Carter v. Commonwealth

594 S.E.2d 284 (2004)

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Nature of the Case

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Facts

Officer O'Donnell observed a speeding car and, activating his vehicle's overhead flashing blue emergency lights, initiated a traffic stop. Officer O'Donnell was driving a marked police vehicle and wearing his police uniform and badge. After the car pulled over, O'Donnell shone his vehicle's 'takedown' lights and spotlight onto the car and approached it on foot. The driver and D, who was seated in the front passenger seat were in the car. While conversing with the driver, O'Donnell used his flashlight to conduct a 'plain view search' of the car to make sure there were no visible weapons or drugs in it. O'Donnell noticed that D had his right hand out of sight 'down by his right leg.' Carter then suddenly brought his right hand up and across his body. Extending the index finger on his right hand straight out and the thumb straight up, he pointed his index finger at the officer and said, 'Pow.' Thinking Carter 'had a weapon and was going to shoot' him, O'Donnell 'began to move backward' and went for his weapon. 'split second' later, O'Donnell realized 'it was only D's finger.' 'The first thing I thought was that I was going to get shot. I - it's a terrifying experience, and if I could have gotten my weapon, I would have shot him.' Immediately after the incident, O'Donnell, who was 'visibly shaken,' asked Carter 'if he thought it was funny,' and Carter responded, 'Yes, I think it is funny.' A warrant was obtained for D’s arrest for assaulting a police officer. At trial, D moved to strike the evidence, arguing the Commonwealth's evidence was insufficient to prove assault because it failed to prove D had the present ability to inflict actual violence upon the officer. The trial court agreed with the Commonwealth that proof of such ability was unnecessary as long as the evidence proved the officer reasonably believed D had the present ability to inflict actual bodily harm upon him. The trial court found the evidence sufficient to prove beyond a reasonable doubt that D was guilty of assault. D was convicted and appealed.