Under Virginia case law, a present ability to inflict bodily harm upon a victim is not an essential element of criminal assault in all cases; to be guilty of the tort-type of criminal assault, a defendant need have only an apparent present ability to inflict harm.
Defendant was charged with assaulting a police officer after an officer stopped a vehicle and while the officer was talking to the driver, defendant moved his right hand from a position where it was hidden, extended his index finger and thumb, pointed his finger at the officer, and said "Pow." The officer testified that he thought defendant had a gun and that he was going to be shot. The charge was tried in a bench trial before the Circuit Court of the City of Charlottesville (Virginia), and the trial court denied defendant's motion to strike the evidence, convicted him of the charge, and sentenced him to three years' imprisonment, with two years and six months suspended. A divided panel of the court of appeals affirmed the conviction. The court of appeals granted defendant's motion for a rehearing en banc.
Is an apparent present ability to inflict bodily harm sufficient to sustain a conviction of assault without the actual present ability?
The trial court's judgment was affirmed. The appellate court held that (1) Va. Code Ann. § 18.2-57(C) codified the common law definition of assault; (2) under the common law, it was enough that defendant's conduct created a reasonable apprehension of bodily harm in the mind of the officer; and (3) the evidence was sufficient to convict defendant of violating § 18.2-57(C). Under the common law definition of assault, one need not have a present ability to inflict imminent bodily harm at the time of the alleged offense to be guilty of assault -- it is enough that one's conduct created at the time of the alleged offense a reasonable apprehension of bodily harm in the mind of the victim. Thus, an apparent present ability to inflict imminent bodily harm is sufficient to support a conviction for assault.