Douglas Tyrone Oulds v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 28, 1999
• Docket: 2062983
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner Argued at Salem, Virginia

DOUGLAS TYRONE OULDS MEMORANDUM OPINION * BY v. Record No. 2062-98-3 JUDGE RUDOLPH BUMGARDNER, III SEPTEMBER 28, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge

B. Leigh Drewry, Jr., for appellant.

Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Douglas Tyrone Oulds appeals his conviction of assault and

battery on a police officer engaged in the performance of public

duties, Code § 18.2-57. He argues that the trial court erred in

finding that the victim, who was a police officer and who worked

as a private security guard, was engaged in the performance of

public duties. Specifically, he argues that the Commonwealth

did not prove that the City of Lynchburg had adopted a local

ordinance authorizing police officers to work off-duty. Finding

no error, we affirm.

Investigator P.R. Adams of the Lynchburg Police Department

was working as a private security guard at the Lynchburg Plaza.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. He wore his full uniform including his handcuffs, sidearm, and

all the implements normally used. He saw the defendant and

recognized him but could not recall his name. Thirty minutes

later, he saw the defendant again and this time realized the

defendant had been barred from the Plaza. Adams approached the

defendant, informed him he was barred, and arrested him for

trespassing. When Adams attempted to handcuff the defendant, he

jerked back, struggled, and then hit the officer. The defendant

admitted he knew that Adams was a police officer but denied

intending to hit the officer or putting his hand up to strike

him. The store manager verified the officer's testimony.

The officer worked for the police department, and for the

past twelve years, he also worked part-time as a private

security guard at the Lynchburg Plaza. Adams testified that he

applied for approval of off-duty employment pursuant to

departmental procedures. The department approved his

application and permitted him to wear his full uniform while

working off-duty.

The defendant argued that there was no evidence that Adams

was performing his public duties because the Commonwealth failed

to prove the Lynchburg ordinance that permitted law enforcement

officers to work off-duty. Finding that the defendant hit Adams

"in the lip with his fist and also grabbed him from behind" and

that the "officer was within the performance of his public

duties when that took place," the trial court convicted.

- 2 - Code § 15.1-133.1 (now § 15.2-1712) permits localities to

adopt ordinances that authorize law-enforcement officers to

engage in off-duty employment which may require use of their

police powers. In this case, the Commonwealth did not

introduce, and the court did not specifically refer to the local

ordinance that adopted Code § 15.1-133.1. During argument, the

Commonwealth cited it specifically, but the trial court did not

formally admit it as an exhibit. A copy of the ordinance,

Lynchburg City Code § 31-5.1, was included in the record on

appeal.

The trial court need not admit formally the ordinances of

the jurisdiction where it sits because it is required to take

judicial notice of those laws. See Code § 19.2-265.2(A);

Griswold v. Commonwealth, 19 Va. App. 477, 484, 453 S.E.2d 287,

290-91 (1995) (judicial notice of local ordinances). See also

Kent Sinclair, Virginia Civil Procedure § 14.7, at 582 (3d ed.

1998); Charles E. Friend, The Law of Evidence in Virginia

§ 19.6, at 268 (4th ed. 1993). The Revisers' Note to Code

§ 8.01-386 states, "It is no longer necessary, for example, to

prove ordinances of local cities or counties." Code

§§ 19.2-265.2 and 8.01-386 are verbatim. The local ordinance

was before the trial court, but it is no longer necessary that

it be separately proved and formally admitted.

The defendant also suggests that the Commonwealth failed to

introduce the police regulations that implemented the local

- 3 - ordinance. However, the officer was competent to testify that

he had complied with departmental regulations and had received

approval from the department to work off-duty at the Plaza. His

testimony sufficiently established that he was authorized to

work pursuant to the city ordinance.

The defendant argues that the evidence did not show that

the officer was performing public duties at the time of the

offense as required by Code § 18.2-57. In Key v. Commonwealth,

21 Va. App. 311, 464 S.E.2d 171 (1995), an off-duty police

officer working as a hotel security guard encountered the

defendant. When the officer asked the defendant if he was

trespassing, the defendant attempted to evade him, started

fighting, and wounded the officer. The Court held that the

officer was performing his public duties and stated: "The

coincidence of [the officer's] private and public duties during

the encounter did not eclipse his authority and responsibility

as a law enforcement officer." Id. at 315, 464 S.E.2d at 173.

The facts in this case are analogous to those in Key.

In addition, the officer, who was in full uniform though

off-duty, was authorized to arrest when he saw a misdemeanor

being committed in his presence. See Code § 15.1-138 (now

§ 15.2-1704). The officer had probable cause to believe that

the defendant was trespassing, and that authorized him to

arrest. In doing so, the officer was performing his public

duties. His private employment did not relieve him of the

- 4 - responsibility or authority to maintain the peace, protect

property, and enforce the laws of the Commonwealth.

Accordingly, we affirm the conviction.

Affirmed.

- 5 -