Patrick J. Mannix, s/k/a Patrick J. Mannix,Sr.v CW

• Court: Court of Appeals of Virginia
• Decided: January 4, 2000
• Docket: 2798983
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Frank and Senior Judge Hodges Argued at Salem, Virginia

PATRICK J. MANNIX, S/K/A PATRICK J. MANNIX, SR. OPINION BY v. Record Nos. 2797-98-3 and JUDGE SAM W. COLEMAN III 2798-98-3 JANUARY 4, 2000

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY Nicholas E. Persin, Judge Designate

Randall B. Campbell for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Patrick J. Mannix was convicted in a jury trial of

disorderly conduct, in violation of Code § 18.2-415(A), and

obstruction of justice, in violation of Code § 18.2-460. On

appeal, Mannix argues (1) the trial court erred in refusing to

instruct the jury that a person has a right to resist an

unlawful ejection from a public meeting, (2) the trial court

erred in limiting his cross-examination regarding the Washington

County Board of Supervisors Chairman's knowledge of

parliamentary procedures for limiting or terminating a citizen's

comments during a public meeting, and (3) the evidence is

insufficient to support his convictions. For the following

reasons, we affirm the convictions. I. BACKGROUND

The Washington County Board of Supervisors conducted a

public hearing to solicit comments from citizens regarding an

annexation agreement with the City of Bristol. Patrick J.

Mannix requested to speak during the "citizens' comments"

portion of the meeting. Mannix took the podium and began

questioning the county attorney regarding the legality of the

notice and advertising for the meeting. After Mannix posed

several argumentative questions, the board's chairman instructed

Mannix to confine his remarks to the annexation agreement.

Instead of complying with the purpose of the meeting, Mannix

became argumentative and accusatory with the chairman. The

chairman ruled Mannix "out of order" and directed him to take

his seat.

After Mannix ignored the chairman's repeated orders to be

seated, the chairman instructed two uniformed deputies from the

Washington County Sheriff's Department to remove Mannix from the

meeting. Mannix was informed that he was not under arrest, but

that he was "out of order" and was being ejected from the

meeting. Mannix refused to leave, stating repeatedly that if he

was not under arrest, he would not leave. The deputies forcibly

removed Mannix from the room. The deputies had difficulty

restraining Mannix, who was struggling and resisting their

attempt to remove him from the room. Mannix was arrested for

- 2 - disorderly conduct and obstruction of justice. Both deputies

testified that they sustained minor injuries.

II. ANALYSIS

A. Jury Instruction

Mannix argues that the trial court erred in refusing to

instruct the jury that if he was being unlawfully ejected from

the public meeting, he was entitled to use reasonable force in

resisting the unlawful ejection. Mannix's proffered instruction

stated, "[i]f you find that the Defendant used reasonable force

to resist his unlawful ejection from a public meeting, then you

will find the defendant not guilty of the offense of Obstruction

of Justice." The trial court refused the instruction, stating

that the instruction improperly assumed and informed the jury

that the ejection from the meeting was unlawful. Mannix neither

objected to the court's explanation nor offered an amended

instruction.

"A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,

503, 290 S.E.2d 856, 858 (1982)). The trial court did not err by

ruling that the proffered jury instruction was an incorrect

statement of law because it presupposed that Mannix's ejection

- 3 - from the meeting was unlawful. The trial court did not err in

refusing to give an instruction that contained an erroneous

statement of the law. See Woodard v. Commonwealth, 19 Va. App.

24, 28-29, 448 S.E.2d 328, 330-31 (1994). Furthermore, "[t]he

court is not required to give an instruction sua sponte." Manetta

v. Commonwealth, 231 Va. 123, 127-28 n.2, 340 S.E.2d 828, 830 n.2

(1986). Although it may be reversible error for a trial court to

fail to properly instruct the jury on the basic elements of the

charged criminal offense, see Campbell v. Commonwealth, 14 Va.

App. 988, 992, 421 S.E.2d 652, 654-55 (1992) (en banc), aff'd in

part, 246 Va. 174, 431 S.E.2d 648 (1993), the trial court has no

duty sua sponte to correct or re-write a party's erroneous

instruction which does not address the elements of the offense,

the burden of proof, or the presumption of innocence. See Whaley

v. Commonwealth, 214 Va. 353, 355-56, 200 S.E.2d 556, 558 (1973).

B. Evidentiary Issue

Mannix next argues that the trial court erred in refusing

to permit defense counsel to question the board chairman

regarding his familiarity with parliamentary procedures under

Robert's Rules of Order to limit or terminate debate on an

issue. He argues that the question was relevant because it

related to the "legality" of the chairman's conduct, his ruling

that Mannix was out of order, and whether Mannix had the right

- 4 - to resist ejection. Mannix also argues that the evidence was

probative of his "state of mind."

"'The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion.'" Brown v.

Commonwealth, 21 Va. App. 552, 555, 466 S.E.2d 116, 117 (1996)

(quoting Crews v. Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d

407, 409 (1994)). "Evidence which tends to cast any light upon

the subject of the inquiry is relevant." Cash v. Commonwealth,

5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988). "Relevant

evidence which has the tendency to add force and effect to a

party's defense is admissible, unless excluded by a specific rule

or policy consideration." Evans v. Commonwealth, 14 Va. App. 118,

122, 415 S.E.2d 851, 853-54 (1992).

Assuming the chairman failed to adhere to an acceptable or

an applicable set of rules of procedure, Mannix was not entitled

to be disorderly and to disrupt the meeting from proceeding in

an orderly fashion. Thus, the chairman's knowledge of the rules

of parliamentary procedure was not relevant to whether Mannix

was lawfully ejected from the meeting. Regardless of the board

chairman's adherence to acceptable parliamentary procedures,

when Mannix insisted on speaking to issues other than those for

which the public hearing was called, and in interrogating the

county attorney, the board chairman had the right to rule him

- 5 - out of order, direct that he be seated, and have him forcibly

ejected when he resisted and refused to desist. See City of

Madison Joint School Dist. No. 8 v. Wisconsin Employment

Relations Comm'n, 429 U.S. 167, 175 n.8 (1976) (recognizing that

a governing body may confine a public meeting to a specified

subject matter); see also Scroggins v. City of Topeka, Kansas,

2 F.Supp.2d 1362, 1372-73 (D.C. Kan. 1998) (collecting cases).

Accordingly, Mannix's forcible ejection from the meeting under

the circumstances was not illegal, and the chairman's knowledge

of parliamentary procedure could not affect that holding.

C. Sufficiency

On review of a challenge to the sufficiency of the evidence,

we view the evidence in the light most favorable to the

Commonwealth, the prevailing party, and grant to it all reasonable

inferences fairly deducible therefrom. See Commonwealth v.

Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998). We review

the evidence that tends to support and uphold the conviction,

and we will affirm the conviction unless it is plainly wrong or

lacks evidentiary support. See id. at 520, 499 S.E.2d at 265.

Intent may be shown by the circumstances, including a

person's conduct and statements. See Nobles v. Commonwealth, 218

Va. 548, 551, 238 S.E.2d 808, 810 (1977); Hancock v. Commonwealth,

12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). "[T]he

reasonable inferences to be drawn from proven facts are within the

- 6 - province of the trier of fact." Fleming v. Commonwealth, 13 Va.

App. 349, 353, 412 S.E.2d 180, 183 (1991). A fact finder may

generally infer, moreover, that a person intends his deliberate

acts. See id.

1. Disorderly Conduct

Mannix argues that the evidence was insufficient to support

his conviction for disorderly conduct. He argues, citing Ford

v. City of Newport News, 23 Va. App. 137, 474 S.E.2d 848 (1996),

that neither his verbal exchanges with the county attorney and

the board chairman, no matter how inappropriate, nor his refusal

to leave the podium and be seated rise to the level of

disorderly conduct. Furthermore, he argues that the

Commonwealth failed to prove that he had the specific intent

required under the statute to support the conviction.

Section 18.2-415 provides that: 1

[a] person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

1 Section 18.2-415(B) provides that a person who "[w]illfully . . . disrupts a meeting of the governing body of any political subdivision of this Commonwealth or a division or agency thereof . . ." shall be guilty of disorderly conduct if the disruption "(i) prevents or interferes with the orderly conduct of the meeting . . . ." Although Mannix's conduct appears to fit squarely within this provision, the jury was not instructed on this subsection. Therefore, the applicability of that provision is not before us.

- 7 - A. In any . . . public building, . . . or public place engages in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed[.]

Mannix's reliance on Ford is misplaced. In Ford, police

officers were patrolling an area known for drug activity and

prostitution. The officers approached the defendant, who was

pushing a bicycle in a small park. When one of the officers asked

the defendant to approach him, the defendant became "loud, angry,

and uncooperative." The defendant used offensive language and

threw his arms into the air. The defendant was arrested for

disorderly conduct. On appeal, we reversed the defendant's

conviction for disorderly conduct, finding that the officer had no

reason to believe the defendant's conduct, no matter how offensive

or rude, would provoke a violent response from the person or

persons at whom the conduct was directed. See 23 Va. App. at 144,

474 S.E.2d at 851. Further, we found in Ford no evidence to

support a reasonable belief that the defendant's conduct would

cause a reasonable officer to respond with physical force. See

id. Rather, the officers, who had no reason to suspect him of

criminal activity, could simply have walked away from the

defendant when he was unwilling to talk with them and continued

their investigative patrol.

Here, however, the evidence viewed in the light most

favorable to the Commonwealth proves that Mannix disregarded the

- 8 - board chairman's instructions to refrain from questioning the

county attorney and to confine his comments to the annexation

agreement. After being warned numerous times, Mannix persisted

in the inappropriate questioning. The board chairman declared

Mannix out of order and instructed him repeatedly to take his

seat. The board chairman could not disregard Mannix's conduct.

The fact finder could infer from Mannix's refusal to leave the

podium when instructed to do so by the presiding officer that he

intended to cause a public inconvenience or annoyance at the

hearing. The meeting had been disrupted. The chairman was

unable to solicit comments from other citizens while Mannix

remained at the podium. In order to proceed with business, the

board chairman deemed it necessary to have Mannix forcibly

removed from the meeting. The fact finder could infer from

these circumstances that Mannix was aware his conduct would

cause the presiding officer to respond with physical force. The

board chairman declared Mannix out of order, directed the

deputies to come forward, and advised Mannix that if he did not

take his seat he would be forcibly removed from the premises.

Unlike the police officer in Ford, the board chairman could not

disregard Mannix's conduct and continue the meeting with Mannix

remaining at the podium. He had to be removed. Under these

circumstances, the evidence was sufficient to support Mannix's

conviction for disorderly conduct.

- 9 - 2. Obstruction of Justice

Mannix, relying on Brown v. Commonwealth, 27 Va. App. 111,

497 S.E.2d 527 (1998), argues that the evidence was insufficient

to support his conviction for obstruction of justice because he

was legally permitted to use reasonable force to resist the

unlawful ejection. By analogy, Mannix argues that if one is

permitted to use reasonable force to resist an unlawful arrest,

one is also permitted to use reasonable force to resist an

unlawful ejection from a public meeting.

Assuming, without deciding, that a similar principle to

that articulated in Brown applies to an unlawful ejection from a

public meeting, Mannix failed to show that he was unlawfully

ejected from the meeting. Nothing in the record indicates that

the board chairman acted outside of his authority in limiting

and subsequently terminating Mannix's comments. Although

citizens may be given the privilege to speak during a public

meeting, the right to do so is not unlimited. Rather, the

chairman of a public meeting has a legitimate interest in

conducting the meeting in an orderly and effective manner.

Furthermore, the board chairman's knowledge or lack of knowledge

of parliamentary procedure was not relevant to whether Mannix's

ejection was lawful. Regardless of the chairman's knowledge of

parliamentary procedure, the board chairman had the right to

have Mannix forcibly removed from the public hearing when he

- 10 - refused to address the call of the meeting and refused to be

seated after his time elapsed. Accordingly, the evidence is

sufficient to support the conviction for obstruction of justice.

In summary, we find that the trial court did not err in

refusing to give Mannix's proffered jury instruction and in

limiting his examination of the board chairman and that the

evidence was sufficient to support the convictions. We,

therefore, affirm.

Affirmed.

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