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Carter v. Commonwealth | 594 S.E.2d 284 (2004)
If you point a gun at someone, have you committed an assault? What if the gun isn’t loaded? What if it’s a squirt gun? In Carter versus Commonwealth, we explore whether a defendant can commit an assault even if the defendant doesn’t have the actual present ability to harm the victim.
Police officer B.N. O’Donnell pulled over a speeding car while he was patrolling a high-crime area late one night. He exited his cruiser and approached the car on foot. O’Donnell observed a person in the driver’s seat and a second person in the front passenger seat. The passenger was Michael Carter. The driver responded hostilely when O’Donnell asked for his license and registration. O’Donnell shone his flashlight into the car and noted that Carter’s right hand was hidden behind his leg. Carter then fashioned his right hand into the shape of a gun and raised it at O’Donnell, saying pow.
The Commonwealth of Virginia charged Carter with assaulting a police officer. At trial, O’Donnell testified that he initially believed Carter had a gun and was going to shoot him. O’Donnell then quickly realized that Carter was unarmed. O’Donnell said the experience was terrifying.
Carter was convicted of assault. He appealed to the Virginia Court of Appeals, which affirmed his conviction. Carter then moved for a rehearing en banc. The court of appeals granted that request.
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