                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia


ROBERT IAN TRAINER
                                                                MEMORANDUM OPINION* BY
v.      Record No. 1170-04-4                                    JUDGE JAMES W. BENTON, JR.
                                                                       MAY 31, 2005
COMMONWEALTH OF VIRGINIA


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                   Stanley P. Klein, Judge

                  Laura E. Byrum, Assistant Public Defender (Office of the Public
                  Defender, on briefs), for appellant.

                  Stephen R. McCullough, Assistant Attorney General (Jerry W.
                  Kilgore, Attorney General, on brief), for appellee.


        The sole issue on appeal is whether the evidence was sufficient to prove assault. We hold

that it was and affirm the conviction.

                                                    I.

        Jeannie E. Colleton was driving her two children, ages eight and two, to a daycare center,

when her attention was drawn to a car that swerved into her lane. The car, driven by Robert Ian

Trainer, was traveling in the same direction as Colleton’s car, and it was in front of her in the left

lane. The rear of his car was about one foot in front of Colleton’s car when it swerved into her lane.

Colleton noticed that Trainer was looking back at her car. As the two cars continued along the

roadway, Trainer’s car lagged behind her and began abruptly changing lanes. Colleton testified that

she began to become “concerned and . . . curious as to why [he] was so concerned with [her].”



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
         When Colleton reached the traffic light at an intersection, Trainer drove next to her car.

Colleton looked at Trainer and detected through her partially opened window that he was speaking.

Colleton testified that Trainer’s passenger door was three feet from her door and that Trainer was

leaning toward her with his hands resting on his passenger seat as he spoke. She testified that the

following occurred:

                So I rolled the window down and I looked over. . . . [H]e said,
                “that’s dirty.” And I’m, “Okay.” And he said it two or three
                times. He said, “You have nigger kids in the car. You’re a nigger
                loving whore with nigger kids in the car.” And I said, “Okay. I’m
                sorry that you feel that way.” And he just went on about how dirty
                I was, and the nigger kids in the car, and I’m a nigger lover. . . .
                [T]here was a gentleman turning left, and I’m trying to look around
                me, because, I mean, I was nervous. And there’s this guy
                screaming at me. . . .

                            *       *       *       *       *       *       *

                He was, you know, his verbal content was . . . he was being
                aggressive. So when I looked over I saw a gentleman pulling, you
                know the light was turning, the left turning lane was turning red.
                And I said, “Look, if you have a problem, why don’t you talk to
                their father about it?” And he leans forward, and he says, “Look,
                bitch, I just got out of prison for killing niggers, and I’ll kill those
                niggers with my bare hands.”

Colleton testified that Trainer’s voice was loud and that she “was in fear.” She also testified that

her eight-year-old daughter reacted to Trainer’s remarks. Colleton then closed her window.

         When the light changed, Trainer drove slowly through the intersection. Colleton then

noted his license number, and she accelerated. Trainer continued to follow her. Colleton

testified she “pulled over . . . because [Trainer] was still behind [her]” and she did not want him

to follow her to the daycare center. When Colleton stopped at the side of the road, Trainer drove

past “while looking at [her] just shaking his head.” Colleton testified that the distance between

the point where she stopped and the place Trainer first swerved into her lane was three to four

miles.


                                                  -2-
       At the conclusion of the evidence, the trial judge convicted Trainer of the misdemeanor

of assault. Code § 18.2-57.

                                                 II.

       Trainer contends the evidence was insufficient to support the conviction because (i) he

“did not commit an overt act or attempt,” (ii) he “lacked the present ability, apparent or

otherwise, to effectuate a battery,” and (iii) Colleton “did not possess a reasonable apprehension

of imminent bodily harm.” Relying on Carter v. Commonwealth, 269 Va. 44, 606 S.E.2d 839

(2005), the Commonwealth responds that Trainer’s conduct satisfied the elements of assault. We

agree with the Commonwealth’s understanding of the necessary elements.

       In Carter, the Supreme Court reviewed the history of its decisions concerning assault and

held as follows:

               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.

269 Va. at 47, 606 S.E.2d at 841. The Court further noted that its early decisions eliminated the

need to establish present ability to harm:

                  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. The 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.

Id. at 48, 606 S.E.2d at 842.



                                                -3-
        Applying these principles to this case, we conclude that the trial judge’s findings

completely address the elements of the offense. The trial judge found that the evidence proved

“a situation of words plus some degree of conduct,” which was sufficient “to prove beyond a

reasonable doubt that [Trainer] intended to produce a fear of an imminent assault.” The judge

found that Colleton believed Trainer “was stalking her . . . with his car,” that the evidence proved

Trainer was “stalking [her] by car,” and that “what [Trainer said] is not only offensive, but it is

absolutely threatening.” The judge also found that Trainer “intended to put . . . fear . . . into . . .

Colleton and that he was successful in doing it.”

        These findings are supported by Colleton’s testimony. Her testimony was sufficient to

prove Trainer drove his car in a manner that would cause a reasonable person to believe he

intended to cause harm. Trainer’s driving conduct when combined with his verbal threats were

more than sufficient to prove beyond a reasonable doubt he intended to instill fear. Indeed,

Colleton testified that Trainer’s conduct had the intended effect of causing her to fear harm from

him.

        Discussing its decision in Burgess v. Commonwealth, 136 Va. 697, 708, 118 S.E. 273,

276 (1923), the Supreme Court held in Carter that the definition of assault “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.” Carter, 269 Va. at 49, 606 S.E.2d at 842. As LaFave explains, assault can also

be committed “when one, with the intent to cause a reasonable apprehension of immediate bodily

harm (though not to inflict such harm), does some act which causes such apprehension. For this

type of assault, a present ability to inflict is clearly unnecessary.” Wayne R. LaFave, Criminal

Law § 16.3(b), at 825 (4th ed. 2003) (footnotes omitted). This type of criminal assault “needs, in

addition to (1) the intent-to-scare element and (2) the apprehension result element, (3) the further

                                                  -4-
requirement of some conduct by the defendant, conduct of the sort to arouse a reasonable

apprehension of bodily harm.” Id. at 826.

       The record supports the trial judge’s findings that Trainer engaged in conduct, not just

verbal events, that Trainer intended to cause fear and that Colleton reasonably feared harm from

Trainer’s conduct. We hold, therefore, the evidence was sufficient to prove beyond a reasonable

doubt the elements of assault. Accordingly, we affirm the conviction.

                                                                           Affirmed.




                                              -5-
