Brown v. City of Danville, Record No. 2810-03-3.

• Decision Date: 21 December 2004
• Docket Number: Record No. 2810-03-3.
• Parties: Deshawn Runta BROWN v. CITY OF DANVILLE.
• Court: Virginia Court of Appeals

606 S.E.2d 523

44 Va. App. 586

Deshawn Runta BROWN v. CITY OF DANVILLE.

Record No. 2810-03-3.

Court of Appeals of Virginia, Salem.

December 21, 2004.

John P. Light, Danville (Williams, Morrison, Light and Moreau, on brief), for appellant.

James C. Martin, Assistant Commonwealth's Attorney (William H. Fuller, III, Commonwealth's Attorney, on brief), for appellee.

Present: HUMPHREYS, FELTON and McCLANAHAN, JJ.

HUMPHREYS, J.

Appellant Deshawn Runta Brown appeals his conviction, following a bench trial, for obstruction of justice, in violation of § 23-1 of the Code of the City of Danville. Brown argues that the trial court erred in convicting him for obstructing justice, contending that the evidence was insufficient to support his conviction, that the trial court improperly considered evidence that should have been suppressed, and that his actions constituted a lawful attempt to resist an illegal arrest. Brown also argues that the trial court erred during the sentencing hearing because the trial judge took into consideration the fact that he had granted Brown's motion to suppress and dismissed the related drug charge. For the reasons that follow, we hold that the trial court did not err and, therefore, affirm Brown's conviction for obstruction of justice.

I. BACKGROUND

In accord with settled principles, we review the evidence and all reasonable inferences that may be drawn from that evidence in the light most favorable to the City of Danville, the party prevailing below. Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted); Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "`In so doing, we must discard the evidence of the accused in conflict with that of the [City], and regard as true all the credible evidence favorable to the [City] and all fair inferences that may be drawn therefrom.'" Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998) (quoting Cirios v. Commonwealth, 7 Va.App. 292, 295, 373 S.E.2d 164, 165 (1988)).

So viewed, the evidence in this case establishes that, at approximately 7:30 p.m. on March 14, 2001, Officers Charles Reid and Terri Wilson were dispatched to investigate a domestic disturbance in the City of Danville. Both officers were in uniform, and they drove up to the residence in a marked police unit. When the officers arrived at the house, a woman "was exiting the house" and walking toward the officers. At the same time, Brown "was coming up from the back of the yard from the left of the house."

Officer Reid asked the woman "what was going on." However, Brown was "yelling and screaming and pointing at her," and "[e]very time she started to tell [Officer Reid]" anything, Brown would "interrupt[ ] her and wouldn't let her" speak. Officer Reid told Brown to "[c]alm down," and to "let [him] hear her and [then he would] hear [Brown's] side of the story." But "a[s] soon as she started again, [Brown] started yelling and screaming, and [Officer Reid] couldn't get anything out of her, because [Brown] was sitting there yelling and screaming at her." Officer Reid described Brown's demeanor as "irrational," noting that "[h]e wouldn't even acknowledge that I was there half the time."

After "a couple of minutes," Officer Reid told the woman that he was going to try to separate her from Brown. Officer Reid informed Brown that he would hear Brown's side of the story, but that he "was going to pat him down for weapons and separate him by putting him in the back of the vehicle" until he "could find out what was going on with [the woman]." Officer Reid then "tried to get [them] apart from each other," but Brown "was still [ ] looking over top of [Officer Reid], yelling and screaming at her." Officer Reid indicated that he decided to frisk Brown "[b]ecause of [Brown's] demeanor and the way he was acting." Specifically, Officer Reid testified that he "didn't know what [Brown] would do" because Brown "just wasn't paying attention" and was "acting strange." Officer Reid also indicated that, based on Brown's behavior, he was concerned both for the safety of the officers and for the safety of the woman.

Once Officer Reid managed to separate Brown from the woman, Reid again told Brown that he was going to pat him down for weapons. Officer Reid then "[g]ot [Brown] to turn around [and] put his hands on the car," and Officer Reid "stepped around and started to frisk him down." However, before Officer Reid could complete the pat down, Brown took his hands off the car and "shoved his hands down in his pockets." Officer Reid told Brown "to get his hands out of his pockets and put [them] back on the car." Brown complied. But, when Officer Reid again tried to frisk Brown, he "shoved his hands down in his pockets again." Officer Reid told Brown to put his hands back on the car, and he told Brown that if he "[did] it again," he would "arrest [Brown] for impeding." Once Brown had placed his hands back on the car, Officer Reid tried to frisk Brown again. For a third time, Brown "shoved his hands down in his pockets." This time, however, when Officer Reid "got [Brown] to get his hands out" of his pockets, Brown had "something balled up in his right hand." Officer Reid then "grabbed [Brown's] right hand" and told Brown that he was under arrest.

As Officer Reid tried to get Brown's hand "behind his back," the two men "started struggling and went to the ground."¹ As they were struggling on the ground, Officer Reid sprayed Brown with mace, and, when Brown did not seem to be affected, Officer Wilson sprayed Brown with mace for a second time. The officers requested backup during the struggle because they "were wrestling with [Brown] on the ground for quite a while, trying to get him in the handcuffs."

After the officers managed to handcuff Brown, they "went ahead and started searching him." The officers "found some off-white chips in [Brown's] pockets" and placed the chips "on the hood of the car." At that point, Brown slammed his head down onto the hood of the car with enough force to split his own lip, and he then "started licking ... and blowin[g]" the chips. Officer Reid "got [Brown] back off the hood of the car," and the two men "ended up going back down to the ground." Brown was "still kicking around," and Officer Reid "couldn't control him on the ground." At some point during this second struggle, Brown's pants "had fallen ... down to around his knees," so Officer Reid told Officer Wilson to "go ahead and take [them] off of him, since they're all the way down there." Once the backup unit arrived, another officer "had to help [Officer Reid] take [Brown] and put him in the back of a patrol car."

Inside of Brown's pants, the officers found two pieces of paper and three pennies, all of which were coated in an off-white residue. The officers also discovered some loose, off-white solid material. Brown was arrested for "obstruct[ing] or interfer[ing] with [a] law-enforcement officer in the performance of his/her duty," in violation of § 23-1 of the Danville City Code, and for possession of cocaine, in violation of Code § 18.2-250.

Before trial, Brown moved to suppress "any and all evidence seized from his person, and any and all statements obtained from him," contending that, even though the officers had sufficient reasonable suspicion to support an investigative detention, the pat down itself was not justified because the officers did not suspect that Brown possessed any weapons on his person. Brown's counsel, the prosecutor, and the trial court agreed to address the motion to suppress during the trial on the merits, and no separate suppression hearing was held. The trial court reserved ruling on the motion to suppress, but eventually granted the motion at the beginning of Brown's sentencing hearing. The trial court reasoned that, although there "would have been sufficient, reasonable suspicion" to support a pat down, the officer "never came right out and said that he thought he had a reasonable basis for the pat down."²

Brown also moved to strike the obstruction of justice charge, arguing that "the obstruction is nothing but derivative of the Fourth Amendment violation, predicated initially upon no reasonable, articulable basis to conduct a pat down search." The trial court overruled the motion to strike and convicted Brown for obstruction of justice.

At the sentencing hearing, the City requested that Brown receive the maximum sentence of twelve months, citing the fact that Brown had been convicted of various, related offenses on multiple prior occasions. The trial court sentenced Brown to twelve months in jail, with four months suspended, noting that "the Court cannot assume that what was disposed of was, in fact, cocaine, but I think the Court can consider all the circumstances as described by the testimony of the witnesses in the case." This appeal follows.

II. ANALYSIS

Brown raises two issues on appeal. First, Brown contends that, for various reasons, the trial court erred when it convicted him of obstructing justice. Second, Brown argues that, during the sentencing hearing, the trial court improperly considered the fact that it had granted his motion to suppress and dismissed the charge for possession of cocaine. We disagree.

A. The Conviction for Obstruction of Justice

Brown argues that the trial court erred when it convicted him of obstruction of justice, reasoning that: (1) the prosecution's evidence failed to satisfy the requirements of the Danville ordinance; (2) the trial court erred when it considered evidence subject to his motion to suppress to convict him of obstructing justice; and (3) he cannot be convicted of obstruction because he was merely using reasonable force to resist an illegal seizure. We find no merit in any of these contentions.

1. Sufficiency of the Evidence

"When the sufficiency of the evidence in a criminal case is challenged on appeal, we must view the evidence and all reasonable...