COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Russell and Malveaux Argued at Norfolk, Virginia PUBLISHED
JACOB ANDREW HERRINGTON OPINION BY v. Record No. 0590-19-1 JUDGE WESLEY G. RUSSELL, JR. MARCH 24, 2020 CITY OF VIRGINIA BEACH
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Leslie L. Lilley, Judge
Kristin Paulding for appellant.
Jason Kowalski, Assistant Commonwealth’s Attorney (Colin D. Stolle, Commonwealth’s Attorney for the City of Virginia Beach, on brief), for appellee.
Jacob Andrew Herrington, appellant, was convicted in a bench trial of failing to identify
himself to a uniformed police officer in violation of Virginia Beach City Code § 23-7.1, a Class 1
misdemeanor. On appeal, he argues that he did not violate the ordinance because the circumstances
surrounding his failure to identify himself to the officer would not have caused a reasonable man
to conclude that public safety required the identification. For the following reasons, we agree
with appellant and reverse his conviction.
BACKGROUND1
The evidence is largely undisputed. In August 2018, Virginia Beach Police Officer
David Bowers was dispatched to a gas station/convenience store in response to a report that “two
homeless individuals were asking customers for money and refused to leave the property.”
1 Appellant submitted a written statement of facts endorsed by the trial judge in lieu of a transcript pursuant to Rule 5A:8(c). Bowers arrived at the scene and identified two men who generally met the description he had
been given when dispatched. The two men were not interacting with the store’s customers at
that time, but rather, were standing near the fence in the rear parking lot.
Bowers approached the men and asked the first for identification. The first man provided
the requested information. Bowers then confronted the second man, appellant, and explained to
him that he was dispatched to the convenience store for possible “pan-handling” and the store
wanted appellant banned from the property. When Bowers asked appellant for identification,
appellant responded that he did not have any. Bowers persisted in his attempts to identify
appellant. Appellant continued to refuse to provide the information and cited Terry v. Ohio and
Miranda v. Arizona as justification for his refusal.
As the encounter progressed, Bowers detected an odor of alcohol coming from appellant.
Bowers testified that appellant’s speech was slurred. Based on these observations, Bowers
placed appellant under arrest for being drunk in public and failure to identify himself to law
enforcement.2 Incident to the arrest, Bowers located appellant’s identification.
Officer Nathanial Worthing assisted Bowers in dealing with appellant at the scene.
Worthing testified that appellant was argumentative and rude. He confirmed that Bowers
explained to appellant why the police were dispatched to the store and that appellant, citing Terry
and Miranda, refused to provide identification in response to Bowers’ repeated requests.
Appellant testified that he went to the store to pass the time while waiting for a bus. He
claimed that he did not ask anyone for money and did not know the other individual Bowers had
questioned. The only contact appellant had with the other individual was to give the man a
cigarette. When the officers approached appellant, he was at the back of the store’s parking lot
and there were no customers near him.
2 The drunk in public charge is not at issue in this appeal. -2- According to appellant, when Bowers asked for his identification, appellant asked why
the officers needed his identification. Appellant disputed the claim that anyone from the store
asked him to leave the property. Appellant testified that it was his understanding that he had a
legal right to refuse to identify himself to law enforcement. Appellant also explained that he had
a history of mental illness.
During closing argument, the City acknowledged that appellant’s version of his encounter
with the officers was “highly consistent” with the City’s evidence. The City then argued that
those largely undisputed facts established that appellant had violated Virginia Beach City
Code § 23-7.1 when he refused to identify himself in response to Bowers’ request. Appellant
responded by noting that the ordinance only requires a person to respond to such a request when
“the surrounding circumstances are such as to indicate to a reasonable man that the public safety
requires such identification” and that the evidence did not establish such circumstances here.
The trial court found that the evidence established the necessary elements of the
ordinance and convicted appellant. Appellant appeals, again asserting that the evidence did not
satisfy the ordinance’s element that the circumstances were “such as to indicate to a reasonable
man that the public safety requires such identification.”
ANALYSIS
I. Standard of Review
“Ordinarily, when faced with ‘a challenge to the sufficiency of the evidence, we review
the evidence in the light most favorable to the prevailing party, including any inferences the
factfinder may reasonably have drawn from the facts proved.’” Hannon v. Commonwealth, 68
Va. App. 87, 92 (2017) (quoting Smith v. Commonwealth, 282 Va. 449, 453 (2011)).
Nevertheless, when a challenge to a conviction “presents the question whether the facts proved,
and the legitimate inferences drawn from them, fall within the language of a[n ordinance], we
-3- must construe [the ordinance’s] language to answer the question. That function presents a pure
question of law which we consider de novo on appeal.” Smith, 282 Va. at 453-54; see also
Hodges v. Commonwealth, 64 Va. App. 687, 693 (2015).
In interpreting an ordinance, we apply the same rules of construction applicable to
statutes. Accordingly, “our primary objective is ‘to ascertain and give effect to legislative
intent,’ as expressed by the language used” in the ordinance. Cuccinelli v. Rector & Visitors of
the Univ. of Va., 283 Va. 420, 425 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414,
418 (2011)) (internal quotation marks omitted). We do so by construing its words “according to
their ordinary meaning, given the context in which they are used.” City of Va. Beach v. Bd. of
Supervisors, 246 Va. 233, 236 (1993) (quoting Grant v. Commonwealth, 223 Va. 680, 684
(1982)). Accordingly, “we will not read a legislative enactment in a manner that renders any
portion of that enactment useless[,]” but rather, we faithfully apply the ordinance “by giving
reasonable effect to every word used.” Antisdel v. Ashby, 279 Va. 42, 48 (2010). Finally,
because the ordinance imposes a criminal penalty, its terms must be “strictly construed against
the State[.]” Armstrong v. Commonwealth, 263 Va. 573, 581 (2002) (quoting Dep’t of Motor
Vehicles v. Athey, 261 Va. 385, 388 (2001)).
II. Virginia Beach City Code § 23-7.1
In pertinent part, Virginia Beach City Code § 23-7.1 provides that
[i]t shall be unlawful and a Class 1 misdemeanor for any person at a public place or place open to the public to refuse to identify himself by name and address at the request of a uniformed police officer . . . if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.[3]
3 We note that the ordinance at issue here is not unique to the City of Virginia Beach.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Russell and Malveaux Argued at Norfolk, Virginia PUBLISHED
JACOB ANDREW HERRINGTON OPINION BY v. Record No. 0590-19-1 JUDGE WESLEY G. RUSSELL, JR. MARCH 24, 2020 CITY OF VIRGINIA BEACH
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Leslie L. Lilley, Judge
Kristin Paulding for appellant.
Jason Kowalski, Assistant Commonwealth’s Attorney (Colin D. Stolle, Commonwealth’s Attorney for the City of Virginia Beach, on brief), for appellee.
Jacob Andrew Herrington, appellant, was convicted in a bench trial of failing to identify
himself to a uniformed police officer in violation of Virginia Beach City Code § 23-7.1, a Class 1
misdemeanor. On appeal, he argues that he did not violate the ordinance because the circumstances
surrounding his failure to identify himself to the officer would not have caused a reasonable man
to conclude that public safety required the identification. For the following reasons, we agree
with appellant and reverse his conviction.
BACKGROUND1
The evidence is largely undisputed. In August 2018, Virginia Beach Police Officer
David Bowers was dispatched to a gas station/convenience store in response to a report that “two
homeless individuals were asking customers for money and refused to leave the property.”
1 Appellant submitted a written statement of facts endorsed by the trial judge in lieu of a transcript pursuant to Rule 5A:8(c). Bowers arrived at the scene and identified two men who generally met the description he had
been given when dispatched. The two men were not interacting with the store’s customers at
that time, but rather, were standing near the fence in the rear parking lot.
Bowers approached the men and asked the first for identification. The first man provided
the requested information. Bowers then confronted the second man, appellant, and explained to
him that he was dispatched to the convenience store for possible “pan-handling” and the store
wanted appellant banned from the property. When Bowers asked appellant for identification,
appellant responded that he did not have any. Bowers persisted in his attempts to identify
appellant. Appellant continued to refuse to provide the information and cited Terry v. Ohio and
Miranda v. Arizona as justification for his refusal.
As the encounter progressed, Bowers detected an odor of alcohol coming from appellant.
Bowers testified that appellant’s speech was slurred. Based on these observations, Bowers
placed appellant under arrest for being drunk in public and failure to identify himself to law
enforcement.2 Incident to the arrest, Bowers located appellant’s identification.
Officer Nathanial Worthing assisted Bowers in dealing with appellant at the scene.
Worthing testified that appellant was argumentative and rude. He confirmed that Bowers
explained to appellant why the police were dispatched to the store and that appellant, citing Terry
and Miranda, refused to provide identification in response to Bowers’ repeated requests.
Appellant testified that he went to the store to pass the time while waiting for a bus. He
claimed that he did not ask anyone for money and did not know the other individual Bowers had
questioned. The only contact appellant had with the other individual was to give the man a
cigarette. When the officers approached appellant, he was at the back of the store’s parking lot
and there were no customers near him.
2 The drunk in public charge is not at issue in this appeal. -2- According to appellant, when Bowers asked for his identification, appellant asked why
the officers needed his identification. Appellant disputed the claim that anyone from the store
asked him to leave the property. Appellant testified that it was his understanding that he had a
legal right to refuse to identify himself to law enforcement. Appellant also explained that he had
a history of mental illness.
During closing argument, the City acknowledged that appellant’s version of his encounter
with the officers was “highly consistent” with the City’s evidence. The City then argued that
those largely undisputed facts established that appellant had violated Virginia Beach City
Code § 23-7.1 when he refused to identify himself in response to Bowers’ request. Appellant
responded by noting that the ordinance only requires a person to respond to such a request when
“the surrounding circumstances are such as to indicate to a reasonable man that the public safety
requires such identification” and that the evidence did not establish such circumstances here.
The trial court found that the evidence established the necessary elements of the
ordinance and convicted appellant. Appellant appeals, again asserting that the evidence did not
satisfy the ordinance’s element that the circumstances were “such as to indicate to a reasonable
man that the public safety requires such identification.”
ANALYSIS
I. Standard of Review
“Ordinarily, when faced with ‘a challenge to the sufficiency of the evidence, we review
the evidence in the light most favorable to the prevailing party, including any inferences the
factfinder may reasonably have drawn from the facts proved.’” Hannon v. Commonwealth, 68
Va. App. 87, 92 (2017) (quoting Smith v. Commonwealth, 282 Va. 449, 453 (2011)).
Nevertheless, when a challenge to a conviction “presents the question whether the facts proved,
and the legitimate inferences drawn from them, fall within the language of a[n ordinance], we
-3- must construe [the ordinance’s] language to answer the question. That function presents a pure
question of law which we consider de novo on appeal.” Smith, 282 Va. at 453-54; see also
Hodges v. Commonwealth, 64 Va. App. 687, 693 (2015).
In interpreting an ordinance, we apply the same rules of construction applicable to
statutes. Accordingly, “our primary objective is ‘to ascertain and give effect to legislative
intent,’ as expressed by the language used” in the ordinance. Cuccinelli v. Rector & Visitors of
the Univ. of Va., 283 Va. 420, 425 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414,
418 (2011)) (internal quotation marks omitted). We do so by construing its words “according to
their ordinary meaning, given the context in which they are used.” City of Va. Beach v. Bd. of
Supervisors, 246 Va. 233, 236 (1993) (quoting Grant v. Commonwealth, 223 Va. 680, 684
(1982)). Accordingly, “we will not read a legislative enactment in a manner that renders any
portion of that enactment useless[,]” but rather, we faithfully apply the ordinance “by giving
reasonable effect to every word used.” Antisdel v. Ashby, 279 Va. 42, 48 (2010). Finally,
because the ordinance imposes a criminal penalty, its terms must be “strictly construed against
the State[.]” Armstrong v. Commonwealth, 263 Va. 573, 581 (2002) (quoting Dep’t of Motor
Vehicles v. Athey, 261 Va. 385, 388 (2001)).
II. Virginia Beach City Code § 23-7.1
In pertinent part, Virginia Beach City Code § 23-7.1 provides that
[i]t shall be unlawful and a Class 1 misdemeanor for any person at a public place or place open to the public to refuse to identify himself by name and address at the request of a uniformed police officer . . . if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.[3]
3 We note that the ordinance at issue here is not unique to the City of Virginia Beach. Such ordinances are sufficiently common that Virginia’s appellate courts have been called on to address issues related to them on at least two prior occasions. See Jones v. Commonwealth, 230 Va. 14 (1985); Tokora-Mansary v. Cty. of Stafford, No. 1594-09-4 (Va. Ct. App. July 27, 2010). -4- (Emphasis added). Here, it is undisputed that, in a public place, Bowers, while wearing his
uniform, requested that appellant identify himself and that appellant refused. Accordingly, the
only question raised by this appeal is whether the evidence established that Bowers’ request was
made under such circumstances “as to indicate to a reasonable man that the public safety requires
such identification.” Id.
The City urges us to conclude that, whenever an officer has suspicion that the person may
have committed a crime, the ordinance’s public safety element is satisfied. In essence, the City
argues that every criminal offense, whether or not the crime involves potential harm or damage to a
person or property, is an offense against public order, and thus, implicates public safety concerns.
We decline to read the ordinance’s “public safety” element in such an expansive manner.
Properly understood, the ordinance’s requirement that public safety be at issue is
language of limitation that restricts the scope of the ordinance. Giving the phrase its plain and
ordinary meaning, we conclude that the public safety element requires that the circumstances
suggest an immediate potential for injury or damage to a person or property. If either the crime
being investigated does not involve such potential, or if it did exist, such potential no longer
exists at the time the request for identification is made, the public safety element has not been
satisfied.4
If adopted, the City’s position would require a person to provide identifying information
any time an officer requested it for an investigative purpose, regardless of whether the
investigation dealt with activity or otherwise presented circumstances that a reasonable man
4 The City conceded at oral argument in this Court that the ordinance implicitly contains a temporal element that allows a potential threat to public safety to dissipate over time. See also Tokora-Mansary, No. 1594-09-4, at *4 (finding that, despite the defendant’s belligerent and assaultive behavior, the Stafford ordinance’s public safety element was not satisfied because the request for identification was made after the defendant “was seated in the police vehicle, handcuffed, and her feet were shackled[,]” and thus, any potential public safety issue had passed). -5- would view as posing a public safety issue.5 Because this construction effectively would read
the “public safety” element out of the ordinance, we cannot adopt it. Antisdel, 279 Va. at 48.
Applying our understanding of the ordinance to the facts here, it becomes clear that
appellant did not violate the ordinance. When the officers approached appellant and requested
that he identify himself, appellant was at the property’s fence line and was not interacting with
the store’s customers. No immediate threat to public safety would have been apparent to anyone,
whether a reasonable man or otherwise, and certainly no threat to public safety would have
dissipated if appellant had identified himself in response to Bowers’ request. In fact, when asked
at oral argument in this Court to identify what threat to public safety would have been “apparent
to a reasonable man” when Bowers asked appellant to identify himself, the City candidly
conceded that there was “not a specific threat to the public” safety at that time. Accordingly, the
evidence did not establish that the “circumstances [we]re such as to indicate to a reasonable man
that the public safety require[d] such identification[,]” Virginia Beach City Code § 23-7.1, and
therefore, the trial court erred in convicting appellant of violating the ordinance.6
CONCLUSION
For the foregoing reasons, we conclude that the trial court erred in finding the evidence
sufficient to convict appellant of violating Virginia Beach City Code § 23-7.1. Accordingly, we
5 In support of its argument, the City cites to the Supreme Court’s decision in Jones. In Jones, the issue was not whether Jones had violated a similar ordinance, but rather, whether the application of the ordinance to Jones violated the Fourth Amendment. 230 Va. at 17. Specifically, Jones contended that he was subject to an unlawful detention at the time he provided false identifying information to officers. The Supreme Court rejected the argument, concluding that because there was “a complete, independent basis for the detention and questioning of Jones” independent of the ordinance, the ordinance did not “violate or even implicate the Fourth Amendment.” Id. at 20. In this case, appellant has not raised a Fourth Amendment challenge to the ordinance, and thus, Jones does not provide the rule of decision. 6 In reaching this conclusion, we offer no opinion on whether there was reasonable suspicion or probable cause to allow the officers to detain or arrest appellant for other offenses, such as trespassing or being drunk in public. -6- reverse the judgment of the trial court, vacate appellant’s conviction, and dismiss the warrant
charging him with a violation of Virginia Beach City Code § 23-7.1.
Reversed and dismissed.
-7-