                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia


DAVID ALLEN TAYLOR, S/K/A
 DAVID ALAN TAYLOR
                                           MEMORANDUM OPINION * BY
v.          Record No. 0665-96-3            JUDGE LARRY G. ELDER
                                               APRIL 22, 1997
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA
                         Thomas H. Wood, Judge

             Ross S. Haine, Assistant Public Defender
             (Haine & Murtagh, on brief), for appellant.

             Thomas D. Bagwell, Assistant Attorney General
             (James S. Gilmore, III, Attorney General;
             Leah A. Darron, Assistant Attorney General,
             on brief), for appellee.



     David Allen Taylor (appellant) appeals his conviction of

assault.    He contends (1) that the trial court abused its

discretion when it admitted evidence of his conduct that occurred

nearly two weeks after the date of the charged offense and (2)

that the evidence was insufficient to support his conviction.

For the reasons that follow, we reverse.




     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                    I.

                                   FACTS

       Appellant was charged with assaulting Officer A. J.

Panebianco of the Buena Vista Police on December 8. 1     At trial,

the evidence established that appellant approached Officer

Hollins on December 8 and asked that Officer Panebianco give him

a ride home.      Appellant was extremely intoxicated, and Officer

Hollins took him to a holding cell at the Buena Vista Police

Department.      While in the holding cell, appellant saw Officer

Panebianco walk by and told him that he was going to break a

window at a tatoo parlor owned by Officer Panebianco and that he

was going to kill the officer.      Appellant told Officer Panebianco

that he "would not live to see a new year."      The record does not

indicate that appellant made any physical movements at the time

he spoke to Officer Panebianco.
       The evidence also established that appellant was arrested on

December 21 after "kicking out" a window at Officer Panebianco's

business.      Officer Daniel Coleman testified that after appellant

was brought to the police department, appellant looked at a

picture of Officer Panebianco on the wall and threatened to kill

him.       Officer Coleman testified that appellant also said that he

"had something" for Officer Panebianco and then removed a shotgun

shell from his pocket that had Officer Panebianco's name

       1
        Appellant was also charged with and convicted of three
other offenses that are not the subject of this appeal.




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displayed on it.    Officer Panebianco was not present when these

events occurred.

     Appellant's counsel objected to the admission of Officer

Coleman's testimony on the grounds that it was irrelevant to

proving that appellant assaulted Officer Panebianco on December 8

and that its admission prejudiced appellant.      The trial court

overruled appellant's objection.    Appellant's subsequent motion

for a mistrial was also denied.    Appellant did not make a motion

to strike.    The trial court convicted appellant of assault.
                                  II.

             ADMISSIBILITY OF OFFICER COLEMAN'S TESTIMONY

     Appellant contends that the trial court erred when it

admitted Officer Coleman's testimony regarding appellant's

conduct on December 21.    He argues that this evidence was not

relevant to the charge that he assaulted Officer Panebianco on

December 8 and that, even if relevant, its prejudicial effect

outweighed its probative value.    We disagree.

     "The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion."      Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).

Generally, evidence of other bad acts committed by a criminal

defendant is not admissible to prove that he or she committed the

charged offense.    Lafon v. Commonwealth, 17 Va. App. 411, 417,

438 S.E.2d 279, 283 (1993) (citing Kirkpatrick v. Commonwealth,



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211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)).   However, "other

bad acts" evidence is admissible if relevant to some element or

issue in the present case, such as the defendant's intent, and

its probative value outweighs its prejudicial effect.    Id. at

417-18, 438 S.E.2d at 283-84; see also Charles E. Friend, The Law

of Evidence in Virginia § 12-14(a) (4th ed. 1993).

     We hold that the trial court did not abuse its discretion

when it admitted Officer Coleman's testimony regarding

appellant's conduct on December 21.    The trial court correctly

concluded that the evidence of appellant's conduct on this date

was relevant to the issue of his intent on December 8.   "Evidence

is relevant if it has any logical tendency to prove an issue in a

case."    Goins v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114,

127, cert. denied,       U.S.    , 117 S. Ct. 222, 136 L.Ed.2d 154

(1996).   The intent of the accused to cause bodily harm is always

an issue in a prosecution for assault.    See Boone v.

Commonwealth, 14 Va. App. 130, 133, 415 S.E.2d 250, 251 (1992).

The evidence of appellant's actions on December 21 -- his renewed

threat to kill Officer Panebianco and his display of a shotgun

shell with the officer's name on it -- had the requisite tendency

to prove that appellant intended to cause bodily harm to the

officer on December 8.   In addition, we find no clear abuse of

discretion in the trial court's determination that the probative

value of Officer Coleman's testimony outweighed its prejudicial

effect.    See Wise v. Commonwealth, 6 Va. App. 178, 188, 367




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S.E.2d 197, 203 (1988) (stating that trial court's balancing of

the probative value and prejudicial effect of evidence will not

be disturbed on appeal absent a clear abuse of discretion).

                               III.

                   SUFFICIENCY OF THE EVIDENCE

     Appellant argues for the first time on appeal that the

evidence was insufficient to support his conviction of assaulting

Officer Panebianco on December 8.
     It is well established that
          a ruling of a trial court cannot be a basis
          for reversal unless an objection is stated
          "together with the grounds therefor at the
          time of the ruling, except for good cause
          shown or to enable the Court of Appeals to
          attain the ends of justice."

Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2

(1991) (quoting Rule 5A:18).   In order to determine whether to

invoke the ends of justice exception, "we must evaluate the

nature and effect of the error to determine whether a clear

miscarriage of justice occurred."     Brown v. Commonwealth, 8 Va.

App. 126, 131, 380 S.E.2d 8, 10 (1989).    When a criminal

defendant has not challenged the sufficiency of the evidence

before the trial court, this Court may consider this issue under

the ends of justice exception "only when the record affirmatively

shows that a criminal defendant 'has been convicted of a crime of

which under the evidence he could not properly be found guilty.'"

 Campbell v. Commonwealth, 14 Va. App. 988, 997, 421 S.E.2d 652,




                                -5-
657 (1992) (Barrow, J., concurring) (citation omitted).   After

reviewing the record, we invoke the "ends of justice" exception

and consider the merits of appellant's argument regarding the

sufficiency of the evidence.

     "When considering the sufficiency of the evidence on appeal

of a criminal conviction, we must view all the evidence in the

light most favorable to the Commonwealth and accord to the

evidence all reasonable inferences fairly deducible therefrom."

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,

721 (1988).   "The judgment of a trial court sitting without a

jury . . . will not be set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence

to support it."   Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).

     In a prosecution for assault, the Commonwealth is required

to prove that the defendant committed "[a]n overt act or an

attempt, or the unequivocal appearance of an attempt, with force

or violence, to do physical injury to the person of another."
Merritt v. Commonwealth, 164 Va. 653, 658, 180 S.E. 395, 397

(1935).   A victim need not be physically touched to be assaulted.

 See Seegars v. Commonwealth, 18 Va. App. 641, 645, 445 S.E.2d

720, 722 (1994); Harper v. Commonwealth, 196 Va. 723, 733, 85

S.E.2d 249, 255 (1955) (stating that an assault occurs "though

[the victim] be not struck . . . .").   However, a purely verbal

threat with no appearance of an overt physical act does not




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constitute an assault.     See Harper, 196 Va. at 733, 85 S.E.2d at

255 (stating that "no words whatever, be they ever so provoking,

can amount to an assault . . . ." (citation omitted)).

      We hold that the evidence was insufficient to support

appellant's conviction of assault.      The summary of the evidence

in the written statement of facts, which appears to contain a

complete account of defendant's actions on December 8, does not

establish that appellant either attempted or appeared to attempt

to cause physical injury to Officer Panebianco.     The written

statement of facts only indicates that appellant "stated" to

Officer Panebianco from his jail cell that he was going to kill

him before the new year.    The only evidence in the record of any

overt physical acts by appellant was the evidence that appellant

damaged a window at Officer Panebianco's tatoo parlor on December

21.   Although the trial court found this evidence "persuasive" to

prove the charge that appellant assaulted Officer Panebianco,

this evidence does not establish that appellant made any physical

movements while Officer Panebianco was in his presence on

December 8.   Because the evidence only proved that appellant

verbally threatened Officer Panebianco on December 8, appellant

could not properly be found guilty of assault.
      For the foregoing reasons, we reverse the conviction of

assault.

                                              Reversed and dismissed.




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