Cary v. Commonwealth, Record No. 2068-14-1

• Citation: Record No. 2068-14-1
• Case Date: October 20, 2015
• Court: Court of Appeals of Virginia

JOSIAH A. CARY
v.
COMMONWEALTH OF VIRGINIA

Record No. 2068-14-1

COURT OF APPEALS OF VIRGINIA

OCTOBER 20, 2015

UNPUBLISHED

Present: Judges Beales, Chafin and O'Brien
Argued at Norfolk, Virginia

MEMORANDUM OPINION^* BY JUDGE MARY GRACE O'BRIEN

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Mary Jane Hall, Judge

(Lenita J. Ellis, on brief), for appellant. Appellant submitting on brief.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Josiah A. Cary was convicted in a bench trial for disorderly conduct, in violation of Code § 18.2-415, and walking on a roadway, in violation of Norfolk City Ordinance § 25-630. He alleges the following error:

The trial court committed reversible error and/or abused its discretion by refusing to strike the evidence of the disorderly conduct (18.2-415) charge at the close of the Commonwealth's evidence and again at the close of all the evidence because defendant's behavior amounted to obstruction of justice (18.2-460), not disorderly conduct and should have been dismissed pursuant to the other-crimes proviso language in Code of Virginia section 18.2-415; the other-crimes proviso provides that disorderly conduct (18.2-415) is not the appropriate charge if there is another statute in the criminal code that a person may be charged with, which was obstruction of justice (18.2-460) in this case.

Finding no error, we affirm the trial court's ruling.

Page 2

I. BACKGROUND

"'Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.'" Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). "'We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.'" Id. (quoting Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004)).

At approximately 1:00 a.m. on May 15, 2014, Officer Casi Howard was on patrol when she saw Josiah Cary ("appellant") walking along a roadway by himself. She testified that appellant was shouting so loudly that the people in a nearby gas station parking lot were looking in his direction. Officer Howard attempted to stop him, but he crossed the street without using the crosswalk that was within fifty feet of him. As Officer Howard approached appellant, he attempted to cross the roadway again, but he could not get through the bushes in a median.

By then, Officer Howard had reached appellant, who turned and faced her. The officer asked appellant his name. He refused to answer and exclaimed, "I know my constitutional rights and I don't have to tell you my name." Officer Howard explained that she needed his name and identification, and she asked him why he was shouting. Appellant continued to be uncooperative and refused to answer any questions. The officer then arrested him for disorderly conduct in violation of Code § 18.2-415 and issued a summons for walking in a roadway.

At the conclusion of the Commonwealth's case, appellant made a motion to strike and argued that the conduct in question amounted to obstruction of justice, not disorderly conduct. The court denied the motion. Appellant rested without presenting any evidence and renewed his

Page 3

motion to strike. The court found him guilty of disorderly conduct and walking in a roadway. Appellant challenged the disorderly conduct conviction.

II. ANALYSIS A. Standard of Review

Appellant argues that he was improperly convicted of the crime of disorderly conduct because his actions constituted the crime of obstruction of justice, in violation of Code § 18.2-460. His assignment of error requires an examination of the sufficiency of the evidence presented at trial. When considering the sufficiency of evidence on appeal in a criminal case, we view the evidence in the light most favorable to the Commonwealth, the prevailing party at trial, and grant to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On review, this Court does not substitute its own judgment for that of the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992). The...