COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia
GLORIA JEAN SMITH
OPINION BY
v. Record No. 2067-98-3 JUDGE SAM W. COLEMAN III
OCTOBER 19, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Joseph A. Sanzone (Sanzone & Baker, P.C., on
brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General; Robert H.
Anderson, III, Assistant Attorney General,
on brief), for appellee.
Gloria Jean Smith was convicted in a bench trial of two
counts of felonious assault and battery of a police officer in
violation of Code § 18.2-57(C). On appeal, Smith argues that
because she was unlawfully arrested, she was legally justified in
resisting the arrest. For the reasons that follow, we affirm the
convictions.
BACKGROUND
Officer Childress and Lieutenant Marshall were dispatched to
the "Oz House," a known crack house, in response to a reported
shooting. When the officers arrived, they encountered Smith, the
mother of the shooting victim. Officer Childress asked Smith
questions regarding the shooting and determined that Smith was the
victim's mother. In response to Childress' request to produce
identification, Smith became belligerent and shouted profanities
at him. Smith was arrested for breach of the peace. When
Childress first "placed [his] hands on [Smith]," Smith began
kicking Childress, and she continued to shout profanities at him.
Smith also assaulted Marshall, who assisted in the arrest.
Smith's demeanor continued to be volatile even after she was
placed in handcuffs.
At trial, Smith conceded that she became angry when
questioned by Childress and that she used profane language.
However, Smith denied that she kicked or otherwise physically
assaulted the officers.
ANALYSIS
Smith argues that the officers unlawfully arrested her, and
therefore, she was legally justified in resisting arrest. Smith
also argues that the trial court erred in construing Code
§ 18.2-57 to establish absolute liability for any physical
altercation with a law enforcement officer, notwithstanding legal
justification for resisting by physical force.
On review, we view the evidence in the light most favorable
to 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). "The judgment of a trial
court sitting without a jury is entitled to the same weight as a
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jury verdict, and will not be disturbed on appeal unless plainly
wrong or without evidence to support it." Beck v. Commonwealth,
2 Va. App. 170, 172, 342 S.E.2d 642, 643 (1986). The lawfulness
of an arrest and the reasonableness of force used to resist an
arrest present mixed questions of law and fact and are reviewed de
novo. See Brown v. Commonwealth, 27 Va. App. 111, 117, 497 S.E.2d
527, 530, (1998); see also Fuller v. Commonwealth, 201 Va. 724,
729-30, 113 S.E.2d 667, 671 (1960) (finding that under the facts
of the case the lawfulness of the arrest was a question of law).
The dispositive question is whether the officers had probable
cause to arrest Smith. If not, Smith was entitled to use
self-defense to resist the unlawful arrest, so long as the force
used was reasonable. See Brown, 27 Va. App. at 116-17, 497 S.E.2d
at 530. Marshall testified and the record reveals that Smith was
initially placed under arrest for breach of the peace. Code
§ 18.2-416 provides:
If any person shall, in the presence or
hearing of another, curse or abuse such
person, or use any violent abusive language
to such person concerning himself or any of
his relations, or otherwise use such
language, under circumstances reasonably
calculated to provoke a breach of the peace,
he shall be guilty of a Class 3 misdemeanor.
Application of the statute, however, is limited to "words that
have a direct tendency to cause acts of violence by the person to
whom, individually, the remark is addressed." Mercer v. Winston,
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214 Va. 281, 284, 199 S.E.2d 724, 726 (1973) (applying prior Code
§ 18.1-255).
In Burgess v. City of Virginia Beach, 9 Va. App. 163, 385
S.E.2d 59 (1989), the defendant was arrested for using abusive
language in violation of a city code, which parallels Code
§ 18.2-416. The defendant, while driving by two police officers
who were attempting to control the crowd at a large party, stuck
his head out of the car window and yelled, "F_____ cops." See id.
at 165, 385 S.E.2d at 60. Analyzing the violation under Code
§ 18.2-416, we concluded that the defendant's utterance
constituted "fighting words" and affirmed the conviction. See id.
at 168, 385 S.E.2d at 61.
The evidence viewed in the light most favorable to the
Commonwealth demonstrates that, while attempting to obtain
information from Smith regarding her identity, Smith became
belligerent and called Childress a "white mother f_____." When
Marshall attempted to assist Childress, Smith called him a "white
man's ass-kissing mother f_____." Under these circumstances,
Smith's conduct constituted a violation of Code § 18.2-416. See
Mercer, 214 Va. at 285, 199 S.E.2d at 726; Burgess, 9 Va. App. at
167-68, 385 S.E.2d at 61 (finding that law enforcement officers
are not held to a higher level of restraint).
Code § 19.2-74(A)(2) provides, in pertinent part, that where
a "person is detained by or is in the custody of an arresting
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officer" for a violation of a misdemeanor for which the person
cannot receive a jail sentence,
the arresting officer shall take the name
and address of such person and issue a
summons or otherwise notify him in writing
to appear at a time and place to be
specified in such a summons or notice. Upon
the giving of such person of his written
promise to appear at such time and place,
the officer shall forthwith release him from
custody. However, if any such person shall
fail or refuse to discontinue the unlawful
act, the officer may proceed according to
the provisions of § 19.2-82.
Code § 19.2-74 clearly permits an officer to detain an alleged
violator or take the alleged violator into custody long enough
to issue a summons. Further, Code § 19.2-74(A)(2) specifically
provides that the violator may be arrested in accordance with
Code § 19.2-82 if the person fails or refuses to discontinue the
unlawful act.
Here, Smith became belligerent and abusive and used "words
that ha[d] a direct tendency to cause acts of violence by the
person to whom, individually, the remark [was] addressed."
Mercer, 214 Va. at 284, 199 S.E.2d at 726 (applying prior Code
§ 18.1-255). Accepting Smith's argument that the officers were
not initially entitled to make a full custodial arrest of her
under Code § 18.2-416, the officers were entitled to detain Smith
and take her into custody long enough to issue a summons, under
Code § 19.2-74(A)(2), which provides that "if any such person
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shall fail or refuse to discontinue the unlawful act, the officer
may proceed" to arrest the offender.
Smith persisted in her belligerent conduct until it
culminated in her arrest and physical altercation with the
officers. The officers were unable to obtain basic information
regarding Smith's identity that was necessary to issue the
summons. The officers, therefore, were entitled to arrest her
when it was apparent that she would not cooperate. Smith
continued to use profanity and be abusive, and she did not
discontinue the use of the abusive language even after she was
arrested and brought before the magistrate.
Accordingly, because the officers lawfully arrested Smith for
violating Code § 18.2-416, see Code § 19.2-81, Smith was not
entitled to use force to repel the arrest. See Polk v.
Commonwealth, 4 Va. App. 590, 596, 358 S.E.2d 770, 773 (1987).
Because Smith was not entitled on these facts to claim that her
detention was illegal and that she had a right to resist, any
misstatement by the trial judge concerning the right to resist an
unlawful arrest is of no consequence. See Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc). For the foregoing reasons, the evidence is sufficient
to support Smith's convictions for assault and battery of a police
officer in violation of Code § 18.2-57(C).
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Accordingly, we affirm the trial court's judgment.
Affirmed.
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