                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bumgardner
Argued by teleconference


CHARLES E. WILSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 0017-01-3               JUDGE JAMES W. BENTON, JR.
                                              JANUARY 29, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
                       A. Dow Owens, Judge

          J. Douglas Fleenor for appellant.

          Michael T. Judge, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     The trial judge convicted Charles E. Wilson of the felony of

assault and battery against a law-enforcement officer in violation

of Code § 18.2-57(C).   Wilson contends the trial judge erred by

ruling that the Commonwealth did not have to prove intent and that

the evidence was sufficient to prove Wilson intended to assault

the officer.   For the reasons that follow, we affirm the

conviction.

                                 I.

     The evidence proved that a police officer arrested Wilson

for public drunkenness and transported him to the local jail.

When Wilson arrived at the jail, he was "threatening, verbally

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
abusive, lot[s] of cussing" and angry.    He directed his profane

comments at the officers and threatened to kill them.

     A deputy sheriff searched Wilson's clothing and directed

Wilson to sit and remove his shoes for a search.    Wilson kicked

one shoe across the room.   The deputy sheriff retrieved the

shoe, searched it, and searched Wilson's other shoe.    He then

put both shoes next to Wilson.    Wilson kicked or threw his shoes

across the room a second time, but retrieved the shoes himself.

The deputy sheriff did not recall whether Wilson put his shoes

on his feet.

     The deputy sheriff left Wilson alone and walked to another

area of the room.   Other officers were in the area; however,

none were closely monitoring Wilson.     When the deputy sheriff

returned to the area where Wilson was sitting, he saw movement

"peripherally" and was struck on the jaw by Wilson's shoe.

Although none of the officers actually saw Wilson throw or kick

the shoe, all saw the shoe come from Wilson's direction.    Wilson

was sitting ten feet from the deputy sheriff and was the only

person in that part of the room.

     Wilson testified that he has an alcohol problem, that he

was intoxicated in the jail, and that he did not recall the

incident.   He testified that, if he threw the shoe, it was not

intended to hit anyone.

     At the conclusion of the evidence, Wilson's attorney made a

motion to strike the evidence.    After the arguments by the

                                 - 2 -
prosecutor and the defense attorney, the trial judge convicted

Wilson of assault and battery of a law-enforcement officer in

violation of Code § 18.2-57(C).

                                  II.

     Wilson contends the trial judge erred in ruling that intent

is not an element of the crime of assault and battery.    The

Commonwealth argues, however, that Wilson's attorney failed to

object to the trial judge's comment concerning intent and that

the record proves Wilson's attorney "agreed with the comment."

     The record indicates that at the conclusion of the

Commonwealth's case-in-chief, Wilson's attorney argued that "the

concern here is . . . its one thing if he threw it.   It's

another thing if he was kicking his shoe as he'd done previously

with no intent to cause injury."    He repeated the crux of that

argument at the close of all the evidence.   He argued that the

evidence did not prove "the shoe [left] the person of . . .

Wilson" and that the evidence did not prove who propelled the

shoe across the room or how it was propelled.   He also presented

the hypothesis that the evidence supported two equally likely

inferences -- that Wilson either threw or kicked his shoe –-

which created a conflict on the issue of intent.   In response,

the trial judge first said, "[i]ntent is not a factor under this

code section," and then, in response to the attorney's further

argument, said, "[i]ntent under this code section of injury of a

police officer is not a factor as . . . in malicious wounding."

                              - 3 -
     We have specifically held as follows:

          [W]here an issue of sufficiency of evidence
          is presented to a trial court, sitting
          without a jury, in a motion to strike at the
          conclusion of the Commonwealth's evidence
          and, upon its denial and upon conclusion of
          the defendant's evidence, the same issue is
          presented in the defendant's final argument
          to the court, the defendant has preserved
          his right to appeal this issue, even though
          he did not make a motion to strike at the
          conclusion of his own evidence.

Campbell v. Commonwealth, 12 Va. App. 476, 478, 405 S.E.2d 1, 1

(1991) (en banc).   The transcript clearly establishes that

Wilson's attorney argued the issue of intent and that the trial

judge commented on that argument.     Because the trial judge

"specifically addressed and ruled on these issues . . . , we

conclude that the purpose of the contemporaneous objection rule

. . . is satisfied."   Morris v. Commonwealth, 13 Va. App. 77, 84

n.2, 408 S.E.2d 588, 592 n.2 (1991).

                               III.

     In pertinent part, Code § 18.2-57(C) provides as follows:

          [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 as
          defined hereinafter . . . 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 for six months which mandatory,
          minimum term shall not be suspended, in
          whole or in part.

"Assault and battery, . . . requires proof of 'an overt act or

an attempt . . . with force and violence, to do physical injury

                               - 4 -
to the person of another,' 'whether from malice or from

wantonness,' together with 'the actual infliction of corporal

hurt on another . . . wil[l]fully or in anger.'"   Boone v.

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

(1992) (citations omitted).   The principle is well established

in Virginia that "[a]ny touching by one of the person . . . of

another in rudeness or in anger is an assault and battery."

Lynch v. Commonwealth, 131 Va. 762, 765, 109 S.E. 427, 428

(1921).

     We conclude from the trial judge's comments and his ruling

that the trial judge was merely indicating that a specific

intent was not needed in order to prove beyond a reasonable

doubt the elements of assault and battery.   Indeed, the judge

stated, "[i]ntent under this code section . . . is not a factor

as it . . . is in malicious wounding."   Without further

elaboration, Wilson's counsel said, "I understand," and moved

onto an argument about the absence of injury.   From the context

of the exchange, we believe it is reasonable to conclude that

the trial judge was merely expressing in a short handed manner

the view we have stated more expansively as follows:

          An element necessary to . . . malicious
          . . . wounding is the "intent to maim,
          disfigure, disable, or kill" the victim.
          Assault and battery, however, requires proof
          of "an overt act or an attempt . . . with
          force and violence, to do physical injury to
          the person of another," "whether from malice
          or from wantonness," together with "the
          actual infliction of corporal hurt on

                               - 5 -
          another . . . wil[l]fully or in anger." 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," but an intent to maim,
          disfigure or kill is unnecessary to the
          offense.

Boone, 14 Va. App. at 132-33, 415 S.E.2d at 251 (citations

omitted; emphasis removed).

     In convicting Wilson, the trial judge referred to proof

"beyond a reasonable doubt" that Wilson acted in a "rude manner"

while propelling his shoe.     See Lynch, 131 Va. at 765, 109 S.E.

at 428 (holding that touching "another in rudeness or in anger

is an assault and battery").    The evidence proved that Wilson

was abusive, threatened to kill the officer, and generally was

belligerent during the incident in which he propelled his shoe

across the room striking the officer's face.    This evidence was

sufficient for the trial judge to find that Wilson's conduct was

so wanton and flagrant as to prove beyond a reasonable doubt the

elements of assault and battery.

     Accordingly, we affirm the conviction.

                                                          Affirmed.




                                 - 6 -
