Commonwealth v. Alexander

PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice

COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 991786 SENIOR JUSTICE HENRY H. WHITING
June 9, 2000
JON DOUGLAS ALEXANDER

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we decide whether a deadly weapon may be

brandished in defense of personal property.

Jon Douglas Alexander was charged with attempted murder in

Rockbridge County. At a preliminary hearing on that charge, the

general district court reduced the charge to that of brandishing

a firearm in violation of Code § 18.2-282 and convicted

defendant Alexander of that charge. 1

The defendant appealed his conviction to the circuit court.

In a jury trial, the defendant tendered, but the court refused

to grant, instructions advising the jury that if it found the

defendant had brandished the firearm because he reasonably felt

that it was necessary to protect his personal property from

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As pertinent here, Code §18.2-282 provides:

A. It shall be unlawful for any person to point, hold or
brandish any firearm, as hereinafter described, or any object
similar in appearance to a firearm, whether capable of being
fired or not, in such manner as to reasonably induce fear in the
mind of another or hold a firearm in a public place in such a
manner as to reasonably induce fear in the mind of another of
being shot or injured.
loss, the jury could find him not guilty. The jury found the

defendant guilty of the crime charged and the circuit court

entered judgment on the verdict.

Upon the defendant's appeal, the Court of Appeals of

Virginia held that the trial court had erred in refusing the

tendered instructions, and it reversed and remanded the case.

Alexander v. Commonwealth, 28 Va. App. 771, 780, 508 S.E.2d 912,

916; 30 Va. App. 152, 153, 515 S.E.2d 808, 808 (1999)(en banc).

We granted the Commonwealth an appeal from that judgment.

The facts are recited in an agreed statement. In

accordance with familiar appellate principles, we will view

those facts in the light most favorable to the proponent of the

refused instruction, the defendant in this case. Blondel v.

Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991).

Michael T. Eustler, an agent of the lienholder of the

defendant's vehicle, sought to repossess the vehicle. When

Eustler arrived at the defendant's home, the defendant agreed to

its repossession provided he could remove certain papers and

tools valuable to him and having nothing to do with the vehicle

being repossessed. Although Eustler agreed to permit the

defendant to retrieve the items, Eustler "jacked up" the vehicle

as the defendant was partially in the front seat. Eustler

approached the defendant in a belligerent manner, and demanded

the keys to the vehicle.

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 Feeling threatened, the defendant entered his house and

emerged with the keys as well as an unloaded rifle which he

placed in a flower bed that was close to the vehicle. When

Eustler again approached in a belligerent manner, the defendant

retrieved the rifle and held it at his side. The defendant felt

compelled to raise the rifle to his shoulder when he thought

that Eustler was going to assault him. However, the defendant

did not point the gun at Eustler until Eustler kept coming at

him, at which time, Eustler "finally backed off." Eustler later

called the police.

Although the trial court instructed the jury to find the

defendant not guilty if it found that he brandished the rifle in

reasonable defense of his person, the court refused to include a

similar provision in the instructions if the jury believed that

the defendant brandished the rifle in reasonable defense of his

property. The Court of Appeals agreed with the defendant's

contention that he was entitled to the refused jury instruction.

We need not resolve the defendant's claim that Eustler's

actions were "unwarranted and illegal . . . in attempting, by

other than peaceful means, to unlawfully take [defendant's]

personal property." Even if Eutsler's actions were unwarranted

or illegal, the defendant, as an owner of personal property, did

not have the right to assert or defend his possessory rights

thereto by the use of deadly force. In Montgomery v.

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Commonwealth, 98 Va. 840, 842-43, 36 S.E. 371, 372 (1900), we

said:

The law is clearly stated by a learned judge in State
v. Morgan, 3 Ired. 186, 38 Am. Dec. 714, as follows: "When
it is said that a man may rightfully use as much force as
is necessary for the protection of his person and property,
it should be recollected that this rule is subject to this
most important modification, that he shall not, except in
extreme cases, endanger human life or do great bodily harm.
It is not every right of person, and still less of
property, that can lawfully be asserted, or every wrong
that may rightfully be redressed by extreme remedies.
There is a recklessness—a wanton disregard of humanity and
social duty in taking or endeavoring to take, the life of a
fellow-being, in order to save one's self from a
comparatively slight wrong, which is essentially wicked,
and the law abhors. You may not kill, because you cannot
otherwise effect your object, although the object sought to
be effected is right. You can only kill to save life or
limb, or prevent a great crime, or to accomplish a
necessary public duty." See, also, 1 Bishop on New C. L.,
secs. 839, 841, 850.

However, the defendant contends, and the Court of Appeals

held, that these principles do not apply when there is a mere

threat to use deadly force in protection of personal property.

We do not agree.

The threat to use deadly force by brandishing a deadly

weapon has long been considered an assault. Harper v.

Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955). In

Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398

(1935), we said:

Judge Moncure, in the Hardy Case, 17 Gratt. (58 Va.)
592, 600, [1867] quoted with approval from an old English
case, thus: "An assault is any attempt or offer with force
or violence to do a corporeal hurt to another, whether from

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 malice or wantonness, as by striking at him in a
threatening or insulting manner, or with such other
circumstances as denote at the time an intention, coupled
with a present ability, of actual violence against his
person, as by pointing a weapon at him when he is within
reach of it."

Such a threat may give the threatened person a right to defend

himself by the use of a deadly weapon. McGhee v. Commonwealth,

219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). Further, as the

dissenting opinion of the Court of Appeals notes, "[p]ermitting

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." 28 Va. App. at 780, 508 S.E.2d at 916 (Judge

Bumgardner, dissenting); 30 Va. App. at 153, 515 S.E.2d at 808

(en banc) (Judge Bumgardner, with whom Chief Judge Fitzpatrick

joins, dissenting).

Moreover, the owner of land has no right to assault a mere

trespasser with a deadly weapon. Montgomery, 98 Va. at 844, 36

S.E. at 373. Indeed, in Montgomery, it was the landowner's

brandishing of a sharpened corn-cutter that provoked the

defendant's physical assertion of his right of self-defense. 98

Va. at 841-43, 36 S.E. at 372-73.

For these reasons, we agree with the trial court that a

deadly weapon may not be brandished solely in defense of

personal property. Therefore, we conclude that the Court of

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Appeals erred in reversing the trial court's judgment.

Accordingly, we will (1) reverse the judgment of the Court of

Appeals, (2) enter final judgment here reinstating the

sentencing order of the circuit court, and (3) remand the case

to the Court of Appeals with directions to remand the case to

the circuit court for the enforcement of the sentencing order.

Reversed and remanded.

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