Guinyard v. Commonwealth, Record No. 1185-06-1 (Va. App. 7/31/2007), Record No. 1185-06-1.
| Decision Date | 31 July 2007 |
| Docket Number | Record No. 1185-06-1. |
| Court | Virginia Court of Appeals |
| Parties | CHRISTOPHER JAMES GUINYARD v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of the City of Hampton, Christopher W. Hutton, Judge.
Deborah Saunders (Kimberly Enderson Hensley, Assistant Public Defender; Office of the Public Defender, on brief), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Chief Judge Felton, Judges Frank and Beales
Christopher James Guinyard (appellant) appeals from his conviction following a bench trial for assault and battery on a law-enforcement officer in violation of Code § 18.2-57(C). The sole issue on appeal is whether a campus police officer employed by a private university located within the Commonwealth fits within Code § 18.2-57(E)'s definition of a "law-enforcement officer." Finding that such an officer does not fit within that definition, we remand to the trial court for sentencing on the lesser-included offense of assault and battery.
The facts relevant to this case are not in dispute. On October 3, 2005, Christopher Jones was employed and on duty as a campus police officer at Hampton University, which is a private university located within the Commonwealth. On that day, Jones encountered appellant, who was standing in the middle of the street talking to a passenger in a vehicle. As Jones, who was driving his police vehicle, "passed the [appellant], [appellant] turned around and he ran up to the vehicle and struck the roof of the [police] car and mirror." Jones then turned around his campus police vehicle in order to investigate further and activated the emergency equipment on his police car. Appellant "charged the car right before [Jones] could open the door and he started striking the car." As soon as Jones opened the door and exited the vehicle, appellant charged him. Jones commanded appellant to stay back and activated his ASP baton. Appellant "put both arms out and ran towards [Jones] in a grabbing and swinging motion." Jones struck appellant with the baton "six to ten times" while still commanding him to stay back. During the struggle, appellant grabbed Jones's wrist and tore off his watch. After Jones radioed for assistance, a woman from the gathering crowd called out to appellant. After his attention turned to the woman in the crowd, appellant tried to walk across the street and up a ditch. By that time, other officers had arrived, and appellant was taken into custody.
During his testimony, Jones stated the following with respect to his training and duties as a Hampton University campus police officer: Jones makes arrests for violations of the city and state codes; he prepares and executes search warrants; he completed his police training at the Hampton Roads Regional Academy of Criminal Justice alongside "local city officers, Hampton, Newport News, Portsmouth, Norfolk State, other universities, Port Police"; he graduated alongside "every other officer that graduated with [him] that worked for the municipality of Hampton" at a swearing-in ceremony administered by the Circuit Court for the City of Hampton; and finally, the Hampton University Police Department is accredited by the Commonwealth of Virginia's Department of Criminal Justice.
Appellant, in his motion to strike, argued that Officer Jones did not qualify as a law-enforcement officer under the definition of Code § 18.2-57(E), noting
[Appellant's] not trying to escape the consequences or criminal liability for what took place that night. We are asking the Court to consider that this does not meet the felony definition here of the standard for assault on a police officer. We would ask the Court to find him guilty of assault and battery, a Class 1 misdemeanor.
The trial court overruled appellant's motion to strike and found him guilty of assault and battery on a law-enforcement officer. The trial judge, however, advised, "Should either counsel find anything otherwise dispositive on the issue under 18.2-57(e), I will certainly listen to it at the time of sentencing." Appellant renewed his argument at sentencing, which the trial court again denied, finding "that the officer who testified in this case and was assaulted in this case was, in fact, in a status that was administered by the Commonwealth." The trial court subsequently sentenced appellant to twelve months incarceration with five months suspended. An appeal to this Court followed.
if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a judge, a law-enforcement officer as defined hereinafter . . . such person is guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months.
Code § 18.2-57(E) defines the term "law-enforcement officer":
"Law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office which is part of or administered by the Commonwealth or any political subdivision thereof, who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of this Commonwealth, and any conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115, and game wardens appointed pursuant to § 29.1-200, and such officer also includes jail officers in local and regional correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities, auxiliary police officers appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733 and auxiliary deputy sheriffs appointed pursuant to § 15.2-1603.
Clearly, by formulating this definition, the General Assembly did not intend that all police officers would be included in the definition of "law-enforcement officer" because if it had, the General Assembly could easily have enacted language that said so.
As we explained in South v. Commonwealth, 47 Va. App. 247, 623 S.E.2d 419 (2005),
If a victim does not fit within one of the listed categories (conservation officers, game wardens, jail officers, deputy sheriffs, and auxiliary officers), the statute does not apply unless the law-enforcement officer is an "employee of a police department or sheriff's office which is part of or administered" by the Commonwealth or local government.
Id. at 251, 623 S.E.2d at 420. When analyzing a statute that lists specific items such as Code § 18.2-57(E), we follow the oft-cited principle of statutory construction that provides, "[T]he mention of a specific item in a statute implies that other omitted items were not intended to be included within the scope of the statute." Smith Mt. Lake Yacht Club, Inc. v. Ramaker, 261 Va. 240, 246, 542 S.E.2d 392, 396 (2001). Because a campus police officer at a private university is not among those specifically mentioned in Code § 18.2-57(E), we hold that the General Assembly apparently did not intend to include private university campus police officers as a specific category within Code § 18.2-57(E).1
Our inquiry, therefore, necessarily turns to whether or not the victim in this case, Officer Jones, "is an `employee of a police department or sheriff's office which is part of or administered' by the Commonwealth or local government." South, 47 Va. App. at 251, 623 S.E.2d at 420 (quoting Code § 18.2-57(E)). Because Hampton University is a private university it is, accordingly, not "part of" the Commonwealth "or any political subdivision thereof." Code § 18.2-57(E). The Commonwealth points out that the trial court based its ruling on a finding that Officer Jones was "in a status that was administered by the Commonwealth," and, in so doing, "the trial court relied on Virginia Code § 23-232.1 and § 23-234, which establish procedures for the establishment of campus police departments for private institutions of higher education." (Emphasis added.)2
The Attorney General argues that once a campus police department at a private institution has met the training requirements of Code § 23-232.1, that department is then "administered by the Commonwealth." Code §...
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