COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Beales
Argued at Chesapeake, Virginia
CHRISTOPHER JAMES GUINYARD
MEMORANDUM OPINION* BY
v. Record No. 1185-06-1 JUDGE RANDOLPH A. BEALES
JULY 31, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Deborah Saunders (Kimberly Enderson Hensley, Assistant Public
Defender; Office of the Public Defender, on brief), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Christopher James Guinyard (appellant) appeals from his conviction following a bench
trial for assault and battery on a law-enforcement officer in violation of Code § 18.2-57(C). The
sole issue on appeal is whether a campus police officer employed by a private university located
within the Commonwealth fits within Code § 18.2-57(E)’s definition of a “law-enforcement
officer.” Finding that such an officer does not fit within that definition, we remand to the trial
court for sentencing on the lesser-included offense of assault and battery.
BACKGROUND
The facts relevant to this case are not in dispute. On October 3, 2005, Christopher Jones
was employed and on duty as a campus police officer at Hampton University, which is a private
university located within the Commonwealth. On that day, Jones encountered appellant, who
was standing in the middle of the street talking to a passenger in a vehicle. As Jones, who was
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
driving his police vehicle, “passed the [appellant], [appellant] turned around and he ran up to the
vehicle and struck the roof of the [police] car and mirror.” Jones then turned around his campus
police vehicle in order to investigate further and activated the emergency equipment on his
police car. Appellant “charged the car right before [Jones] could open the door and he started
striking the car.” As soon as Jones opened the door and exited the vehicle, appellant charged
him. Jones commanded appellant to stay back and activated his ASP baton. Appellant “put both
arms out and ran towards [Jones] in a grabbing and swinging motion.” Jones struck appellant
with the baton “six to ten times” while still commanding him to stay back. During the struggle,
appellant grabbed Jones’s wrist and tore off his watch. After Jones radioed for assistance, a
woman from the gathering crowd called out to appellant. After his attention turned to the
woman in the crowd, appellant tried to walk across the street and up a ditch. By that time, other
officers had arrived, and appellant was taken into custody.
During his testimony, Jones stated the following with respect to his training and duties as
a Hampton University campus police officer: Jones makes arrests for violations of the city and
state codes; he prepares and executes search warrants; he completed his police training at the
Hampton Roads Regional Academy of Criminal Justice alongside “local city officers, Hampton,
Newport News, Portsmouth, Norfolk State, other universities, Port Police”; he graduated
alongside “every other officer that graduated with [him] that worked for the municipality of
Hampton” at a swearing-in ceremony administered by the Circuit Court for the City of Hampton;
and finally, the Hampton University Police Department is accredited by the Commonwealth of
Virginia’s Department of Criminal Justice.
Appellant, in his motion to strike, argued that Officer Jones did not qualify as a
law-enforcement officer under the definition of Code § 18.2-57(E), noting
[Appellant’s] not trying to escape the consequences or criminal
liability for what took place that night. We are asking the Court to
-2-
consider that this does not meet the felony definition here of the
standard for assault on a police officer. We would ask the Court to
find him guilty of assault and battery, a Class 1 misdemeanor.
The trial court overruled appellant’s motion to strike and found him guilty of assault and battery
on a law-enforcement officer. The trial judge, however, advised, “Should either counsel find
anything otherwise dispositive on the issue under 18.2-57(e), I will certainly listen to it at the
time of sentencing.” Appellant renewed his argument at sentencing, which the trial court again
denied, finding “that the officer who testified in this case and was assaulted in this case was, in
fact, in a status that was administered by the Commonwealth.” The trial court subsequently
sentenced appellant to twelve months incarceration with five months suspended. An appeal to
this Court followed.
ANALYSIS
Code § 18.2-57(C) provides, in pertinent part,
if any person commits an assault or an assault and battery against
another knowing or having reason to know that such other person
is a judge, a law-enforcement officer as defined hereinafter . . .
such person is guilty of a Class 6 felony, and, upon conviction, the
sentence of such person shall include a mandatory minimum term
of confinement of six months.
Code § 18.2-57(E) defines the term “law-enforcement officer”:
“Law-enforcement officer” means any full-time or part-time
employee of a police department or sheriff's office which is part of
or administered by the Commonwealth or any political subdivision
thereof, who is responsible for the prevention or detection of crime
and the enforcement of the penal, traffic or highway laws of this
Commonwealth, and any conservation officer of the Department of
Conservation and Recreation commissioned pursuant to
§ 10.1-115, and game wardens appointed pursuant to § 29.1-200,
and such officer also includes jail officers in local and regional
correctional facilities, all deputy sheriffs, whether assigned to
law-enforcement duties, court services or local jail responsibilities,
auxiliary police officers appointed or provided for pursuant to
§§ 15.2-1731 and 15.2-1733 and auxiliary deputy sheriffs
appointed pursuant to § 15.2-1603.
-3-
Clearly, by formulating this definition, the General Assembly did not intend that all police
officers would be included in the definition of “law-enforcement officer” because if it had, the
General Assembly could easily have enacted language that said so.
As we explained in South v. Commonwealth, 47 Va. App. 247, 623 S.E.2d 419 (2005),
If a victim does not fit within one of the listed categories
(conservation officers, game wardens, jail officers, deputy sheriffs,
and auxiliary officers), the statute does not apply unless the
law-enforcement officer is an “employee of a police department or
sheriff’s office which is part of or administered” by the
Commonwealth or local government.
Id. at 251, 623 S.E.2d at 420. When analyzing a statute that lists specific items such as Code
§ 18.2-57(E), we follow the oft-cited principle of statutory construction that provides, “[T]he
mention of a specific item in a statute implies that other omitted items were not intended to be
included within the scope of the statute.” Smith Mt. Lake Yacht Club, Inc. v. Ramaker, 261 Va.
240, 246, 542 S.E.2d 392, 396 (2001). Because a campus police officer at a private university is
not among those specifically mentioned in Code § 18.2-57(E), we hold that the General
Assembly apparently did not intend to include private university campus police officers as a
specific category within Code § 18.2-57(E).1
Our inquiry, therefore, necessarily turns to whether or not the victim in this case, Officer
Jones, “is an ‘employee of a police department or sheriff’s office which is part of or
administered’ by the Commonwealth or local government.” South, 47 Va. App. at 251, 623
S.E.2d at 420 (quoting Code § 18.2-57(E)). Because Hampton University is a private university,
1
The General Assembly did include numerous specific groups as law-enforcement
officers – some added by amending the statute in a more recent General Assembly session after
the one in which the statute was first enacted. For example, in 2000 the General Assembly
added “game wardens appointed pursuant to § 29.1-200,” “jail officers in local correctional
facilities, [and] all deputy sheriffs, whether assigned to law-enforcement duties, court services or
local jail responsibilities” to Code § 18.2-57(E)’s definition of “law-enforcement officer.” See
2000 Va. Acts, c. 288.
-4-
it is, accordingly, not “part of” the Commonwealth “or any political subdivision thereof.” Code
§ 18.2-57(E). The Commonwealth points out that the trial court based its ruling on a finding that
Officer Jones was “in a status that was administered by the Commonwealth,” and, in so doing,
“the trial court relied on Virginia Code § 23-232.1 and § 23-234, which establish procedures for
the establishment of campus police departments for private institutions of higher education.”
(Emphasis added.)2
The Attorney General argues that once a campus police department at a private institution
has met the training requirements of Code § 23-232.1, that department is then “administered by
the Commonwealth.” Code § 23-232.1 (emphasis added). However, the verb “administer” is
defined as “to attend, manage,” “to manage the affairs of,” or “to direct or superintend the
execution, use, or conduct of.” Webster’s Third New International Dictionary 27 (1981). By
choosing the verb “administer” in Code § 18.2-57(E), the legislature intended to include, unless
specifically mentioned categorically or otherwise “a part of” the Commonwealth, only those
police departments whose day-to-day operations and affairs are managed by “the
Commonwealth or any political subdivision thereof.”
2
Code § 23-232.1 grants the governing board of a private university the authority to
establish a police force. But, in order
to be qualified to use the word “police” to describe the department
or its officers, any private college or university which establishes a
campus police department shall require that each officer comply
with the training or other requirements for law-enforcement
officers established by the Department of Criminal Justice Services
pursuant to Chapter 1 (§ 9.1-100 et seq.) of Title 9.1.
Code § 23-232.1. Code § 23-234 discusses the powers and duties of a campus police officer,
stating, “A campus police officer appointed as provided in § 23-233 or appointed and activated
pursuant to § 23-233.1 may exercise the powers and duties conferred by law upon police officers
of cities, towns, or counties, and shall be so deemed . . . .” Code § 23-234 does not distinguish
the powers and duties of a campus police officer at a public institution from those of a campus
police officer at a private institution.
-5-
In South, where we held two officers employed by the United States Navy were not part
of a police department administered by the Commonwealth, we noted that “[t]he Navy
employed, paid, and controlled both federal officers.” South, 47 Va. App. at 251, 636 S.E.2d at
421. Similarly, here Officer Jones was employed by, paid by, and controlled by privately owned
Hampton University, not the Commonwealth of Virginia. The Commonwealth, in fact, concedes
that “the state has no duties as to the day to day running of the campus police department,”
instead arguing that the Commonwealth “administers the training, certification, and accreditation
process for [a] private campus police officer” and confers the same powers and duties upon
campus police officers that it does upon “city [or county] police officers.” While that may be
true, as Code §§ 23-232.1 and 23-234 demonstrate, we are instead bound by the plain meaning of
the verb “administer,” which was specifically chosen by the General Assembly to define a
“law-enforcement officer” under Code § 18.2-57(E). Moreover, Code § 9.1-103 expressly
prohibits the Department of Criminal Justice Services, which oversees and establishes the
training requirements for law enforcement officers, from “undertak[ing] direct operational
responsibilities in law enforcement or the administration of criminal justice.” In drafting that
section, the General Assembly clearly limited the role of the Department of Criminal Justice
Services to one of oversight and proscribed that department from managing the day-to-day
operations of a law-enforcement agency.
As discussed above, “to administer,” for purposes of this statute, means “to manage the
affairs of” the police department, which the Commonwealth concedes the state does not do at a
private university. As such, we hold that Officer Jones was not employed by a police department
that is “administered by the Commonwealth or any political subdivision thereof.” Furthermore,
private university campus police officers are not included among the various groups of officers
specifically listed as “law-enforcement officers” in the statute. A campus police officer at a
-6-
private university, therefore, is not a “law-enforcement officer” as defined by the current
language of Code § 18.2-57(E).
CONCLUSION
The Virginia Supreme Court in Commonwealth v. South, 272 Va. 1, 630 S.E.2d 318
(2006), held that, upon a finding that the trial court erred in convicting appellant of felony assault
and battery on a law-enforcement officer, the proper disposition is “to remand to the trial court
for a new sentencing proceeding on the lesser-included offense of assault and battery, a Class 1
misdemeanor.” Id. This is consistent with the relief sought in this appeal, as appellant requests
that this Court “remand this matter for further proceedings on the lesser charge of simple assault
and battery, a misdemeanor.” Therefore, consistent with the Virginia Supreme Court’s
disposition of South and with our holding in this case, we reverse and remand this matter to the
trial court with instructions to sentence appellant on the lesser-included Class 1 misdemeanor of
assault and battery.
Reversed and remanded.
-7-