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Present:  All the Justices


MICHAEL ANTHONY CARTER

v.  Record No. 040939     OPINION BY JUSTICE ELIZABETH B. LACY
  January 14, 2005
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Michael Anthony Carter was convicted of assault on a
police officer in violation of Code   18.2-57(C).  In this
appeal, he challenges his conviction, asserting that an
assault requires the present ability to inflict bodily injury
and that no such ability existed in this case.  We will affirm
Carter's conviction because the applicable definition of
assault does not require that an assailant have the actual
ability to inflict bodily harm.
Facts
The facts are not in dispute.  On December 29, 1998 at
approximately 11:00 p.m. in an area of frequent drug activity
in the City of Charlottesville, Officer Brian N. O'Donnell
made a routine traffic stop of a car for speeding.  Once the
car was stopped, Officer O'Donnell saw two individuals in the
car.  He approached the driver's side of the vehicle with his
weapon holstered but "unsnapped."  He noticed that the
passenger in the vehicle, Carter, had "his right hand down by
his right leg."  As Officer O'Donnell talked with the driver,
Carter made a sudden movement with his right arm arcing it "up
and across his body."  Carter's hand was in a fist with his
index finger pointing out and his thumb pointing up in the
shape of a gun.  Officer O'Donnell backed away from the
vehicle because he believed Carter had a weapon and was going
to shoot him until Carter said, "Pow."  At that point, Officer
O'Donnell realized "it was only his finger."  Officer
O'Donnell testified that he was terrified and that if he could
have gotten to his weapon he would have shot Carter.
Because Officer O'Donnell did not know if he could charge
Carter with any crime, he did not arrest Carter.  A few days
later, he obtained a warrant for Carter's arrest for
assaulting a police officer.
Proceedings
Carter was indicted for assaulting a police officer in
violation of Code   18.2-57(C).  Following a bench trial, the
trial court found Carter guilty of the charge and sentenced
him to three years in prison.  A divided panel of the Court of
Appeals affirmed the conviction.  Carter v. Commonwealth, 41
Va. App. 448, 452, 585 S.E.2d 848, 851 (2003).  Carter was
granted a rehearing en banc.  The Court of Appeals, sitting en
banc, affirmed the conviction.  Carter v. Commonwealth, 42 Va.
App. 681, 696, 594 S.E.2d. 284, 292 (2004) (en banc).  Carter
timely appealed to this Court.
Discussion
The issue in this case is whether the present ability to
inflict bodily harm is an element of assault for purposes of
Code   18.2-57(C).  Because the statute does not define
assault, we look to the common law definition of the term.  At
common law, assault was both a crime and a tort.  The common
law crime of assault required an attempt or offer committed
with an intent to inflict bodily harm coupled with the present
ability to inflict such harm.  Hardy v. Commonwealth, 58 Va.
(17 Gratt.) 592, 600-01 (1867).  The common law tort of
assault could be completed if the tortfeasor engaged in
actions intended to place the victim in fear of bodily harm
and created a well-founded fear in the victim.  Koffman v.
Garnett, 265 Va. 12, 16, 574 S.E.2d 258, 261 (2003).  Over the
years, many jurisdictions have merged the common law crime and
tort of assault so that today, a common law assault occurs
when either set of elements is proved.  See Wayne R. LaFave,
Criminal Law   16.3, at 823 (4th ed. 2003); Model Penal Code
 211.1 cmt. (1)(b), at 177-78 (1980); Rollin M. Perkins, An
Analysis of Assault and Attempts to Assault, 47 Minn. L.Rev.
71, 74 (1962).
As the parties agree, this Court has not directly
addressed the merger of the crime and tort of common law
assault.  Based on a review of our prior cases, we conclude
that, like the majority of jurisdictions, our prior cases
compel the conclusion that a common law assault, whether a
crime or tort, occurs when an assailant engages in an overt
act intended to inflict bodily harm and has the present
ability to inflict such harm or engages in an overt act
intended to place the victim in fear or apprehension of bodily
harm and creates such reasonable fear or apprehension in the
victim.
In one of the earliest cases considering the crime of
assault, Berkeley v. Commonwealth, 88 Va. 1017, 14 S.E. 916
(1892), the Court was not called upon to determine the
elements of the crime, but in the course of the opinion
recited a definition of assault that included the present
ability to inflict injury.  Id. at 1017-18, 14 S.E. at 916.  
The Berkeley definition of assault, particularly the
requirement of a present ability to inflict harm, was
clarified in Lynch v. Commonwealth, 131 Va. 769, 109 S.E. 418
(1921).  In that case, a prosecution for offering "ardent
spirits" for sale, the defendant sought to use the definition
of assault recited in Berkeley for the proposition that, like
an assault's dual requirement of an attempt to do bodily harm
and the present ability to inflict such harm, an attempt or
offer to sell "ardent spirits" also requires the present
ability to complete the sale.  Lynch, 131 Va. at 774-75, 109
S.E. at 420.  The Court rejected the defendant's argument and
stated that Berkeley did not hold that an attempt in all cases
must "be accompanied with the present ability" to accomplish
the thing attempted.  Id. at 775, 109 S.E. at 420.
In explaining its interpretation of Berkeley, the Court
cited the example that one would be guilty of assault if he
"menacingly points at another with a gun, apparently loaded,
yet not in fact" because a well-founded apprehension was
created.  Id. at 774, 109 S.E. at 420.  The Court then
proceeded to recite the "correct rule" of assault:
'There must be some power, actual or apparent, of
doing bodily harm; but apparent power is
sufficient.  In the instance we are referring to,
the person assaulted is really put in fear . . . .  
It has been said that the gun must be within
shooting distance; but plainly if it is not, yet
seems to be so to the person assaulted, or danger
otherwise appears imminent, it will be sufficient.'

Id. (quoting 2 Joel Prentiss Bishop, New Commentaries on the
Criminal Law   32.2, at 19-20 (8th ed. 1892) (Bishop)).
This rule was again cited as the "correct doctrine" in
Burgess v. Commonwealth, 136 Va. 697, 708, 118 S.E. 273, 276
(1923).  In Burgess, the Court affirmed the defendant's
conviction of assault on a police officer for shooting a
pistol in the officer's direction, even though the jury
instruction did not require that the defendant have an intent
to strike the victim.  Id. at 705, 708, 118 S.E. at 275-76.  
In resolving the case, the Court discussed the "irreconcilable
conflict in the authorities" regarding the assailant's intent
to do bodily harm, placing the victim in actual peril, and
putting the victim in well founded fear or apprehension of
harm.  Id. at 706-07, 118 S.E. at 275.  After reviewing the
conflicts, the Court adopted this principle:
'. . . There is no need for the assailed party to
be put in actual peril, if only a well founded
apprehension is created.  For this suffering is
the same in the one case as in the other, and the
breach of the public peace is the same.'

Id. at 708, 118 S.E. at 276 (emphasis added) (quoting 2 Bishop
 32.1, at 19).
The elements of common law assault as described in these
cases reflect the adoption of the principle that the actual
present ability to harm was not a prerequisite for conviction.  
Apparent ability or, put another way, well-founded fear or
apprehension of harm, combined with an intent to instill that
fear, was sufficient to support a conviction for common law
assault.  That understanding reflected the general trend of
combining the elements of common law criminal assault and
common law tort assault to form the definition of common law
assault.
Carter suggests that the statements in Lynch and Burgess
are not persuasive because the present ability to inflict harm
was not the specific question before the Court when these
statements of the law were recited and because definitions of
assault contained in subsequent opinions by this Court
continue to include the present ability to inflict harm as an
element of assault.  We disagree with Carter.
Carter can take no solace in the proposition that neither
Burgess nor Lynch involved the specific question posed in this
case.  None of the cases cited by Carter in support of his
position - Zimmerman v. Commonwealth, 266 Va. 384, 585 S.E.2d
538 (2003), Harper v. Commonwealth, 196 Va. 723, 85 S.E.2d 249
(1955), and Merritt v. Commonwealth, 164 Va. 653, 180 S.E. 395
(1935) - involved the specific issue presented here either.
In Merritt, the issue was whether an indictment reciting
that the defendant pointed a loaded pistol at a victim within
"carrying distance" of the pistol was sufficient to charge and
support a conviction for attempted murder.  164 Va. at 655-56,
180 S.E. at 396.  The Court concluded that the acts alleged
did not support a specific intent to kill or an inference of
such intent.  Id. at 658, 180 S.E. at 397.  The Court noted
that the acts alleged supported an assault and recited a
definition of assault in that context.  Id. at 658-59, 180
S.E. at 397-98.  That definition included the present ability
to inflict the bodily harm threatened, but the definition was
not part of, or necessary to, the Court's holding.  Id.  
Similarly in Harper, the definition of assault was not
critical to the issue before the Court.  The Court referred to
a definition of assault in the context of a challenge to a
jury instruction on self-defense.  Harper, 196 Va. at 732-33,
85 S.E.2d at 255.
Finally, the issues in Zimmerman, like the issue in
Burgess, involved the intent of the assailant.  Zimmerman, 266
Va. at 387, 585 S.E.2d at 539-40; Burgess, 136 Va. at 705-06,
118 S.E. at 275.  In both cases, the assailant had the present
ability to harm the victim and thus that factor was not the
focus of the inquiry.  Zimmerman, 266 Va. at 388, 585 S.E.2d
at 540; Burgess, 136 Va. at 705-06, 118 S.E. at 275.
Definitions of assault have been used by this Court in
various settings for various purposes.  But only Burgess
engaged in a discussion of the elements that constituted the
common law crime and tort of assault for purpose of criminal
prosecution.  See Burgess, 136 Va. at 706-07, 118 S.E. at 275-
76.  After considering the competing arguments, the Court in
Burgess adopted a definition of assault that was not
restricted to the common law crime of assault.  See id. at
708, 118 S.E. at 276.  The subsequent cases cited by Carter
with specific fact situations unrelated to the issue here did
not eliminate the Burgess analysis simply by reciting a
limited definition of assault when such definition was
consistent with the facts in a particular case.  The
definition in Burgess remains valid.  That definition does not
require the present ability to inflict harm when, as here, an
assailant acts in a manner intended to put the victim in
reasonable fear or apprehension and causes the victim such
reasonable fear or apprehension.
The definition of assault used by the trial court in this
case is consistent with the elements of assault we have just
discussed.  Carter has not challenged the trial court's
conclusion that when Carter made the arcing motion with his
arm and pointed his fist and finger, Officer O'Donnell's fear
of bodily harm was reasonable.  Accordingly, we will affirm
the judgment of the Court of Appeals affirming Carter's
assault conviction.
Affirmed.
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