COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Petty
Argued at Richmond, Virginia
ARNOLD EDWIN KEE
MEMORANDUM OPINION * BY
v. Record No. 2597-08-1 JUDGE ROBERT P. FRANK
NOVEMBER 10, 2009
CITY OF HAMPTON
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Kimberly Enderson Hensley, Assistant Public Defender (Office of
the Public Defender, on brief), for appellant.
(Lesa J. Yeatts, Senior Deputy City Attorney, on brief), for appellee.
Appellee submitting on brief.
Arnold Edwin Kee, appellant, was convicted, in a bench trial of a misdemeanor, obstruction
of justice, in violation of Hampton City Code § 24-7. 1 On appeal, appellant challenges the
sufficiency of the evidence. For the reasons stated, we reverse and dismiss.
BACKGROUND
On July 24, 2008, Officer Cooke of the Hampton Police Department was dispatched to a
certain address on what he termed a “third party domestic.” The record does not indicate any
further information as to the nature or source of the “domestic,” other than it was an anonymous
caller. The officer arrived at the residence and knocked on the door. Shortly thereafter, other
officers arrived. Appellant answered the door and appeared to be agitated. The officer smelled
alcohol and observed a scratch mark on appellant’s forearm.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Hampton City Code § 24-7 tracks the language of Virginia Code § 18.2-460(A).
Officer Cooke heard a “verbal noise” from the interior of the house. Appellant indicated he
lived in the house with his mother. The officer asked appellant several times for permission to enter
the premises to ensure the mother was “fine.” Appellant responded his mother was fine and if he
wanted to talk to his mother, he could go to the side of the house and knock on that door.
Officer Cooke declined to do so for “citizen and officer safety,” being concerned appellant
might lock the front door and create a hostage situation.
The officer, without a search warrant, then entered the house. Appellant stepped back and
put his hands up. Cooke then placed appellant under arrest, put him on the floor, and handcuffed
him. Appellant’s mother appeared, and the officer checked on her welfare.2
On cross-examination, Cooke indicated there were no exigent circumstances to enter the
premises other than the “domestic” report, that he saw a small scratch on appellant’s arm, and his
“citizen and officer safety” concerns.
In his motion to strike, appellant argued the police entry into appellant’s home was illegal
because no exigent circumstances existed to authorize entry without a search warrant.3
Appellant also argued his actions did not constitute obstruction of justice. The City
responded exigent circumstances did exist and that appellant obstructed justice by preventing the
officer from confirming the well-being of appellant’s mother.
The trial court found appellant guilty. This appeal follows.
2
The record is silent as to mother’s condition.
3
Appellant did not file a motion to suppress or raise a Fourth Amendment challenge, nor
did he argue that he had “just cause” to impede the officer because of an illegal entry. Therefore,
we will not address the legality of the officer’s entry.
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ANALYSIS
Appellant contends he did not obstruct justice because he did not prevent the officer from
performing his duty, oppose or resist the officer by any direct action in the officer’s investigation of
the anonymous “domestic” call.
The City argues appellant’s failure to allow the police to determine the mother’s well-being
and failure to allow the officer’s entry constitutes obstruction of justice.
It is well established “that the judgment of the court sitting without
a jury will not be set aside unless it is plainly wrong or without
evidence to support it. However, a trial court’s conclusion based
on evidence that is ‘not in material conflict’ does not have this
binding effect on appeal.” Williams v. Commonwealth, 14
Va. App. 666, 669, 418 S.E.2d 346, 348 (1992) (quoting
Hankerson v. Moody, 229 Va. 270, 274-75, 329 S.E.2d 791, 794
(1985)). A “trier of fact . . . ‘may not arbitrarily disregard
uncontroverted evidence of unimpeached witnesses which is not
inherently incredible and not inconsistent with facts in the
record,’” and a finding under such circumstances presents a
question of law, reviewable by this Court on appeal. Id. at 669-70,
418 S.E.2d at 348.
Watson v. Commonwealth, 17 Va. App. 124, 125-26, 435 S.E.2d 428, 429 (1993).
The City of Hampton prosecuted this misdemeanor matter against appellant. Hampton
City Code § 24-7 provides:
If any person without just cause knowingly obstructs . . . any
law-enforcement officer in the performance of his duties as such or
fails or refuses without just cause to cease such obstruction when
requested to do so by such . . . law-enforcement officer, he shall be
guilty of a Class 1 misdemeanor.
Because City Code § 24-7 tracks the language of Virginia Code § 18.2-460(A), decisions
interpreting § 18.2-460(A) guide our analysis. Virginia jurisprudence has established that “there
is a broad distinction between avoidance and resistance or obstruction.” Jones v.
Commonwealth, 141 Va. 471, 478, 126 S.E. 74, 77 (1925).
To constitute obstruction of an officer in the performance of his
duty, it is not necessary that there be an actual or technical assault
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upon the officer, but there must be acts clearly indicating an
intention on the part of the accused to prevent the officer from
performing his duty, as to “obstruct” ordinarily implies opposition
or resistance by direct action . . . . It means to obstruct the officer
himself not merely to oppose or impede the process with which the
officer is armed.
Id. at 478-79, 126 S.E. at 77. “As the Supreme Court of Virginia has held, . . . ‘obstruction of
justice does not occur when a person fails to cooperate fully with an officer or when the person’s
conduct merely renders the officer’s task more difficult but does not impede or prevent the
officer from performing that task.’” Ruckman v. Commonwealth, 28 Va. App. 428, 429, 505
S.E.2d 388, 389 (1998) (quoting Jones, 141 Va. at 478, 126 S.E. at 76). For example, an
accused’s hiding or seeking “to escape [an] officer by merely running away [is] not such an
obstruction as the law contemplates.” Id. at 430, 505 S.E.2d at 389.
An understanding of the facts in Ruckman is necessary for this analysis. In Ruckman,
this Court overturned the defendant’s obstruction of justice conviction. During a car accident
investigation, the defendant allegedly impeded the state trooper’s investigation by giving
“conflicting statements” as to his role in the accident. Id. at 430, 505 S.E.2d at 389. The Court
determined that although the defendant’s “conflicting statements may have frustrated [the
trooper’s] investigation, the statements did not oppose, impede, or resist [the trooper’s] efforts to
conduct an investigation.” Id. at 431, 505 S.E.2d at 390. The Court explained that the trooper
was “fully able to investigate” the car accident and “[o]n at least three occasions, he questioned
witnesses and gathered facts about the accident.” Id. at 430, 505 S.E.2d at 389. Thus, the
trooper pursued alternative means of investigation, despite the “fact that during the third
interview [the defendant] stated that he could no longer remember who was driving the truck.”
Id. at 430-31, 505 S.E.2d at 389. Ruckman suggests that passive behavior does not constitute
obstruction.
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Similarly, here, the officer was able to continue his investigation by stepping into the
house. The officer was able to “fully” investigate the domestic dispute once appellant
acquiesced to the officer’s authority and moved back into the house with his hands in the air. He
did not obstruct the officer’s entry into the house. It is uncontroverted that despite appellant’s
initial failure to allow the officer in his house, the officer sought an alternate means of
investigation. He ignored appellant’s protestations, entered the premises, walked past appellant,
and conducted the investigation. These facts mirror the facts of Ruckman.
In this case, appellant, by initially not allowing the police officer into his house, merely
made the investigation more difficult by failing to cooperate with the officer. There was no
direct act by appellant to resist the officer. Courts have repeatedly held that such indirect acts are
not enough to constitute obstruction. See generally Rogers v. Pendleton, 249 F.3d 279 (4th Cir.
2001) (finding appellant was not guilty of obstruction for standing in front of an officer who
wanted to search the grounds around his home, when the officer simply stepped around
appellant); Atkins v. Commonwealth, 54 Va. App. 340, 678 S.E.2d 834 (2009) (holding that
appellant’s fleeing and then providing a false name to police was not obstruction); but see Love
v. Commonwealth, 212 Va. 492, 184 S.E.2d 769 (1971) (holding that appellant obstructed justice
when he brandished a shotgun at law enforcement officers); Polk v. Commonwealth, 4 Va. App.
590, 358 S.E.2d 770 (1987) (holding that appellant’s repeated threats to kill a law enforcement
officer, coupled with his intent to intimidate, constituted obstruction).
Therefore, we conclude the trial court erred as a matter of law, in finding the evidence
sufficient to convict appellant of obstruction of justice. We reverse the judgment of the trial
court and dismiss the warrant.
Reversed and dismissed.
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