Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
and Agee, JJ., and Russell, S.J.
ANTHONY LAMONT WASHINGTON
v. Record No. 061042 OPINION BY JUSTICE CYNTHIA D. KINSER
April 20, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Anthony L. Washington was convicted of felonious
obstruction of justice in violation of Code § 18.2-460(C).
Washington now claims that the evidence was insufficient to
sustain his conviction. Because the Commonwealth failed to
prove an element of the offense, we will reverse the
judgment of the Court of Appeals of Virginia upholding
Washington’s conviction.
RELEVANT FACTS AND PROCEEDINGS
Washington was indicted for “feloniously and
unlawfully, by threats of bodily harm or force, knowingly
to attempt to intimidate or impede a law enforcement
officer, lawfully engaged in the discharge of his duty” in
violation of Code § 18.2-460(C). At Washington’s bench
trial in the Circuit Court of the City of Richmond on this
charge, Matthew Mazoni and Mark Bailey, each of whom was
employed as a deputy sheriff with the City of Richmond
Sheriff’s Office, were witnesses for the Commonwealth.
Deputy Mazoni testified that, on June 19, 2003, after
escorting Washington to the “lockup” area in the courthouse
following Washington’s trial on unrelated charges,
Washington repeatedly asked the deputies when the
transportation unit would arrive to transport him back to
the jail. According to Deputy Bailey, Washington told the
deputies that he needed to return to the jail to make a
telephone call so that “he could get that shit finished
tonight” and because “he wanted that mother fucker gone.”
Deputy Bailey testified that he informed Washington that
the transportation unit had been called and instructed
Washington to stop asking about it. Washington responded,
“[F]uck you. I will kill you, too.” When Washington made
that statement, Deputy Bailey was sitting at a desk,
waiting on the transportation unit to arrive. A wall
separated him from the lockup cell where Washington was
confined.
Washington did not present any testimony but, at the
close of the Commonwealth’s evidence, he moved to strike,
arguing that the evidence failed to prove the statutory
requirements relating to the nature of Deputy Bailey’s duty
at the time of the alleged offense. The trial court denied
Washington’s motion, found him guilty as charged, and
sentenced Washington to ten years of incarceration.
Washington appealed his conviction to the Court of Appeals
2
of Virginia and again challenged the sufficiency of the
evidence to sustain his conviction under Code § 18.2-460(C)
with regard to Deputy Bailey’s discharge of his duty. In
an unpublished opinion, the Court of Appeals affirmed the
judgment of the trial court. Washington v. Commonwealth,
Record No. 1325-05-2 (May 2, 2006). This appeal ensued.
ANALYSIS
On appeal, Washington challenges the sufficiency of
the evidence to sustain his conviction for felonious
obstruction of justice. Washington argues, as he did in
the trial court and the Court of Appeals, that the evidence
failed to establish the required element of the law-
enforcement officer’s discharge of a duty at the time of
the offense as required by Code § 18.2-460(C). While
Washington focuses upon the particular physical activity in
which Deputy Bailey was engaged at the moment Washington
uttered the threatening statement, the dispositive question
concerning the law-enforcement officer’s duty in this case
is whether the Commonwealth had to prove, as an element of
the offense, that Deputy Bailey was discharging a duty
“relating to a violation of or conspiracy to violate” one
of the felony offenses specified in Code § 18.2-460(C).1
1
The Court requested the parties to address this
question in letter briefs submitted after oral argument.
3
“ ‘It is elementary that the burden is on the
Commonwealth to prove every essential element of the
offense beyond a reasonable doubt.’ ” Dowdy v.
Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979)
(quoting Powers v. Commonwealth, 211 Va. 386, 388, 177
S.E.2d 628, 629 (1970)). “The burden of proof upon the
state in a criminal case was given constitutional status in
In re Winship, 397 U.S. 358, 364 (1970) wherein the Court
stated ‘that the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with
which he is charged.’ ” Commonwealth v. Hudson, 265 Va.
505, 512, 578 S.E.2d 781, 785 (2003); accord Dobson v.
Commonwealth, 260 Va. 71, 74, 531 S.E.2d 569, 571 (2000);
Stokes v. Warden, 226 Va. 111, 117, 306 S.E.2d 882, 885
(1983).
To answer the dispositive question regarding the
elements of the offense with which Washington was charged,
we begin by examining the elements of the various offenses
found in subsections A, B, and C of Code § 18.2-460:2
A. If any person without just cause
knowingly obstructs a judge, magistrate, justice,
juror, attorney for the Commonwealth, witness or
any law-enforcement officer in the performance of
2
The elements of the offense set forth in Code
§ 18.2-460(D) are not relevant to our analysis.
4
his duties as such or fails or refuses without
just cause to cease such obstruction when
requested to do so by such judge, magistrate,
justice, juror, attorney for the Commonwealth,
witness, or law-enforcement officer, he shall be
guilty of a Class 1 misdemeanor.
B. If any person, by threats or force,
knowingly attempts to intimidate or impede a
judge, magistrate, justice, juror, attorney for
the Commonwealth, witness, or any law-enforcement
officer, lawfully engaged in his duties as such,
or to obstruct or impede the administration of
justice in any court, he shall be deemed to be
guilty of a Class 1 misdemeanor.
C. If any person by threats of bodily harm
or force knowingly attempts to intimidate or
impede a judge, magistrate, justice, juror,
witness, or any law-enforcement officer, lawfully
engaged in the discharge of his duty, or to
obstruct or impede the administration of justice
in any court relating to a violation of or
conspiracy to violate § 18.2-248 or subdivision
(a)(3), (b) or (c) of § 18.2-248.1, or § 18.2-
46.2 or § 18.2-46.3, or relating to the violation
of or conspiracy to violate any violent felony
offense listed in subsection C of § 17.1-805, he
shall be guilty of a Class 5 felony.
In the factual context of this case, a violation of
subsection A occurs if a person, without just cause,
knowingly obstructs a law-enforcement officer in the
performance of his duties. In contrast, a person violates
subsection B by using threats or force to knowingly attempt
to intimidate or impede a law-enforcement officer lawfully
engaged in the performance of his duties. A violation of
either of these subsections is deemed a Class 1
misdemeanor.
5
The elements of the offense set forth in subsection C
are not, however, as straightforward as the elements of the
offenses in subsections A and B. With regard to subsection
C, the question we confront is whether the Commonwealth
must prove only that a person used threats of bodily harm
or force to knowingly attempt to intimidate or impede a
law-enforcement officer lawfully engaged in the performance
of his duties or whether the Commonwealth must also prove
that the law-enforcement officer’s duties being discharged
“relat[ed] to a violation of or conspiracy to violate” one
of the various felony offenses listed therein. Unless this
additional element pertains not only to the second clause
of subsection C, dealing with “obstruct[ing] or imped[ing]
the administration of justice in any court,” but also to
the first clause, regarding the use of threats of bodily
harm or force to attempt to intimidate or impede a law-
enforcement officer, there is no significant difference
between the elements of the offenses set forth in
subsections B and C. Yet, a violation of subsection C is a
Class 5 felony.
As the Commonwealth argues, subsection B uses the
general term “threats,” while subsection C is limited to
6
“threats of bodily harm.”3 Nevertheless, if the phrase
“relating to a violation of or conspiracy to violate” one
of the specified felony offenses modifies only
“obstruct[ing] or imped[ing] the administration of justice
in any court,” is a person who uses only “force,” as
opposed to “threats of bodily harm,” to knowingly attempt
to intimidate or impede a law-enforcement officer in the
discharge of his duties as such guilty of a Class 1
misdemeanor under subsection B or a Class 5 felony under
subsection C? The Commonwealth does not address this
question but, instead, points out that a prosecutor always
has the discretion to select how to charge an individual
when the conduct at issue violates several statutes. We do
not disagree with that statement, but it does not answer
the question before us.
This Court has never addressed the elements of the
offense set forth in Code § 18.2-460(C), but the Court of
Appeals has done so twice and reached different conclusions
in each case. Compare Turner v. Commonwealth, 20 Va. App.
713, 460 S.E.2d 605 (1995), with Garcia v. Commonwealth, 40
Va. App. 184, 578 S.E.2d 97 (2003). In Turner, the
defendant was charged with obstructing justice in violation
3
The term “threat” used in subsection B would,
however, also include the more specific term “threats of
bodily harm” utilized in subsection C.
7
of Code § 18.2-460(C) and selling cocaine in violation of
Code § 18.2-248(A). 20 Va. App. at 716, 460 S.E.2d at 606.
The Commonwealth did not proceed on the drug charge but
obtained a conviction against Turner for “attempting to
obstruct a law-enforcement officer in the discharge of his
duty relating to a criminal drug offense.” Id. at 715, 460
S.E.2d at 606. Turner argued that proof of the underlying
felony drug offense was an element of Code § 18.2-460(C)
and that, since the Commonwealth did not establish that he
violated Code § 18.2-248(A), the Commonwealth could not
convict him of obstructing justice under Code § 18.2-
460(C). The Court of Appeals rejected Turner’s argument,
concluding that “[Code] § 18.2-460(C) requires only that
the law enforcement activity ‘relat[e] to a violation of
. . . [Code] § 18.2-248.’ ” Turner, 20 Va. App. at 717,
460 S.E.2d at 607 (quoting Code § 18.2-460(C)). The Court
of Appeals held, “A conviction under Code § 18.2-460(C)
will be sustained where the Commonwealth proves beyond a
reasonable doubt that the accused (1) intended to
intimidate or impede by threats of bodily harm or force a
law-enforcement officer in the lawful discharge of his or
her duty, and (2) knew or should have known that the law-
enforcement officer was engaged in lawful activity
‘relating to a violation of or conspiracy to violate [Code]
8
§ 18.2-248 or § 18.2-248.1(a)(3), (b) or (c).’ ”4 Id. at
717–18, 460 S.E.2d at 607 (quoting Code § 18.2-460(C)).
In Garcia, the defendant argued “that Code § 18.2-
460(C) requires that any conduct punishable under that
subsection of the statute be related to conduct involving
‘a violation of or conspiracy to violate [Code] § 18.2-248
or § 18.2-248.1(a)(3), (b) or (c).’ ” 40 Va. App. at 186,
578 S.E.2d at 97 (quoting Code § 18.2-460(C)). Relying on
the structure of the challenged portion of Code § 18.2-
460(C) and the grammatical rule stating, “ ‘phrases
separated by a comma and the disjunctive “or,” are
independent,’ ” id. at 191, 578 S.E.2d at 100 (quoting
Smoot v. Commonwealth, 37 Va. App. 495, 501, 559 S.E.2d
409, 412 (2002)), the Court of Appeals disagreed and
rejected as dicta the language in Turner identifying the
two elements needed to establish a violation of Code
§ 18.2-460(C). Garcia, 40 Va. App. at 192 n.2, 578 S.E.2d
at 100 n.2. Instead, the Court of Appeals held that
the phrase, “to intimidate or impede . . . any
law-enforcement officer, lawfully engaged in the
discharge of his duty,” is independent of the
4
Amendments to Code § 18.2-460(C) in 1999 added the
last phrase “or relating to the violation of or conspiracy
to violate any violent felony offense listed in subsection
C of [Code] § 17.1-805.” 1999 Acts ch. 800. Amendments in
2004 added Code §§ 18.2-46.2 and –46.3 to the list of
felony offenses set forth in subsection C. 2004 Acts ch.
396.
9
phrase, “to obstruct or impede the administration
of justice in any court relating to a violation
of or conspiracy to violate” the specified drug-
related statutes or felony offenses. Each
phrase[,] therefore, specifies a separate and
distinct proscription that may constitute a
violation of that particular subsection of the
statute.
Id. at 191–92, 578 S.E.2d at 100; see also Craddock v.
Commonwealth, 40 Va. App. 539, 552, 580 S.E.2d 454, 461
(2003). In contrast to the conclusion in Turner, the court
in Garcia stated that there are two methods for violating
Code § 18.2-460(C): “1) a knowing attempt to intimidate or
impede a law enforcement officer in the performance of his
duties; and 2) a knowing attempt to obstruct or impede the
administration of justice in any court when the conduct at
issue relates in some manner to the specified offenses.”
Id. at 192, 578 S.E.2d at 101.
We recognize the grammatical rule utilized by the
Court of Appeals in Garcia and agree that its strict
application to the provisions of Code § 18.2-460(C) leads
to the result reached in Garcia. However, “ ‘statutes are
not to be construed by strict and critical adherence to
technical grammatical rules, and . . . the true meaning, if
clearly ascertained, must prevail, though contrary to the
apparent grammatical construction.’ ” Harris v.
Commonwealth, 142 Va. 620, 624, 128 S.E.2d 578, 579 (1925);
10
see also Indemnity Ins. Co. v. Nalls, 160 Va. 246, 250, 168
S.E. 346, 347 (1933) (a court “should not permit the spirit
and intendment of [a] statute to be whittled away by the
keen edge of grammatical construction”); Withers v.
Commonwealth, 109 Va. 837, 840–41, 65 S.E. 16, 17 (1909)
(“punctuation is not resorted to in the interpretation of
statutes, unless the intention of the legislature cannot be
ascertained from the language of the statute read in the
light of legislation existing upon the subject . . . and
other statutes in pari materia”). In this case, adherence
to the grammatical rule used by the Court of Appeals in
Garcia partially eliminates the distinction between the
offenses set forth in Code § 18.2-460(B) and (C) and allows
the same conduct, in some instances, to violate both
subsections. Recognized rules of statutory construction
militate against such a result. See Polesky v. Northern
Va. Constr. Co., 196 Va. 532, 535, 84 S.E.2d 443, 445
(1954) (if a statute is open to two interpretations, “it
should be given that construction which will prevent
absurdity, hardships, or injustice”).
Since a violation of subsection C is a Class 5 felony,
the General Assembly obviously deemed the conduct
prohibited therein more serious than the conduct proscribed
in subsection B. Thus, there must be a difference in the
11
elements of the two offenses set forth in those
subsections. Yet, there is no meaningful distinction
unless the two phrases, “relating to a violation of or
conspiracy to violate” one of the listed felony offenses,
modify not only “obstruct[ing] or imped[ing] the
administration of justice in any court,” but also the use
of “threats of bodily harm or force to knowingly attempt[]
to intimidate or impede a . . . law-enforcement officer[]
lawfully engaged in the discharge of his duty.” Code
§ 18.2-460(C). It is this additional element that makes
the proscribed conduct in subsection C more serious than
the conduct prohibited in subsection B and separates a
misdemeanor from a felony. We agree with the Court of
Appeals’ observation in Turner that subsection C “evinc[es
the] legislative intent to make the punishment for
obstructing justice as to certain . . . offenses more
severe than for obstructing justice generally.” 20 Va.
App. at 718, 460 S.E.2d at 607.
In light of our conclusion regarding the elements of
the offense of felonious obstruction of justice, it is
clear that the Commonwealth failed to prove beyond a
reasonable doubt that Washington violated Code § 18.2-
460(C). The Commonwealth presented no proof that, at the
time Washington made the threatening statement, Deputy
12
Bailey was engaged in the discharge of any duty “relating
to a violation of or conspiracy to violate” one of the
felony offenses listed in that subsection.5 Because the
Commonwealth produced no evidence to establish one of the
elements necessary to constitute the offense of obstructing
justice under Code § 18.2-460(C), Washington was convicted
of a “non-offense.” Jimenez v. Commonwealth, 241 Va. 244,
251, 402 S.E.2d 678, 681 (1991). Thus, the Court of
Appeals erred in upholding Washington’s conviction.
Also, it is incumbent upon this Court to resolve the
conflict in the decisions of the Court of Appeals in Turner
and Garcia and to correct an erroneous interpretation of a
penal statute. See Volkswagen of Am. Inc. v. Smit, 266 Va.
444, 453, 587 S.E.2d 526, 531 (2003) (erroneous
interpretation will not be permitted to override the clear
meaning of a statute). Here, the erroneous interpretation
of Code § 18.2-460(C) resulted in Washington’s loss of
liberty. Penal statutes, however, must be construed “in
favor of a citizen’s liberty.” Martin v. Commonwealth, 224
5
By virtue of a presentence report and the
Commonwealth’s argument at sentencing, we know that, when
Washington uttered the threatening statement to Deputy
Bailey, Washington had just been tried and found guilty of
murder, malicious wounding, two counts of robbery, and use
of a firearm in the commission of a felony. This
information was not, however, introduced into evidence
during the guilt phase of Washington’s trial on the
obstruction of justice charge.
13
Va. 298, 300, 295 S.E.2d 890, 892 (1982); accord Welch v.
Commonwealth, 271 Va. 558, 563, 628 S.E.2d 340, 342 (2006);
Harward v. Commonwealth, 229 Va. 363, 365, 330 S.E.2d 89,
90 (1985). Moreover, an accused cannot be punished unless
his or her case falls “plainly and unmistakably within the
statute.” United States v. Lacher, 134 U.S. 624, 628
(1890); accord Harward, 229 Va. at 365, 330 S.E.2d at 90.
“[A]n essential of the due process guaranteed by the
Fourteenth Amendment [is] that no person shall be made to
suffer the onus of a criminal conviction except upon
sufficient proof – defined as evidence necessary to
convince a trier of fact beyond a reasonable doubt of the
existence of every element of the offense.” Jackson v.
Virginia, 443 U.S. 307, 316 (1979).
CONCLUSION
For these reasons, we conclude that the evidence was
insufficient, as a matter of law, to sustain Washington’s
conviction under Code § 18.2-460(C). We will therefore
reverse the judgment of the Court of Appeals and dismiss
the indictment.
Reversed and dismissed.
14