                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia


EDWARD BLACKWELL KELLY
                                        MEMORANDUM OPINION * BY
v.   Record No. 0495-96-4             CHIEF JUDGE NORMAN K. MOON
                                           FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                 Herman A. Whisenant, Jr., Judge
          Jerry M. Phillips (Phillips, Beckwith & Hall,
          on brief), for appellant.

          Richard B. Smith, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Edward Blackwell Kelly appeals his conviction of assaulting

a correctional officer in violation of Code § 18.2-55.    Kelly

argues that the trial court erred in refusing to instruct the

jury on the lesser included offense of assault and battery.

Finding evidence to support the granting of the lesser included

offense instruction, we reverse.

     On June 4, 1995, Kelly was an inmate at the Adult Detention

Center for Prince William County.   During the serving of meals,

Officer Santiago went to Kelly's cell to collect his food tray.

Kelly's tray was not in the food slot of the cell and when

Santiago asked for the tray, Kelly told him "[i]f you want my

tray, you come in and get my tray."   Santiago summoned Officer

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mora and remained outside of the cell while Mora entered to

retrieve the tray.

        Once inside, Mora asked for the tray and Kelly responded by

throwing the tray at Mora, covering him with food.    Kelly then

stood up on his cell bed and, when Mora asked him to get down,

Mora testified that Kelly leapt onto Mora, tearing his shirt and

scratching his face.    Mora freed himself from Kelly and fled the

cell.    Kelly testified that he did not intentionally leap on

Mora, and stated that he slipped on the blanket on his cell bed

and fell accidentally, striking Mora and inadvertently scratching

his face.    Kelly testified that it was not his intention to harm

Mora.
        The trial court instructed the jury that they should find

Kelly violated Code § 18.2-55 if they found the evidence proved

beyond a reasonable doubt that "[Kelly] knowingly and willfully

caused bodily injury to an employee of the Prince William County

Adult Detention Center."    Kelly argued that the court erred by

not instructing the jurors on the lesser included offence of

assault and battery.    "An assault is any attempt or offer, with

force or violence, to do some bodily hurt to another, whether

from wantonness or malice, by means calculated to produce the end

if carried into execution."    2A Michie's Jur., Assault and

Battery § 2 (1992); see Johnson v. Commonwealth, 13 Va. App. 515,

517, 412 S.E.2d 731, 732 (1992).    "Battery is the actual

infliction of corporal hurt on another . . . willfully or in

anger . . . ."     Jones v. Commonwealth, 184 Va. 679, 681-82, 36

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S.E.2d 571, 572 (1946).   Battery may be accomplished by any

touching in any angry, rude, or vengeful manner, although no

significant injury is inflicted.    Seegars v. Commonwealth, 18 Va.

App. 641, 644, 445 S.E.2d 720, 722 (1994).

     We find the trial court erred in refusing to give the

instruction.   "On appeal, when we consider a trial court's

refusal to give a proffered instruction, `the appropriate

standard of review requires that we view the evidence with

respect to the refused instruction in the light most favorable to

the defendant.'"   Id. at 643, 445 S.E.2d at 722 (quoting Boone v.

Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992)).

     The facts of this case are indistinguishable from those of

Seegars v. Commonwealth, 18 Va. App. 641, 445 S.E.2d 720 (1994),

where this Court held that the trial court erred in refusing an

assault and battery instruction in a case also involving a charge

of violation of Code § 18.2-55.    In Seegars the defendant argued

that although he had purposely pushed a locker at a group of

correctional officers, his intent was to distance himself from

them, not to injure them.   18 Va. at 643, 445 S.E.2d at 722.

Like Seegars, here the jury could have found that while Kelly
might not have had the specific intent to "knowingly and

willfully inflict bodily injury," he was nonetheless guilty of

the lesser included offense of misdemeanor assault and battery.

     The jury should have been provided the opportunity to

"assess the evidence as it related to the lesser included offense

of assault and battery, and should not have been forced into

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making the impermissible choice of finding the defendant guilty

of the offense charged or not guilty of any offense."   Id. at

645, 445 S.E.2d at 722-23.

                                        Reversed and remanded.




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