## Facts

- Around 11:00 p.m., Officer Brian N. O’Donnell stopped a car for speeding in Charlottesville, Virginia, in an area known for drug activity.
- While O’Donnell spoke with the driver at the driver’s window, he used a flashlight to look through the vehicle’s interior for safety concerns.
- Michael Anthony Carter was seated in the front passenger seat; O’Donnell noticed Carter’s right hand was down by his leg and out of O’Donnell’s view.
- Carter suddenly moved his right arm in an arcing motion up and across his body.
- Carter’s hand was formed like a gun (fist with index finger extended and thumb raised), and he pointed it toward Officer O’Donnell and said “pow.”
- O’Donnell believed Carter had drawn a real weapon and backed away while reaching for his service revolver; he quickly realized Carter’s “weapon” was only his finger.
- O’Donnell testified the exchange frightened him and that, if he had been able to draw his gun in time, he would have shot Carter.
- O’Donnell did not arrest Carter at the scene because he was unsure what offense applied; he later obtained a warrant for assault on a law-enforcement officer.
- After a bench trial, Carter was convicted of assaulting a law-enforcement officer under Va. Code § 18.2-57(C).
- Carter appealed, arguing his conduct was not an assault because he lacked the present actual ability to inflict bodily injury (he had no weapon).

## Issues

1. Whether Virginia’s definition of criminal assault requires proof that the defendant had a present actual ability to inflict bodily harm in every case.
2. Whether pointing a “finger gun” at a police officer and saying “pow,” without possessing an actual weapon, can constitute assault by placing the officer in reasonable apprehension of immediate bodily harm.
3. Whether the evidence was sufficient to support Carter’s conviction for assault on a law-enforcement officer under Va. Code § 18.2-57(C).

## Decision

- The Court of Appeals of Virginia (en banc) affirmed Carter’s conviction.
- The court held that assault in Virginia can be committed in more than one way, including an “offer to batter” that places the victim in reasonable fear of immediate bodily harm.
- For the “offer to batter” form of assault, the Commonwealth need not prove the defendant had an actual present ability to cause injury; an apparent present ability that creates reasonable apprehension is enough.
- Carter’s sudden motion, gun-shaped hand gesture, and “pow,” in the circumstances of a nighttime traffic stop, supported the finding that Officer O’Donnell reasonably feared he was about to be shot.
- Because the trial court found the officer’s fear reasonable (and Carter did not successfully contest that factual finding), the evidence supported the assault conviction even though Carter had no real weapon.

## Legal Principles

- Virginia defines “assault” using common-law meanings unless changed by statute; Va. Code § 18.2-57(C) increases penalties for assaults on law-enforcement officers but relies on the same assault definition.
- Assault may be proven as:
  - an attempted battery (requiring specific intent and a present ability to commit the battery), or
  - an “offer to batter” (an overt, intentional act that places another in reasonable apprehension of immediate bodily harm).
- Under the “offer to batter” theory, the Commonwealth does not have to show the defendant could actually carry out the threatened harm at that moment; it is enough that the defendant’s conduct conveys an apparent present ability that would cause a reasonable person (or, in context, the victim) to fear immediate injury.
- The reasonableness of the victim’s apprehension is a factual matter for the trial court, assessed in light of the circumstances (including the setting and the defendant’s actions).
- On appellate review of sufficiency, the evidence is viewed in the light most favorable to the Commonwealth, and factual findings are given deference unless plainly wrong or without evidentiary support; legal conclusions are reviewed de novo.

## Conclusion

The en banc Court of Appeals affirmed Carter’s conviction because Virginia recognizes an “offer to batter” form of assault that turns on whether the defendant’s overt act creates a reasonable apprehension of immediate bodily harm, and Carter’s finger-gun gesture and “pow” during a nighttime traffic stop gave Officer O’Donnell a reasonable fear of being shot even though Carter had no actual weapon.


Carter v. Commonwealth, 594 S.E.2d 284, 42 Va. App. 681 (2004)