                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia


TED MICHAEL STALLINGS, JR.
                                            MEMORANDUM OPINION * BY
v.   Record No. 0609-99-3                    JUDGE MARVIN F. COLE
                                                 MARCH 21, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                    Charles J. Strauss, Judge

          (Jesse W. Meadows, III, on brief), for
          appellant. Appellant submitting on brief.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Appellant was convicted of felonious assault and battery of a

police officer in violation of Code § 18.2-57(C). 1   On appeal,

appellant contends that the trial court erred in finding the

evidence sufficient to prove that he intentionally struck the

police officer.   We disagree and affirm.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       Simple assault and battery is a Class 1 misdemeanor,
punishable by a jail sentence of up to twelve months and a fine
of not more than $2,500, either or both; assault and battery of
a police office is a Class 6 felony punishable by a term of
imprisonment of not less than one year nor more than five, which
shall include a mandatory minimum term of six months confinement
which shall not be suspended, in whole or in part.
                                 FACTS

       Uniformed Deputy Lumpkin was on duty at a county fair when

some citizens reported to him that a woman was attempting to help

an intoxicated man leave the fairgrounds and go to the parking

lot.   Lumpkin went to investigate and saw Pam Murphy helping

appellant.    While Murphy went to get her car, Lumpkin and Deputy

Motley assisted appellant to the front gate and waited with him

because appellant was having difficulty standing without

assistance.    Lumpkin testified that appellant was cursing and

"kept trying to get up, and away from the [officers]."      There

were several vehicles driving in the area, and the officers

"were just keeping him out of traffic."

       After Murphy brought the car from the parking lot, Lumpkin

opened the door and put appellant inside the car, torso first.

Lumpkin testified that the following then occurred:

             At that point I had [appellant's] hands, and
             let go of one of his arms and put his legs
             in the car. When I got ready to, [I]
             turn[ed] loose of his arms to back up and
             shut the door, I was standing inside the
             open door, he said something, I don't know
             exactly what it was, and [he] took his right
             hand and swung sideways and hit me in the
             mouth.

Lumpkin also testified that appellant turned his head, looked at

him, raised his hand and hit him with the "knuckle portion" of

his right hand.    Lumpkin said that during the entire incident

appellant was cursing and trying to pull away from the officers.

After appellant was arrested for assault and battery upon a

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police officer and taken to a police car, he continued to curse

and tried to kick the windows out of the car.

     Motley testified that after appellant was placed in

Murphy's car, appellant continued to curse and say that he

wanted to be left alone and that he wanted to stay at the fair.

Motley was standing behind Lumpkin and saw appellant hit

Lumpkin.   However, Motley could not see whether appellant's hand

was open or in a fist.

     Deputy Barrett went to assist Lumpkin and Motley.     He

testified that appellant turned, looked at Lumpkin and hit him

in the face.   Barrett could not see if appellant hit Lumpkin

with a fist or with an open hand.   Barrett also testified that

appellant was cursing during the entire incident.

     Murphy testified that after Lumpkin put appellant into her

car, she told appellant to fasten the shoulder strap seat belt.

Murphy said that she thought that appellant was reaching for the

seat belt, but then she saw appellant being taken from the car.

Murphy also testified that she never saw appellant strike

Lumpkin and did not hear appellant say anything to the officers

while they were putting him into her car.

     Appellant testified that he had consumed "a fifth" of

tequila prior to the incident and did not recall what happened.

                    SUFFICIENCY OF THE EVIDENCE

     On appeal, appellant argues that the evidence does not

exclude the reasonable hypothesis of innocence that he

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accidentally struck the officer while reaching for his shoulder

seat belt.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"       Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

     "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' . . . ."       Boone v. Commonwealth, 14

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

omitted).    "'Intent is a state of mind that may be proved by an

accused's acts or by his statements and that may be shown by

circumstantial evidence.'"     Wilson v. Commonwealth, 249 Va. 95,

101, 452 S.E.2d 669, 673-74 (1995) (citations omitted).

"Circumstantial evidence is as competent and is entitled to as

much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt."     Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d

864, 876 (1983) (citations omitted).      Whether a hypothesis of

innocence is reasonable is a question of fact.       See Cantrell v.

Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988).

     The evidence proved that the appellant was intoxicated,

belligerent and resistant while Lumpkin was assisting him.      The

Commonwealth's witnesses testified that throughout the entire

                                 - 4 -
incident, appellant was cursing, "trying to pull away" and

"wanting to stay" at the fair.    After appellant was in the car,

he turned his head, looked at the uniformed officer and said

something to the officer.   Appellant then raised his hand and

hit the officer with the "knuckle portion" of his right hand.

After appellant was arrested, he continued to curse and tried to

kick the windows from the officer's car.    Murphy, who was seated

in the driver's seat, testified that appellant said nothing

while being placed in the car and that she did not see appellant

raise his hand.   However, the three officers testified that

appellant was cursing and resistant.     Lumpkin and Barrett

testified that appellant turned his head and looked at Lumpkin

before appellant hit Lumpkin in the mouth.    Based upon

appellant's actions and statements, the trial court did not err

in finding that appellant intended to strike the police officer.

According, we affirm appellant's conviction of assault and

battery of a police officer.

                                                           Affirmed.




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