TO: Alva Poole, Esq.

FROM: Latoya Griffin, Paralegal DATE: July 6, 2009 RE: Melissa Case Question Presented (1) What are possible criminal charges? (2) What cause(s) of action is there to pursue litigation? Brief answer: Evidence supports a charge of assault and battery and litigation may be pursued on the basis of tort battery. Statement of Facts After leaving a party in which both had been drinking, Melissa and Damon went to Lookout Point. Melissa had been told by Damon that the purpose of going to Lookout Point was to talk. Damon made persistent advances toward Melissa as the two sat in his vehicle. After Melissa calmly resisted his advances, Damon became violent. He slapped her face, resulting in her having a cut lip and two loose teeth. Damon grabbed Melissa as she exited the car, tearing Melissas blouse. Rule VA Code Ann. 18.2-57 (1950), asserts that any person who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement. 6 Am. Jur. 2d Assault and Battery 3 states that assault is the beginning of an act, which, if consummated, constitutes battery. An assault creates an apprehension of imminent harmful or offensive contact, while battery is that contact. Virginia Practice, Criminal Offenses and Defenses A46 states that Virginia cases define a battery as the least touching of another, willfully or in anger; this includes touching done in a spirit of rudeness or insult. Another definition is "the willful or unlawful touching of the person of another by the assailant, or by some object set in motion by him."Whether a touching is a battery depends upon the intent (i.e., mental state) of the actor rather than the amount of force applied. 6A C.J.S. Assault 68 explains compensatory damages for assault and battery. It states that the physical injuries sustained by the plaintiff, including the accompanying pain and suffering, both physical and mental, are proper items of damage. The measure of recovery in case of assault and battery is limited to compensatory damages, which include the nature of injuries, and pain and suffering. Specifically, in actions for assault, or assault and battery, the plaintiff may be entitled to recover for all bodily injuries sustained, including impaired physical or mental powers, mutilation and disfigurement, and the accompanying pain and suffering he jury may properly consider and allow compensation for resulting pain and suffering, and for humiliation, indignity, and vexation suffered by the plaintiff as result of his or her assailant's conduct, as well as the factors of provocation, the reasonableness of the force used, the attendant humiliating circumstances, the sex of the victim, mental distress.

Analysis Melissa was battered when she was slapped by a furious Damon. At this point, Melissa was in fear of further abuse as she left her attackers vehicle. Therefore, assault is applicable, as described in 6 Am. Jur. 2d Assault and Battery 3, the act that creates an apprehension of imminent harmful or offensive contact, with battery being that contact. Damon then carried his assault into an additional act of battery when he grabbed her. Damons slapping and grabbing of Melissa were both actions that satisfy the definition of battery established by Virginia cases per Virginia Practice, Criminal Offenses and Defenses A46, which is the least touching of another, willfully or in anger; this includes touching done in a spirit of rudeness or insult. Upon slapping Melissas face and grabbing her, Damon was in violation of VA Code Ann. 18.2-57 (1950): any person who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement. A possible defense could be that Damon was intoxicated during the incident, which affected his mental state. However, since Virginia laws do not recognize intoxication as an excuse to commit any crime, it would be unlikely. This is upheld by Chittum v. Commonwealth of Virginia 211 Va. 12, 174 S.E. 2d 779 (1970). The fact that the battery was acted out of anger is sufficient to account for Damons mental state. In accordance with 6A C.J.S. Assault 68, the plaintiff is entitled to recover compensation for all the financial losses sustained as a result of the assault or battery. Accordingly, the financial value of the time lost by the plaintiff in consequence of the injury is a proper element of recovery. The reasonable and necessary expenses incurred by the plaintiff for medical care and treatment as a direct and proximate result of the assault and battery is recoverable. The fact that an assault plaintiff received compensation or coverage from a medical insurer and employer for emergency room expenses and for loss of wages after an assault (to which the defendant did not contribute), does not diminish damages otherwise recoverable where the entire amount of the hospital bill should have been included in the award. This was evident in Baldwin v. McConnell 273 Va. 650, 643 S.E.2d 703 (2007), where punitive damages of $100,000 for former employee were awarded for assault and battery by fellow employee at work; the
punitive damages were based upon malice and willful and wanton conduct while the compensatory damages were based upon actual injury sustained as well as shame, humiliation, embarrassment, or indignity to feelings, the relationship between punitive and compensatory damages was not unreasonable or strikingly out of proportion, and jury considered the value of fellow employee's stock in former employer.

Melissa has loosened teeth that require medical attention, an expense which could be covered by compensation. Depending on the deepness of the cut on her lip, it could also be a source of compensation. Conclusion Melissa was slapped, causing her fear of further abuse. As she was leaving the assailants car, she was grabbed, ripping her blouse. As a result of the incident, Melissa received bodily injuries, a cut lip and loosened teeth. These circumstances support a charge of assault and battery, per VA Code Ann. 18.257 (1950) and provide a basis for a cause of action, tort battery. Melissa qualifies for recovery of compensation for dentist/medical bills to repair her loosened teeth and cut lip as well as any emotional suffering that may have incurred from the incident.