Fox v. Commonwealth, Record No. 0204-09-4 (Va. App. 12/22/2009)

• Decision Date: 22 December 2009
• Docket Number: Record No. 0204-09-4.
• Court: Court of Appeals of Virginia
• Parties: JAVAN FOX v. COMMONWEALTH OF VIRGINIA.

Page 1

JAVAN FOX v. COMMONWEALTH OF VIRGINIA.

Record No. 0204-09-4.

Court of Appeals of Virginia, Teleconference.

December 22, 2009.

Appeal from the Circuit Court of Fairfax County, Randy I. Bellows, Judge.

W. Michael Chick, Jr. (Greenspun, Shapiro, Davis & Leary, on brief), for appellant.

Leah A. Darron, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: Judges Kelsey, Haley and Powell.

MEMORANDUM OPINION^*

JUDGE JAMES W. HALEY, JR.

I.

A jury found Javan Fox ("Fox") guilty of the felony of assault and battery of a law enforcement officer, Metro Transit Police Officer N.T. McKee ("McKee"), in violation of Code § 18.2-57(C). The parties do not dispute that the facts in evidence are sufficient to prove that Fox committed an assault and battery against McKee. Rather, the questions presented concern whether McKee met the legal definition of "law enforcement officer" described in Code § 18.2-57(E). If that definition applies, Fox's assault and battery of McKee is punishable as a felony pursuant to subsection C of the statute. Fox argues that his conviction should be reversed: 1) because the trial court erred in refusing to instruct the jury on the statutory definition of "law enforcement officer"; and 2) because as a matter of law McKee was not a "law enforcement officer" within the meaning of Code § 18.2-57(E). For the reasons that follow, we answer both questions in the negative, and, therefore, we must affirm Fox's conviction.

II. Facts

The evidence was undisputed that on January 9, 2008 Fox fell asleep on a Metro train, missed his stop in Washington, D.C., and emerged from the train at the Metro station in Falls Church, Virginia. When Fox went to the find the station manager, Rosa Morton ("Morton"), it was nearly midnight and the Metro station was closing. Morton told Fox that the last train to Washington had left the station already and that Fox would need to use a bus or taxi instead of the train. According to Morton, she told Fox that she needed to lock up and she asked him to leave. When Fox refused to do so, she called the Metro Transit Police.

When McKee responded to Morton's call, he was in uniform and wore a badge identifying him as a member of the Metro Transit Police. McKee told Fox that no more trains were leaving for Washington that evening, and warned that Fox would be arrested for trespassing if he refused to leave the station. According to McKee, Fox walked with McKee toward the station exit, but then Fox turned around to face McKee, and he told McKee that he was not leaving. McKee testified Fox struck him with his fist.

On cross-examination, defense counsel elicited testimony from McKee that McKee was an employee of Metro Transit Police, based in Washington, D.C., that McKee's paychecks came to him from an office in Washington, D.C., and that McKee did not directly work for the Commonwealth of Virginia, Fairfax County or the City of Falls Church.

At the close of the Commonwealth's evidence, McKee stressed this testimony in his motion to strike the Commonwealth's evidence. He argued that McKee, as an officer of the Metro Transit Police, did not meet the definition of "law enforcement officer" described in Code § 18.2-57(E) because McKee was not an "employee of a police department or sheriff's office which is part of or administered by the Commonwealth or any political subdivision thereof" and that the court should strike the language in the indictment charging Fox with the felony of assault and battery of a law enforcement officer, and instead submit to the jury only the lesser-included misdemeanor offense of assault and battery. The Commonwealth argued that pursuant to the Washington Metropolitan Area Transit Authority Compact ("the WMATA Compact"), Metro Transit Police officers are employees of the Commonwealth for the purposes of the statute. The trial court requested written briefs from the parties, and took Fox's motion under advisement. In a letter opinion, dated November 20, 2008, the trial court eventually denied Fox's motion to strike. At the close of all the evidence, Fox proposed jury Instruction K. Tracking language from Code § 18.2-57(E), Instruction K reads as follows: "A person is a `law enforcement officer' only if he or she is a full-time or part time employee of a police department which is part of or administered by the Commonwealth or any political subdivision thereof." Over Fox's objection, the trial court refused this instruction. The jury convicted Fox of assaulting a law enforcement officer, and this appeal followed.

III. Analysis

A) Did the trial court err in refusing jury Instruction K?

Fox's first assignment of error concerns his proposed jury Instruction K. "A reviewing court's responsibility in reviewing jury instructions is `to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.'" Chibikom v. Commonwealth, 54 Va. App. 422, 425, 680 S.E.2d 295, 296 (2009) (quoting Darnell v Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)). "It is elementary that a jury must be informed as to the essential elements of the offense; a correct statement of the law is one of the `essentials of a fair trial.'" Darnell, 6 Va. App. at 488, 370 S.E.2d at 719 (quoting Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979)). "Instructions are to be read in connection with the evidence to which they are intended to apply." Carroll v. Hutchinson, 172 Va. 43, 52, 200 S.E. 644, 648 (1939). Moreover, the trial court has broad discretion over whether to give or deny proposed jury instructions. See Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc).

But the jury is not responsible for resolving every issue that is disputed by the parties. "It is a fundamental maxim, that the court responds to questions of law, and the jury to questions of fact." McDowell's Ex'r v. Crawford, 52 Va. (11 Gratt.) 377, 402 (1854). "Questions of law are for the court and it is improper to submit such questions to the jury, and an instruction that would submit a question of law to the jury is properly refused." Ronald J. Bacigal & Joseph S. Tate, Virginia Jury Instructions § 2:02, at 7 (2005).

"My opinion is that the jury are no more judges of the law in a capital or other criminal case upon a plea of not guilty, than they are in every civil case tried upon the general issue. In each of these cases their verdict in general is necessarily compounded of law and fact, and includes both. In each they must necessarily determine the law as well as the fact. In each, they have the physical power to disregard the law as laid down to them by the court. But I deny that in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure. On the contrary, it is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law as it is laid down by the court. If I thought that the jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any such trial."

Sims v. Commonwealth, 134 Va. 736, 763, 115 S.E. 382, 391 (1922) (quoting Justice Story's charge to the jury in United States v. Battiste, 24 F. Cas. 1042, 1043 (1835)).

Relying on United States v. Gaudin, 515 U.S. 506 (1995), Fox argues that the trial court's refusal to give jury Instruction K violated his right to have the jury determine his guilt as to every element of the crime charged. In Gaudin, the defendant was convicted of making a materially false statement in a matter within the jurisdiction of a federal agency. Id. at 507. The trial court instructed the jury that: "[t]he issue of materiality . . . is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed that the statements charged in the indictment are material statements." Id. at 508. The United States Supreme Court affirmed the decision of the Ninth Circuit Court of Appeals reversing the defendant's conviction, because it was "uncontested" that the materiality of defendant's statement was an element required for a conviction under 18 U.S.C. § 1001, id. at 509, and, therefore the trial court infringed the defendant's right to "have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged," id. at 522-23.

Gaudin is easily distinguished from Fox's case because Instruction H, the charging instruction, which the trial court granted, instructed Fox's jury that the Commonwealth must prove beyond a reasonable doubt: "(3) That N.T. McKee was engaged in the performance of his public duties as a law-enforcement officer at the time Mr. Fox committed the assault and battery." When the jury receives numerous instructions it must consider the instructions as a whole in light of all the evidence. Walshaw v. Commonwealth, 44 Va. App. 103, 119, 603 S.E.2d 633, 641 (2004). `"Juries are presumed to follow their instructions.'" Green v. Young, 264 Va. 604, 611, 571 S.E.2d 135, 139 (2002) (quoting Zafiro v. United States, 506 U.S. 534, 540 (1993)). Unlike Gaudin, there was no jury instruction in this case purporting to relieve the Commonwealth of its burden of proof with respect to any element of Code § 18.2-57(C). Instead, the jury was instructed that proof that McKee was a police officer engaged in the performance of his public duties was essential for conviction. Thus, the refusal of Instruction K did not permit the jury to convict the defendant without proof of an element of the offense.

Even so, Fox emphasizes that Instruction K remains a correct statement of the law; its language comes directly from the text of Code § 18.2-57(E), and McKee's status as a law enforcement officer within the statute's meaning was a disputed issue in the case. To...