Gilbert v. Commonwealth, 608 S.E.2d 509 (Va. Ct. App. 2005). · Go Syfert
Search
Gilbert v. Commonwealth, 608 S.E.2d 509 (Va. Ct. App. 2005). Cases Citing This Book View Copy Cite
63 citation events (63 in the last 25 years) across 5 distinct courts.
Strongest positive: Alexius Jarita Wilson v. Commonwealth of Virginia (vactapp, 2025-09-23)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 28 distinct citers.
discussed Cited as authority (rule) Alexius Jarita Wilson v. Commonwealth of Virginia
Va. Ct. App. · 2025 · confidence medium
“At common law, any touching ‘in anger, without lawful provocation,’ however slight, including ‘spitting in a man’s face,’ was sufficient to support a battery conviction.” Gilbert v. Commonwealth, 45 Va. App. 67, 70 (2005) (quoting Hardy v. Commonwealth, 58 Va. (17 Gratt.) 592 , 601 (1867)).
examined Cited as authority (rule) Sincere Omari Cogdell v. Commonwealth of Virginia (3×) also: Cited "see"
Va. Ct. App. · 2025 · confidence medium
“At common law, any touching ‘in anger, without lawful provocation,’ however slight, including ‘spitting in a man’s face,’ was sufficient to support a battery conviction.” Gilbert v. Commonwealth, 45 Va. App. 67, 70 (2005) (quoting Hardy v. Commonwealth, 58 Va. (17 Gratt.) 592 , 601 (1867)).
discussed Cited as authority (rule) Mirshahi, M.D. v. Patient First Richmond Medical Group, LLC
E.D. Va. · 2024 · confidence medium
Because Dr. Mirshahi has not plausibly alleged that Defendants asked her to commit terrorism, assault and battery, or any other crime by seeing patients while symptomatically ill, the Court will dismiss her claim under Va. Code § 47.1-27.3(A)(3). 20 Dr. Mirshahi cites Gilbert v. Commonwealth for the proposition that “[s]pitting . . . suffices to create potential criminal liability.” (ECF No. 18, at 15 (citing 608 S.E.2d 509, 511 (Va. Ct. App. 2005)).) Gilbert is inapposite and does not support the inference Dr. Mirshahi asks the Court to draw in this case.
discussed Cited as authority (rule) Jack Marshall Heverin v. Commonwealth of Virginia
Va. Ct. App. · 2024 · confidence medium
Because “[i]t is entirely ‘permissible to infer,’ as the trial court did, ‘that every person intends the natural and probable consequences of his or her acts.’” Walker v. Commonwealth, 47 Va. App. 114, 121 (2005) (quoting Schmitt v. Commonwealth, 262 Va. 127, 145 (2001); and citing Gilbert v. Commonwealth, 45 Va. App. 67, 71 (2005)).5 D.
discussed Cited as authority (rule) Samuel David Yancey v. Commonwealth of Virginia
Va. Ct. App. · 2022 · confidence medium
This Court has previously held that spitting “constitute[s] an infliction of bodily harm” because it is “an act that involve[s] physical contact and [is] deeply offensive.” Gilbert v. Commonwealth, 45 Va. App. 67, 71 (2005).2 In Gilbert, this Court affirmed appellant’s conviction for assault and battery under Code § 18.2-57 by finding that appellant spit on a law enforcement officer “in a rude, insolent or angry manner.”3 45 Va. App. at 72 .
discussed Cited as authority (rule) Maurice Francis Neenan III v. Commonwealth of Virginia
Va. Ct. App. · 2022 · confidence medium
Like any other element of a crime, it may be proved by circumstantial evidence, as long as such evidence excludes all reasonable hypotheses of innocence flowing from it.” Gilbert v. Commonwealth, 45 Va. App. 67, 71 (2005) (quoting Adams v. Commonwealth, 33 Va. App. 463, 470-71 (2000)).
discussed Cited as authority (rule) Richard Lee Schroeder v. Commonwealth of Virginia
Va. Ct. App. · 2022 · confidence medium
See, e.g., Montague, 278 Va. at 541 (finding that defendant intended to inflict physical harm when he tried “to prevent the police officers from taking him into custody” by “push[ing]” and “strik[ing] [one officer] in the chest with an elbow”); Gilbert v. Commonwealth, 45 Va. App. 67, 71-72 (2005) (finding requisite intent for assault and battery for spitting on a law enforcement officer established through defendant’s obstreperous behavior before and during assault).
discussed Cited as authority (rule) Ricky Ricardo Edmunds v. Commonwealth of Virginia
Va. Ct. App. · 2022 · confidence medium
“To sustain a conviction for battery, the Commonwealth must prove a ‘wil[l]ful or unlawful touching’ of another.” Id. at 330 (alteration in original) (quoting Wood v. Commonwealth, 149 Va. 401, 404 (1927)). “[A] perpetrator need not inflict a physical injury to commit a battery.” Gilbert v. Commonwealth, 45 Va. App. 67, 71 (2005) (quoting Adams, 33 Va. App. at 469 ).
discussed Cited as authority (rule) My'Love Forever Robinson a/k/a Sonja Janet Robinson v. Commonwealth of Virginia
Va. Ct. App. · 2022 · confidence medium
Like any other element of a crime, it may be proved by circumstantial evidence, as long as such evidence excludes all reasonable hypotheses of innocence flowing from it.” Gilbert v. Commonwealth, 45 Va. App. 67, 71 (2005) (quoting Adams, 33 Va. App. at 470 ).
discussed Cited as authority (rule) Joseph Lawrence Hill v. Commonwealth of Virginia
Va. Ct. App. · 2022 · confidence medium
Like any other element of a crime, it may be proved by circumstantial evidence, as long as such evidence excludes all reasonable -4- hypotheses of innocence flowing from it.” Gilbert v. Commonwealth, 45 Va. App. 67, 70 (2005) (quoting Adams, 33 Va. App. at 470-71 ).
cited Cited as authority (rule) Smith v. State
Md. Ct. Spec. App. · 2017 · confidence medium
See, 11 e.g., Ray v. U.S., 575 A.2d 1196, 1199 (D.C. 1990); Hobbs v. State, 251 P.3d 177, 180 (Nev. 2011); Gilbert v. Commonwealth, 608 S.E.2d 509, 511 (Va. Ct. App. 2005).
cited Cited as authority (rule) Smith v. State
Md. Ct. Spec. App. · 2017 · confidence medium
See, e.g., Ray v. U.S., 575 A.2d 1196, 1199 (D.C. 1990); Hobbs v. State, 127 Nev. 234 , 251 P.3d 177, 180 (2011); Gilbert v. Commonwealth, 45 Va.App. 67 , 608 S.E.2d 509, 511 (2005).
cited Cited as authority (rule) William Austin Clark, Jr. v. Commonwealth of Virginia
Va. Ct. App. · 2015 · confidence medium
Gilbert v. Commonwealth, 45 Va. App. 67, 72 , 608 S.E.2d 509, 511 (2005).
discussed Cited as authority (rule) Markeice Devon Pearson v. Commonwealth of Virginia
Va. Ct. App. · 2010 · confidence medium
Thus, even though appellant’s act of spitting in Herbst’s face “involved physical contact and was deeply offensive,” Gilbert v. Commonwealth, 45 Va. App. 67, 71 , 608 S.E.2d 509, 511 (2005), the circumstantial evidence is sufficient to support the trial court’s finding that such conduct was not calculated to repel or thwart the illegal arrest.
discussed Cited "see" Brian Cameron Huntress, Sr. v. Commonwealth of Virginia
Va. Ct. App. · 2024 · signal: see · confidence high
See Gilbert v. Commonwealth, 45 Va. App. 67, 71 (2005) (noting that the intent to cause bodily harm may be proved using circumstantial evidence).
discussed Cited "see" James Norman Massey v. Commonwealth of Virginia
Va. Ct. App. · 2023 · signal: see · confidence high
See Gilbert v. Commonwealth, 45 Va. App. 67, 70-72 (2005) (holding that the defendant’s obstreperous behavior before and during the offensive contact established the requisite intent for assault and battery for spitting on a law enforcement officer).
discussed Cited "see" Chal'lia Sharee Johnson v. Commonwealth of Virginia
Va. Ct. App. · 2023 · signal: see · confidence high
See Gilbert v. Commonwealth, 45 Va. App. 67, 70-72 (2005) (requisite intent for assault and battery for spitting on a law enforcement officer established through defendant’s obstreperous behavior before and during assault).
discussed Cited "see" Matthew Montrail Mills, a/k/a Mathew Montrail Mills v. Commonwealth of Virginia
Va. Ct. App. · 2022 · signal: see · confidence high
See Gilbert v. Commonwealth, 45 Va. App. 67, 70-72 (2005) (requisite intent for assault and battery for spitting on a law enforcement officer established through defendant’s obstreperous behavior before and during assault).
discussed Cited "see" Donald Matthew Kelley v. Commonwealth of Virginia
Va. Ct. App. · 2019 · signal: see · confidence high
See Gilbert v. Commonwealth, 45 Va. App. 67, 71 (2005) (“[T]he slightest touching of another . . . if done in a rude, insolent or angry manner, constitutes a battery for which the law affords redress.” (alterations in original) (quoting Crosswhite, 139 Va. at 477 )).
discussed Cited "see" Debora Kay Moore v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2018 · signal: see · confidence high
See Gilbert v. Commonwealth, 45 Va. App. 67, 71-72 , 608 S.E.2d 509, 511-12 (2005).
discussed Cited "see" Tiffany Anne Huber v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2011 · signal: see · confidence high
See Gilbert v. Commonwealth, 45 Va. App. 67 , 608 S.E.2d 509 (2005).
discussed Cited "see" Larry Keith Harman, s/k/a Larry Keith Harmon v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2009 · signal: see · confidence high
Whether a touching is a battery depends on the intent of the actor, not on the force applied.” Adams v. Commonwealth, 33 Va. App. 463, 468 , 534 S.E.2d 347, 350 (2000); see Gilbert v. Commonwealth, 45 Va. App. 67, 71 , 608 S.E.2d 509, 511 (2005) (holding that “deeply offensive” physical contact will constitute an “infliction of bodily harm” so long as intent is sufficiently proven). “‘The question of [appellant’s] intent must be determined from the outward manifestation of his actions leading to usual and natural results, under the peculiar facts and circumstances disclosed.
discussed Cited "see" Walker v. Commonwealth (2×)
Va. Ct. App. · 2005 · signal: see · confidence high
In reply, Walker says he really intended only to disarm Merrell — not detain him. 4 The factfinder, however, could infer that Walker intended to detain Merrell because that is exactly what Walker did. 5 It is entirely “permissible to infer,” as the trial court did, “that every person intends the natural and probable consequences of his or her acts.” Schmitt v. Commonwealth, 262 Va. 127, 145 , 547 S.E.2d 186, 198 (2001); see Gilbert v. Commonwealth, 45 Va.App. 67, 71 , 608 S.E.2d 509, 511 (2005).
discussed Cited "see, e.g." Sean James Horan v. Commonwealth of Virginia
Va. Ct. App. · 2022 · signal: see also · confidence medium
Id.; see also Gilbert v. Commonwealth, 45 Va. App. 67, 71-72 (2005) (evidence sufficient to prove requisite intent for assault and battery when defendant was noncompliant with police and cursed, threatened, and spat at police officer).
discussed Cited "see, e.g." Gilberto DeJesus, s/k/a Gilberto DeJesus, Jr. v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2013 · signal: see, e.g. · confidence low
See, e.g., Gilbert v. Commonwealth, 45 Va. App. 67, 70-71 , 608 S.E.2d 509, 511 (2005) (explaining battery can consist of any touching of, including spitting on, another person done in anger).
discussed Cited "see, e.g." Charles R. Bowser v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2011 · signal: see also · confidence low
See Adams, 33 Va. App. at 469 , 534 S.E.2d at 351 (in a case in which the defendant shined a laser light in the victim’s eye, noting that “[i]n Virginia, it is abundantly clear that a perpetrator need not inflict a physical injury to commit a battery”); see also Gilbert v. Commonwealth, 45 Va. App. 67, 71-72 , 608 S.E.2d 509, 511-12 (2005) (upholding an assault and battery conviction where the defendant spit on a law enforcement officer).
discussed Cited "see, e.g." Armstead v. Commonwealth (2×)
Va. Ct. App. · 2009 · signal: see also · confidence low
Id.; see also Gilbert v. Commonwealth, 45 Va.App. 67, 71 , 608 S.E.2d 509, 511 (2005) (“a person cannot be convicted of assault .. -. “without an intention to do bodily harm—either an actual intention or an intention imputed by law”’ (quoting Davis v. Commonwealth, 150 Va. 611, 617 , 143 S.E. 641, 643 (1928))).
discussed Cited "see, e.g." SEJAS
BIA · 2007 · signal: see, e.g. · confidence medium
See, e.g., Gilbert v. Commonwealth, 608 S.E.2d 509, 511 (Va. App. 2005) (stating that the requisite harm under the Virginia assault and battery statutes can include the “‘slightest touching . . . in a rude, insolent, or angry manner’” (quoting Crosswhite v. Barnes, 124 S.E. 242 , 244 (Va. 1924))).
Ricky Nelson GILBERT
v.
COMMONWEALTH of Virginia
1876033.
Court of Appeals of Virginia.
Feb 8, 2005.
608 S.E.2d 509
Nicholas Compton (Compton & Compton, P.C., on brief), for appellant., Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Willis.
Cited by 31 opinions  |  Published
WILLIS, Judge.

On appeal from his conviction of assault and battery on a law enforcement officer in violation of Code § 18.2-57(0, Ricky Nelson Gilbert contends the trial court erred in finding the evidence sufficient to support the conviction. He argues the Commonwealth failed to prove that he intended to harm the officer. We affirm the judgment of the trial court.

BACKGROUND

“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).

On July 25, 2002, Officer Tony Davis stopped a vehicle in which Gilbert was a passenger. While Davis spoke with the driver outside the car, Gilbert exited the vehicle and approached the officer. Daws observed that Gilbert was intoxicated and advised Gilbert he was going to arrest him for public drunkenness. Gilbert cursed Davis and stated he would not go with him. Officer James Fletcher arrived on the scene. Gilbert refused to go with Davis but agreed to ride with Fletcher. Fletcher placed Gilbert in the front seat of his[*70] police cruiser and began driving to the police station. Davis followed in his vehicle.

En route to the police station, Gilbert became unruly. Fletcher stopped the car, removed Gilbert from the vehicle and placed shackles on his legs. Fletcher asked Davis to ride in the back of the car. The officers returned Gilbert to the front seat of Fletcher’s car. As they proceeded, Gilbert suddenly turned and spat on Fletcher’s head. Davis placed his hand over Gilbert’s mouth. Gilbert attempted to bite or spit through Davis’s glove. He threatened to kill both officers and their families. Fletcher testified that before Gilbert spat on him, he observed Gilbert “working his mouth around like he was working slobber up in his mouth.”

ANALYSIS

Gilbert contends the Commonwealth failed to demonstrate he intended to inflict bodily harm and that spitting on Officer Fletcher was merely his “way of showing his dissatisfaction with the situation.”

In pertinent part, Code § 18.2-57(C) provides:

[I]f any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a law-enforcement officer ... engaged in the performance of his public duties as such, such person shall be guilty of a Class 6 felony____

At common law, any touching “in anger, -without lawful provocation,” however slight, including “spitting in a man’s face,” was sufficient to support a battery conviction. Hardy v. Commonwealth, 58 Va. (17 Gratt.) 592, 601 (1867). [1][*71] “[T]he slightest touching of another ... if done in a rude, insolent or angry manner, constitutes a battery for which the law affords redress.” Crosswhite v. Barnes, 139 Va. 471, 477, 124 S.E. 242, 244 (1924) (citation omitted); see also Adams v. Commonwealth, 33 Va.App. 463, 469, 534 S.E.2d 347, 350 (2000). The term “battery” possesses “a long history of definition by” the courts, and therefore, it “carr[ies] [its] historical construction” when used by the General Assembly in a statute. Quintana v. Commonwealth, 224 Va. 127, 140, 295 S.E.2d 643, 649 (1982). “In Virginia, it is abundantly clear that a perpetrator need not inflict a physical injury to commit a battery.” Adams, 33 Va.App. at 469, 534 S.E.2d at 351.

Gilbert correctly notes that a person cannot be convicted of assault and battery ‘“without an intention to do bodily harm — either an actual intention or an intention imputed by law.’ ” Davis v. Commonwealth, 150 Va. 611, 617, 143 S.E. 641, 643 (1928). However,

[p]roving intent by direct evidence often is impossible. Like any other element of a crime, it may be proved by circumstantial evidence, as long as such evidence excludes all reasonable hypotheses of innocence flowing from it. Circumstantial evidence of intent may include the conduct and statements of the alleged offender, and “[t]he finder of fact may infer that [he] intends the natural and probable consequences of his acts.”

Adams, 33 Va.App. at 470-71, 534 S.E.2d at 351 (quoting Campbell v. Commonwealth, 12 Va.App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc)) (other citations omitted).

In spitting on Officer Fletcher, Gilbert committed an act that involved physical contact and was deeply offensive. Thus, it constituted an infliction of bodily harm. The circumstances[*72] abundantly support the trial court’s finding that the act was committed in a rude, insolent or angry manner.

When Officer Davis first encountered Gilbert, Gilbert refused to comply with the officer’s orders and cursed him. When Davis handcuffed Gilbert, Gilbert threatened to “stomp” him. Gilbert became violent in Fletcher’s vehicle, kicking the dashboard and screaming. Before spitting on Fletcher, Gilbert remarked that the officer “would never five to see another snowfall.” Davis testified that Gilbert repeatedly threatened to kill the officers and their families. Fletcher confirmed that Gilbert threatened to kill him before and after spitting on him.

The judgment of the trial court is affirmed.

Affirmed.

1

. Numerous jurisdictions have also concluded that spitting upon another, even without inflicting an injury, constitutes an assault and battery. See, e.g., United States v. Masel, 563 F.2d 322 (7th Cir.1977) (spitting on a senator constitutes a battery, no more severe injury need be intended); United States v. Frizzi, 491 F.2d 1231 (1st Cir.1974) (spitting in the face of a mail carrier, without the infliction of a bodily injury, constitutes a "forcible assault”); Ray v. United States, 575 A.2d 1196 (D.C.App.1990) (spitting in the face of a police officer is sufficient to[*71] support a conviction, even though the act is merely offensive); People v. Peck, 260 Ill.App.3d 812, 198 Ill.Dec. 760, 633 N.E.2d 222 (1994) (spitting in the face of a police officer constitutes aggravated battery); People v. Terry, 217 Mich.App. 660, 553 N.W.2d 23 (1996) (spitting on another, even without physical injury, constitutes a battery).