State v. Davis, 23337

• Decision Date: 18 December 1996
• Docket Number: No. 23337,23337
• Citation: 199 W.Va. 84,483 S.E.2d 84
• Court: West Virginia Supreme Court
• Parties: , 66 A.L.R.5th 783 STATE of West Virginia, Plaintiff Below, Appellee, v. John R. DAVIS, Defendant Below, Appellant.

Page 84

483 S.E.2d 84

199 W.Va. 84, 66 A.L.R.5th 783

STATE of West Virginia, Plaintiff Below, Appellee, v. John R. DAVIS, Defendant Below, Appellant.

No. 23337.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 18, 1996.

Decided Dec. 18, 1996.

Syllabus by the Court

1. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

2. "A person, upon witnessing a police officer issuing a traffic citation to a third party on the person's property, who asks the officer, without the use of fighting or insulting words or other opprobrious language and without forcible or other illegal hindrance, to leave the premises, does not violate W.Va.Code, 61-5-17 [1931], because that person has not illegally hindered an officer of this State in the lawful exercise of his or her duty. To hold otherwise would create first amendment implications which may violate the person's right to freedom of speech. U.S. Const. Amend. I; W.Va. Const. art. III, § 7." Syllabus, State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 373 S.E.2d 484 (1988).

Joy M. Cavallo, Assistant Attorney General, Charleston, for Appellee.

Mark W. Welsh, Public Defender, Clarksburg, for Appellant.

PER CURIAM.

This is an appeal ¹ by John R. Davis (hereinafter "the Appellant") from a July 10, 1995 order of the Circuit Court of Harrison County denying the Appellants's motion to set aside the verdict or to grant a new trial. The Appellant was found guilty of obstructing a police officer and sentenced to ten days in the Harrison County Correctional Center and eighty hours of community service. He appeals his conviction to this Court, contending that the lower court misapplied West Virginia Code § 61-5-17 (Supp.1996) regarding obstruction and failed to honor the Appellant's rights to free speech and to keep and bear arms. We affirm the decision of the Circuit Court of Harrison County.

I.

On January 1, 1995, Harrison County Deputy Sheriff Greg Knight was dispatched to Chicken Farm Hollow in Reynoldsville, Harrison County, West Virginia, to investigate a disturbance. While en route, Deputy Knight received a second call advising him that the disturbance possibly originated at the Appellant's residence and that shots had been fired. Proceeding directly to the Appellant's residence, Deputy Knight was greeted by the Appellant in an intoxicated condition and was invited into the house. The testimony in the lower court established that both the Appellant and his girlfriend, who also resided in the home, had been drinking at a New Year's Eve Party and were engaged in an argument of some nature. According to the testimony of the officer, when questioned about the shots fired, the Appellant responded that he may or may not have discharged his gun and that if he decided to do so, he would discharge his gun "any f---ing place, any f---ing time he chose." The Appellant also pointed to the gun in the corner of his living room and informed Deputy Knight that it was loaded. When Deputy Knight suggested that he take the gun until the next day, the Appellant became increasingly agitated and informed Deputy Knight that he would have to obtain a warrant to take the gun and asserted his right to keep the gun in his home. Concerned with the possibility of escalating the dangerous situation, Deputy Knight backed out of the residence and called for back-up.

Upon the arrival of Deputy Sheriff John Hawkins, the two officers attempted to convince the Appellant to exit the residence. When he came outside, he was arrested and charged with obstruction and assault on Deputy Knight. After a March 15, 1995, bench trial before Magistrate James Terango, the Appellant was found guilty of both obstruction and assault. Upon the de novo trial before the lower court, the Appellant was found not guilty of assault and guilty of obstruction. The lower court denied the Appellant's motion to set aside the verdict or to grant a new trial, and the Appellant appeals to this Court.

II.

Pursuant to syllabus point four of Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996), "[t]his Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo."

The Appellant's conviction of obstruction is premised upon West Virginia Code § 61-5-17(a), which provides as follows:

Any person who by threats, menaces, acts or otherwise, shall forcibly or illegally hinder, obstruct, or oppose, or attempt to obstruct or oppose, or shall counsel, advise or invite others to hinder, obstruct or oppose any officer in this state (whether civil or military) in the lawful exercise or discharge of his official duty, shall, for every such offense, be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred dollars, and may, in the discretion of the court, be imprisoned not exceeding one year.

We have previously noted that not every act of questioning the authority of a police officer constitutes obstruction. In the syllabus of State ex rel. Wilmoth v. Gustke 179 W.Va. 771, 373 S.E.2d 484 (1988), we explained as follows:

A person, upon witnessing a police officer issuing a traffic citation to a third party on the person's property, who asks the officer, without the use of fighting or insulting words or other opprobrious language and without forcible or other illegal hindrance, to leave the premises, does not violate W.Va.Code, 61-5-17 [1931], because that person has not illegally hindered an officer of this State in the lawful exercise of his or her duty. To hold otherwise would create first amendment implications which may violate the person's right to freedom of speech. U.S. Const. Amend. I; W.Va. Const. art. III, § 7.

179 W.Va. at 771, 373 S.E.2d at 484 (emphasis supplied).

In State v. Johnson, 134 W.Va. 357, 59 S.E.2d 485 (1950), the defendant maintained that his assistance to facilitate a prisoner's escape from the lawful custody of an officer did not constitute obstruction. We concluded that no such restricted meaning should be given to the word "obstruct" as used in the statute and held that the words "forcibly or illegally" as "used in the statute clearly mean any unlawful interference with the officer in the discharge of his official duties, whether or not force be actually present." 134 W.Va. at 360, 59 S.E.2d at 487. " 'To "interfere" is to check or hamper the action of the officer, or to do something which hinders or prevents or tends to prevent the performance of his legal duty; and to "obstruct" signifies direct or indirect opposition or resistance to the lawful discharge of his official duty.' " Id., (quoting State v. Estes, 185 N.C. 752, 755, 117 S.E. 581, 583 (1923)); see generally Wade R. Habeeb, Annotation, What Constitutes Obstructing or Resisting an Officer, In the Absence of Actual Force, 44 A.L.R.3d 1018, §§ 6 and 7 (1972).

The Appellant in the present case maintains that the lower court misapplied the obstruction statute and that the Appellant's verbal threats and menacing behavior did not constitute "obstruction." However, in the opinion of this Court, the threats, language, and menacing demeanor of the Appellant constitute an example of the very activity to which Wet Virginia Code § 61-5-17(a) was directed. A police officer, charged with keeping the peace and diffusing potentially volatile situations, was dispatched to a location from which shots may have been fired. He encountered an intoxicated individual fighting with his live-in girlfriend with a loaded shotgun in the corner. The individual gestured toward the gun, reminded the officer in a threatening manner that it was loaded, and employed language indicative of both his agitated state and his intention to discharge the gun at any time and any place he chose. This is the type of activity specifically proscribed by West Virginia Code § 61-5-17(a). The Appellant utilized verbal threats and behavior which had the effect of hindering the police investigation of shots allegedly fired from the Appellant's residence. ² Our decision in Wilmoth was specifically based upon the reasoning that interference "without the use of fighting or insulting words or other opprobrious language" did not constitute obstruction. 179 W.Va. at 771. syl. pt. 1, 373 S.E.2d at 484, syl. pt. 1. The actions of the Appellant in this matter do constitute fighting, insulting, and other opprobrious language, and the Appellant is therefore not shielded by the rationale of Wilmoth.

The Appellant would also have us believe that he was arrested for obstruction simply because he would not surrender his gun and that his constitutional right to bear arms is therefore implicated. However, the crux of his obstruction charge was his overall demeanor and threatening manner, not simply his refusal to give the gun to the officer. In Harris v. State, 222 Ga.App. 83, 473 S.E.2d 245 (1996), the Court of Appeals of Georgia encountered a situation in which an officer had been dispatched to a trailer park in response to a complaint of loud music....