Alexander v. Com.

• Decision Date: 12 January 1999
• Docket Number: Record No. 2136-97-3
• Citation: 28 Va. App. 771,508 S.E.2d 912
• Parties: Jon Douglas ALEXANDER v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

508 S.E.2d 912

28 Va. App. 771

Jon Douglas ALEXANDER v. COMMONWEALTH of Virginia.

Record No. 2136-97-3

Court of Appeals of Virginia, Salem.

January 12, 1999.

Robert B. Armstrong for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: COLEMAN, BUMGARDNER and LEMONS, JJ.

LEMONS, Judge.

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.

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 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, 100 N.M. 479, 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 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 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, 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...