                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia


HILBERT CHRISTOPHER WATFORD
                                             MEMORANDUM OPINION * BY
v.   Record No. 2724-99-1                  JUDGE JAMES W. BENTON, JR.
                                                JANUARY 30, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    James A. Cales, Jr., Judge

          Joseph R. Winston (S. Jane Chittom, Appellate
          Counsel; Public Defender Commission, on
          brief), for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     The trial judge convicted Hilbert Christopher Watford of one

count of driving after having been adjudicated an habitual

offender, see Code § 46.2-357, and two counts of assault and

battery of a police officer, see Code § 18.2-57(C).     Watford

contends the trial judge erred by refusing to suppress evidence

obtained during an investigative detention and by finding the

evidence sufficient to support each assault and battery

conviction.   We affirm the convictions.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                   I.

     At trial, Officer Ben Jones testified that on October 7,

1997, Watford drove a car past his police vehicle.    Jones

recognized Watford because he had arrested Watford within the

previous month and a half and had learned, while preparing the

arrest warrant, that Watford was an habitual offender who could

not drive a car legally.   Jones followed Watford's car and

activated his emergency lights.    Jones testified that he did not

verify Watford's habitual offender status before pursuing him and

relied solely on his knowledge of Watford's status.

     Watford stopped and exited his car.    When Officer Michael

Hayes exited the police vehicle and approached Watford, Watford

attempted to flee.   Hayes grabbed Watford's shirt.   Hayes

testified that a struggle ensued and that Watford's "arms were

kind of flailing."   Struggling to escape, Watford struck Hayes in

the arm with "very long fingernails" so that "a good chunk of skin

was taken out of [Hayes'] arm."    Watford came out of his shirt and

freed himself from Hayes' grasp.    Watford then ran past Jones,

pushed Jones in the chest, and briefly eluded the officers before

they captured him.   The evidence proved Watford's status as an

habitual offender.

     At the conclusion of the Commonwealth's evidence, Watford's

counsel made a motion "to strike and dismiss" and argued that the

officer had no reasonable basis to stop Watford.   Rejecting that

argument, the trial judge ruled that the officer had a reasonable

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basis to make the stop and that the Commonwealth's evidence was

sufficient to survive the motion to strike.   When Watford did not

offer evidence, the judge convicted him of driving after having

been adjudicated an habitual offender and of the two assault and

battery offenses.

                                II.

     Challenging his conviction of driving while a declared

habitual offender, Watford argues that the evidence proved the

officers lacked a reasonable suspicion to stop his vehicle.

Thus, he contends "the information flowing from that unlawful

stop should have been suppressed."

     "There is a general procedural requirement . . . that if a

defendant wishes to preserve his right to challenge on appeal the

constitutionality of a . . . seizure through which certain

evidence has been obtained, he must take timely steps in the lower

court, either through a motion to suppress the evidence before

trial or by sufficient objection to the use of the evidence when

offered at trial."   Manley v. Commonwealth, 211 Va. 146, 149, 176

S.E.2d 309, 312 (1970).   In pertinent part, Code § 19.2-266.2

provides as follows:

          Defense motions or objections seeking (i)
          suppression of evidence on the grounds such
          evidence was obtained in violation of the
          provisions of the Fourth, Fifth or Sixth
          Amendments to the Constitution of the United
          States or Article I, Section 8, 10 or 11 of
          the Constitution of Virginia proscribing
          illegal searches and seizures and protecting
          rights against self-incrimination, or (ii)

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          dismissal of a warrant, information, or
          indictment or any count or charge thereof on
          the ground that a statute upon which it was
          based is unconstitutional shall be raised by
          motion or objection, in writing, before
          trial. The motions or objections shall be
          filed and notice given to opposing counsel
          not later than seven days before trial. A
          hearing on all such motions or objections
          shall be held not later than three days
          prior to trial, unless such period is waived
          by the accused, as set by the trial judge.
          The court may, however, for good cause shown
          and in the interest of justice, permit the
          motions or objections to be raised at a
          later time.

     The record does not contain a written motion to suppress

the evidence or an objection during the officer's testimony

concerning the detention of Watford.   Instead, at the conclusion

of the Commonwealth's case-in-chief, Watford's trial counsel

made a motion to strike the evidence, which is the traditional

way of challenging the sufficiency of the evidence.    See Gabbard

v. Knight, 202 Va. 40, 43, 116 S.E.2d 73, 75 (1960).   Assuming

without deciding that, "for good cause shown and in the interest

of justice," the trial judge considered the motion to strike to

be a motion to suppress the evidence, and not just a challenge

to the sufficiency of the evidence, we hold that the trial judge

did not err in ruling that the officers lawfully stopped

Watford's car.

     The Fourth Amendment requires police officers to have "a

reasonable suspicion supported by articulable facts that

criminal activity 'may be afoot'" before subjecting a person to


                              - 4 -
a brief investigatory stop.     United States v. Sokolow, 490 U.S.

1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).

More specifically, prior to conducting an investigatory stop of

a motorist, a police officer must have an articulable and

reasonable suspicion that the motorist is unlicensed or that an

occupant of the vehicle is otherwise subject to seizure for a

violation of the law.     Brown v. Commonwealth, 17 Va. App. 694,

697-98, 440 S.E.2d 619, 621 (1994).

     Questions of reasonable suspicion involve issues of both

fact and law that we review de novo.      McGee v. Commonwealth, 25

Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc).         The

dispositive facts are not disputed.      The record established that

Jones recognized Watford and knew from a recent encounter that

Watford was an habitual offender whose driving a motor vehicle

would violate Code § 46.2-357.    Jones articulated this specific

reason for detaining Watford.

     The elapse of time between Jones' first encounter with

Watford and this encounter does not negate the reasonableness of

the suspicion.    In Glasco v. Commonwealth, 26 Va. App. 763, 497

S.E.2d 150 (1998), we analyzed the legality of a police

officer's stop of a motorist whom he had "arrested two weeks

earlier for law violations that often resulted in license

suspension."     Id. at 771, 497 S.E.2d at 154.   Although the

officer did not know that a judge had suspended the motorist's

license, the officer detained the motorist and then contacted

                                 - 5 -
the Department of Motor Vehicles to confirm his suspicions.       Id.

at 768, 497 S.E.2d at 152.   We held that "[a]lthough [the

officer's] suspicion regarding the probable outcome of

proceedings against people who fail to pay fines was not

conclusive evidence that [the motorist] was driving without a

license, it nevertheless gave [the officer] reasonable suspicion

to detain and question [the motorist] briefly."     Id. at 771, 497

S.E.2d at 154.

     The officer in this case had a more reasonable suspicion to

stop Watford than did the officer in Glasco.    Jones knew that

six weeks earlier Watford was an habitual offender, a person

whose status would remain unchanged for ten years or until

terminated by a court.   See Code § 46.2-356.   Thus, we hold that

given the brief lapse of time since Watford's prior arrest,

Jones had reasonable suspicion to detain Watford.

                               III.

     Watford contends that the prosecution produced insufficient

evidence to convict him of both counts of assault and battery.

We disagree.

          Assault and battery . . . 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 another . . .
          willfully 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."

                               - 6 -
Boone v. Commonwealth, 14 Va. App. 130, 132-33, 414 S.E.2d 250,

251 (1992) (citations omitted).

     "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).   So viewed, the evidence proved that Watford

scratched Hayes while "flailing" at him and attempting to elude

his grasp.    Watford contends that this evidence fails to prove

that he had the requisite intent to commit assault and battery.

The requisite intent, however, is malice or wantonness.     "Malice

is evidenced either when the accused acted with a sedate,

deliberate mind, and formed design, or committed any purposeful

and cruel act without any or without great provocation."      Branch

v. Commonwealth, 14 Va. App. 836, 841, 419 S.E.2d 422, 426

(1992).   Wantonness imports premeditation or knowledge and

consciousness that injury is likely to result from the

commission of the act.    Boward v. Leftwich, 197 Va. 227, 231, 89

S.E.2d 32, 35 (1955).

     Watford deliberately and purposefully fought to escape

arrest.   Upon the testimony that Watford consciously flailed his

arms to effect an escape, the trier of fact could have concluded

beyond a reasonable doubt that Watford's actions were purposeful

and cruel or committed knowing that an injury would likely

                                - 7 -
occur.    The trial judge was free to conclude that Watford's

strike was not an accidental bump, but was instead an

intentional act to harm Hayes and increase the likelihood of

escape.

        Watford also contends that Jones did not suffer the

requisite injury.    We disagree.   Using a "stiff arm," Watford

hit Jones in the chest with his hand and shoved Jones into a

wall.    This act of violence caused corporal hurt by a touching

of Jones' person.    There is no requirement that the act cause

permanent injury.    "When an injury is actually inflicted, a

battery has been committed regardless of how small the injury

might be."     Seegars v. Commonwealth, 18 Va. App. 641, 644, 445

S.E.2d 720, 722 (1994).    Watford committed an intentional,

violent hit upon Jones.    Therefore, the trial judge was

justified in finding that Watford committed the offense of

assault and battery upon Jones.

        For the reasons stated, we affirm the convictions.

                                                     Affirmed.




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