Knut Fredriksen, s/k/a Knut E. Fredriksen v. CW ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia
KNUT FREDRIKSEN, S/K/A
KNUT E. FREDRIKSEN
MEMORANDUM OPINION * BY
v. Record No. 0732-98-4 JUDGE CHARLES H. DUFF
JUNE 22, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
John M. Tran (Tobin, O'Connor & Ewing, on
briefs), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Appellant contends that there was insufficient evidence
that he "impeded the police officer in the performance of her
duties." Appellant further argues that the officer had no
authority to arrest him for refusing "to take the summons," that
his arrest was unlawful, that his refusal to take and sign the
summons "after identifying himself does not impede or obstruct a
police officer in the performance of her duties," and that he
had a right to resist the unlawful arrest.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the
evidence proved that Ida Bawaugh, a Code Enforcement Officer for
Arlington County, initiated a complaint against appellant for
violating a county ordinance. After considering Bawaugh's
complaint, a magistrate issued a summons charging appellant with
violating the ordinance.
On July 10, 1997, Officer Rosa Ortiz, while in uniform,
visited appellant's home to serve the summons. Appellant was
standing in his driveway near his truck when Ortiz arrived.
Appellant acknowledged he was the person named on the summons.
After Ortiz "advised [him] she needed to serve the summons on
him . . . [appellant] stated that he did not want it" 1 and
ordered Ortiz off his property. Ortiz repeated "that she had to
serve the summons on him," and appellant repeated, "'I don't
want it'" and he directed Ortiz "to leave it at the front door
or give it to his lawyer." Appellant "again ordered [Ortiz] to
leave his property. At that point, [appellant] picked up a
shovel and two plastic bags and took a step towards Officer
Ortiz." Fearing for her safety, Ortiz grabbed appellant's
1
Quotations are from the statement of facts, there being
no transcript of the evidence in the record.
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"forearms to prevent him from potentially hitting her with a
shovel." Ortiz told appellant "that he was making this into a
big deal and that he does not want to assault a police officer."
Ortiz "advised [appellant] to drop the shovel and informed him
that he would be arrested if he did not accept the summons."
Appellant told Ortiz he did not care and he instructed her to do
what she had to do. "At that point," appellant "pushed forward
with his arms" and Ortiz proceeded to handcuff him. Ortiz
transported appellant to the police station where he was charged
with obstruction of justice.
"At the conclusion of the case," appellant "moved for
acquittal on grounds the officer did not have the right to
require him to sign for the summons or do anything else in
accepting the summons." He argued that he was wrongfully
arrested and, therefore, "acting in reasonable self-defense by
pulling away from the officer." Appellant also contended that
Ortiz "could have" posted the summons on his door.
"A law-enforcement officer may execute within his
jurisdiction a warrant, capias or summons issued anywhere in the
Commonwealth. A warrant or capias shall be executed by the
arrest of the accused, and a summons shall be executed by
delivering a copy to the accused personally." Code § 19.2-76
(emphasis added). "The officer executing a summons shall
endorse the date of execution thereon and make return thereof to
the court to which the summons is returnable." Id.
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Code § 15.2-1704(A) invests local police officers "with all
the power and authority which formerly belonged to the office of
constable at common law" and holds them responsible for, inter
alia, "the preservation of peace and the enforcement of state
and local laws, regulations, and ordinances." Code
§ 15.2-1704(B)(iii) authorizes local police officers to, inter
alia, "execute all warrants or summons as may be placed in his
hands by any magistrate for the locality and to make due return
thereof."
Code § 8.01-296 prescribes the manner of serving process
upon natural persons "[i]n any action at law or in equity or any
other civil proceeding . . . for which no particular mode of
service is prescribed." Under that code section, service must
be effected "[b]y delivering a copy [of the process] in writing
to the party in person." Id. The statute provides for
substituted service "[i]f the party to be served is not found at
his usual place of abode." Id. (emphasis added).
Code § 18.2-460 provides, in pertinent part:
A. If any person without just cause
knowingly obstructs a . . . law-enforcement
officer in the performance of his duties as
such or fails or refuses without just cause
to cease such obstruction when requested to
do so by such . . . law-enforcement officer,
he shall be guilty of a Class 2 misdemeanor.
B. If any person, by threats or force,
knowingly attempts to intimidate or impede a
. . . law-enforcement officer, lawfully
engaged in his duties as such, . . . he
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shall be deemed to be guilty of a Class 1
misdemeanor.
Armed with a valid summons issued by a judicial officer,
Officer Ortiz proceeded to the address listed on the summons.
After finding appellant at that address, Ortiz was required by
statute to personally serve appellant with the summons. The
evidence proved that appellant refused personal service and
assumed an aggressive posture by brandishing a shovel and
pushing away from Ortiz while she tried to protect herself and,
at the same time, have him sign and accept the summons. The
trial court could reasonably find that, by brandishing the
shovel and approaching Ortiz in a threatening manner, appellant
attempted to "intimidate or impede" Ortiz, who was lawfully
engaged in her duties. Appellant's conduct obstructed Ortiz
from performing her duty in violation of Code § 18.2-460(B).
The Commonwealth's evidence was competent, was not inherently
incredible, and was sufficient to prove beyond a reasonable
doubt that appellant was guilty of the charged offense.
Appellant's contention that Ortiz should have posted the summons
is without merit because the Code requires personal service if
the recipient is present. Appellant was present; therefore,
Ortiz was required to personally serve him with the summons.
Despite appellant's contention that Ortiz was not
authorized to arrest appellant for refusing to take the summons,
appellant cited no case law, statute or rule prohibiting an
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arrest for refusing service of process. Our review of
authorities in Virginia likewise disclosed nothing addressing
the issue. Therefore, we look to case law from other
jurisdictions.
In Migliore v. County of Winnebago, 321 N.E.2d 476 (Ill.
Ct. App. 1974), police officers tried to serve a subpoena on
Migliore. Migliore refused to tell the officers if he was the
person listed on the subpoena and ordered them to leave his
property. Certain that the person was Migliore, one of the
officers touched Migliore's "arm with the subpoena, laid it on
the desk, and left the premises." Id. at 478. Later the
officers returned to Migliore's home where they met their
superior, a detective. The detective "explained that they were
there to serve a civil subpoena" on the person named therein,
and, "if he did not tell them who he was, they would arrest him
for obstructing a police officer." Migliore again ordered the
officers to leave the premises, and the police arrested him.
The Illinois Court of Appeals explained:
At the time the officers attempted to serve
the subpoena, they were under a legal duty
to do so. If they failed to obey the
command of the subpoena they could be held
in contempt of court and also held liable
for damages to the aggrieved party.
Id. at 478-79 (noting also that, upon execution, the officer
must complete the return).
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In holding against Migliore, the court made the following
statement:
A citizen also has legal duties: not to
knowingly resist or obstruct a police
officer in the performance of any authorized
act; and not to knowingly resist or obstruct
the authorized service of any civil process.
Courts do not favor those who seek to evade
service of summons. Resistance or
obstruction may be passive as well as
active. A citizen may be found guilty of
resisting or obstructing a police officer in
the performance of his duty merely by
stating that he will not move on when
requested to do so by a police officer.
Id. at 479 (holding that Migliore was under duty to comply with
officer's request) (citations omitted).
Nothing in the statement of facts indicates that, during
the confrontation, Ortiz conveyed to appellant the nature of the
summons or other details as to the upcoming legal action. Thus,
upon locating him at his home, she was required to provide him
with personal notice of the summons including the grounds for
the summons and other details. Before Ortiz could convey to
appellant the necessary information and successfully carry out
her duty, appellant became aggressive, thereby precluding
successful service and a peaceful outcome.
Moreover, despite a citizen's traditional common law right
to resist an unlawful arrest by using reasonable force, see
Foote v. Commonwealth, 11 Va. App. 61, 69, 396 S.E.2d 851, 856
(1990), we need not apply such an analysis because appellant was
not arrested for refusing to accept the summons. Before Ortiz
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initiated any such arrest, appellant brandished a shovel and
approached Ortiz in a threatening manner causing her to fear for
her safety. Therefore, appellant's attempt to intimidate Ortiz
by his aggressive actions preempted Ortiz from carrying out her
verbal threat to arrest appellant and impeded Ortiz, who was
"lawfully engaged in [her] duties." Code § 18.2-460(B).
Because of appellant's conduct preceding any threatened arrest
by Ortiz and his aggressive conduct after the warning, his
arrest was lawful; therefore, appellant had no right to resist
that arrest. He grabbed a shovel, assumed a threatening stance,
and approached Ortiz in a manner that the fact finder obviously
found aggressive. Accordingly, appellant's conviction is
affirmed.
Affirmed.
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