Tuesday 9th
March, 1999.
Jon Douglas Alexander, Appellant,
against Record No. 2136-97-3
Circuit Court No. CR97000278-00
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, Elder,
Bray, Annunziata, Bumgardner, Lemons and Senior Judge Overton*
On January 26, 1999 came the appellee, by counsel, and filed
a petition praying that the Court set aside the judgment rendered
herein on January 12, 1999, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on January 12, 1999 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellee shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
____________________
*Judge Overton participated in the decision of this petition
for rehearing en banc prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as senior judge
pursuant to § 17.1-401, recodifying Code § 17-116.01:1.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
JON DOUGLAS ALEXANDER
OPINION BY
v. Record No. 2136-97-3 JUDGE DONALD W. LEMONS
JANUARY 12, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
Robert B. Armstrong for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Jon Douglas Alexander was convicted by a jury of brandishing
a firearm, a violation of Code § 18.2-282. On appeal, he
contends the trial court erred in refusing to instruct the jury
on his right to defend his personal property. We agree and
reverse the conviction.
BACKGROUND
On April 25, 1997, Michael T. Eustler, employed as a
repossessor of motor vehicles, arrived at the home of Jon Douglas
Alexander, appellant, in Rockbridge County, Virginia, to
repossess his car. Alexander asked if he could remove his
"personal property" from inside the car, and Eustler agreed.
Alexander testified that he had been partially disabled with
a muscular disorder for many years. He stated that the vehicle
contained legal documents that pertained to his disability claim,
which had been pending for many years, as well as some "tools of
his profession." Alexander testified that he related these facts
to Eustler and that Eustler agreed to allow him to remove these
items. Alexander stated that Eustler then "jacked up" the
vehicle while Alexander was partially seated in the car and
demanded that Alexander provide him with the keys.
Alexander testified that he went into his house and returned
with the keys, which he put on top of the car. Alexander also
brought with him an unloaded rifle, which he placed in a
flowerbed near the vehicle. Alexander stated that Eustler,
wearing gloves, approached him in a "belligerent manner."
Alexander then retrieved the rifle because he feared for his
personal safety and his property. Alexander testified that he
held the rifle at his side "until he believed that Eustler was
intent upon assaulting him." Then, Alexander raised the rifle to
his shoulder. Alexander stated that Eustler continued to advance
toward him until he finally pointed the rifle at Eustler.
Alexander testified that Eustler retreated and drove away. The
police later recovered an unloaded rifle from Alexander's home.
Eustler testified that Alexander went into his house and
returned carrying a rifle. Eustler stated that Alexander opened
the left rear door and began to remove items from the back seat.
Eustler stated that when he approached the vehicle, Alexander
raised the rifle and said, "I could drop you right there."
Eustler testified that he returned to his truck, left the
premises, and called the police.
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JURY INSTRUCTION
Upon review of jury instructions given or refused at trial,
an appellate court is charged with seeing that "the law has been
clearly stated and 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). The evidence relied on to
support a proffered instruction must amount to "more than a
scintilla." Morse v. Commonwealth, 17 Va. App. 627, 633, 440
S.E.2d 145, 149 (1994). "An instruction that is not supported by
the evidence, however, is properly refused." Lea v.
Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479-80
(1993).
However, "where credible evidence exists that would support
giving the jury instruction, the trial court's failure to give
the instruction constitutes reversible error." Hunt v.
Commonwealth, 25 Va. App. 395, 400, 488 S.E.2d 672, 674 (1997).
In addition, where there is evidence which "tends to sustain both
the prosecution's and the defense's theory of the case, the trial
judge is required to give requested instructions covering both
theories." Diffendal v. Commonwealth, 8 Va. App. 417, 422, 382
S.E.2d 24, 26 (1989).
Only those arguments presented in the petition for appeal
and granted by this Court will be considered on appeal. Rule
5A:12(c); see Cruz v. Commonwealth, 12 Va. App. 661, 664 n.1, 406
S.E.2d 406, 407 n.1 (1991). Because the trial judge gave an
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instruction on self-defense, but refused any instruction on
defense of property, Alexander has limited his appeal to the
issue of whether the trial court erred in refusing to give an
instruction on the use of reasonable force in defense of personal
property.
The "right to possession of chattels may be exercised
without recourse to the courts, provided this can be done
peaceably. It is only when a right of one is denied or resisted
by another, that such party must resort to appropriate legal
proceedings to enforce that right." Wallace v. Chrysler Credit
Corp., 743 F. Supp. 1228, 1233 (1990), see Code § 8.9-503.
Because a debtor possesses "[the] privilege to retain possession
of his [secured] car," he may properly "force the defendant to
use judicial methods of repossession." Greene v. First National
Exch. Bank of Va., 348 F. Supp. 672, 675 (1972).
Alexander agreed to the repossession of the car, conditioned
upon his ability to remove his personal property. Eustler was
required either to allow Alexander to remove his personal
property or to desist and advise the creditor that it must pursue
appropriate judicial remedies.
"A man may use force to defend his real or personal
property in his actual possession against one who endeavors to
dispossess him without right. . . ." State v. Trammel, 672 P.2d
652, 654 (N.M. 1983). An individual may not, however, "use force
to defend real or personal property where the attempt to
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dispossess is lawful." Trammel, 672 P.2d at 654. Until his
personal property was removed, Alexander objected to the
repossession; for this reason, Eustler's attempt to dispossess
Alexander of his property was "without right." Alexander was
privileged to use reasonable force in defense of his personal
property.
In evaluating the amount of force which may be asserted in
defense of property, "[i]t is not reasonable to use deadly force
to prevent threatened harm to property, such as a mere trespass
or theft, even though the harm cannot otherwise be prevented
. . . because the preservation of human life is more important to
society than the protection of property." W. LaFave & A. Scott,
Criminal Law § 55, at 399-400 (1972). However, "[a] threat to
cause death or serious bodily injury, by the production of a
weapon or otherwise, so long as the actor's purpose is limited to
creating an apprehension that he will use deadly force if
necessary, does not constitute deadly force." Model Penal Code
§ 3.11 Definitions (1974).
Alexander's sole attempt to defend his personal property
consisted of obtaining an unloaded rifle from his home and
displaying it to Eustler. Alexander cites Diffendal, 8 Va. App.
417, 382 S.E.2d 24, in support of his argument. Diffendal had
arrived at a friend's farm to practice target shooting.
Additionally, he had agreed to watch over the property while the
owner was absent. Upon driving onto the property, Diffendal saw
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an unfamiliar person with a holstered gun tucked into her pants.
The residence on the property "contained numerous items of value
which could be secreted on a person and carried away." Id. at
422, 382 S.E.2d at 26. Diffendal surprised the woman, who was a
plainclothes police officer and escorted the officer to her
vehicle, with his rifle "cradled in his arm." Id. at 420, 382
S.E.2d at 25. He was convicted of brandishing a firearm. He
argued that because a jury could have found that he "reasonably
believed her to be a trespasser who posed a threat to himself and
[his friend's] property," the trial court erred in refusing to
instruct the jury on the privilege to exercise reasonable force
in defense of the property and himself. Id. at 420, 382 S.E.2d
at 25. We agreed that the trial court erred in refusing his
instruction and remanded the case to the trial court. 1
Virginia has "long recognized the right of a landowner to
order a trespasser to leave, and if the trespasser refuses to go,
to employ proper force to expel him, provided no breach of the
peace is committed in the outset." Pike v. Commonwealth, 24 Va.
App. 373, 375-76, 482 S.E.2d 839, 840 (1997). The "breach of the
peace in the outset" limitation originated in Montgomery v.
Commonwealth, 99 Va. 833, 37 S.E. 841 (1901), a case cited by us
in Pike. In Montgomery, the defendant ordered a trespasser off
land in which the defendant did not have a possessory interest,
1
Diffendal involved mixed questions of self-defense,
resisting a trespass to real property, as well as defense of
personal property.
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and therefore he had "no right to order [the trespasser] away."
Id. at 835, 37 S.E. at 842. The "breach of the peace in the
outset" involved aggressive conduct to expel a trespasser where
no right to exercise such force existed. By contrast, Alexander
had the right to resist the repossession of his vehicle that
contained his personal property.
Pike pointed a rifle at four utility workers in an attempt
to expel them from his property and was convicted of four counts
of brandishing a firearm. On appeal, he challenged only the
sufficiency of the evidence. His conviction was affirmed upon
our holding that the trial court "examined the underlying
circumstances and concluded that the production of the shotgun,
under circumstances of angry confrontation, was unreasonable in
terms of any privilege that Pike may have had to defend his
property." Pike, 24 Va. App. at 376, 482 S.E.2d at 840. In
Pike's bench trial, had the court found that the production of
the shotgun was reasonable under the circumstances, Pike would
have been entitled to acquittal.
The court in Pike did not determine whether the presence of
the utility workers on the property was "with right" or "without
right." Had they been on the property "with right," no force
would have been reasonable to expel them. Had they been on the
property "without right," only reasonable force could have been
utilized to expel them. The trial court decided and we agreed
that Pike's conduct under the best legal posture available to him
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was nonetheless unreasonable and the conviction was affirmed.
Alexander objected to the self-help repossession remedy
employed by Eustler until his personal property was removed from
the vehicle. Until the property was removed, the effort to
repossess Alexander's vehicle was "without right." Under these
circumstances, Alexander was entitled to use reasonable force to
defend against the repossession. The use of deadly force to
prevent threatened harm to property is never justified except in
defense of habitation 2 ; however, the threat of deadly force may
be justified under certain circumstances. There was a factual
dispute as to whether the amount of force used by Alexander was
reasonable. In evaluating the defense of personal property,
"[i]t is for the jury to determine whether the force used was
reasonably necessary under the circumstances." Charles E.
2
The use of deadly force,
in defense of "property" can also be
justifiable, but the classic formulation
lists only arson or burglary as crimes
against property which can justify the use of
deadly force. . . . Even then the use of
deadly force must have been necessary.
Defense of habitation and justifiable
self-defense overlap in the "castle doctrine"
which states that one may, without
retreating, use force, to include deadly
force if necessary, to keep aggressors out of
his own house. This part of the castle
doctrine is one aspect of defense of
habitation. . . . [T]he justification exists
in the curtilage as well as the castle.
Roger D. Groot, Criminal Offenses and Defenses in Virginia 114
(3rd ed. 1994). The defense of habitation and the castle
doctrine have not been raised in this case.
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Torcia, Wharton's Criminal Law § 191, at 455 (15th ed. 1994).
Here, the trial judge instructed the jury on the law of
self-defense. He erred in failing to instruct the jury on the
law of defense of personal property.
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Accordingly, the conviction is reversed and remanded for
further proceedings if the Commonwealth should be so advised.
Reversed and remanded.
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Bumgardner, J., dissenting.
Concluding that the trial court did not err in refusing an
instruction on defending personal property, I dissent. I would
affirm the conviction of brandishing a firearm.
The victim was entitled to repossess the defendant's car.
Under no circumstances was it reasonable for this defendant to
brandish a rifle to repel this repossession. Even if the victim
had been a trespasser, the defendant was not entitled to assault
him. "For a mere trespass upon land, the owner has no right to
assault the trespasser with a deadly weapon . . . ." Montgomery
v. Commonwealth, 98 Va. 840, 844, 36 S.E. 371, 373 (1900).
Pike v. Commonwealth, 24 Va. App. 373, 482 S.E.2d 839
(1997), controls this case. In Pike, the trial court concluded
that the defendant acted unreasonably when he produced a shotgun
to defend his land. This Court held "[t]he brandishing of the
shotgun was disproportionate to any threat posed by the unarmed
cable workers, irrespective of the legality of Cablevision's
conduct." Id. at 376, 482 S.E.2d at 840.
The majority distinguishes between using deadly force, which
it would not permit, and threatening to use deadly force, which
it would permit. Applied to these facts, I do not feel the
distinction is realistic, practical, or wise. Permitting one to
threaten to use deadly force leads in dangerous progression to an
unacceptable conclusion. Here, the victim would have been
entitled to use deadly force to repel the perceived threat
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arrayed against him by the defendant. A person threatened with
deadly force has the right to defend his person. The victim had
no way of knowing the gun was empty, and his right to use deadly
force is determined as the situation appeared to him. Once the
victim defends with deadly force, the person who originally
threatened deadly force becomes justified in responding to the
victim's deadly force with his own deadly force.
I do not believe precedent allows brandishing a firearm to
be lawful resistance to repossession of personal property.
Therefore, I find the trial court properly refused the
instruction that would have permitted such an unreasonable
response to protect personal property.
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