COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
HOWARD PIKE
OPINION BY
v. Record No. 0905-96-4 JUDGE JERE M. H. WILLIS, JR.
MARCH 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Steven A. Merril (Whitestone, Brent, Young &
Merril, on briefs), for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Howard Pike was convicted in a bench trial in the Circuit
Court of Loudoun County of four counts of brandishing a firearm
in violation of Code § 18.2-282. He contends that the evidence
is insufficient to sustain a finding of guilt. We disagree and
affirm the judgment of the trial court.
Under familiar principles, we view the evidence in the light
most favorable to the Commonwealth. Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "The judgment of
a trial court sitting without a jury is entitled to the same
weight as a jury verdict and will not be set aside unless it
appears from the evidence that the judgment is plainly wrong or
without evidence to support it." Josephs v. Commonwealth, 10 Va.
App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).
On August 19, 1995, Pike discovered Cablevision employees
attaching cable lines to utility poles located on his property.
Pike demanded that they leave his property and called the police.
Deputy Shellhammer of the Loudoun County Sheriff's Department
arrived at the scene, directed the Cablevision employees to
leave, and recommended that the parties contact their attorneys.
Pike testified that the Cablevision workers damaged several
small trees, left tire ruts in his field and broke a fence.
On September 8, 1995, Pike's attorney advised Cablevision
that any attempt by Cablevision to enter Pike's land "will be
treated as a trespass and will be dealt with accordingly." On
that same day, Cablevision informed Pike's attorney that it had a
utility easement and would continue work on the property the
following week. On September 12, 1995, Cablevision employees
returned to Pike's property and resumed stringing cable. As Pike
was leaving for work that day, he saw the Cablevision workers on
his property. He approached their supervisor, advised him that
they were trespassing, and ordered them to leave. Pike testified
that the supervisor told him that the police were not going to
interfere and that the Cablevision employees would not leave the
property.
Pike returned to his house, telephoned the police, obtained
a shotgun, and returned to the worksite. He testified that upon
exiting his vehicle, he held the shotgun at port arms and ordered
the Cablevision workers off of his property. He testified that
the Cablevision workers agreed to leave, and he placed the
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shotgun in his vehicle.
The Cablevision workers testified that Pike pumped the
shotgun, pointed it directly at each of them with his finger on
the trigger, and angrily demanded that they leave his property.
They testified that they thought he might shoot them and that
they feared for their lives. They testified that Pike held the
gun on them for approximately five minutes, while they loaded
their equipment and prepared to leave.
Code § 18.2-282(A) provides, in pertinent part:
It shall be unlawful for any person to
point, hold or brandish any firearm . . .
whether capable of being fired or not, in
such manner as to reasonably induce fear in
the mind of another . . . .
Viewed in the light most favorable to the Commonwealth, the
evidence proved that Pike's conduct violated the express
prohibition of the statute. However, Pike contends that his
conduct was excusable, because he was acting in defense of his
property.
The common law in this state 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.
Montgomery v. Commonwealth, 99 Va. 833, 37 S.E. 841 (1901).
Absent extreme circumstances, however, such force may not
endanger human life or cause great bodily harm. Montgomery v.
Commonwealth, 98 Va. 840, 36 S.E. 371 (1900).
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Citing Diffendal v. Commonwealth, 8 Va. App. 417, 382 S.E.2d
24 (1989), Pike argues that he was privileged to brandish a
firearm to expel the Cablevision employees. In Diffendal, we
"conclude[d] that a factual issue was raised whether [the
defendant's] pointing of the shotgun was reasonably proportioned
to the perceived threat posed by" an armed trespasser's presence
on the property. Id. at 422, 382 S.E.2d at 26. Thus, we held,
the trial court in Diffendal erred in refusing to instruct the
jury that the defendant was privileged to use reasonable force in
defense of the property and himself.
Credible evidence proved that Pike brandished the shotgun in
a manner that reasonably caused fear in the minds of the
Cablevision workers. 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. The evidence supports this conclusion. The
brandishing of the shotgun was disproportionate to any threat
posed by the unarmed cable workers, irrespective of the legality
of Cablevision's conduct.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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