COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
HAROLD D. CRISLIP
OPINION BY
v. Record No. 2276-00-3 JUDGE G. STEVEN AGEE
OCTOBER 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
James N. Dickson, III, for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Harold D. Crislip (Crislip) was convicted in a Rockingham
County Circuit Court bench trial on two counts of assaulting a
police officer, in violation of Code § 18.2-57(C), and sentenced
to serve a term of six months incarceration on each conviction.
He contends his actions were reasonable and permissible because
he was the subject of an illegal arrest. We disagree and affirm
the convictions.
I. BACKGROUND
On April 7, 2000, at 3:00 a.m., Sergeant M.E. Baylor of the
Rockingham County Sheriff's Office responded to a possible
domestic dispute at the Crislip residence, which is a mobile
home in an "upscale mobile home park." Upon his arrival,
Sergeant Baylor found Mrs. Crislip and her children outside the
mobile home in the driveway, "trying to get back in their
house." Mrs. Crislip informed the officer that her husband was
intoxicated and his condition forced her out of the home.
Sergeant Baylor, with Mrs. Crislip's permission and accompanied
by her, went inside the mobile home where he found Crislip
unsteady on his feet and his speech slurred. After assessing
the situation, the officer instructed Crislip to go to bed to
which Crislip agreed.
Deputy Greer then arrived on the scene and the two officers
conferred on the front deck/porch of the Crislip mobile home,
just outside the front door. The front porch was in open view
of the public road approximately 60 feet away and clearly
visible to a number of neighboring homes in close proximity in
the mobile home park. The officers then heard a crashing noise
and observed Crislip lying on the living room floor and
mumbling. He then started to get up and his wife quickly went
out the front door with Crislip following her onto the front
porch.
Deputy Greer then informed Crislip that he was under arrest
for being drunk in public. Crislip started to head towards the
front door but an officer blocked his path and informed him that
he would have "to go with us." Crislip put his hands out and
Deputy Greer placed handcuffs on him. Crislip then began to
swing at the officers with his cuffed hands, striking both
officers. The officers attempted to further restrain Crislip,
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resulting in a scramble on the floor of the porch and onto the
gravel driveway. Crislip, while lying on the gravel, proceeded
to kick the officers until subdued by pepper spray.
II. ANALYSIS
Crislip contends his arrest for being drunk while in public
was unlawful because his front porch cannot be considered "in
public" and, therefore, he had the right to reasonably resist
the arrest and cannot be convicted for assault. Essentially,
Crislip argues that the words "in public" under Code § 18.2-388
are synonymous with the words "public place," as that term is
defined in Code § 4.1-100. From that supposition, Crislip
argues his front porch was not a public place and, therefore,
the arrest was unlawful. Extrapolating further, Crislip
contends that because his arrest was unlawful, he had the right
to resist with reasonable force. We disagree.
A. Standard of Review
On appeal, we view the evidence in the light most favorable
to the prevailing party, in this instance the Commonwealth, 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 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
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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).
B. "In Public" under Code § 18.2-388
The dispositive question in this matter is whether Crislip
was "in public" while intoxicated on his front porch. 1 Code
§ 18.2-388 states, in pertinent part, that "[i]f any person
. . . is intoxicated in public . . . he shall be guilty of a
Class 4 misdemeanor." No definition is provided in the statute
or in Title 18.2 for the term "in public." Apparently, the
meaning of the words "in public," in the context of Code
§ 18.2-388, is a question of first impression in the
Commonwealth.
Crislip argues that with no statutory definition of the
term "in public," we should read it as meaning "public place,"
which is a defined term under Code § 4.1-100. In that statute,
"public place" is defined as "any place, building, or conveyance
to which the public has, or is permitted to have, access,
including restaurants, soda fountains, hotel dining areas,
1
Crislip does not challenge the fact that he was
intoxicated at the time of his arrest.
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lobbies, and corridors of hotels, and any highway, street, lane,
park, or place of public resort or amusement." Because the
front porch of Crislip's residence is not such a "public place,"
Crislip reasons he was not "in public" for purposes of the
public drunkenness statute.
Such a reading is erroneous for at least two reasons.
First, Code § 4.1-100 limits its definitions of terms, including
"public place," to Title 4.1, applying the provisions of the
Alcoholic Beverage Control Act. There is no nexus in statute or
case law between the provisions of Titles 4.1 and 18.2 to
substantiate the argument to transmorph the definition of
non-identical terms in one to the other. Crislip has provided
no authority to support an in pari materia reading of the term
"public place" in Code § 4.1-100 with the term "in public" under
Code § 18.2-388.
The General Assembly did not intend for the two terms to be
synonymous. This intent is evidenced by its choice of words,
"in public," in Code § 18.2-388 and its choice of words, "public
place," in Code § 18.2-387 2 (indecent exposure), which, like Code
§ 18.2-388, is in Article 5 ("Obscenity and Related Offenses")
2
This distinction is made even clearer as Code § 18.2-387
specifically adds to places where indecent exposure is
prohibited, "any place where others are present." See Code
§ 18.2-387 ("Every person who intentionally makes an obscene
display or exposure of his person, or the private parts thereof,
in any public place, or in any place where others are present,
or procures another to so expose himself, shall be guilty of a
Class 1 misdemeanor.").
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of Title 18.2. "The manifest intention of the legislature,
clearly disclosed by its language, must be applied." Anderson
v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944).
Second, the statutory language of Code § 18.2-388 is clear,
and we must give the words their plain meaning. See Portsmouth
v. Chesapeake, 205 Va. 259, 269, 136 S.E.2d 817, 825 (1969);
Tross v. Commonwealth, 21 Va. App. 362, 377-78, 464 S.E.2d 523,
530 (1995). "'[T]he province of construction is wholly within
the domain of ambiguity, and that which is plain needs no
interpretation.'" Barnett v. D.L. Bromwell, Inc., 6 Va. App.
30, 34, 366 S.E.2d 271, 273 (1988) (quoting Winston v. City of
Richmond, 196 Va. 403, 407-08, 83 S.E.2d 728, 731 (1954)).
"'Non-technical words in statutes are taken to have been used in
their ordinary sense and acceptation.'" Gomes v. City of
Richmond, 220 Va. 449, 452, 258 S.E.2d 582, 584 (1979) (quoting
Board of Supervisors v. Boaz, 176 Va. 126, 130, 10 S.E.2d 498,
499 (1940)).
The term "in public" is an ordinary, everyday expression
with a plain meaning. "In" is "a functional word to indicate
location." Webster's Third New International Dictionary 1139
(1993). Webster's defines "public" as "a place accessible or
visible to all members of the community – usually used in the
phrase in public." Id. at 1836 (emphasis added). Black's Law
Dictionary similarly defines "public" as "a place open or
visible to the public ." Black's Law Dictionary 1242
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(7th ed. 1999) (emphasis added). The plain meaning of "in
public," therefore, is a place in open view, visible to the
community. The legislature clearly evinced a different intent
when it enacted Title 4.1 and provided a specific definition of
the term "public place."
"Where the legislature has used words of a plain and
definite import the courts cannot put upon them a construction
which amounts to holding the legislature did not mean what it
has actually expressed." Dominion Trust Co. v. Kenbridge
Constr., 248 Va. 393, 396, 448 S.E.2d 659, 660 (1994) (citations
omitted). "In public," under Code § 18.2-388, is not limited to
places open to public accessibility, and the plain language of
the statute does not place such a limitation on "in public."
Applying the plain meaning of the term "in public" in the text
of Code § 18.2-388 shows that Crislip, on his front porch in
open view of nearby neighboring homes and the public street, was
in a place visible to the public for purposes of the statute.
Crislip was "in public" and intoxicated.
Our case law and that of other jurisdictions support a
determination that one may be guilty of a public offense while
on one's own premises. In Hackney v. Commonwealth, 186 Va. 888,
45 S.E.2d 241 (1947), the Supreme Court of Virginia held that
where a man, standing on his own porch, uttered loud,
boisterous, vile and abusive language at a passerby, his actions
constituted disorderly conduct committed in public. In Ridley
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v. State, 337 S.E.2d 382 (Ga. Ct. App. 1985), the defendant's
conviction for public intoxication, committed by being drunk in
his front yard, was upheld by the Court of Appeals of Georgia.
That court held that "it is clear that one's premises are not
necessarily circumscribed from inclusion . . . [o]nly areas of
privacy are excluded." 3 Id. at 383. See also City of Fairborn
v. Semler, 629 N.E.2d 481 (Ohio Ct. App. 1993) (noting that the
defendant who was just outside his house was in public for
purposes of the locality's disorderly conduct law).
Crislip, who conceded he was intoxicated, was in public for
purposes of the statute. As a law enforcement officer may
arrest without a warrant any person who commits an offense in
his presence under Code § 19.2-81, the arrest of Crislip was
lawful. Accordingly, Crislip was not legally entitled to resist
the arrest, and his actions amounted to assault and battery on
two law enforcement officers, in violation of Code § 18.2-57(C).
Crislip's convictions are affirmed.
Affirmed.
3
The Georgia statute at issue in Ridley, OCGA
§ 16-11-41(a), makes it a crime to "be and appear in an
intoxicated condition in any public place . . . ." A "public
place" is statutorily defined as "any place where the conduct
involved may reasonably be expected to be viewed by people other
than members of the actor's family or household." OCGA
§ 16-1-3(15).
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