Posts Tagged ‘Domestic Assault’
VIRGINIA ASSAULT & BATTERY DEFENSE LAWYERS
DEFENDING CLIENTS CHARGED WITH ASSAULT & BATTERY & DOMESTIC VIOLENCE IN VIRGINIA
In Virginia, the touching of another that is unconsented to is illegal. This is a serious offense that carries life changing consequences. The Virginia law offices of SRIS, P.C. have a number of excellent Virginia assault defense attorneys & battery defense lawyers in its offices in Fairfax, Fredericksburg, Lynchburg, Manassas, Richmond, Virginia Beach, Virginia. For more information or to make an appointment with SRIS, P.C., Virginia attorney who defends clients charged with assault & battery or domestic violence charges in Virginia, please call, send an e-mail or complete the on-line form
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There are many different types of assault and battery laws in Virginia. In Virginia, an assault and battery charge is also referred to as an A&B. For example, a person in Virginia can be charged with simple assault and battery, domestic assault and battery (a.k.a. domestic violence or assault on a family member) or felony assault and battery on a police officer. Simply because someone is charged with an offense of assault and battery or domestic violence in Virginia does not mean that they are going to be convicted as charged. The assault or domestic violence charge could be dismissed if the facts are such that the Commonwealth attorney in Virginia decides that they will not prevail at trial or there are some compelling reasons as to why the Virginia Commonwealth attorney should not pursue prosecution of the charge. There are also different plea bargain options available to the client if certain facts are present and the Virginia assault & battery attorney handling the matter is skilled at negotiating a good plea bargain. As always, there is the option of going to trial and proving one’s innocence at trial. However, this option should be considered as a last resort as there are no guarantees as to the outcome of the case at trial, unless one has absolutely no other options available or one is certain as to the outcome of one’s case. Only the client can ultimately decide what is best for them self. A good Virginia criminal lawyer will lay out the different options in a Virginia A&B charge or domestic violence charge and then the client will have to decide how to proceed.
To obtain a general overview of assault and battery or domestic violence, please click here
To learn more about the laws pertaining to assault and battery or domestic violence in Maryland or Massachusetts, please click on the state.
An assault and battery charge and domestic violence offense in Virginia are both class one misdemeanors at the very least. A class one misdemeanor carries up to one year in jail and or up to a $2500 fine. See Virginia Code Section 18.2-11.
The following are some of the different types of assault and battery charges one could face in the Commonwealth of Virginia:
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Assault and battery
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Assault and battery against a family or household member; penalty
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Assault or battery by mob
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Satisfaction and discharge of assault and similar charges
Virginia Code § 18.2-57. Assault and battery (top)
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 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 as such, such person shall be 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:
“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, and any conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1- 115, and game wardens appointed pursuant to § 29.1-200, 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 and auxiliary deputy sheriffs appointed pursuant to § 15.2-1603.
“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, principal, assistant principal, guidance counselor, or school security officer, in the course and scope of his acting 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, principal, assistant principal, guidance counselor, or school security officer at the time of the event.
§ 18.2-57.2. Assault and battery against a family or household member; penalty a.k.a domestic violence (top)
A. Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.
B. Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding in violation of § 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52, or (v)an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.
C. Whenever a warrant for a violation of this section is issued, the magistrate shall issue an emergency protective order as authorized by § 16.1-253.4, except if the defendant is a minor, an emergency protective order shall not be required.
D. The definition of “family or household member” in § 16.1-228 applies to this section.
§ 18.2-42. Assault or battery by mob (top)
Any and every person composing a mob which shall commit a simple assault or battery shall be guilty of a Class 1 misdemeanor.
In the event that you have been charged with a misdemeanor charge of assault and battery, there is a civil remedy available, but can only be applied if certain conditions are met. This is called accord and satisfaction. It is governed by the following statute:
§ 19.2-151. Satisfaction and discharge of assault and similar charges (top)
When a person is in jail or under a recognizance to answer a charge of assault and battery or other misdemeanor, or has been indicted for an assault and battery or other misdemeanor for which there is a remedy by civil action, unless the offense was committed (i) by or upon any law-enforcement officer, (ii) riotously in violation of §§ 18.2-404 to 18.2-407, (iii) against a family or household member in violation of § 18.2-57.2, or (iv) with intent to commit a felony, if the person injured appears before the court which made the commitment or took the recognizance, or before the court in which the indictment is pending, and acknowledges in writing that he has received satisfaction for the injury, the court may, in its discretion, by an order, supersede the commitment, discharge the recognizance, or dismiss the prosecution, upon payment by the defendant of costs accrued to the Commonwealth or any of its officers.Our Virginia assault & battery & domestic violence lawyers and staff speak various languages, including English, Tamil, Spanish, French, Hindi, Cantonese, Mandarin, and Telugu.
For more information or to make an appointment with SRIS, P.C., please call, send an e-mail or complete the on-line form
In the following case, the Court addressed the issue of what constitutes cohabiting under Code § 18.2-57.2 (the domestic violence statute) in Virginia
33 Va.App. 550, 535 S.E.2d 187
Court of Appeals of Virginia,
Salem.
James Edward RICKMAN,
v.
COMMONWEALTH of Virginia.
Record No. 2265-99-3.
Oct. 10, 2000.
Defendant was convicted in the Circuit Court, Roanoke County, Diane McQ. Strickland, J., of assault and battery against a family or household member, as third offense within 10 years, and he appealed. The Court of Appeals, Elder, J., held that: (1) as matter of first impression, factors considered in determining whether defendant and victim were cohabiting, so as to establish victim was “family or household member,” included sharing of familial or financial responsibilities, consortium, and length and continuity of the relationship; and (2) there was sufficient evidence of cohabitation to establish that victim was family or household member.
Affirmed.
Present: COLEMAN, WILLIS and ELDER, JJ.
ELDER, Judge.
James Edward Rickman (appellant) appeals from his bench trial conviction for assault and battery against a family or household member in violation of Code § 18.2-57.2, his third such conviction within ten years, making it punishable as a Class 6 felony. On appeal, appellant contends the evidence was insufficient to establish the woman he was convicted of assaulting and battering was a “family or household member” within the meaning of the statute. We hold the evidence was sufficient to bring appellant’s victim within the statutory definition, and we affirm his conviction.
I.
BACKGROUND
On March 13, 1999, appellant “hit” and “smacked” Yvonne Brickey, “jerked [her] shirt,” and pushed her to the ground.
According to Brickey, appellant was residing with her on the date of the offense, and they had resided together for “a couple months.” Appellant repeatedly told one of the officers who responded to the scene that he and Brickey “had lived together for about three months.” Appellant worked out of town on an intermittent basis and stayed with Brickey “off and on, when [he] would come into town.” Although Brickey testified **189 that appellant sometimes stayed with her and sometimes stayed with his ex-wife, appellant testified that he and his wife were not “living together” during March 1999 and that some of his furniture was in storage. Brickey said she *553 and appellant started living together in this “off and on” fashion “a long time ago.”
Other evidence established that when appellant was in Brickey’s home, she and appellant were “boyfriend and girlfriend,” slept in the same bed and had sexual relations. Although Brickey would not take money appellant offered her for living expenses, appellant bought food and “tried to just help out.” While appellant was at Brickey’s, he stored clothes and other items of personal property there. Brickey’s mother, who lived next door to Brickey, washed appellant’s clothes for him, and appellant used the telephone at Brickey’s mother’s home because Brickey did not have a phone.
Appellant admitted to staying with Brickey “off and on” but said he did not reside there. He considered the trailer he and his wife owned as his residence during that time but admitted he was not actually living there. He said that most of the time he was in town, he stayed with his cousin Wanda, but he admitted that both his wife and Brickey also would come to Wanda’s to stay. He denied having a contemporaneous sexual relationship with Brickey but admitted the March 13 altercation arose because Brickey became jealous when her daughter told her appellant had been out with a younger woman. Appellant said Brickey’s daughter, a minor, became angry with him when he asked her and her friends not to consume alcohol or use illegal drugs in the house.
Appellant moved to strike at the close of the Commonwealth’s evidence and again at the close of all the evidence. In denying the motions, the trial court made the following observations:
It is the finding of this Court that [appellant] was as much a member of the household where Ms. Brickey resides as he was of any household.
… [C]ertainly, the intent of the General Assembly in passing this legislation was to cover circumstances such as this where he was residing [in even an] on again and off again relationship with Ms. Brickey….
*554 The court found, in addition, the evidence was sufficient to prove that appellant assaulted and battered Brickey, a household member, and that he had two previous convictions for the same offense. It convicted him of a Class 6 felony pursuant to Code § 18.2-57.2(B).
II.
ANALYSIS
Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). The fact finder is not required to believe all aspects of a witness’ testimony; it may accept some parts as believable and reject other parts as implausible. See Pugliese v. Commonwealth, 16 Va.App. 82, 92, 428 S.E.2d 16, 24 (1993).
The version of Code § 18.2-57.2 applicable to these proceedings provided as follows:
A. Any person who commits an assault and battery against a family or household member shall be guilty of a Class 1 misdemeanor.
B. On a third or subsequent conviction for assault and battery against a family or household member, where it is alleged in the warrant, information, or indictment on which a person is convicted, that (i) such person has been previously convicted twice of assault and battery against a family or household member … within ten years of the third or subsequent offense, and … (ii) each such assault and battery occurred on different dates, such person shall be guilty of a Class 6 felony.
* * * * * *
D. As used in this section, “family or household member” means … (vi) any individual who cohabits or who, within the previous twelve months, cohabited with the defendant….
*555 Code § 18.2-57.2 (1995 Repl.Vol. (version effective July 1, 1997)) (emphasis added).
What constitutes cohabiting under Code § 18.2-57.2 is a question of first impression in Virginia. “[W]e construe a statute to promote the end for which it was enacted, if such an interpretation can reasonably be made from the language used.” Woolfolk v. Commonwealth, 18 Va.App. 840, 847, 447 S.E.2d 530, 533 (1994). “The plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction.” Branch v. Commonwealth, 14 Va.App. 836, 839, 419 S.E.2d 422, 424 (1992). “Although penal laws are to be construed strictly [against the Commonwealth], they ‘ought not to be construed so strictly as to defeat the obvious intent of the legislature.’ ” Willis v. Commonwealth, 10 Va.App. 430, 441, 393 S.E.2d 405, 411 (1990) (citation omitted).
Our prior consideration of the meaning of the term “cohabitation” has been limited mainly to the civil arena in the context of divorce and spousal support. Interpreting a property settlement agreement in Schweider v. Schweider, 243 Va. 245, 415 S.E.2d 135 (1992), the Virginia Supreme Court noted that, “[w]hile engaging in sexual relations is a factor in determining cohabitation, ‘ “matrimonial cohabitation” consists of more than sexual relations. It also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship.’ ” Id. at 248, 415 S.E.2d at 137 (quoting Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986)).
We revisited this issue in Frey v. Frey, 14 Va.App. 270, 416 S.E.2d 40 (1992), noting that financial support is “a factor which tends to prove the assumption of duties or obligations attendant to marriage” but that “other factors exclusive of support may be sufficient to establish that a relationship is analogous to marriage.” Id. at 275, 416 S.E.2d at 43. We acknowledged the holding of the Supreme Court in Schweider that phrases such as “cohabitation, analogous to marriage,” have been “consistently interpreted … as encompassing both *556 a permanency or continuity and an assumption of marital duties.” Id.
Appellant contends these principles are applicable to his conviction for domestic assault and battery and preclude a finding that he cohabited with Brickey because the evidence failed to establish the necessary permanence or any other characteristics of a marital relationship or common law marriage. Although we find Schweider and Frey instructive, we disagree that they control our interpretation of Code § 18.2-57.2. While we look to these interpretations for guidance, we are not bound by them because ” ‘cohabitation’ takes on different meanings in different contexts.” State v. Yaden, 118 Ohio App.3d 410, 692 N.E.2d 1097, 1100 (1997); see also Elizabeth Trainor, Annotation, ” Cohabitation” For Purposes of Domestic Violence Statutes, 71 A.L.R.5th 285, 294 (1999). Compare Colley v. Colley, 204 Va. 225, 228-29, 129 S.E.2d 630, 632-33 (1963) (under divorce jurisdiction statute, construing “cohabiting” to mean “having dwelled together under the same roof with more or less permanency”), with Tarr v. Tarr, 184 Va. 443, 448, 35 S.E.2d 401, 403-04 (1945) (in assessing what acts amount to condonation of adultery, construing “cohabiting” to mean “single voluntary act of sexual intercourse”).
We also seek guidance from the interpretations other courts have given “cohabitation” in the domestic abuse context. These courts acknowledge the obvious conclusion of their legislatures that “assault involving a family or household member deserves further protection than assault on a stranger.” See, e.g. State v. Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126, 1129 (1997). In Virginia, the legislature also has concluded that assault on a family or household member is more serious than assault on a stranger. See Code §§ 18.2-57, 18.2-57.2.FN1
FN1. Although the first and second offenses of assault and battery of a family or household member are punished as Class 1 misdemeanors in Virginia-the same punishment imposed for assault and battery on a non-family member who does not belong to any other special class-a third offense for assault and battery of a family or household member within ten years is subject to heightened punishment as a Class 6 felony. See Code §§ 18.2-57, 18.2-57.2 .
*557 In surveying the varying definitions of cohabitation in this context, the Ohio Supreme Court noted the prevailing view that “domestic violence arises out of the nature of **191 the relationship itself, rather than the exact living circumstances of the victim and perpetrator.” Williams, 683 N.E.2d at 1129.
[T]he essential elements of “cohabitation” are (1) sharing of familial or financial responsibilities and (2) consortium. Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations.
Id. at 1130 (citations omitted).
Other factors appropriate for consideration include the length and continuity of the relationship. See, e.g., State v. Kellogg, 542 N.W.2d 514, 518 (Iowa 1996). Although “a person may have only one legal domicile at one time, … he may have more than one residence” for purposes of a statute proscribing domestic assault. State v. Archuletta, 85 Hawai’i 512, 946 P.2d 620, 622 (Ct.App.1997).
[A] defendant may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods. A defendant who physically abuses a cohabitant cannot immunize himself from criminal liability merely by living part-time elsewhere with one or more other persons while continuing to reside the rest of the time with the first partner and maintaining a substantial relationship with that person.
People v. Moore, 44 Cal.App.4th 1323, 52 Cal.Rptr.2d 256, 264 (1996). The factors to be applied “are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the trier of fact.” *558 Williams, 683 N.E.2d at 1130 (emphasis added); see Kellogg, 542 N.W.2d at 518.
In construing Code § 18.2-57.2 to achieve the obvious intent of the legislature, we apply these same factors to a totality-of-the-circumstances analysis in appellant’s case. Under this analysis, we hold the evidence supports the trial court’s finding that appellant and Brickey cohabited as that term is used in Code § 18.2-57.2. Under the first prong of the Ohio Supreme Court’s test, the sharing of familial or financial responsibilities, the evidence established that appellant desired to contribute money to cover a portion of Brickey’s household expenses and gave her grocery money whenever he stayed at the residence. Brickey’s mother, who lived next door, washed appellant’s laundry and allowed appellant to use her phone. Appellant also felt comfortable enough in Brickey’s home to ask her daughter, a minor, not to consume alcohol or illegal drugs in Brickey’s house.
Under the second prong, consortium, the evidence supported a finding that Brickey and appellant slept in the same bed and had a sexual relationship. Although appellant insisted their relationship was platonic, he admitted they were very close and said they fought because Brickey thought he had been out with a younger woman and became jealous.
Finally, in addressing the duration, continuity and permanency of the relationship, as the holdings in Schweider and Frey suggest we should, see also Kellogg, 542 N.W.2d at 518, the evidence, viewed in the light most favorable to the Commonwealth, supported a finding that appellant had resided with Brickey continuously for three months prior to March 13, 1999 and that he had stayed with her sporadically before that for “a long time,” as well. Although appellant said he remained married to another woman, he reported that some of his furniture was in storage and that he was not living with his wife during that period of time. Based on this evidence, the trial court concluded that appellant “was as much a member of the [victim's] household … as he was of any household” and that this was sufficient to establish cohabitation under *559 Code § 18.2-57.2. We agree and hold the fact that appellant sometimes worked out of town and may periodically have stayed elsewhere when in town did not preclude a finding that he cohabited with Brickey. See Archuletta, 946 P.2d at 622. The evidence supported the trial court’s implicit finding that appellant maintained a “substantial ongoing relationship[**192 ]” with Brickey during this period of time. Moore, 52 Cal.Rptr.2d at 264.
For these reasons, we hold the evidence of cohabitation was sufficient to support appellant’s conviction under Code § 18.2-57.2. Therefore, we affirm the conviction.
Affirmed.
Va.App.,2000.
Rickman v. Com.
33 Va.App. 550, 535 S.E.2d 187
In the following case, the Court of Appeals sets out the elements (definition) for a general assault and battery and the elements for an assault and battery on a police officer.
Court of Appeals of Virginia.
Mary O’CONNELL, s/k/a Mary Kelly O’Connell,
v.
COMMONWEALTH of Virginia.
No. 0286-00-4.
Jan. 30, 2001.
Present FITZPATRICK, Chief J., WILLIS, J., and OVERTON, Senior J.
OVERTON.
*1 Mary O’Connell (appellant) appeals her conviction for assault on a police officer in violation of Code § 18.2-57(C). She argues on appeal that the trial judge erred in giving his response to a jury question. Finding no error, we affirm her conviction.
BACKGROUND
Several police officers investigated a report of a “suspicious” event. When Officer Michael Spillars arrested appellant’s companion for being drunk in public, appellant tried to intervene in the arrest. Spillars then arrested appellant for being drunk in public. As the officers tried to handcuff appellant, she became combative, swung her arms, and tried to avoid their attempts to hold her. While sitting in a police car, appellant struck her head on the barrier in the car, lacerating her head.
At the hospital, appellant had “violent outbursts” and fought medical personnel who attempted to assist her. As Spillars tried to restrain appellant so she could get medical treatment, she attempted to bite him. Appellant also kicked Spillars in the leg. Officer James Nida testified that appellant fought and resisted the arresting officers and that she kicked Spillars while she was in the hospital. Nida testified appellant “attack[ed] the closest person” to her while in the hospital.
Appellant testified she did not remember whether she fought the police officers as they tried to put her in the police car. Appellant acknowledged that the officers were present when she was treated at the hospital. Appellant testified she asked the officers to have the nurse stop hurting her during the treatment. Appellant also testified that, while she was in the hospital, she was trying “to get away from” the medical personnel because they were hurting her with their medical treatment. She stated she did not intend to assault a police officer, and she did not recall kicking an officer.
After the jury deliberated for about twenty minutes, it asked the following question:
Does her striking out in general mitigate the charge of assaulting an officer, or does it have to be deliberate singling out of an officer?
Appellant’s counsel requested that the trial judge respond to the question with “a general answer of ‘[Y]ou’ve been presented with the evidence, you must rely on your collective understanding.’ ” She also asserted that the jury had been instructed on the statute, and it was within the jury’s “purview to determine what exactly that means.”
The trial judge concluded that telling the jurors to rely on their collective recollection of the evidence would not answer the question. The judge stated that “under the language of the statute,” the answer to the first part of the question was “No.” The trial judge found that Code § 18.2-57(C) does not provide for mitigation or require a “deliberate singling out.” He stated, “What the statute requires is the language contained in [Jury Instruction] 1 … that the defendant knew or had reason to know .” The trial judge answered the jury question, “No.”
ANALYSIS
*2 Code § 18.2-57(C) provides in pertinent part:
[I]f any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a law-enforcement officer … engaged in the performance of his public duties as such, such person shall be guilty of a Class 6 felony….
Jury Instruction 1 stated, in pertinent part:
The Court instructs the jury that the defendant is charged with the crime of assault on a police officer. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:
(1) That the defendant inflicted some bodily hurt on Officer Michael Spillars;
(2) That the act was done in an angry, rude, or vengeful manner; and
(3) That the defendant knew or had reason to know that Michael Spillars was a law enforcement officer who was engaged in the performance of his public duties as a law enforcement officer.
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty of assaulting a police officer….
Appellant does not contend that the trial judge improperly instructed the jury on the elements of the offense. Rather, appellant contends the trial judge should have answered the jury’s question by referring it to the jury instructions instead of answering the question “directly.” She contends the trial judge’s answer was “misleading” and “injected an interpretation of” Instruction 1. She also asserts that Code § 18.2-57(C) requires proof of specific intent and that the trial judge’s answer was “legally incorrect” because “striking out in general” is inconsistent with the intent requirement of the statute.
“It is proper for a trial court to fully and completely respond to a jury’s inquiry concerning its duties.” Marlowe v. Commonwealth, 2 Va.App. 619, 625, 347 S.E.2d 167, 171 (1986) (citation omitted). Indeed, it is error not to instruct the jury when the jury may make findings based upon a mistaken belief of the law. See Martin v. Commonwealth, 218 Va. 4, 7, 235 S.E.2d 304, 305 (1977) ( per curiam ). The trial court must “give a direct and correct response to an inquiry by the jury and its failure to do so is ground for reversal.” Shepperson v. Commonwealth, 19 Va.App. 586, 591, 454 S.E.2d 5, 8 (1995).
Code § 18.2-57(C) does not require proof that the accused “intentionally select[ed]” the victim as does a violation of Code § 18.2-57(A) and Code § 18.2-57(B). FN1 A person violates Code § 18.2-57(C) if she commits an assault or an assault and battery against another person, knowing or having reason to know that the other person is a law enforcement officer engaged in the performance of his public duties. Nothing in the language of the statute indicates a desire by the legislature to mitigate the offense if an officer is accidentally assaulted by the accused “striking out in general.” Accordingly, the trial judge’s response clearly and correctly addressed the jury question. Furthermore, the trial judge did not provide a legally incorrect answer to the jury question or mislead the jury with his answer.
FN1. Code § 18.2-57(A) provides:
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 mandatory, minimum term of confinement of at least six months, thirty days of which shall not be suspended, in whole or in part.
Code § 18.2-57(B) provides, in part:
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….
*3 For these reasons, appellant’s conviction is affirmed.
Affirmed.
Va.App.,2001.
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Have you been arrested for Domestic Assault in MA?
A domestic assault charge in Massachusetts is a very serious offense. Massachusetts domestic assault law carries the following penalties: A maximum sentence of 2 1/2 years in jail and a fine of $1000. Allegations of domestic assault are treated very seriously by the police and the prosecutors. You must have an experienced Massachusetts criminal defense lawyer to represent you as early as possible if you are charged with domestic assault in Massachusetts.
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MA Chapter 265: Assault or assault and battery; punishment
“Section 13A. (a) Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than 2 1/2 years in a house of correction or by a fine of not more than $1,000.”
Our Massachusetts domestic assault defense attorneys help defend clients in the following counties:
Boston Massachusetts Domestic Assault Defense, Greater Boston MA Criminal Lawyer, Barnstable County MA Criminal Defense, Berkshire County MA Domestic Assault, Bristol County MA, Dukes County MA Domestic Assault, Essex County MA, Franklin County MA, Hampden County MA criminal charge, Hampshire County MA, Middlesex County MA, Nantucket County MA, Norfolk County MA, Plymouth County MA, Suffolk County MA, Worcester County MA
CODE OF VA DOMESTIC ASSAULT
The VA Code that codifies domestic assault in Virginia is Virginia Code 18.2-57.2. If you have been charged with violating the VA Code for domestic assault, contact the SRIS Law Group for help.
Our domestic assault defense attorneys in VA are experienced at defending clients charged with domestic assault in Virginia.
Contact us at 888-437-7747 for help.
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DOMESTIC VIOLENCE DEFENSE
Virginia, Maryland & Massachusetts
Domestic assault & battery is aggressively prosecuted in Virginia & Maryland. Frequently, clients are of the opinion that if they are charged with domestic violence in Virginia or domestic abuse in Maryland, they can have the case dropped in court if the spouse agrees to drop the case in court.
This is no longer the case in Virginia or Maryland. The prosecutor or states’ attorney will no longer drop a domestic assault & battery just because the other spouse does not want to pursue the domestic violence / domestic abuse charge.
If you have been charged with a domestic assault & battery against a family member in Virginia, Maryland or Massachusetts, contact the Virginia Lawyer, Maryland Lawyer, Massachusetts Lawyer SRIS Law Group domestic abuse lawyers for help at 888-437-7747.
VIRGINIA CLASS 1 MISDEMEANOR
A Virginia Class 1 misdemeanor is a very serious criminal charge. If you have been charged with Virginia Class 1 misdemeanor, do not take it lightly. The maximum penalties for a Virginia Class 1 misdemeanor is 1 year in jail & a $2500 fine. If you have been charged with a reckless driving in Virginia, DUI in Virginia, domestic assault & battery in Virginia, possession of marijuana in Virginia or any other similar charge in Virginia, you are facing a class 1 misdemeanor in Virginia.
Contact the SRIS Law Group at 888-437-7747 for help if you have been charged with a Virginia Class 1 misdemeanor.
