                       COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia


PATRICK CLAY ENGLISH
                                           MEMORANDUM OPINION * BY
v.   Record No. 0675-02-3                JUDGE ROBERT J. HUMPHREYS
                                              DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      Joseph W. Milam, Jr., Judge

            Gregory T. Casker for appellant.

            Margaret W. Reed, Assistant Attorney General
            (Jerry W. Kilgore, Attorney General, on
            brief), for appellee.


     Patrick C. English appeals his conviction, after a bench

trial, for assault and battery upon a police officer, in violation

of Code § 18.2-57(C). 1   English contends the trial court erred in



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.

     1
         Code § 18.2-57(C) provides:
            In addition, if 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, a
            correctional officer as defined in § 53.1-1,
            a person employed by the Department of
            Corrections directly involved in the care,
            treatment or supervision of inmates in the
            custody of the Department or a firefighter
finding the evidence sufficient to support the conviction.   For

the following reasons, we affirm the judgment of the trial court.

     English argues the Commonwealth failed to establish that he

caused injury to Officer Casey H. Allen, of the Danville Police

Department, by spitting on his face; and that in doing so, he

possessed the requisite intent to do bodily harm.   We disagree.

          The circuit court sitting without a jury in
          this case acted as the fact finder; hence,
          the court's judgment is accorded the same
          weight as a jury verdict. As the fact
          finder, the court "need not believe the
          accused's explanation and may infer that he
          is trying to conceal his guilt."

Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907

(2001) (citation omitted).

          An assault and battery is the unlawful
          touching of another. See Gnadt v.
          Commonwealth, 27 Va. App. 148, 151, 497
          S.E.2d 887, 888 (1998). Assault and battery
          is "the least touching of another, willfully
          or in anger." Roger D. Groot, Criminal
          Offenses and Defenses in Virginia 29 (4th
          ed. 1998). The defendant does not have to
          intend to do harm; a battery may also be
          "done in a spirit of rudeness or insult."
          Id. (footnote omitted). The touching need
          not result in injury. See Gnadt, 27
          Va. App. at 151, 497 S.E.2d at 888. A
          touching is not unlawful if the person


          as defined in § 65.2-102, engaged in the
          performance of his public duties as such,
          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.


                              - 2 -
          consents or if the touching is justified or
          excused.

Perkins v. Commonwealth, 31 Va. App. 326, 330, 523 S.E.2d 512,

513 (2000) (other citations omitted).

     Thus, "'[a]ssault 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 . . . wilfully or in anger.'"   Boone v.

Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250, 251 (1992)

(quoting Jones v. Commonwealth, 184 Va. 679, 681-82, 36 S.E.2d

571, 572 (1946)).   "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."   Id. at 133, 415

S.E.2d at 251 (quoting Davis v. Commonwealth, 150 Va. 611, 617,

143 S.E. 641, 643 (1928)).

     However,

          "[w]hen [an] injury is actually inflicted, a
          battery has been committed regardless of how
          small the injury might be. 'Battery is the
          actual infliction of corporal hurt on
          another (e.g., the least touching of
          another's person), willfully or in anger,
          whether by the party's own hand, or by some
          means set in motion by him.'"

Adams v. Commonwealth, 33 Va. App. 463, 468, 534 S.E.2d 347, 350

(2000) (quoting Seegars v. Commonwealth, 18 Va. App. 641, 644, 445

S.E.2d 720, 722 (1994) (quoting Jones, 184 Va. at 682, 36 S.E.2d

                               - 3 -
at 572)).   "[T]he slightest touching of another . . . if done in a

rude, insolent or angry manner, constitutes a battery for which

the law affords redress."    Crosswhite v. Barnes, 139 Va. 471, 477,

124 S.E. 242, 244 (1924) (citation omitted).   Indeed, "[t]he law

upon the subject is intended primarily to protect the sacredness

of the person, and, secondarily, to prevent breaches of the

peace."   Banovitch v. Commonwealth, 196 Va. 210, 219, 83 S.E.2d

369, 374 (1954) (citations omitted).    Thus, "[i]n Virginia, it is

abundantly clear that a perpetrator need not inflict a physical

injury to commit a battery."    Adams, 33 Va. App. at 469, 534

S.E.2d at 351.

     Nevertheless, an individual cannot be convicted of assault

and battery "'without an intention to do bodily harm — either an

actual intention or an intention imputed by law.'"   Davis, 150 Va.

at 617, 143 S.E. at 643.    However,

            [p]roving intent by direct evidence often is
            impossible. Like any other element of a
            crime, it may be proved by circumstantial
            evidence, as long as such evidence excludes
            all reasonable hypotheses of innocence
            flowing from it. Circumstantial evidence of
            intent may include the conduct and
            statements of the alleged offender, and
            "[t]he finder of fact may infer that [he]
            intends the natural and probable
            consequences of his acts."

Adams, 33 Va. App. at 470-71, 534 S.E.2d at 351 (quoting Campbell

v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en

banc)) (other citations omitted).



                                - 4 -
     Here, when Officer Allen and his partner arrived at the

trailer home of Lisa Dabbs to investigate a complaint of a

"disorderly subject," they found English inside the home,

"intoxicated, disorderly," and "arguing with another subject that

was inside the trailer."   English was "very intoxicated" and

"uncooperative."   When Officer Allen placed English under arrest

for trespassing, and escorted him to the patrol car, English

turned back to Dabbs and her friend and told them that he was

"gonna get'em," and threatened to kill them because they had

called the police.   Subsequently, as they were driving to the

police station, English, who was sitting in the back seat of the

car, remained "irate" and cursed at Officer Allen, who was driving

the car.   English then spit at Allen through the "screen," between

the front and back seats, hitting Allen behind his right ear.

     The trial court, sitting as the fact finder, was entitled to

reject English's testimony denying that he spit on Allen.    The

court specifically found that English's testimony in this regard

was unbelievable and that, based upon English's demeanor on the

witness stand, as well as how he conducted himself when he was

arrested, English intended to spit on Officer Allen, thereby

committing an assault and battery.     That decision was not plainly

wrong or without supporting evidence and must be upheld on appeal.

     For the reasons stated, we affirm the judgment of the trial

court.

                                                           Affirmed.

                               - 5 -
