The Law Firm of

Erin L.T. Ranney, PLLC

Attorney At Law

 
Phone:   (804) 318-1151  or (804) 212-5252
             
 

Taking criminal and traffic defense cases in Chesterfield, Colonial Heights, Richmond, Henrico, New Kent, Hanover, Caroline, Hopewell, Prince George, Dinwiddie, Petersburg, Emporia, Greensville, Sussex, and across Virginia

 

Providing counsel on family law matters, including divorce, custody, visitation, support, and adoption

 

Providing estate planning services to those in Virginia, including wills, trusts, power of attorney, and advanced medical directives

Criminal Law Spotlight - March 2017

Assault

Assault

 

Assault is a very serious offense in Virginia.  There are several offenses that can qualify as what constitutes assault:

 

18.2-57. Assault and/or battery.

A. Any person who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin, the person shall be guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

C. In addition, if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a judge, a law-enforcement officer as defined hereinafter, a correctional officer as defined in 53.1-1, a person employed by the Department of Corrections directly involved in the care, treatment or supervision of inmates in the custody of the Department, a firefighter as defined in  65.2-102, or a volunteer firefighter or lifesaving or rescue squad member who is a member of a bona fide volunteer fire department or volunteer rescue or emergency medical squad regardless of whether a resolution has been adopted by the governing body of a political subdivision recognizing such firefighters or members as employees, engaged in the performance of his public duties, such person is guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months.

Nothing in this subsection shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law.

D. In addition, if any person commits a battery against another knowing or having reason to know that such other person is a full-time or part-time teacher, principal, assistant principal, or guidance counselor of any public or private elementary or secondary school and is engaged in the performance of his duties as such, he shall be guilty of a Class 1 misdemeanor and the sentence of such person upon conviction shall include a sentence of 15 days in jail, two days of which shall be a mandatory minimum term of confinement. However, if the offense is committed by use of a firearm or other weapon prohibited on school property pursuant to  18.2-308.1, the person shall serve a mandatory minimum sentence of confinement of six months.

E. As used in this section:

"Judge" means any justice or judge of a court of record of the Commonwealth including a judge designated under  17.1-105, a judge under temporary recall under  17.1-106, or a judge pro tempore under  17.1-109, any member of the State Corporation Commission, or of the Virginia Workers' Compensation Commission, and any judge of a district court of the Commonwealth or any substitute judge of such district court.

"Law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office which is part of or administered by the Commonwealth or any political subdivision thereof, who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of this Commonwealth, any conservation officer of the Department of Conservation and Recreation commissioned pursuant to  10.1-115, conservation police officers appointed pursuant to 29.1-200, and full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to  46.2-217, and such officer also includes jail officers in local and regional correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities, auxiliary police officers appointed or provided for pursuant to  15.2-1731 and 15.2-1733, auxiliary deputy sheriffs appointed pursuant to  15.2-1603, and police officers of the Metropolitan Washington Airports Authority pursuant to  5.1-158.

"School security officer" means an individual who is employed by the local school board for the purpose of maintaining order and discipline, preventing crime, investigating violations of school board policies and detaining persons violating the law or school board policies on school property, a school bus or at a school-sponsored activity and who is responsible solely for ensuring the safety, security and welfare of all students, faculty and staff in the assigned school.

F. "Simple assault" or "assault and battery" shall not be construed to include the use of, by any teacher, teacher aide, principal, assistant principal, guidance counselor, school security officer, school bus driver or school bus aide, while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control.

In determining whether a person was acting within the exceptions provided in this subsection, due deference shall be given to reasonable judgments that were made by a teacher, teacher aide, principal, assistant principal, guidance counselor, school security officer, school bus driver, or school bus aide at the time of the event.

(1975, cc. 14, 15; 1994, c. 658; 1997, c. 833; 1999, cc. 7711036; 2000, cc. 288682; 2001, c. 129; 2002, c. 817; 2004, cc. 420461; 2006, cc. 270709829; 2008, c. 460; 2009, c. 257.)

 

18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.

If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.

(Code 1950,  18.1-65; 1960, c. 358; 1975, cc. 14, 15.)

 

18.2-51.2. Aggravated malicious wounding; penalty.

A. If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.

B. If any person maliciously shoots, stabs, cuts or wounds any other woman who is pregnant, or by any other means causes bodily injury, with the intent to maim, disfigure, disable or kill the pregnant woman or to cause the involuntary termination of her pregnancy, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.

C. For purposes of this section, the involuntary termination of a woman's pregnancy shall be deemed a severe injury and a permanent and significant physical impairment.

(1986, c. 460; 1991, c. 670; 1997, c. 709.)


 

Breakdown:

- An assault is "an attempt or offer, with force and violence, to do some bodily hurt to another by means calculated to produce the end if carried into execution..."  Stith v. Commonwealth, 2001 Va. App. LEXIS 245 (Ct. of Appeals May 8, 2001).

- An assault and battery is essentially any unwanted touching; the injury need only be slight.  Adams v. Commonwealth, 534 S.E.2d. 347.

- An assault is a threat to do some bodily harm paired with the present ability to do so.  A battery is the actual touching or harm. 

- To give an example, in a recent case, evidence was found sufficient where a person grabbed a postal carrier by the shoulder after yelling at the postal carrier to deliver the mail sooner, and in grabbing the person by the shoulder turned them back around, pulling their hair, and twisting her head and body.  Parish v. Commonwealth, 693 S.E.2d 315 (2010).
-  Another recent case held that where a defendant engaged in a long pursuit with officers, and hit an officer's car, cauing it to hit a jersey wall, was sufficient to support a conviction for assault of a law enforcement officer.  Bell v. Commonwealth, 2012 Va. App. LEXIS 114 (Apr. 10, 2012).
- The relationship between the defendant and the alleged victim can determine not only what court the matter is heard in, but which Code section is charged.
- Because of these distinctions it is important to check you charging documents to see which is actually cited.

- Virginia does not have an aggravated battery statute.  As a result, a severe assault is frequently charged as a malicious wounding.

- Malicious wounding requires, as the statute points out, an intent to maim, disfigure, disable or kill.  The rule that "blood or breach of skin" automatically constitutes a malicious wounding is not necessarily the case.  The intent has to be proven as an element of the offense.  Robertson v. Commonwealth, 525 S.E.2d 640.


 

Remember, assault is a broad crime under Virginia law with a variety of dispostions.   If you are charged assault, malicious wounding, or any other criminal offense call me today for a free consultation.

Assault Facts

 

Type:

Assault and Battery: Class 1 Misdemeanor offense if charged as a simple assault or  assault and battery.

Malicious Wounding, Aggravated Malicious Wounding: Felonies.  There are also felonies relating to the throwing of certain objects (ex: acid) that fall into this category.

 

Maximum punishment:

Misdemeanor - maximum of 12 months in jail, $2500 fine.

Felony - felony Aggravated Malicious Wounding is a Class 2 felony.  The maximum prison sentence is a life sentence and a $100,000 fine.  Malicious Wounding is a Class 3 felony.  The maximum sentence is 20 years and a $100,000 fine.  Unlawful Wounding is a Class 6 felony.  The maximum sentence is 5 years and a $2500 fine.

 

Interesting Facts:  A person can be found guilty of assault and battery for something as simple as pushing another person or throwing a piece of paper at them.  Spitting on someone is one that is commonly charged (and frequently heavily punished).  You don't have to punch, slap, kick, or bite someone to commit and assault and battery.