Ned Michie
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Charged with Assault & Battery?

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Assault and Battery

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20 COMMON ISSUES and DECISIONS 
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    Unfortunately, conflict between people is a part of life, and throughout history disagreements between people have sometimes led to physical fights and assaults.  

     Sometimes people will even bait people they don't like into starting a fight. Moreover, it is virtually always the case that the person who caused the fight claims the other person started it -- and the instigator may even run to the magistrate or police first, in order to get a warrant against the true victim.

     The typical Assault and Battery charge resulting from a fight is a First Class misdemeanor that carries up to a year in jail.  An assault and battery on an officer (and some other officials) can, however, turn what would be a misdemeanor punch or push into a felony with a mandatory six months in jail.  For a fuller listing of punishments, see Va. Code ​§ 18.2-57 . 

     Assault and Battery can actually be separate charges. An assault, in the law, does not involve touching but instead is threatening behavior toward a person in close proximity.  A battery, on the other hand, is an aggressive unwanted touching that can even happen without an assault.

In Parish v. Commonwealth, 56 Va. App. 324, 693 S.E.2d 315 (2010), the Virginia Court of Appeals did a solid job of explaining some of the nuances surrounding the law of assault and battery. The court stated as follows:

   "Code § 18.2-57 provides that 'any person who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor.' Because Code § 18.2-57 does not define assault or battery, we must look to the common law definition of the terms. Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786, 788-89 (2010), aff'g 54 Va. App. 120, 676 S.E.2d 332 (2009) (en banc).

    The crime of assault and the crime of battery are independent criminal acts, although they are linked in Code § 18.2-57. To sustain a conviction for assault, the Commonwealth must prove ' ‘an attempt or offer, with force and violence, to do some bodily hurt to another.’ ' Adams v. Commonwealth, 33 Va. App. 463, 468, 534 S.E.2d 347, 350 (2000) (quoting Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955)). The attempt or offer to do bodily harm [Page 330] 'occurs when an assailant engages in an overt act intended to inflict bodily harm [while he] has the present ability to inflict such harm or [the assailant] 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.'
Clark, 279 Va. at 641, 691 S.E.2d at 789 (quoting Carter v. Commonwealth, 269 Va. 44, 47, 606 S.E.2d 839, 841 (2005)). '[B]ecause assault requires an overt act, words alone are never sufficient to constitute an assault.' Id. at 641, 691 S.E.2d at 789 (citing Harper, 196 Va. at 733, 85 S.E.2d at 255; Merritt v. Commonwealth, 164 Va. 653, 658, 180 S.E. 395, 397 (1935)).

    To sustain a conviction for battery, the Commonwealth must prove a 'wil[l]ful or unlawful touching' of another. Wood v. Commonwealth, 149 Va. 401, 404, 140 S.E. 114, 115 (1927). It is not necessary that the touching 'result in injury to the [victim's] corporeal person. It is sufficient if it does injury to the [victim's] mind or feelings.' Id. at 405, 140 S.E. at 115.

    On appeal, appellant argues that she touched Roth merely to get Roth's attention in order to get her mail and that this touching falls within the realm of normal human interaction and does not rise to the level of assault and battery. It is true that '[n]ot every touch is a battery,' id., and a touching is not a battery if it is 'justified or excused,' Perkins v. Commonwealth, 31 Va. App. 326, 330, 523 S.E.2d 512, 513 (2000) (citing Gnadt v. Commonwealth, 27 Va. App. 148, 151, 497 S.E.2d 887, 888 (1998); Roger D. Groot, Criminal Offenses and Defenses in Virginia 30 (4th ed. 1998)). 'Whether a touching is a battery, depends on the intent of the actor, not on the force applied.' Adams, 33 Va. App. at 469, 534 S.E.2d at 350 (citing Wood, 149 Va. at 405, 140 S.E. at 115). '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.’ ' Id. at 468, 534 S.E.2d at 350 (quoting Davis v. Commonwealth, 150 Va. 611, 617, 143 S.E. [Page 331] 641, 643 (1928)). The unlawful intent may be imputed if the touching is ' ‘done in a rude, insolent, or angry manner.’ ' Id. at 469, 534 S.E.2d at 350 (quoting Crosswhite v. Barnes, 139 Va. 471, 477, 124 S.E. 242, 244 (1924)). 'This intent may often be gathered from the conduct of the aggressor, viewed in the light of the attending circumstances.' Wood, 149 Va. at 405, 140 S.E. at 115. Moreover, circumstantial evidence of intent may include the conduct and statements of the alleged offender. Adams, 33 Va. App. at 471, 534 S.E.2d at 351; see also Montague v. Commonwealth, 278 Va. 532, 541, 684 S.E.2d 583, 589 (2009) (citing Commonwealth v. Vaughn, 263 Va. 31, 36, 557 S.E.2d 220, 223 (2002)). Furthermore, the finder of fact may infer that the assailant '‘intends the natural and probable consequences of his acts.’' Adams, 33 Va. App. at 471, 534 S.E.2d at 351 (quoting Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc)).

    Similarly, a touching, i.e., the overt act in the assault in the instant case, falls outside the realm of normal human interaction when it is done 'with the intent to place [the victim] in fear or apprehension of bodily harm.' Clark, 279 Va. at 642, 691 S.E.2d at 789 (citing Carter, 269 Va. at 46-47, 606 S.E.2d at 841). When evaluating whether this intent existed, '[w]ords and prior conduct are highly relevant in shedding light on intent and the context within which certain actions transpired. A perpetrator's intent may be inferred from the nature of the overt act and the surrounding circumstances.' Id. at 642, 691 S.E.2d at 789."

Parish, 56 Va. App. at 329-331   (Applying the law to the facts in the Parish case, the court decided the defendant did commit an assault and battery in this case because of the angry exchange and the abrupt, aggressive manner in which the defendant grabbed the victim's shoulder in order to get her attention when the victim had turned to walk away.)

The courts have also found that spitting on someone can constitute an assault and battery.  In what some would consider a surprising decision, the Virginia Supreme Court decided a driver of a vehicle was properly convicted of assaulting a police officer during a traffic stop when the driver -- while talking to the officer and still seated in the car, with the door closed -- quickly brought his right hand up to the open window in a fist with his index finger pointing at the officer and his thumb straight up in the air in the shape of a gun and said, "Pow." Carter v. Commonwealth, 269 Va 44 (2005)

Self-Defense

In Hill v. Commonwealth, 10 Vap UNP 0186091 (2010)​, the Virginia Court of Appeals did a solid job of explaining some of the nuances regarding self-defense as follows:

“In its principal application, the doctrine of self-defense, a branch of the broader rule of necessity[,] is a possible defense to charges of unlawful contact ranging from simple assault through murder.” John L. Costello, Virginia Criminal Law and Procedure § 33.1[2] (2009). 'The common law of Virginia ‘has long recognized that a person who reasonably apprehends bodily harm by another is privileged to exercise reasonable force to repel the assault.’' Id. (quoting Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25 (1989)); see also Jackson v. Commonwealth, 96 Va. 107, 113, 30 S.E. 452, 454 (1898) (recognizing the right of a person who is reasonably apprehended 'to repel such assault by all the force he deemed necessary, . . . [and to] become the assailant, inflicting bodily wounds until his person was out of danger') (emphasis added).

    'Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.' Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978)). 'Whether an accused proves circumstances sufficient to create a reasonable doubt that he acted in self-defense is a question of fact.' Id. (citing Yarborough v. Commonwealth, 217 Va. 971, 978-79, 234 S.E.2d 286, 292 (1977)). However, 'undisputed facts may establish self-defense as a matter of law.' Lynn v. Commonwealth, 27 Va. App. 336, 353, 499 S.E.2d 1, 9 (1998) (citing Hensley v. Commonwealth, 161 Va. 1033, 170 S.E. 568 (1933)). If a self-defense claim is proved, the accused is entitled to an acquittal. Id. (citing Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958)).

Domestic Assault and/or Battery

The same legal principles apply to misdemeanor domestic assaults, but such cases are handled in the Juvenile and Domestic Relations Court instead of in the General District Court.  Moreover, the potential penalties and effects are different. A conviction for even a misdemeanor domestic assault results in the loss of gun rights for the defendant. Also, a third offense can be treated as a felony (e.g., even if the third offense is nothing more than an aggressive touching or push that results in a conviction).  See Va. Code § 18.2-57.2

First offense cases, depending on the jurisdiction, can potentially be handled with the defendant attending a "Batterer's Intervention Class" and being on probation for a specified period of time. If the defendant successfully completes all requirements, the charge may be dismissed.  See Va. Code ​§ 18.2-57.3

A domestic assault and/or battery is one against a family or household member -- which, in Virginia, is defined as:
"(i) the person's spouse, whether or not he or she resides in the same home with the person, (ii) the person's former spouse, whether or not he or she resides in the same home with the person, (iii) the person's parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren, regardless of whether such persons reside in the same home with the person, (iv) the person's mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person, (v) any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time, or (vi) any individual who cohabits or who, within the previous 12 months, cohabited with the person, and any children of either of them then residing in the same home with the person."    See Va, Code § 16.1-288