Tuesday 9th 

 February, 1999. 

Mark Evans Epps, Appellant, 

 against Record No. 0665-97-2 

 Circuit Court No. CR-97-416-00-M 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

 Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, 

 Elder, Bray, Annunziata, Bumgardner, Lemons and Senior Judge Overton*

 Anthony G. 

Spencer (Morchower, Luxton & Whaley, on 

briefs), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, 

on brief), for appellee. 

 A divided panel of this Court affirmed the judgment of the 

trial court. See Epps v. Commonwealth, 28 Va. App. 58, 502 S.E.2d 140 

(1998). We stayed the mandate of that decision and granted rehearing 

en banc. 

 Upon rehearing en banc, the judgment of the trial court is 

affirmed without opinion by an evenly divided Court. Accordingly, the 

opinion previously rendered by a panel of this Court on July 21, 1998 

is withdrawn and the mandate entered on that date is vacated. Chief 

Judge Fitzpatrick, Judges Benton, Coleman, Bray and Annunziata voted 

to reverse the judgment of the trial court. Judges Willis, Elder, 

 

 *Judge Overton participated in the hearing and decision of this 

case prior to the effective date of his retirement on January 31, 1999 

and thereafter by his designation as senior judge pursuant to Code 

§ 17.1-401, recodifying Code § 17-116.01:1. 
Overton, Bumgardner and Lemons voted to affirm said judgment. 

This order shall be published and certified to the trial 

court. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
 Tuesday 1st 

 September, 1998. 

Mark Evans Epps, Appellant, 

 against Record No. 0665-97-2 

 Circuit Court No. CR-97-416-00-M 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before the Full Court 

On August 5, 1998 came the appellant, by counsel, and filed 

a petition praying that the Court set aside the judgment rendered 

herein on July 21, 1998, and grant a rehearing en banc thereof. 

On consideration whereof, the petition for rehearing en banc 

is granted, the mandate entered herein on July 21, 1998 is stayed 

pending the decision of the Court en banc, and the appeal is 

reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 5A:35. 

 It is further ordered that the appellant shall file with the clerk of 

this Court ten additional copies of the appendix previously filed in 

this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bumgardner 

Argued at Richmond, Virginia 

MARK EVANS EPPS 

 OPINION BY 

v. Record No. 0665-97-2 JUDGE RUDOLPH BUMGARDNER, III 

 JULY 21, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Buford M. Parsons, Judge 

 Anthony G. Spencer (Morchower, Luxton & 

Whaley, on briefs), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 The defendant was convicted of assault by threat of his 

former wife, Paulette H. Epps. He was sentenced to sixty days in 

jail suspended for three years. The defendant contends that the 

evidence is insufficient to support the conviction because the 

Commonwealth did not prove that he committed any act denoting an 

intention of presently using actual violence. For the following 

reasons, we affirm the conviction. 

 The defendant arranged to meet his former wife at a public 

place so that he could return their children after visitation. 

The children were six and eight years old at the time. The 

defendant was late, and when he did arrive, a beer bottle fell 

out of his car as he exited it. His wife berated him for having 

alcohol in the car with the children. He responded with repeated 

vile cursing of her. She stated again that he did not have to 
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drink and that she was going to take the children and leave. The 

defendant continued to curse her and, as the victim described it, 

"he was all up in my face." At that point the defendant 

threatened to kill her. Douglas Hoover, the victim's fiancé who 

was riding with her, got out of the car and stepped between the 

two to prevent any violence. He told her to get the children out 

of the defendant's car and put them in her car. The victim was 

shaking, crying, and testified that she did think he was going to 

kill her. 

 The defendant argues that he committed no act, such as 

striking her with a weapon or raising his arm in a menacing 

manner, that was associated with the verbal threat. Citing 

Harper v. Commonwealth, 196 Va. 723, 85 S.E.2d 249 (1955), he 

argues that some act must denote a present intent to use actual 

force and that words alone can never amount to an assault. 

 "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; as by striking at him 

with a stick or other weapon, or without a 

weapon, though he be not struck, or even by 

raising up the arm or a cane in a menacing 

manner, by throwing a bottle of glass with an 

intent to strike, by levelling a gun at 

another within a distance from which, 

supposing it to be loaded, the contents might 

injure, or any similar act accompanied with 

circumstances denoting an intention coupled 

with a present ability, of using actual 

violence against the person of another. But 

no words whatever, be they ever so provoking, 

can amount to an assault; * * *". (Italics 

supplied). 

Id. at 733, 85 S.E.2d at 255 (quoting Davis, Criminal Law at 
- 6 - 

353-54). 

 Harper was charged with violating the maiming statute, Code 

§ 18.2-51 (formerly § 18-70). A jury convicted him of assault 

and battery, and he appealed the conviction arguing that the 

trial court had instructed erroneously. The Court ruled that the 

instruction requested by the defense was not proper because it 

would have permitted the defendant to strike another with a 

deadly weapon when the provocation was only words. The Court 

stated: "[I]n order to justify an accused in striking another 

with a deadly weapon, as the accused admits he did in this case, 

a threatening attitude alone affords no justification." Harper, 

196 Va. at 733, 85 S.E.2d at 255. The Court cited two cases and 

then made the quotation from Davis, supra. 

 At common law a criminal assault was an attempt to commit a 

battery. As with any attempt, the law required an intention to 

commit the act and a direct, ineffectual act toward its 

commission. See Barrett v. Commonwealth, 210 Va. 153, 156, 169 

S.E.2d 449, 451 (1969). The criminal definition, an attempted 

battery, requires that at the time of the act there be a present 

ability to complete the threatened battery. The defendant must 

have the specific intent to commit the act and take some direct 

and ineffectual action toward completion of the crime. 

 The common law tort definition of assault differed from the 

criminal definition. The tort of assault was an intentional 

offer to touch the person of another that created in the mind of 

the victim a reasonable apprehension of an immediate battery. 
- 7 - 

See Charles E. Friend, Personal Injury Law in Virginia § 6.3, at 

214 (1990); W. Page Keeton et al., Keeton & Prosser on the Law of 

Torts § 10 (5th ed. 1984). Present ability is not required for 

the tort of assault. It requires only that the plaintiff 

reasonably believe that the defendant had such ability. See

Friend, supra, § 6.3, at 214 n.4. "Any act of such a nature as 

to excite an apprehension of a battery may constitute an 

assault." Prosser, supra, § 10, at 43. "[T]he apprehension must 

be one which would normally be aroused in the mind of a 

reasonable person." Id. at 44. There must be an apparent 

ability and opportunity to carry out the threat immediately. 

There is no assault where the defendant is too far away to make 

contact. See id.

 The tort definition of assault has long been incorporated 

into the definition of the crime of assault. See Roger D. Groot, 

Criminal Offenses and Defenses in Virginia 28 (3d ed. 1994); 

Rollin M. Perkins & Ronald N. Boyce, Criminal Law § 2, at 167 (3d 

ed. 1982). Burgess v. Commonwealth, 136 Va. 697, 706-07, 118 S.E. 

273, 275 (1923), held that criminal assault is committed when 

(1) the defendant puts the victim in well-founded fear or 

apprehension of bodily harm though the defendant has in fact no 

intention to strike the victim and the victim is not in fact put 

in actual peril; and (2) the act is done with the intent to put 

the victim in fear or apprehension of bodily harm and the victim 

is in fact put in well-founded fear or apprehension of bodily 

harm. Burgess specifically rejected the argument that the victim 
- 8 - 

must be put in actual peril or that the act must be done with the 

intent to do bodily harm to the victim. "`The better rule is 

that the defendant's intention" (to do actual bodily harm) `does 

not enter into the case, for if reasonable fear of bodily harm 

has been caused by the conduct of the defendant, this is an 

assault, even though he disclaims any intention to do wrong.'" 

Id. at 707, 118 S.E. at 276 (quoting 5 C.J. (5), 3, at 618). 

 The definition from Davis, Criminal Law, that the Court 

quoted with approval in Harper traces to and is nearly a verbatim 

quotation from 1 East, Pleas of the Crown 406 (1803). Jones v. 

Commonwealth, 184 Va. 679, 36 S.E.2d 571 (1946), cites East as 

well as 3 Blackstone, Commentaries 120, as authority for its 

definition of criminal assault. Both of these venerable 

authorities, East and Blackstone, have been suggested as the 

genesis of the expansion of the criminal definition to 

incorporate the tort definition. See Perkins, supra, § 2, at 

165. 

 The defendant's argument that he is not guilty of assault 

unless he committed some act denoting an intention of presently 

using actual violence is correct under the original common law 

definition of criminal assault. We will assume without deciding 

that getting up in the victim's face to the point that someone 

intervened between the parties and threatening to kill the victim 

does not satisfy the common law criminal definition of assault. 

However, those facts do satisfy the tort definition of assault. 

The evidence is abundant that the defendant put the victim in 
- 9 - 

fear of bodily harm, that he had the immediate ability to do 

harm, and that the victim's apprehension of bodily harm was 

reasonable. The trial court stated: 

 He threatened to do her bodily harm, and that 

under the circumstances in which he did that, 

he did it, he had the ability to carry out 

that threat and he had, it's a case that he 

had present ability of using actual violence 

against the person, though he did not use the 

actual violence. 

 The defendant's words and acts satisfy the common law tort 

definition of assault that has long been a part of the present 

definition of criminal assault. Accordingly, we affirm the 

conviction. 

Affirmed.
- 10 - 

Benton, J., dissenting. 

 Mark Evans Epps was convicted of violating Code § 18.2-57.2 

("commit[ing] an assault and battery against a family or 

household member"). The male friend of Epps' former wife 

testified that Epps and Epps' former wife were standing "five 

feet apart" and "were just screaming and hollering at each 

other." The male friend moved between them as Epps and his 

former wife screamed at each other. No evidence proved that Epps 

touched his former wife. To convict an accused of an assault and 

battery the evidence necessarily must prove beyond a reasonable 

doubt an unlawful touching. See Jones v. Commonwealth, 184 Va. 

679, 682, 36 S.E.2d 571, 572 (1946); Gnadt v. Commonwealth, 27 

Va. App. 148, 151, 497 S.E.2d 887, 888 (1998). However, Epps was 

convicted of assault and battery based solely on the words he 

spoke. 

 Despite the lack of evidence of a touching, the only issue 

raised on this appeal is whether in proving an assault the 

evidence proved beyond a reasonable doubt an act denoting an 

intention of presently using actual violence. The Commonwealth 

argues that Epps' verbal threats proved the assault. 

 Although the offense of "assault" is regulated by statute, 

see Code § 18.2-57, it continues to be defined by common law. 

The common law definition of criminal assault is well established 

in Virginia. 

 "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 
- 11 - 

carried into execution; as by striking at him 

with a stick or other weapon, or without a 

weapon, though he be not struck, or even by 

raising up the arm or a cane in a menacing 

manner, by throwing a bottle of glass with an 

intent to strike, by levelling a gun at 

another within a distance from which, 

supposing it to be loaded, the contents might 

injure, or any similar act accompanied with

circumstances denoting an intention coupled

with a present ability, of using actual 

violence against the person of another. But 

no words whatever, be they ever so provoking, 

can amount to an assault; . . .". (Italics 

supplied). 

Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 

(1955) (citation omitted) (second emphasis added). See e.g., 

Jones, 184 Va. at 681-82, 36 S.E.2d at 572; Merritt v. 

Commonwealth, 164 Va. 653, 658, 180 S.E. 395, 397 (1935); Wood v. 

Commonwealth, 149 Va. 401, 404, 140 S.E. 114, 115 (1927); Boone 

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

(1992); Johnson v. Commonwealth, 13 Va. App. 515, 517, 412 S.E.2d 

731, 732 (1992). 

 The majority accepts defendant's argument that, when relying 

solely on the common law criminal definition of assault, "there 

is no assault unless an accused committed some act denoting an 

intention of presently using actual violence." However, the 

majority holds that the "defendant's words and acts satisfy the 

common law tort definition of assault that has long been a part 

of the definition of the present definition of criminal assault." 

 In affirming the conviction, the majority reasons that the 

common law crime of assault has merged with the civil tort of 

assault. See Roger D. Groot, Criminal Offenses and Defenses in 
- 12 - 

Virginia 27-28 (3d ed. 1994).1

 But see Charles E. Friend, 

Personal Injury Law in Virginia § 6.3, at 208-09 (1990) ("[T]he 

criminal action for assault and the tort action for assault 

involve different principles, purposes, and sanctions. The two 

actions should not be confused, and rules applicable to one 

should not be assumed to be applicable to the other."). 

 The principle is well established that the criminal offense 

of assault requires proof beyond a reasonable doubt of some overt 

physical act which proffers imminent unwanted force. See Burgess 

v. Commonwealth, 136 Va. 697, 708, 118 S.E. 273, 276 (1923) 

(assault requires an "overt act" which "puts the party assailed 

 

 1Groot states, in pertinent part, the following: 

 At common law a criminal assault was an 

attempted battery. It made no difference 

whether the victim was put in fear or was 

even aware of the assault. . . . At the same 

time a civil assault was committed by putting 

the victim in apprehension of a battery; 

civil assault depended upon the apprehension 

of the victim, but did not require an actual 

overt attempt to batter. 

 These two forms of assault long ago 

merged so that a criminal assault is "any 

attempt or offer with force or violence to do 

corporal hurt to another." An assault in the 

ancient criminal form, or attempted battery, 

requires proof that the accused intended a 

battery and performed some direct, 

ineffectual act towards its commission. An 

assault in the ancient civil form, an offer 

to batter, requires proof of a threat, actual 

or implied, to batter and an apparent present 

ability to do so. Actual ability to carry 

out the threat is not required because this 

form of assault turns on the victim's 

apprehension of harm; apparent ability is 

sufficient to create apprehension. 
- 13 - 

in well-founded fear of bodily harm"); Harper, 196 Va. at 725, 85 

S.E.2d at 255; Jones, 184 Va. at 681-82, 36 S.E.2d at 572; 

Merritt, 164 Va. at 658, 180 S.E. at 397. Mere words can never 

amount to an assault in criminal law. See Harper, 196 Va. at 

725, 85 S.E.2d at 255. 

 In this case, the Commonwealth proved no overt act by Epps 

indicating an actual or apparent present ability to cause bodily 

harm. There is simply no evidence of any physical act by Epps. 

The record proved that Epps and his former wife were arguing and 

that Epps threatened his former wife. The wife's male friend 

testified that Epps and his former wife were standing five feet 

away from each other and that they "were just screaming and 

hollering at each other." No evidence proves that Epps committed 

an overt act indicating an actual or apparent present intent and 

ability to cause bodily harm. The evidence in the record proved 

"mere words" of insult and threat, which are never enough, under 

either theory, to constitute an assault. 

 In Virginia, a criminal assault is either (1) an attempt to 

touch another person in an unprivileged way, see Harper, 196 Va. 

at 725, 85 S.E.2d at 255, or (2) an intentional placing of 

another in apprehension of receiving an immediate unprivileged 

touching. See Burgess, 136 Va. at 707-08, 118 S.E. at 276. 

"[B]oth will involve some physical act which proffers imminent 

unwanted force." John L. Costello, Virginia Criminal Law and 

Procedure § 4.2, at 70-71 (2d ed. 1995) (emphasis omitted). 

Because the Commonwealth failed to prove the existence of any act 
- 14 - 

indicative of the present ability, either actual or apparent, of 

inflicting immediate bodily harm, I would hold that the evidence 

is insufficient to prove Epps committed an assault upon his 

former wife.