. Seegars v. Commonwealth, 18 Va. 

App. 641, 644, 445 S.E.2d 720, 722 (1994). 

 We find the trial court erred in refusing to give the 

instruction. "On appeal, when we consider a trial court's 

refusal to give a proffered instruction, `the appropriate 

standard of review requires that we view the evidence with 

respect to the refused instruction in the light most favorable to 

the defendant.'" Id. at 643, 445 S.E.2d at 722 (quoting Boone v. 

Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992)). 

 The facts of this case are indistinguishable from those of 

Seegars v. Commonwealth, 18 Va. App. 641, 445 S.E.2d 720 (1994), 

where this Court held that the trial court erred in refusing an 

assault and battery instruction in a case also involving a charge 

of violation of Code § 18.2-55. In Seegars the defendant argued 

that although he had purposely pushed a locker at a group of 

correctional officers, his intent was to distance himself from 

them, not to injure them. 18 Va. at 643, 445 S.E.2d at 722. 

Like Seegars, here the jury could have found that while Kelly 

might not have had the specific intent to "knowingly and 

willfully inflict bodily injury," he was nonetheless guilty of 

the lesser included offense of misdemeanor assault and battery. 

 The jury should have been provided the opportunity to 

"assess the evidence as it related to the lesser included offense 

of assault and battery, and should not have been forced into 
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making the impermissible choice of finding the defendant guilty 

of the offense charged or not guilty of any offense." Id. at 

645, 445 S.E.2d at 722-23. 

 Reversed and remanded.