Commonwealth v. Short

55 Va. Cir. 137, 2001 Va. Cir. LEXIS 335

• Court: Norfolk County Circuit Court
• Decided: March 27, 2001
• Docket: Case No. CR00000242
• Status: Published

Opinion

By judge Marc Jacobson

On or about July 15,1999, Defendant Anthony Short attempted to return an allegedly defective video game at a pawn shop in the City of Norfolk, Virginia. Transcript of Proceedings Before the Honorable Marc Jacobson, October 30,2000, (Tr.) p. 10,11. 18-19. A disagreement occurred between Defendant and the clerk at the pawn shop about the video game; as a result, tiie clerk called 911 and police officers were summoned to the store. Tr., p. 13, U. 7-13.

The officer arriving at the scene testified that he entered the store and after some discussion told Defendant that the dispute in question was a civil matter. The officer then attempted to obtain Defendant’s identification because the clerk “wanted to secure warrants.” Tr., p. 24,11.17-24. Defendant refused to provide his identification, whereupon the officer told him he was obstructing justice and that he was under arrest. Tr., p. 25, 11. 12-25. An altercation occurred and the officer alleges Defendant punched him in the face. Tr., p. 26., 11. 4-8. Defendant was charged with assault and battery on a law enforcement officer, common nuisance, and obstruction of justice.

The officer’s testimony at trial indicated that although he “said [defendant] was obligated to give the information [his identification]... he said he wouldn’t.” Tr., p. 25,11.15-20. The officer indicated he “begged and pleaded” with the Defendant but the Defendant would not give him fee information. Tr., p. 25,11.24-25. At feat point, Defendant was placed under arrest which led to fee assault of the police officer in question. Tr., p. 26,11. 6-7. The officer did not testify feat Defendant was under arrest for breaching fee peace, harassing fee cleric, or anything resulting from Defendant’s verbal behavior. In fact, fee officer testified feat at fee time he was requesting identification, Defendant was “walking away,” “stepping back,” and “pacing back and forth.” Transcript, p. 30,11.21,24, p. 31,1. 5. At no point did fee officer testify feat Defendant used profanity, made a threatening comment or body movement in fee officer’s presence, or acted in a loud and intolerable manner.

The officer testified more than once feat he arrested Defendant for fee sole reason feat Defendant failed to provide identification. Tr., p. 26,11.5-6, p. 32, 11.12-14. The officer also testified feat he sought such information so feat fee parties “could work it out civilly.” Tr., p. 26,1. 3. The officer explained to both parties that he could not do anything about fee video game dispute, but feat fee issue was a civil matter. Tr., p. 24,11.19-21.

In order to sustain a conviction for assault and battery on a law enforcement officer, a felony, fee Commonwealth must prove that fee officer was in the lawful course of his duties at fee time of fee assault. Otherwise, a defendant is entitled to use reasonable force against an officer in order to defend himself against an unlawful arrest. See Smith v. Commonwealth, 30 Va. App. 737, 519, S.E.2d 831 (1999), see also Brown v. Commonwealth, 27 Va. App. 111, 497 S.E.2d 527 (1960). The question of whether an arrest was lawful is a mixed question of law and fact. See id. at 117, 497 S.E.2d at 530.

In fee case at bar, fee officer who confronted Defendant testified feat he was arresting Defendant for obstructing justice and nothing more. There was no testimony that Defendant was being arrested or could have ultimately been charged wife a crime for his conduct toward fee store clerk, hi feet, fee officer was quite clear in his testimony that he felt fee dispute between fee clerk and Defendant was a “civil matter.”

In any event, fee officer never testified feat he was obtaining Defendant’s information in order to criminally charge him for fee events feat took place before his arrival at fee pawn shop. It was fee officer’s insistence upon obtaining Defendant’s identification, which information Defendant declined to provide, which resulted in Defendant’s arrest for obstruction of justice. Thus Defendant’s arrest was improper and/or unlawful and his resistance to feat arrest does not constitute fee specific crime of assault and battery of a law enforcement officer.

However, the Court does conclude that under the circumstances of the case at bar that the conduct of the Defendant towards the officer does constitute simple assault, and the Court finds the defendant guilty of same.