Metropolitan News-Enterprise


Thursday, March 8, 2007


Page 1


Ninth Circuit: Intentional Spitting on Another Is Simple Assault


By TINA BAY, Staff Writer


Intentionally spitting on another person qualifies as “simple assault” under the theory of assault as an attempted or completed battery, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Agreeing with three other circuits that even a seemingly slight, but intentional, offensive touching can suffice for a battery, the court unanimously affirmed a Washington man’s conviction under 18 U.S.C. Sec. 113(a)(5)  for spitting in another  man’s face on the grounds of a Veterans Administration hospital. The statute punishes anyone found guilty of committing simple assault within U.S. maritime and territorial jurisdiction with up to six months in prison.

The court affirmed a ruling by Senior U.S. District Judge Wm. Fremming Nielsen, who upheld a magistrate judge’s finding of Jeffrey Paul Lewellyn’s guilt under Sec. 113(a)(5) based on the theory of assault as an attempt to commit a battery.

Confrontation at Hospital

Lewellyn allegedly spat in the face of a veteran receiving outpatient treatment in the drug rehabilitation program at Veterans Administration Medical Center in Walla Walla after the two had a brief confrontation on hospital grounds.  The exchange between the two—who knew each other because Lewellyn was also a veteran and a volunteer hospital shuttle driver—pertained to a conversation the two men had a month earlier while the other veteran was leaving the hospital after a doctor’s visit. 

On that occasion, the alleged victim told Lewellyn he had a prescription for Sudafed, which was dangerous for him to possess as a recovering drug addict because he had previously used the medicine to make methamphetamine.  Lewellyn asked the victim about the process of extracting ephedrine out of Sudafed, and because the patient was concerned about relapsing, he reported the conversation to a counselor in the rehabilitation program.

The confrontation a month later occurred when the victim, then working on the hospital grounds, saw Lewellyn in a van and initiated a dialogue with him.  Lewellyn called him a “snitch” for reporting their previous conversation to a counselor, then allegedly got out of the van, walked up to the patient appearing as though he was going to punch him, and spit in his face.

Lewellyn was found guilty of committing simple assault and was sentenced to two years of probation, 50 hours of community service and a $10 special assessment.

On appeal, he contented that including spitting within the scope of simple assault was an unwarranted extension of Ninth Circuit law.

Writing for the Ninth Circuit, Judge M. Margaret McKeown noted the court had adopted the common law definition of assault as an attempted battery, and concluded that “noninjurious but intentional, offensive contact (even if relatively minor) satisfies the requirement for simple assault under the battery theory.”

Other Circuits

The judge pointed to simple assault convictions that were upheld in the First Circuit, in a case involving the intentional touching of a flight attendant’s buttocks, the Eleventh Circuit, in a case where man bumped a girl with his chair while she was using his computer, and the Eighth Circuit, in a case where the defendant urinated on the face of a person who was sleeping and unaware of the conduct.

“As a matter of common sense, intentionally spitting in another person’s face easily falls within the scope of an offensive touching,” McKeown wrote.

Spokane-based Assistant U.S. Attorney Thomas J. Hopkins, who represented the government on appeal, told the MetNews the court’s decision as not “extraordinary” or “out of line.”

He said:

“To intentionally do that to someone is certainly pretty intrusive, and the case law reflects the fact that under common law, any unwanted offensive touching is considered an assault or battery. It’s not like, maybe punching someone in the face where you end up breaking their nose, but still it’s an unwanted offensive touching.”

Defense counsel Amy H. Rubin, of the Federal Defenders of Eastern Washington and Idaho, said the court extended the definition of simple assault too far.

“This case is a case about a little spittle,” she said, indicating her client would probably take the case to the U.S. Supreme Court.

Rubin added that Lewellyn’s version of the events is that spit simply came out of his mouth as he was talking close to the victim’s face.

“My client is very, very large, probably 6’8” or 6’9”, so our position is that spit came out of his mouth as he was talking and that’s how the spittle got onto the victim,” she said.

The case is United States v. Lewellyn, 06-30185.


Copyright 2007, Metropolitan News Company