Court of Appeals of Virginia
594 S.E.2d 284 (2004)
Officer B.N. O’Donnell pulled over a speeding car around 11:00 p.m. and conducted a routine traffic stop. While Officer O’Donnell was speaking with the driver of the car, O’Donnell used his flashlight to conduct a plain-view search of the car to confirm there were no weapons or drugs inside. As O’Donnell was doing so, he noticed that Carter (defendant), who was seated in the front passenger seat, had his right hand out of sight. Carter then drew his hand up and pointed his index finger straight out and his thumb straight up. Carter pointed at O’Donnell and said “pow.” O’Donnell believed Carter had a weapon and went for his own service revolver, but O’Donnell quickly realized Carter was only using his finger as if it were a gun. O’Donnell later testified that it was a terrifying exchange and that he would have shot Carter if O’Donnell had been successful in accessing his service revolver. Carter was convicted of assault of a law-enforcement officer. Carter appealed, arguing that his actions did not constitute assault, because Carter did not have the present ability to harm Officer O’Donnell at the time Carter cocked his finger at him.
Rule of Law
Holding and Reasoning (Clements, J.)
Dissent (Benton, J.)
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