assault and battery instruction in Virginia

2025The jury had the full “opportunity to assess the evidence as it related to assault and battery.”5 Cf. Boone, 14 Va. App. at 133 (holding that refusing an assault-and-battery instruction impermissibly denied the jury that opportunity).

2001In explaining why an assault and battery instruction was required in Boone we said, “[o]ne 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.” 14 Va.App. at 133 , 415 S.E.2d at 251 (emphasis added).

2025Cf. Witherow, 65 Va. App. at 570 (finding that an assault and battery instruction was warranted when defendant testified at trial that he intended to “scare” the victim by firing a gun).

2025In other words, would a jury have convicted Zapata even if the assault and battery instruction was given? “[W]here it is impossible to determine from the verdict whether the jury would have necessarily rejected a [lesser-included offense] on which it was not instructed, error in refusing to instruct on that [offense] is not harmless.” Lienau, 69 Va. App. at 270 . “[D]etermining the credibility of the witnesses and the weight afforded the testimony of those witnesses are matters left to the trier of fact, who has the ability to hear and see them as they testify.” Maldonado v. Commonwealth, 70 V

2025In other words, would a jury have convicted Zapata even if the assault and battery instruction was given? “[W]here it is impossible to determine from the verdict whether the jury would have necessarily rejected a [lesser-included offense] on which it was not instructed, error in refusing to instruct on that [offense] is not harmless.” Lienau, 69 Va. App. at 270 . “[D]etermining the credibility of the witnesses and the weight afforded the testimony of those witnesses are matters left to the trier of fact, who has the ability to hear and see them as they testify.” Maldonado v. Commonwealth, 70 V

2006“When reviewing jury instructions, an appellate court must ensure . . . that the ‘instructions cover all issues’ fairly raised by the evidence.” Mouberry v. Commonwealth, 39 Va. App. 576, 581 , 575 S.E.2d 567, 569 (2003) (quoting Tice v. Commonwealth, 38 Va. App. 332, 339 , 563 S.E.2d 412, 416 (2002)).

2006“When reviewing jury instructions, an appellate court must ensure . . . that the ‘instructions cover all issues’ fairly raised by the evidence.” Mouberry v. Commonwealth, 39 Va. App. 576, 581 , 575 S.E.2d 567, 569 (2003) (quoting Tice v. Commonwealth, 38 Va. App. 332, 339 , 563 S.E.2d 412, 416 (2002)).

2006“When reviewing jury instructions, an appellate court must ensure . . . that the ‘instructions cover all issues’ fairly raised by the evidence.” Mouberry v. Commonwealth, 39 Va. App. 576, 581 , 575 S.E.2d 567, 569 (2003) (quoting Tice v. Commonwealth, 38 Va. App. 332, 339 , 563 S.E.2d 412, 416 (2002)).

2006“When reviewing jury instructions, an appellate court must ensure . . . that the ‘instructions cover all issues’ fairly raised by the evidence.” Mouberry v. Commonwealth, 39 Va. App. 576, 581 , 575 S.E.2d 567, 569 (2003) (quoting Tice v. Commonwealth, 38 Va. App. 332, 339 , 563 S.E.2d 412, 416 (2002)).

2006See Guss v. Commonwealth, 217 Va. 13, 14 , 225 S.E.2d 196, 197 (1976) (affirming a robbery conviction where the trial judge did not give an assault and battery instruction).

2006See Guss v. Commonwealth, 217 Va. 13, 14 , 225 S.E.2d 196, 197 (1976) (affirming a robbery conviction where the trial judge did not give an assault and battery instruction).