COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Huff and Chafin
UNPUBLISHED
Argued at Alexandria, Virginia
LONNIE ALAN BURCH
MEMORANDUM OPINION* BY
v. Record No. 1101-13-4 JUDGE GLEN A. HUFF
OCTOBER 14, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Burke F. McCahill, Judge
Lorie E. O’Donnell, Public Defender (Office of the Public Defender,
on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Lonnie Alan Burch (“appellant”) appeals his conviction of assault and battery of a law
enforcement officer, in violation of Code § 18.2-57(C). Following a bench trial in the Circuit
Court of Loudoun County (“trial court”), appellant was sentenced to twelve months in jail. On
appeal, appellant contends that “[t]he trial court erred by refusing to instruct the jury on
[appellant’s] right to act in self-defense when faced with excessive force.” Specifically,
appellant contends that “[t]he proposed jury instruction was a correct statement of the law and
supported by evidence adduced at trial.” For the following reasons, this Court affirms
appellant’s conviction.
I. BACKGROUND
On appeal, “‘we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,
the evidence is as follows.
At 9:00 a.m. on November 13, 2011, Deputy Jennifer Wetzel (“Wetzel”) of the Loudoun
County Sheriff’s Department was working in the S400 block of the Adult Detention Center
(“Center”). Wetzel was assigned to “monitor housing units, the inmates assigned to those units, do
the cell inspections, and allow [inmates] out for their times.” The Center permitted inmates to leave
their cells for one hour during which time they could shower, use the telephone, watch TV or read.
Wetzel noticed that appellant was out of his cell for his allotted time.
After appellant’s hour had passed, Wetzel and Deputy Adam MacDonald (“MacDonald”)
approached appellant and “told him to lock down so that [they] could let the . . . next inmate out for
his time.” Appellant refused to return to his cell and argued that his time was not up. MacDonald
then informed appellant “‘She is giving you a direct order. You need to go and lock down. If you
refuse to lock down, you are going to get more in-house charges.’” Again, appellant refused to
comply. In response, Wetzel called for back-up and five officers arrived at the scene.
Once the other deputies arrived, appellant “started to complain” to the supervising officer,
Sergeant Ware (“Ware”). Appellant insisted Wetzel and MacDonald were “cheating [appellant] out
of [his] time.” In response, Ware instructed appellant to “Go lock down” and that Ware would
speak to appellant regarding his complaint but he needed “to lock down first.” Still, appellant
refused to return to his cell. During the encounter, MacDonald observed that appellant “was still
angry with [the deputies]” and acted in an “aggressive manner.”
After appellant refused to comply with his orders, Ware instructed the deputies “to handcuff
[appellant] from behind his back.” Appellant refused to place his hands behind his back and instead
held out his hands and said “You can handcuff me in the front.” Deputy Kevin Donlan (“Donlan”)
observed that appellant “held his hands out, appeared that he was going to cuff up willingly,”
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however, “[w]hen the cuffs got close to him, he pulled back and had his fists to the side.”
Additionally, Donlan indicated appellant “was becoming increasingly agitated.” Soon thereafter,
the officers “merged on” and “attempt[ed] to physically restrain [appellant].” During the officers’
attempts to restrain appellant, appellant struck Donlan in his left eye with his right closed fist. The
officers wrestled appellant to the floor, handcuffed him, and returned him to his cell.
At the conclusion of all the evidence, appellant proposed the following jury instruction:
If an arresting officer uses more force than is reasonably necessary to
effectuate a lawful arrest, the person subjected to that unreasonable
force may use reasonable force to defend himself. If you find that
the arrest in this case was lawful but that the officer used
unreasonable force under the circumstances to effectuate the
subjugation, then the defendant had a right to use reasonable force to
defend himself from the unreasonable force. If the defendant used
no more force than was reasonably necessary to defend himself, then
you shall find the defendant not guilty.
The Commonwealth objected to the proposed instruction on the ground that it applied to resisting an
unlawful arrest and argued that appellant had not been arrested because he was already incarcerated.
Relying on Commonwealth v. Hill, 264 Va. 541, 570 S.E.2d 805 (2002), the trial court refused
appellant’s proposed instruction, finding that appellant was not under arrest. This appeal followed.
A. Standard of Review
“As a general rule, the matter of granting and denying instructions does rest in the sound
discretion of the trial court.” Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187
(2009) (citing Daniels v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008)). On
appeal, “Our ‘sole responsibility in reviewing [jury instructions] is to see that the law has been
clearly stated and that the instructions cover all issues which the evidence fairly raises.” Molina
v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006) (quoting Swisher v. Swisher,
223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). Moreover, “in deciding whether a particular
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instruction is appropriate, we view the facts in the light most favorable to the proponent of the
instruction.” Cooper, 277 Va. at 381, 673 S.E.2d at 187.
Additionally, “[a]n instruction must be supported by more than a scintilla of evidence.”
Hatcher v. Commonwealth, 218 Va. 811, 813-14, 241 S.E.2d 756, 758 (1978) (citing Gibson v.
Commonwealth, 21 Va. 412, 417, 219 S.E.2d 845, 849 (1975)). “‘The weight of the credible
evidence that will amount to more than a mere scintilla . . . is a matter to be resolved on a
case-by-case basis’ by assessing the evidence in support of a proposition against the ‘other
credible evidence that negates’ it.” Woolridge v. Commonwealth, 29 Va. App. 339, 348, 512
S.E.2d 153, 158 (1999) (quoting Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430
S.E.2d 563, 565 (1993)).
B. Self-Defense Jury Instruction
On appeal, appellant contends that the trial court erred by refusing to instruct the jury
regarding appellant’s right to use reasonable force in defending himself against excessive force
associated with an unlawful arrest. Specifically, appellant argues the trial court should have
permitted his proposed jury instruction because he was entitled to use reasonable force against
the deputy’s alleged unlawful arrest. The Commonwealth asserts the trial court did not err
because appellant was already incarcerated for previous convictions and was not under arrest at
the time of the assault.
“Under the common law, a citizen is generally permitted to use reasonable force to resist
an illegal arrest.” Hill, 264 Va. at 546-47, 570 S.E.2d at 808 (citing Banner v. Commonwealth,
204 Va. 640, 646-47, 144 S.E.2d 305, 309-10 (1963)). Despite this, ‘“[a] detention facility is a
unique place fraught with serious security dangers.’” Winston v. Commonwealth, 51 Va. App.
74, 82, 654 S.E.2d 340, 344 (2007) (quoting Bell v. Wolfish, 441 U.S. 520, 560 (1979)).
Moreover, “the government has a compelling interest in maintaining order in a jail.” Id.
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“The limitation on prisoners’ privileges and rights also follows from the need to grant
necessary authority and capacity to federal and state officials to administer the prisons.”
McKune v. Lile, 536 U.S. 24, 37 (2002). Furthermore, “[r]unning a prison is an inordinately
difficult undertaking that requires expertise, planning, and the commitment of resources, all of
which are peculiarly within the province of the legislative and executive branches of
government.” Id. (quoting Turner v. Safley, 482 U.S. 78, 84-85 (1987)). Therefore, “courts
must exercise restraint in supervising the minutiae of prison life.” Id. Most importantly, “[a]n
essential tool of prison administration . . . is the authority to offer inmates various incentives to
behave.” Id. at 39. “The Constitution accords prison officials wide latitude to bestow or revoke
these perquisites as they see fit.” Id.
In the current matter, appellant was informed by deputies that his hour reserved to make
phone calls, watch TV, and read had passed and he needed to return to his cell. Appellant
refused Wetzel’s instructions and asserted that an hour had not passed. Next, the deputies
warned appellant that if he did not comply he would receive additional in-house charges;
however, appellant refused to return to his cell. Moreover, after the arrival of five additional
deputies, Ware informed appellant that he would talk to him about his complaints if appellant
returned to his cell but, once again, appellant disregarded the instruction. Lastly, after being
informed he was going to be handcuffed, appellant resisted, which caused the five officers to
merge on appellant and restrain him.
“[T]he government has a compelling interest in maintaining order in a jail.” Winston, 51
Va. App. at 82, 654 S.E.2d at 344. By restraining appellant, the deputies acted in an effort to
restore order within the Center. Appellant contends “[h]e was denied his hour of freedom of
movement.” Despite appellant’s arguments, appellant’s allotted hour outside of his cell was not
a right but a revocable incentive. See McKune, 536 U.S. at 39 (“An essential tool of prison
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administration, however, is the authority to offer inmates various incentives to behave. The
Constitution affords prison officials wide latitude to bestow or revoke these perquisites as they
see fit.”).1
This Court “must exercise restraint in supervising the minutiae of prison life.” Id. at 37.
Appellant was within the state’s custody during the entirety of the altercation. Moreover, as an
inmate, appellant was already subject to a restraint on his liberty and, consequently, had no legal
right to resist the deputies under the circumstances presented. Accordingly, because appellant
had no legal right to resist and appellant was at fault, he therefore was legally barred from
arguing self-defense. See Smith v. Commonwealth, 165 Va. 776, 785, 182 S.E. 124, 128 (1934)
(finding that when employing the without-fault self-defense, the appellant must “have been
without fault in the ‘minutest degree.’”). Furthermore, the deputies acted to maintain order at the
facility by temporarily restraining appellant and returning him to his cell. Considering appellant
was already in custody, appellant was never arrested but was restrained after causing disorder at
the Center. Therefore, this Court finds that appellant was not entitled to use self-defense because
an unlawful arrest did not occur.
“Our ‘sole responsibility in reviewing [jury instructions] is to see that the law has been
clearly stated and that the instructions cover all issues which the evidence fairly raises.” Molina,
272 Va. at 671, 636 S.E.2d at 473 (quoting Swisher, 223 Va. at 503, 290 S.E.2d at 858). Finding
that there was no unlawful arrest, the trial court did not err in denying appellant’s request to
instruct the jury on self-defense.
1
In McKune, the United States Supreme Court held appellant’s loss of his personal
television, less access to prison organizations and the gym area, a reduction in certain pay
opportunities and canteen privileges, and restricted visitation rights amounted to a revocable
incentive. 536 U.S. at 39.
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III. CONCLUSION
Based on the foregoing, this Court finds that the trial court did not err in refusing to
instruct the jury on the use of reasonable force in self-defense when faced with an unlawful
arrest. Accordingly, the convictions are affirmed.
Affirmed.
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